Gonzales v. Ochsner Clinic Found.
| Decision Date | 14 May 2015 |
| Docket Number | NO. 14-CA-873,14-CA-873 |
| Parties | STEVEN AND NANCY GONZALES v. OCHSNER CLINIC FOUNDATION |
| Court | Court of Appeal of Louisiana — District of US |
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 669-909, DIVISION "G"
HONORABLE ROBERT A. PITRE, JR., JUDGE PRESIDING
FREDERICKA HOMBERG WICKER JUDGE
Panel composed of Judges Fredericka Homberg Wicker Jude G. Gravois, and Robert M. Murphy
ATTORNEY AT LAW
1804 Barataria Boulevard
Suite A
Marrero, Louisiana 70072
COUNSEL FOR PLAINTIFF/APPELLANT
And
HARRY E. FORST
ATTORNEY AT LAW
639 Loyola Avenue
Suite 1830
New Orleans, Louisiana 70113
COUNSEL FOR PLAINTIFF/APPELLANT
DAVID M. STEIN
DON S. MCKINNEY
ATTORNEYS AT LAW
701 Poydras Street
One Shell Square, Suite 4500
New Orleans, Louisiana 70139
COUNSEL FOR DEFENDANT/APPELLEE
AFFIRMED
This is a medical malpractice proceeding in which summary judgment was granted in favor of defendant/appellee Ochsner Clinic Foundation. Because plaintiffs/appellants were unable to produce expert testimony showing they can meet their evidentiary burden at trial, we affirm.
On November 7, 2006, Steven Gonzales saw Dr. Elie Lao at an Ochsner Clinic for treatment of his diabetes. At that appointment, he brought to Dr. Lao's attention a red, pimple-sized, hard spot in the crease of his elbow. Dr. Lao diagnosed it to be a cyst. On December 8, 2006, Mr. Gonzales had another appointment with Dr. Lao, during which he showed her the spot again. At thispoint, according to Mr. Gonzales, the spot had grown to the size of a quarter and was interfering with his ability to use his elbow. Dr. Lao again diagnosed it to be a cyst. After that appointment, the lump grew larger, and Mr. Gonzales called Dr. Lao and requested that she remove it.
On December 28, 2006, Dr. Lao performed an in-office procedure to remove the lump. The growth was sent to pathology for analysis and on January 10, 2007, Mr. Gonzales was informed that the growth was Merkel cell carcinoma, a rare and aggressive form of cancer. The tumor was diagnosed as a stage II NO tumor, meaning the primary lesion was greater than two centimeters and there was no distant metastasis. As a result of the diagnosis, Mr. Gonzales was referred to a surgical oncologist and on January 26, 2007, more of the area around the tumor site was removed. Mr. Gonzales also received radiation therapy.
Subsequently, Mr. Gonzales and his wife, Nancy Gonzales, filed a medical review panel claim under the Louisiana Medical Malpractice Act. The medical review panel (MRP) concluded that Dr. Lao deviated from the standard of care in failing to "document the office surgery and description of the lesion," but that "this lack of documentation did not cause a delay in diagnosis or harm to" Mr. Gonzales.
After the MRP proceedings concluded, the Gonzaleses timely filed suit against Ochsner Clinic Foundation, alleging that Ochsner was negligent in failing to diagnose the cancer earlier. Plaintiffs claimed that if the cancer had been diagnosed earlier, Mr. Gonzales would have required less extensive surgery and would have had a better prognosis. Plaintiffs also alleged that Mrs. Gonzales endured great mental anguish and a loss of consortium as a result of witnessing her husband's suffering.
Three years after the filing of the petition, Ochsner filed a motion for summary judgment claiming the Gonzaleses could not prevail at trial because they had not produced the expert testimony necessary to meet the burden of proof in a medical malpractice action. In response, the Gonzaleses produced expert reports from Dr. Lee A. Fischer and Dr. Gerald Liuzza, and Ochsner agreed to continue the summary judgment hearing without date. Dr. Fischer, a board-certified family practitioner, opined that it was a deviation of the standard of care when Dr. Lao failed to document the office surgery and description of the lesion. Dr. Liuzza, a board-certified forensic pathologist, opined that any extra delay in removing the lesion places Mr. Gonzales at greater risk to develop a recurrence of the cancer in the future.
