Downing v. State (In re Downing)

• Decision Date: 26 May 2022
• Docket Number: 2021-CA-0698, NO. 2021-CA-0699
• Citation: 341 So.3d 863
• Parties: IN RE: MEDICAL REVIEW COMPLAINT BY Daron DOWNING, Andrus Downing, Andria Downing, and Andre Downing for Melissa Downing (D) Andria Downing, Executrix of the Estate of Melissa Downing (Melissa Downing) on Behalf of the Estate of Melissa Downing, Daron Downing, Andrus Downing, Andria Downing, Andre Downing, and Amaryd Downing v. The State of Louisiana Through the Board of Supervisors Louisiana State University and Agriculture and Mechanical College on Behalf of the LSU Health Services Center (a/k/a University Hospital, University Medical Management Corporation d/b/a Interim LSU Hospital, Charles Spurgeon Clark, Jr., Dr. MD, Willard Warren Mosier, Jr., MD, Jennifer Mooney, MD, Rebecca Warner Schroll, MD, Allen Bland Marr, MD, Samuel E. Victoria, Jr., MD
• Court: Court of Appeal of Louisiana — District of US

341 So.3d 863

IN RE: MEDICAL REVIEW COMPLAINT BY Daron DOWNING, Andrus Downing, Andria Downing, and Andre Downing for Melissa Downing (D)

Andria Downing, Executrix of the Estate of Melissa Downing (Melissa Downing) on Behalf of the Estate of Melissa Downing, Daron Downing, Andrus Downing, Andria Downing, Andre Downing, and Amaryd Downing

v.The State of Louisiana Through the Board of Supervisors Louisiana State University and Agriculture and Mechanical College on Behalf of the LSU Health Services Center (a/k/a University Hospital, University Medical Management Corporation d/b/a Interim LSU Hospital, Charles Spurgeon Clark, Jr., Dr. MD, Willard Warren Mosier, Jr., MD, Jennifer Mooney, MD, Rebecca Warner Schroll, MD, Allen Bland Marr, MD, Samuel E. Victoria, Jr., MD

NO. 2021-CA-0698

NO. 2021-CA-0699

Court of Appeal of Louisiana, Fourth Circuit.

May 26, 2022

Wanda Anderson Davis, SULLIVAN, DUPRÉ AND SOLOUKI, L.L.C., 3838 North Causeway Blvd., Suite 3010, Metairie, LA 70002, COUNSEL FOR PLAINTIFFS/APPELLANTS

C. Wm. Bradley Jr., Richard S. Crisler, Benjamin J. Biller, BRADLEY MURCHISON KELLY & SHEA, LLC, 1100 Poydras Street, Suite 2700, New Orleans, LA 70163-2700, COUNSEL FOR DEFENDANT/APPELLEE

(Court composed of Judge Edwin A. Lombard, Judge Sandra C. Jenkins, Judge Dale N. Atkins )

Judge Dale N. Atkins

This is a medical malpractice action. Daron Downing, Andrus Downing, Andria Downing, Andre Downing, and the Estate of Melissa Downing (hereinafter collectively "Appellants"), appeal the trial court's August 18, 2021 grant of summary judgment in favor of Appellee, University Medical Center Management Corp. d/b/a Interim LSU Hospital (hereinafter "Interim LSU").

Interim LSU supported its motion for summary judgment with the expert report of the Medical Review Panel (hereinafter "MRP"), which found that the record contained no evidence that Interim LSU had deviated from the applicable standard of care. The trial court sustained Interim LSU's objections to the admissibility of the Affidavit of Appellants’ expert; determined that Appellants presented no other expert evidence to contest the motion for summary judgment; and granted summary judgment in favor of Interim LSU.

For the following reasons, we find that the Affidavit of Appellants’ expert was admissible and that the expert's findings created genuine issues of material fact to defeat Interim LSU's motion for summary judgment. Accordingly, we reverse the judgment and remand for further proceedings consistent with this Opinion.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

This medical malpractice claim arises from medical treatment rendered to Melissa Downing (hereinafter "Ms. Downing") on July 13, 2014, at Interim LSU in connection with injuries Ms. Downing sustained following a motor vehicle accident on July 11, 2014. In the accident, Ms. Downing sustained serious injuries, including bilateral rib fractures

, liver lacerations, and a leg laceration.

On July 13, 2014, Ms. Downing's family members, including her daughter, Andria Downing, visited her at the hospital. During the family's visit, Ms. Downing "coded." She suffered an anoxic brain injury

and septic shock. Ms. Downing remained in a comatose state until she died on April 20, 2015. The death certificate listed Ms. Downing's cause of death as respiratory failure, anoxic brain injury, and motor vehicle accident.

Appellants presented allegations of medical malpractice to the MRP against Interim LSU and other health care providers on July 14, 2015. The MRP met on November 25, 2019. As to Interim LSU, the MRP unanimously concluded in a report (hereinafter "MRP report") that "[t]here is nothing in the record presented to indicate that the hospital or its employees deviated from the standard of care."

