97-25 La.App. 5 Cir. 5/28/97, Douglass v. Alton Ochsner Medical Foundation

• Citation: 696 So.2d 136
• Parties: 97-25 La.App. 5 Cir
• Decision Date: 28 May 1997
• Court: Court of Appeal of Louisiana (US)

Page 136

696 So.2d 136

97-25 La.App. 5 Cir. 5/28/97

Steve DOUGLASS, et al. v. ALTON OCHSNER MEDICAL FOUNDATION, et al.

No. 97-CA-25.

Court of Appeal of Louisiana,

Fifth Circuit.

May 28, 1997.

Rehearing Denied July 17, 1997.

Thomas W. Mull, Covington, Carl Duhon, John N. Perkins, Lafayette, for Plaintiffs/Appellants.

Charles L. Chassaignac, Carmelite M. Bertaut, New Orleans, for Defendant/Appellee The American Association of Blood Banks, Inc.

C. William Bradley, Jr., Lawrence J. Hand, Jr., New Orleans, for Defendant/Appellee Terry D. King, M.D.

Before WICKER, CANNELLA and DALEY, JJ. [97-25 La.App. 5 Cir. 3] DALEY, Judge.

Plaintiffs, Steve Douglass, individually and on behalf of his minor child, Annie Marie Douglass and the minor children, Adam Ruben Douglass and Andy Alton Douglass, and Kathy Douglass, brought suit against Alton Ochsner Medical Foundation (hereafter Ochsner), John L. Ochsner, M.D. (hereafter Dr. Ochsner), Terry D. King, M.D. and the American Association of Blood Banks, Inc. (hereafter AABB) alleging that the defendants were negligent in their treatment of Annie Douglass, particularly with regard to the transfusion of blood, which resulted in the child contracting AIDS.

The AABB moved for summary judgment alleging they are a nonprofit organization with no regulatory, licensing or police power over member blood banks and that they owe no duty to individuals as they do not collect, store or transfuse blood. Furthermore, Annie was given blood in January 1983, a time when AIDS was in its infancy and it was unclear how the disease was transmitted.

[97-25 La.App. 5 Cir. 4] In granting the AABB's Motion For Summary Judgment, the trial Judge commented that the AABB was similar to a Bar Association and that they had no duty to the individual public for the negligence of its members.

Dr. King also moved for partial summary judgment alleging that as he was Annie's pediatric cardiologist who referred the child to Dr. Ochsner for surgery, he had no duty to warn plaintiffs of the risks associated with the surgery. Because there is no genuine issue of material fact concerning his treatment of Annie, he contends he has no liability to the plaintiffs. The trial court agreed and concluded that Dr. King was not liable to plaintiffs under a failure to warn theory.

Plaintiffs appeal the judgments rendered in favor of the AABB and Dr. King. For the following reasons, we affirm the grant of summary judgment in favor of Dr. King, reverse the grant of summary judgment in favor of the AABB and remand for further proceedings. Because there is no longer any prejudice to the defendants in allowing plaintiffs to amend their petition, we order that plaintiffs are granted leave to file their First Supplemental and Amending Petition.

On January 24, 1983, Annie Marie Douglass, then three years old, underwent heart surgery at Ochsner Foundation Hospital. The surgery was performed by Dr. John Ochsner to whom Annie was referred by her pediatric cardiologist, Dr. Terry King. Six units of blood or blood products were administered to Annie as a result of the surgical procedure. In February of 1993, at 13 years of age, Annie tested positive for HIV. One of the donors of the six units of blood Annie received has since tested positive for HIV/AIDS.

This suit was filed on December 26, 1995, and plaintiffs asked for an expedited trial date due to the seriousness of Annie's disease. An initial trial date of July 22, 1996, was selected; however, the trial was continued to September 30, 1996, and [97-25 La.App. 5 Cir. 5] Judge Chehardy indicated that this trial date would not be upset. The petition alleged Dr. King breached the standard of care by his failure to warn plaintiffs of the risk of contracting AIDS through blood transfusions and that he failed to timely diagnose Annie as being infected with HIV. Dr. King moved for summary judgment on plaintiffs' allegations that he had a duty to warn them of the risks associated with the pending surgery. Dr. King contends, as a referring physician, he had no duty to warn of the risks associated with surgery as this is left to the surgeon who performs the procedure. See Davis v. St. Charles General Hospital, 598 So.2d 1244 (La.App. 4 Cir.1992). Plaintiffs argue he was more than simply a referring physician and sought discovery from Dr. King to determine what his practice concerning warning of risks of surgery was to other patients. Dr. King objected to the discovery requests. Plaintiffs filed a Motion To Compel Answers and argued the court should not render judgment until the discovery was completed. Notwithstanding the outstanding discovery, the trial court granted Dr. King's Motion For Summary Judgment.

