Aziz v. Burnell
| Decision Date | 03 November 2021 |
| Docket Number | 21-187 |
| Parties | Akil AZIZ v. Dr. Michael L. BURNELL, et al. |
| Court | Court of Appeal of Louisiana — District of US |
Valex Amos, Jr., 2014 W. Pinhook Road, Suite 404, Lafayette, LA 70508, (337) 291-9115, COUNSEL FOR PLAINTIFF/APPELLANT: Akil Aziz
Michael W. Adley, Adam P. Gulotta, Judice & Adley, P. O. Drawer 51769, Lafayette, LA 70505-1769, (337) 235-2405, COUNSEL FOR DEFENDANTS/APPELLEES: Dr. Michael L. Burnell Michael L. Burnell, M.D., A Professional Medical Corporation
Court composed of Shannon J. Gremillion, Van H. Kyzar, and Sharon Darville Wilson, Judges.
In this medical malpractice action, the plaintiff, Akil Aziz, appeals from the trial court's grant of summary judgment in favor of the defendant, Dr. Michael L. Burnell, dismissing Mr. Aziz's claims against him, with prejudice. For the reasons herein, we reverse and remand.
The basic facts of this case are not seriously in dispute. Dr. Burnell performed a colonoscopy
on Mr. Aziz on September 23, 2014, after which Mr. Aziz was discharged and instructed to contact him concerning any post-procedure complications. Dr. Burnell practices medicine under the umbrella of a professional medical corporation, Michael L. Burnell, M.D., A Professional Medical Corporation (the Corporation).
The following facts are disputed. Mr. Aziz alleged that he began experiencing abdominal pain on September 24, 2014, and, in accordance with his discharge instructions, he contacted Dr. Burnell's office. He alleged that although Dr. Burnell's nurse said she would relay the message to him, Dr. Burnell never returned his call. Mr. Aziz alleged that he placed a second call to Dr. Burnell's office on September 25, 2014, with the same result. He alleged that he presented to the Lafayette General Medical Center Emergency Room on September 26, 2014, with complaints of worsening abdominal pain, after which testing revealed he had suffered a perforated colon
. As a result, he alleged that he underwent emergency corrective surgery and extended hospitalization, which led to his permanent use of a colostomy bag.
On September 17, 2015, Mr. Aziz requested that his medical malpractice claim against Dr. Burnell be reviewed by a medical review panel. On July 25, 2018, the medical review panel rendered an opinion finding a non-harmful breach of the standard of care on the physical-examination issue and no breach on the informed-consent issue. However, the medical review panel found that
Mr. Aziz filed the instant petition on October 22, 2018, alleging malpractice on the part of Dr. Burnell, individually, and as a "self-employed physician ... liable for the actions of [his] employees, physicians, residents, nurses, medical and related staff under the doctrine of Respondeat Superior LA. C.C. Art 2320 ."1 Although Mr. Aziz's petition alleged five instances of negligence by Dr. Burnell, four of his allegations were dismissed pursuant to a September 13, 2019 consent judgment after he failed to oppose Dr. Burnell's motion for partial summary judgment. Thus, the sole remaining allegation of negligence pertained to Dr. Burnell's failure to communicate with Mr. Aziz following his colonoscopy
:
Mr. Aziz placed multiple calls to Dr. Burnell's office in order to notify him of persistent abdominal pain; Mr. Aziz did not receive any return calls from Dr. Burnell's office. Mr. Aziz subsequently sought delayed medical attention at the Lafayette General Medical Center Emergency Room. If Dr. Burnell had known of Mr. Aziz's abdominal pain at the time of the initial phone call, immediate medical intervention would have been implemented. In all likelihood, Mr. Aziz would have avoided major abdominal surgery (colectomy
), post-surgical respiratory failure, and permanent colostomy.
On May 14, 2020, Dr. Burnell moved for a second partial summary judgment, regarding his alleged vicarious liability. He argued that he was not liable to Mr. Aziz via respondeat superior because the medical staff was employed not by him, but rather by the Corporation. Following a hearing, the trial court orally granted judgment in favor of Dr. Burnell. It further allowed Mr. Aziz to amend his petition to add the Corporation as a defendant. A written judgment was rendered on July 21, 2020, dismissing Mr. Aziz's respondeat superior claim with prejudice. Mr. Aziz sought and was denied writs on this issue from both this court and the supreme court. Aziz v. Burnell , 20-428 (La.App. 3 Cir. 11/2/20) (unpublished writ), writ denied , 20-1382 (La. 12/5/20), 307 So.3d 199.