Appellants filed a Petition for Damages (hereinafter "Petition") on February 24, 2020, naming Interim LSU as a defendant, along with the State of Louisiana and six physicians.¹ The Petition alleged, in part, that on July 13, 2014, Ms. Downing's family members observed that Ms. Downing was disconnected from oxygen for approximately fifteen minutes and left unattended in a bed in the hallway. Further, the Petition contended that the family members’ observations were not documented in the medical records. The Petition also stated that Ms. Downing suffered septic shock

on July 13, 2014, because Interim LSU's physicians failed to properly identify a bowel in the abdominal cavity, resulting in the need for emergency surgery. Appellants alleged that these acts of Interim LSU personnel breached the standard of care and that the breach resulted in Ms. Downing's death.

Interim LSU filed a motion for summary judgment on August 26, 2020, and attached the MRP report in support of its motion. It maintained that the MRP's unanimous finding constituted prima facie evidence that Interim LSU had complied with the applicable standard of care. Additionally, Interim LSU contended that Appellants had not put forth any expert medical testimony to support their claims. Hence, Interim LSU asserted that there was an absence of factual support for an essential element of Appellants’ claims. Interim LSU argued that because Appellants could not meet their evidentiary burden of proof, Interim LSU was entitled to summary judgment as a matter of law.

Subsequent to the filing of the motion for summary judgment, Appellants retained an expert, Dr. David Mayer, and conducted additional discovery. Appellants opposed the motion for summary judgment with an affidavit from Dr. Mayer, his curriculum vitae (hereinafter "CV"), and his preliminary report (hereinafter collectively "the Affidavit"). Appellants also attached as exhibits the depositions of individual defendant physicians, Dr. Willard W. Mosier, Jr.,² and Dr. Jennifer L. Mooney; the depositions of nurses, Rayna Turner, RN, Brenda P. Laws, LPN, Devin Johnson, RN; and an affidavit from Andria Downing. Appellants argued that, at minimum, their medical evidence established that the standard of care was to maintain continuous oxygen on Ms. Downing; that Ms. Downing was removed from oxygen for approximately 15 minutes during her transfer to another room; and that Interim LSU's failure to maintain continuous oxygen caused Ms. Downing to code and suffer an anoxic brain injury

, which ultimately resulted in her death.

In its reply memorandum, Interim LSU cited La. C.C.P. art. 966(D)(2)³ to object to the introduction of Dr. Mayer's Affidavit into evidence. Interim LSU argued that Dr. Mayer's Affidavit did not comport with the requirements of La. C.C.P. art. 967(A) and (B)⁴ in that: (1) Dr. Mayer failed to establish the requisite personal knowledge for his proposed opinion, failed to provide an adequate factual basis for any opinion, and did not identify the medical records he relied on in formulating his opinion, and (2) Dr. Mayer's opinions on causation were entirely conclusory and speculative. As such, Interim LSU asserted that Dr. Mayer's Affidavit should not be considered for purposes of contesting summary judgment.

A contradictory hearing on the motion for summary judgment was held on July 1, 2021. After the hearing commenced and counsel made their appearances on the record, the trial court immediately declared that it agreed with Interim LSU's objections to Dr. Mayer's Affidavit. The trial court reasoned the following:

The Court first must address the objections to plaintiff's exhibits contained in the mover's reply brief. The defendant contends that Dr. Mayer's affidavit, CV and report fail to establish the requisite personal knowledge and adequate factual basis for his proposed opinions. Additionally, the defense argues that Dr. Mayer's opinions on causation are conclusory and speculative, lacking any basis and specific facts, data and scientific evidence. This Court agrees. While it is not disputed that Dr. Mayer may in fact qualify as an expert, the submissions by plaintiff in regards to the doctor's assessment of the alleged breach of duty on behalf of [Interim LSU] are insufficient to meet the requirements of La. C.C.P Articles 966 and 967. Further, the submissions by plaintiff in this matter fails [sic] to demonstrate what medical records Dr. Mayer relied upon to arrive at his conclusions. Given those considerations, the defense's objection to plaintiff's Exhibit 1 is sustained per La. C.C.P. Articles 966 and 967.

Having disposed of the defense's objections, we now look to the substance of the instant motion. The entirety of this dispute hinges on the plaintiff's alleged failure to demonstrate expert evidence establishing the local community standards of care applicable to LSU Interim nurses; that the Interim LSU nurses failed to comply with the standard of care; and number three, that any alleged failure to comply what [sic] that standard of care by the nurses proximately caused Ms. Downing's death.

The Court finds that the record is devoid of expert evidence submitted such that the motion should be denied. Plaintiff's submission and opposition to this motion have not adequately demonstrated to this Court that the genuine issue of material fact exists on either of these points. Accordingly, the motion is hereby granted.

The trial court rendered written judgment on August 18, 2021, in favor of Interim LSU and against Appellants, dismissing all claims with prejudice. Further, the trial court granted summary judgment in accord with La. C.C.P. art. 966(G),⁵ ordering that no evidence could be admitted at trial to establish the fault of Interim LSU, precluding any parties from referencing directly or indirectly any alleged fault on the part of Interim LSU, or submitting to the jury or including on the jury verdict form any fault allegations against Interim LSU. The judgment was designated as a final judgment under La. C.C.P. art. 1915⁶ for the purpose of appeal.⁷

Appellants timely filed a motion for devolutive appeal, and this appeal followed.

DISCUSSION

STANDARD OF REVIEW

Appellate courts review the grant or denial of a...