The AABB also moved for summary judgment, arguing they did not owe plaintiffs a duty under Louisiana law and, if they did, plaintiffs cannot establish the remaining elements to prove their cause of action. This argument is based on the fact the AABB has no regulatory powers over member blood banks. Plaintiffs contend the powers of the AABB are much stronger than the AABB would have the court believe.

On appeal, plaintiffs argue the trial court erred in granting both summary judgments.

A Motion for Summary Judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits submitted, if any, show there is no genuine issue of material fact such that [97-25 La.App. 5 Cir. 6] the mover is entitled to judgment as a matter of law. La.C.C.P. art. 966; Vermilion Corp. v. Vaughn, 397 So.2d 490, 493 (La.1981); Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180, 1182. The burden is on the mover to establish that no material fact issues exist. Schroeder v. Board of Supervisors of La. State Univ., 591 So.2d 342, 345 (La.1991). Only when reasonable minds must inevitably conclude that the mover is entitled to judgment as a matter of law on the facts before the court is a summary judgment warranted. Chaisson v. Domingue, 372 So.2d 1225, 1227 (La.1979); Reynolds, supra. Appellate courts review summary judgments de novo under the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Schroeder, 591 So.2d at 345; Reynolds, supra.

The sole purpose of a Motion for Summary Judgment is to determine in advance of trial whether a genuine issue of material fact exists between the litigants. A summary judgment is not a substitute for a trial on the merits. Leonard v. Stephens, 588 So.2d 1300 (La.App. 2d Cir.1991). It is not the function of the trial court on a Motion for Summary Judgment to determine or even inquire into the merits of the issues raised. The weighing of conflicting evidence on a material fact has no place in a summary judgment procedure. A Motion for Summary Judgment is not appropriate for disposition of cases requiring a judicial determination of subjective facts, such as motive, intent, good faith, or knowledge. Watson v. Cook, 427 So.2d 1312 (La.App. 2d Cir.1983).

Concerning the grant of summary judgment in favor of Dr. King, we find no error in the trial court judgment notwithstanding the fact discovery is outstanding. Dr. King is a pediatric cardiologist who referred Annie to Dr. John Ochsner for possible surgical intervention to correct a heart defect. Dr. Ochsner examined Annie [97-25 La.App. 5 Cir. 7] and determined she should undergo surgery. Dr. King was not a surgeon and as a referring physician, had no duty to warn plaintiffs of the risks associated with the surgery. Davis, supra. Plaintiffs' assertions that summary judgment was improper because Dr. King was "far more than a referring physician" is simply conclusory allegations insufficient to defeat summary judgment.

In determining whether the court erred in granting summary judgment in favor of the AABB, a duty/risk analysis is appropriate. In order to find liability, the AABB had to owe a duty to plaintiffs; breach the duty; the breach of the duty was legal cause in fact of the injuries; and plaintiffs sustained damages. Fowler v. Roberts, 556 So.2d 1 (La.1989). To determine whether the AABB owed plaintiffs a duty, we must consider the nature of the potential harm along with the status and power of the organization.

The standard of conduct required of persons in Louisiana in their relationships with one another as a basis of delictual liability is set forth in La.Civ.Code arts. 2315 and 2316.

Article 2315 provides in pertinent part:

Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.

Article 2316 provides:

Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.

Accordingly, under these articles the elements of a cause of action are fault, causation and damage. The conduct of which the plaintiff complains must be a cause-in-fact of the harm. After determining causation, the court must also determine what was the duty imposed on defendant, and whether the risk which caused the accident was within the scope of the duty. A breach of a duty on the part [97-25 La.App. 5 Cir. 8] of the defendant which was imposed to protect against the risk involved makes the offender negligent under the...