Crockerham v. La. Med. Mut. Ins. Co.

• Decision Date: 21 June 2018
• Docket Number: 2017 CA 1590
• Citation: Crockerham v. La. Med. Mut. Ins. Co., 255 So.3d 604 (La. App. 2018)
• Parties: Cherlyn Denise CROCKERHAM v. LOUISIANA MEDICAL MUTUAL INSURANCE COMPANY, Ryan David Dickerson, M.D., Jacob Estes, M.D., and Woman's Hospital Foundation
• Court: Court of Appeal of Louisiana

255 So.3d 604

Cherlyn Denise CROCKERHAM

v.LOUISIANA MEDICAL MUTUAL INSURANCE COMPANY, Ryan David Dickerson, M.D., Jacob Estes, M.D., and Woman's Hospital Foundation

2017 CA 1590

Court of Appeal of Louisiana, First Circuit.

Judgment Rendered: JUNE 21, 2018

Robert W. Hallack, Baton Rouge, Louisiana, Attorney for Plaintiff/Appellant, Cherlyn Denise Crockerham

Randall L. Champagne, William A. Fell, Baton Rouge, Louisiana, Attorneys for Defendant/Appellee, Woman's Hospital Foundation

BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.

PENZATO, J.

Appellant, Cherlyn Denise Crockerham,¹ appeals the trial court's judgment granting summary judgment in favor of Appellee, Woman's Hospital Foundation (Woman's Hospital), and dismissing her claims against Woman's Hospital.For the reasons that follow, we amend the summary judgment and reverse, in part, and affirm, in part, the judgment as amended.

FACTS AND PROCEDURAL HISTORY

On May 8, 2009, Ms. Crockerham underwent a robotic-assisted laparoscopic hysterectomy (robotic procedure) performed by Dr. Ryan Dickerson and Dr. Jacob Estes at Woman's Hospital.Ms. Crockerham claims that as a result of this procedure, she lost bladder function, and in accordance with the Louisiana Medical Malpractice Act,²she submitted her claim to the Medical Review Panel.With regard to Woman's Hospital, the Medical Review Panel determined that the evidence did not support the conclusion that Woman's Hospital failed to comply with the appropriate standard of care.The Medical Review Panel also found that there was a material issue of fact with regard to Woman's Hospital as to whether Dr. Dickerson had the proper credentials to perform the surgery.

Ms. Crockerham filed a lawsuit on October 20, 2011, and named as defendants, Louisiana Medical Mutual Insurance Company, Dr. Dickerson, Dr. Estes, and Woman's Hospital.Ms. Crockerham alleged that Woman's Hospital was negligent in permitting Dr. Dickerson to perform the robotic procedure without the proper credentials and failing to obtain informed consent because Dr. Dickerson did not disclose that he had never operated using the robotic device nor seen it used on a live human being.

After discovery took place, Woman's Hospital filed a motion for summary judgment asserting that Ms. Crockerham had no evidence that Dr. Dickerson was negligently credentialed and that there was no expert testimony that Woman's Hospital had breached the standard of care.Attached to the motion was a memorandum in support with several exhibits: a position paper of Woman's Hospital submitted to the Medical Review panel; a copy of Ms. Crockerham's complaint; the Medical Review Panel opinion and other documents filed with the Medical Review Panel; the petition in this matter; the deposition of Dr. Dickerson; the deposition of Dr. James M. Wheeler, expert for Ms. Crockerham; the deposition of Ms. Crockerham; and the affidavit of Creighton Abadie, the attorney representative on the Medical Review Panel, summarizing the findings of the Medical Review Panel.³

Both parties maintain that by clerk of court notice dated November 30, 2016, the hearing on the motion for summary judgment was originally set for May 8, 2017.Both parties further agree that they then received a second notice from the clerk of court resetting the hearing for March 20, 2017.⁴Counsel for Ms. Crockerham admits he received the second notice, but asserts that he misunderstood it.As a result, Ms. Crockerham filed no opposition to the motion for summary judgment prior to the March 20, 2017 hearing date.On that date, only counsel for Woman's Hospital appeared, and the trial court granted the summary judgment.The trial court signed the judgment in accordance with his oral ruling on the same date, dismissing Ms. Crockerham's lawsuit against Woman's Hospital.

Unaware that the hearing had taken place on March 20, 2017, Ms. Crockerham filed an opposition to the motion for summary judgment on April 27, 2017.The March 20, 2017 judgment was not served on Ms. Crockerham's counsel until August 1, 2017.On August 11, 2017, Ms. Crockerham filed a motion for new trial, which the trial court summarily denied without a hearing on August 16, 2017.In its denial, the trial court stated:

Mover acknowledges that the Dec. 2, 2016 notice moved the hearing from 5/8/17 to 3/20/17.For whatever reason mover did not file an opposition until April 27, 2017 after scheduled hearing.Therefore, by admission the [motion for summary judgment] was not opposed.

