Hickman v. State

• Decision Date: 12 April 2017
• Docket Number: 2016 CA 1069
• Citation: 217 So.3d 1240
• Parties: SUCCESSION OF Richard James HICKMAN, Sylvia Smith, as Tutor for Richard James Hickman, Joseph Hickman and Darlene Hickman, and Succession of Monica Lynn Boutte Hickman v. The STATE of Louisiana THROUGH the BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AGRICULTURAL AND MECHANICAL COLLEGE, LSU Health Science Center, LSU Health Care Services Division, and Earl K. Long Medical Center
• Court: Court of Appeal of Louisiana — District of US

217 So.3d 1240

SUCCESSION OF Richard James HICKMAN, Sylvia Smith, as Tutor for Richard James Hickman, Joseph Hickman and Darlene Hickman, and Succession of Monica Lynn Boutte Hickman

v.The STATE of Louisiana THROUGH the BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AGRICULTURAL AND MECHANICAL COLLEGE, LSU Health Science Center, LSU Health Care Services Division, and Earl K. Long Medical Center

2016 CA 1069

Court of Appeal of Louisiana, First Circuit.

April 12, 2017

Frank E. Barber, New Iberia, Louisiana, Attorney for Appellant, Sylvia Smith, duly appointed tutor of Richard James Hickman, Jr., Alcibiade Joseph Hickman, and Darlene Monica Hickman

Jeff Landry, Attorney General, Darius Q. Henderson, Assistant Attorney, General Baton Rouge, Louisiana Attorneys for Appellee, State of Louisiana through the Board of Supervisors of Louisiana State University Agricultural & Mechanical College d/b/a/ Earl K. Long Medical Center

BEFORE: PETTIGREW, McDONALD, AND CALLOWAY¹ , JJ.

CALLOWAY, J.

Plaintiff, Sylvia Smith,² the duly appointed tutor of the minors, Richard James Hickman, Jr., Alcibiade Joseph Hickman, and Darlene Monica Hickman, in the Succession of Monica Lynne Boutte Hickman, appeals a judgment rendered by the trial court granting the summary judgment of defendant, the State of Louisiana, through the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College, d/b/a Earl K. Long Medical Center.³ For the following reasons, we affirm the trial court.

FACTS AND PROCEDURAL HISTORY

Richard James Hickman, Sr. and Monica Lynn Bouttee Hickman, both currently deceased, had the three minor children named above. Suit was filed on behalf of the minors following the death of their mother against the defendant pursuant to the Malpractice Liability for State Services Act, La. R.S. 40:1237.1, et seq.⁴ Monica Hickman was severely injured in a motor vehicle accident in May of 2010, while she was pregnant with twins. She was initially hospitalized at a Lafayette hospital, transferred to a New Orleans hospital, and subsequently transferred to Earl K. Long Medical Center in Baton Rouge on July 30, 2010. On August 25, 2010, Monica Hickman died at Earl K. Long Medical Center.

Following Monica Hickman's death, plaintiffs claimed that a forensic pathologist, who performed her autopsy, and the coroner concluded that she died of a meperidine

overdose while a patient at Earl K. Long Medical Center. A medical review panel convened on December 2, 2014, and issued an opinion that the evidence did not support the conclusion that the defendant failed to meet the appropriate standard of care as charged in the complaint.

Plaintiff filed this medical malpractice suit against defendant on March 2, 2015. The defendant filed a motion for summary judgment on December 16, 2015. After a hearing, the trial court granted defendant's motion for summary judgment and dismissed the plaintiff's suit. It is from this judgment that plaintiff appeals.

ERRORS

Plaintiff claims that the trial court erred in dismissing her suit because there were genuine issues of material fact and that there was not sufficient summary judgment evidence.

SUMMARY JUDGMENT

Louisiana Code of Civil Procedure article 966(B)(2) provides that summary judgment "shall be rendered forthwith" when "there is no genuine issue as to material facts, and that mover is entitled to judgment as a matter of law."⁵ After adequate discovery, a motion for summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, if any, admitted for purposes of the motion, 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. arts. 966(B)(2) & (C)(1) (prior to amendment by 2015 La. Acts, No. 422).⁶ The summary judgment procedure is expressly favored in the law and is designed to secure the just, speedy, and inexpensive determination of non-domestic civil actions. See La. C.C.P. art. 966(A)(2).