Dr. Burnell subsequently moved for summary judgment on the issue of his personal liability, which Mr. Aziz opposed. Following a hearing, the trial court2 granted summary judgment in favor of Dr. Burnell. A written judgment was rendered in this matter on January 15, 2021. Mr. Aziz has perfected the instant appeal from this judgment.
On appeal, Mr. Aziz assigns two assignments of error:
Summary judgment is a procedural device properly used when there is no genuine issue of material fact. Murphy v. Savannah , 18-991 (La. 5/8/19), 282 So.3d 1034; La.Code Civ.P. art. 966. Appellate courts review summary judgments de novo using the same criteria that governs the trial court's determination of whether summary judgment is appropriate, i.e., whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Wright v. La. Power & Light , 06-1181 (La. 3/9/07), 951 So.2d 1058 ; La.Code Civ.P. art. 966(A)(3).
A material fact is one that "potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute." Hines v. Garrett , 04-806, p. 1 (La. 6/25/04), 876 So.2d 764, 765 (per curiam). "A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate." Smitko v. Gulf S. Shrimp, Inc. , 11-2566, p. 8 (La. 7/2/12), 94 So.3d 750, 755.
The mover bears the burden of proof for the motion. La.Code Civ.P. art. 966(D)(1). However, if the mover will not bear the burden of proof at trial, then he need only point out to the trial court "the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense." Id. Once this occurs, the burden shifts to "the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law." Id.
In order to establish a medical malpractice claim, a plaintiff must prove by a preponderance of the evidence: (1) the standard of care appliable to the medical provider; (2) that the medical provider breached the standard of care; and (3) a causal connection between the breach and the resulting injury. La.R.S. 9:2794(A). The standard of care is that "degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians ... licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances[.]" La.R.S. 9:2794(A)(1). The standard of care for a physician practicing in a particular specialty is that degree of care ordinarily practiced by physicians within that specialty. Id. Expert medical testimony is required to establish the applicable standard of care " ‘unless the negligence complained of is so obvious that a layperson can infer the negligence without the aid of expert testimony.’ " Dehart v. Jones , 19-789, p. 6 (La.App. 3 Cir. 12/16/20), 310 So.3d 658, 665-66 (quoting Baez v. Hosp. Serv. Dist. No. 3 of Allen Parish , 16-951, pp. 5-6 (La.App. 3 Cir. 4/5/17), 216 So.3d 98, 103 ).
At the outset, Dr. Burnell argues that the affidavit of Mr. Aziz's medical expert, Dr. Todd Eisner, a Palm Beach, Florida physician, should be disregarded as it fails to establish that he is qualified "as an expert by knowledge, skill, experience, training, or education" to testify regarding the standard of care applicable in this matter. La.Code Evid. art. 702(A). Dr. Burnell argues that Dr. Eisner failed to identify his medical specialty, to attach a copy of his curriculum vitae to his affidavit, and to identify his background and training. He further argues that Dr. Eisner's affidavit is based on an incorrect assumption rather than on actual facts.
However, we need not address this issue as Dr. Burnell failed to object to Dr. Eisner's affidavit in accordance with La.Code Civ.P. art. 966(D)(2). Louisiana Code of Civil Procedure Article 966(D)(2), provides, "The court may consider only those documents filed in support of or in opposition to the motion for summary judgment and shall consider any documents to which no objection is made." It further provides, "Any objection to a document shall be raised in a timely filed opposition or reply memorandum." Id.
This issue was recently addressed in Thomas v. Dalal , 20-65, pp. 8-10 (La.App. 3 Cir. 10/28/20), 306 So.3d 507, 512-13 (alterations in original):
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Aziz v. Burnell
...AND PROCEDURAL HISTORYThe facts of this matter were set forth in more detail in the companion case of Aziz v. Burnell , 21-187 (La.App. 3 Cir. 11/3/21), 329 So.3d 963. However, with regard to this appeal, the following facts are pertinent. Mr. Aziz initially filed a medical malpractice acti......
- Aziz v. Burnell