Ms. Crockerham filed this appeal from the March 20, 2017 judgment granting the motion for summary judgment and dismissing her claims.She assigns as error that the trial court committed error in failing to find a genuine issue of material fact based on the Medical Review Panel opinion and the deposition of Dr. Wheeler.Ms. Crockerham asserts that even though the motion for summary judgment was unopposed, the exhibits submitted by mover created a genuine issue of material fact.

SUMMARY JUDGMENT

Summary judgment procedure is favored and "is designed to secure the just, speedy, and inexpensive determination of every action .... and shall be construed to accomplish these ends."La.C.C.P. art. 966(A)(2).⁵In reviewing the trial court's decision on a motion for summary judgment, this court applies a de novo standard of review using the same criteria applied by the trial courts to determine whether summary judgment is appropriate.Smith v. Our Lady of the Lake Hospital, Inc., 93-2512(La.7/5/94), 639 So.2d 730, 750.

The initial burden of proof is on the mover.If the mover will not bear the burden of proof at trial, the mover's burden does not require him to negate all essential elements of the adverse party's claim, but only to point out to the court the absence of factual support for one or more of the elements necessary to the adverse party's claim.Thereafter, the burden is on 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.La.C.C.P. art. 966(D)(1).

"After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law."La.C.C.P. art. 966(A)(3).

A fact is material if it potentially ensures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute.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.

Jackson v. City of New Orleans, 2012-2742(La.1/28/14), 144 So.3d 876, 882, cert. de nied

, ––– U.S. ––––, 135 S.Ct. 197, 190 L.Ed.2d 130 .(2014).

As pointed out by Ms. Crockerham, the failure to file an opposition does not automatically require that the motion for summary judgment be granted, as the initial burden of proof is on the mover.La.C.C.P. art. 966(D)(1).In deciding a summary judgment motion, it must first be determined whether the supporting documents presented by the mover are sufficient to resolve all material fact issues.If not, summary judgment must be denied in favor of a trial on the merits.Dimattia v. Jackson Nat. Life Ins. Co., 2004-1936(La. App. 1 Cir.9/23/05), 923 So.2d 126, 129.It is important to note, however, that when a motion for summary judgment is made and properly supported, an adverse party may not rest on the mere allegations or denials of her pleading.La.C.C.P. art. 967(B).Therefore, we must first conduct a de novo review of the evidence submitted with the motion for summary judgment and determine if there were no genuine issues of material fact.

LAW AND DISCUSSION

Ms. Crockerham asserts that the trial court erred in failing to find that the Medical Review Panel opinion and the deposition of her expert, Dr. Wheeler, which was submitted by Woman's Hospital created a genuine issue of material fact.

Negligent Credentialing

Ms. Crockerham has made a claim against Woman's Hospital for negligent credentialing.A plaintiff's claim for negligent credentialing is not entitled to the limitations on liability contained in Louisiana's Medical Malpractice Act, but should proceed in accordance with general tort law.Billeaudeau v. Opelousas Gen. Hosp. Auth., 2016-0846(La.10/19/16), 218 So.3d 513, 527.Louisiana courts have adopted a duty-risk analysis in determining whether to impose liability under general negligence principles.Daniels v. USAgencies Cas. Ins. Co., 2011-1357(La. App. 1 Cir.5/3/12), 92 So.3d 1049, 1055.For liability to attach under a duty-risk analysis, a plaintiff must prove five separate elements: (1)the defendant had a duty to conform her conduct to a specific standard of care (the duty element); (2)the defendant failed to conform her conduct to the appropriate standard of care (the breach of duty element); (3)the defendant's substandard conduct was a cause-in-fact of the plaintiff's injuries (the cause-in-fact element); (4)the defendant's substandard conduct was a legal cause of the plaintiff's injuries (the scope of protection element); and (5) the actual damages (the damage element).Daniels , 92 So.3d at 1055.A negative answer to any of the elements prompts a no-liability determination.Id.

After the motion for summary judgment hearing, Ms. Crockerham filed her opposition to the motion for summary judgment and attached a document which she obtained from Woman's Hospital in response to requests for production of documents entitled "Privileges for Woman's Hospital da Vinci Surgical System."We agree with Woman's Hospital that this court cannot rely on the aforementioned document as it was untimely and appropriately not considered by the trial court.The trial court can consider only those documents filed in...