The mover bears the burden of proving that he is entitled to summary judgment. However, if the mover will not bear the burden of proof at trial on the subject matter of the motion, he need only demonstrate the absence of factual support for one or more essential elements of his opponent's claim, action, or defense. La. C.C.P. art. 966(C)(2) (prior to amendment by 2015 La. Acts, No. 422).⁷ If the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense, then the nonmoving party must produce factual support sufficient to satisfy his evidentiary burden at trial. La. C.C.P. art. 966(C)(2) (prior to amendment by 2015 La. Acts, No. 422). If the nonmoving party fails to make this requisite showing, there is no genuine issue of material fact, and summary judgment should be granted. See La. C.C.P. art. 966(C)(2) (prior to amendment by 2015 La. Acts, No. 422). If, however, the mover fails in his burden to show an absence of factual support for one or more of the elements of the adverse party's claim, the burden never shifts to the adverse party, and the mover is not entitled to summary judgment. LeBlanc v. Bouchereau Oil Co., Inc., 2008-2064 (La.App. 1 Cir. 5/8/09), 15 So.3d 152, 155, writ denied , 2009-1624 (La. 10/16/09), 19 So.3d 481.

In ruling on a motion for summary judgment, the trial court's role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Hines v. Garrett, 2004-0806 (La. 6/25/04), 876 So.2d 764, 765(per curiam ). Factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent's favor. Willis v. Medders, 2000-2507 (La. 12/8/00), 775 So.2d 1049, 1050 (per curiam ).

In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. East Tangipahoa Development Company, LLC v. Bedico Junction, LLC, 2008-1262 (La.App. 1 Cir. 12/23/08), 5 So.3d 238, 243, writ denied , 2009-0166 (La. 3/27/09), 5 So.3d 146. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to this case. Pumphrey v. Harris, 2012-0405 (La.App. 1 Cir. 11/2/12), 111 So.3d 86, 89.

EVIDENCE PRESENTED/ANALYSIS

In 1975, the Louisiana Legislature originally approved an extensive statutory scheme titled the Medical Malpractice Act. La. R.S. 40:1231.1, et seq. (formerly cited as La. R.S. 40:1299.41 prior to 2015 La. Acts, No. 323, § 1) The act requires that a medical malpractice action against a qualified health care provider be submitted before a medical review panel and the panel must issue an expert opinion on the merits of the complaint. Hutchinson v. Patel, 1993-2156 (La. 5/23/94), 637 So.2d 415, 419.

The defendant in this matter is qualified as a healthcare provider under La. R.S. 40:1237.1(A)(9)(a). The plaintiff filed a complaint seeking review of the medical treatment provided to Monica Hickman by defendant. As such, a medical review panel was convened on December 2, 2014, and an opinion issued. The opinion of the medical review panel was that the defendant "did not deviate from the standard of care which is required of health care providers... [t]he dose amount [of meperidine

] was adjusted accordingly during [Monica Hickman's] post-operative care."

The plaintiff's burden of proof in a medical malpractice claim against the state is defined in La. R.S. 40:1237.1(B)(1) as the standard set forth in La. R.S. 9:2794(A) and requires the plaintiff to prove (1) the applicable standard of care charged to the health care provider; (2) that the health care provider violated the standard of care; and (3) that there was a causal connection between the defendant's actions and the plaintiff's damages. Kirby v. State of Louisiana ex rel. Louisiana State University Bd. of Sup'rs, 2014-0017 (La.App. 1 Cir. 11/7/14), 174 So.3d 1, 8.

A hospital is bound to exercise the requisite amount of care toward a patient that the particular patient's condition may require. It is the hospital's duty to protect the patient from dangers that may result from the patient's physical or mental incapacity as well as from external circumstances peculiarly within the hospital's control. Further, a hospital has a duty to provide and maintain adequate facilities and supplies and a competent staff so as to provide competent care to its patients. Kirby, 174 So.3d at 8. In a medical malpractice action against a hospital, the plaintiff must prove, as in any negligence action, that the defendant owed the plaintiff a duty to protect against the risk involved, that the defendant breached that duty, that the plaintiff suffered an injury, and that the defendant's actions were a substantial cause in fact of the injury. Smith v. State through Dep't of Health & Human Res. Admin., 523 So.2d 815, 819 (La. 1988). Expert testimony is generally required, except where the negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony. Samaha v. Rau, 2007-1726 (La. 2/26/08), 977 So.2d 880, 884.

The only evidence attached to defendant's motion for summary judgment was an affidavit of Dr. Daniel Bourque, who served as a member of the medical review panel, with the attached opinion and oaths of the medical review panel. The "expert opinion reached by the state medical review panel shall be admissible as evidence in any action subsequently brought by the claimant in a court of law, but such expert opinion shall not be conclusive and either party may call, at his cost, any member of the state medical review panel as a witness." La. R.S. 40:1237.2. The...