After taking the depositions of Dr. Fischer and Dr. Liuzza, Ochsner revised and re-urged its motion for summary judgment on the grounds that plaintiffs could still not offer expert testimony to meet their burden of proof. The motion for summary judgment was heard and granted on May 22, 2013. This matter is now before us on appeal of that judgment.1
A summary judgment is appropriate when there remains no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. Int'l Ass'n of Heat & Frost Insulators v. Paternostro, 13-1006 (La. App. 5 Cir.05/28/14), 142 So.3d 284, 287-288; Zeringue v. O'Brien Transp., Inc., 05-760 (La. App. 5 Cir. 4/11/06), 931 So.2d 377, 379, writ denied, 06-1107 (La. 9/1/06), 936 So.2d 205. Summary judgments are favored in the law and the rules should be liberally applied. Zeringue, 931 So.2d at 379. The summary judgment procedure shall be construed to accomplish the ends of just, speedy, and inexpensive determination of allowable actions. Id.
Appellate courts review a judgment granting a motion for summary judgment on a de novo basis. Gutierrez v. State Farm Fire & Cas. Ins. Co., 13-341 (La. App. 5 Cir. 10/30/13), 128 So.3d 509, 511. This standard of review requires the appellate court to look at "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits" in making the determination that "there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law." La. C.C.P. art. 966(B).
According to La. C.C.P. art. 966(C), the burden of proof is on the mover to make a prima facie showing that a motion for summary judgment should be granted. However, if the movant will not bear the burden of proof at trial, the movant's burden on the motion does not require the movant to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. After the movant has met this burden, the burden of proof shifts to the adverse party to present evidence to the court demonstrating that there remains a genuine issue of material fact. There is no genuine issue of material fact if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial.Macfadden v. Ochsner Clinic Found., 08-91 (La. App. 5 Cir. 10/28/08), 998 So.2d 161, 164.
In a medical malpractice action, such as the instant case, a plaintiff must prove, by a preponderance of the evidence: (1) the standard of care applicable to the defendant; (2) that the defendant breached that standard of care; and (3) that there was a causal connection between the breach and the resulting injury. La. R.S. 9:2794. Expert testimony is generally required to establish the applicable standard of care and whether or not that standard was breached, except where the negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony. La. R.S. 9:2794; Pfiffner v. Correa, 94-0924, 94-0963, 94-0992 (La. 10/17/94), 643 So.2d 1228. Therefore, unless the case involves some obvious act from which a lay person can infer negligence, such as amputating the wrong limb or leaving a sponge in a patient's body, the absence of expert testimony as to any of the essential elements of the plaintiff's malpractice claim will preclude the imposition of liability. Samaha v. Rau, 07-1726 (La. 2/26/08), 977 So.2d 880; Silvain v. Saer, 09-1103 (La. App. 5 Cir. 10/12/10), 49 So.3d 516.
The Gonzaleses' claims arise from the alleged negligence surrounding the diagnoses of Mr. Gonzales's Merkel cell carcinoma. Seven weeks passed between the time Mr. Gonzales initially brought the growth to Dr. Lao's attention and its eventual removal. Had Dr. Lao made the diagnoses sooner, plaintiffs argue, Mr. Gonzales "would have had a better chance for a less extensive surgery" and "he would have had a better prognosis in the future." Given that this Court reviewsthis case de novo, the ultimate issue is whether summary judgment was appropriate.
This Court uses the same criteria as the trial court in determining whether summary judgment is appropriate: whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Paternostro, 142 So.3d at 288. Summary judgment is appropriate when all the relevant facts are marshalled before the court, the marshalled facts are undisputed, and the only issue is the ultimate conclusion to be drawn from those facts. Id.
Procedurally, the court's first task on a motion for summary judgment is determining whether the moving party's supporting documents—pleadings, depositions, answers to interrogatories, admissions and affidavits—are sufficient to resolve all material factual issues. Hence, the initial burden of proof lies with Ochsner. However, because Ochsner has specifically alleged an absence of support for the Gonzaleses' claims of medical malpractice, La. C.C.P. art 966(C)(2) requires the Gonzaleses to produce factual support sufficient to establish that they would be able to satisfy their evidentiary burden of proof at trial. The claim at issue involves the diagnoses of Merkel cell carcinoma, a rare form of cancer. Given the rarity of this disease and the corresponding standard of care associated with its medical diagnoses, this case clearly does not involve some obvious act from which a lay person can infer negligence. See Pfiffner, supra. Thus, as discussed above, the nature of this case dictates that the Gonzaleses were required to produce expert testimony to establish the evidentiary burden of each element of their medical malpractice claim.
For the first two elements, plaintiffs...
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