Janney v. Pearce

• Decision Date: 07 May 2010
• Docket Number: No. 2009 CA 2103.,2009 CA 2103.
• Citation: Janney v. Pearce, 40 So.3d 285 (La. App. 2010)
• Parties: Mae Mason JANNEY, Sandra Mason Chamberlain, Teresia Mason Babin, Diane Mason Thompson, Penny Mason Bryant, Gary Mason, Clifton Mason, Robert Mason and Kerry Mason, Surviving Children of Maggie Lois Mason (Deceased)v.Dr. Katherine PEARCE.
• Court: Court of Appeal of Louisiana — District of US

40 So.3d 285

Mae Mason JANNEY, Sandra Mason Chamberlain, Teresia Mason Babin, Diane Mason Thompson, Penny Mason Bryant, Gary Mason, Clifton Mason, Robert Mason and Kerry Mason, SurvivingChildren of Maggie Lois Mason (Deceased)v.Dr. Katherine PEARCE.

No. 2009 CA 2103.

Court of Appeal of Louisiana First Circuit.

May 7, 2010.

Sumpter B. Davis, III, Baton Rouge, LA, Attorney for Plaintiff-Appellant, Mae Mason Janney, et al.

Douglas K. Williams, Baton Rouge, LA, Attorney for Defendant-Appellee, Dr. Katherine Pearce.

Before CARTER, C.J., GUIDRY, and PETTIGREW, JJ.

PETTIGREW, J.

In this case, plaintiffs, Mae Mason Janney, Sandra Mason Chamberlain, Teresia Mason Babin, Diane Mason Thompson, Penny Mason Bryant, Gary Mason, Clifton Mason, Robert Mason, and Kerry Mason, the surviving children of Maggie Lois Mason, challenge the trial court's judgment granting partial summary judgment in favor of defendant, Dr. Katherine Pearce, and dismissing, with prejudice, their claims for wrongful death.For the reasons that follow, we reverse and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

According to the record, Maggie Lois Mason(hereinafter referred to as “decedent”), fell from her bed and struck her head either during the late night hours of November 20, 2004, or the early morning hours of November 21, 2004.Later that afternoon, she started complaining of severe headaches.Moreover, as indicated in the affidavits of three of her daughters, decedent sustained a black eye from the fall.On November 24, 2004, decedent presented to Dr. Pearce with complaints of left sided facial pain and headaches.Decedent related the story of the fall, but denied any trauma.Dr. Pearce diagnosed decedent with sinusitis, prescribed antibiotics and Darvocet for sinus discomfort, gave decedent an intramuscular shot of DepoMedrol, and instructed decedent to discontinue the use of Coumadin (a drug that thins the blood to prevent clotting) because of concerns about a possible reaction with the antibiotic.

Later that day, decedent was found in her apartment unconscious and completely unresponsive.She was transferred to Our Lady of the Lake Regional Medical Center by ambulance where she was noted to have a black eye.Decedent underwent CT scanning that showed a very large left temporal frontal subdural hematoma with herniation.Decedent died the following morning.The death certificate lists the cause of death as intracranial hemorrhage.

Plaintiffs filed a complaint against Dr. Pearce with the Patients Compensation Fund.On July 25, 2006, a medical review panel unanimously opined that the evidence did not support a finding that Dr. Pearce had failed to meet the applicable standard of care.The panel further found that Dr. Pearce made a reasonable diagnosis based on the symptoms presented by decedent at the time of her visit.Despite the panel's findings, plaintiffs filed a petition alleging both a wrongful death and survival action against Dr. Pearce.Plaintiffs argued Dr. Pearce deviated below the appropriate standards of care in the following non-exclusive ways: (1) failure to conduct a proper and thorough physical examination; (2) failure to order radiological studies; (3) failure to understand and react to the complaints of headache and obvious black eye in a geriatric patient with a recent history of falling; and (4) failure to react to a regimen of Coumadin therapy in light of recent head trauma.

In response to plaintiffs' petition for damages, Dr. Pearce filed the subject motion for partial summary judgment alleging that there were no genuine issues of material fact as to plaintiffs' wrongful death claim against Dr. Pearce and that she was entitled to partial summary judgment as a matter of law.Dr. Pearce argued that plaintiffs' expert would not be able to establish that decedent's death was caused by any action or inaction of Dr. Pearce, and thus, plaintiffs cannot carry their burden of proof at trial.Dr. Pearce maintained that plaintiffs could only provide evidence to the effect that but for any alleged negligence on the part of Dr. Pearce, decedent may have had a better chance of surviving.Attached to her partial motion for summary judgment were the following exhibits: (1) the opinion of the medical review panel; (2)plaintiffs' petition for damages; (3) the deposition of Dr. Jerry W. Bush; (4) the affidavit of one of the members of the medical review panel; and (5) the affidavit of Dr. Pearce.

Plaintiffs filed an opposition to the motion for partial summary judgment, arguing that this was not a matter for summary judgment.Plaintiffs alleged that the issue as to whether decedent suffered a wrongful death because of the negligence of Dr. Pearce or suffered a loss of a chance of survival cannot be determined on a motion for summary judgment.In support of their position, plaintiffs introduced the following exhibits: (1) the curriculum vitae of Dr. Jerry W. Bush; (2) affidavit and deposition of Dr. Jerry W. Bush; (3) the affidavit of Mae Janney, decedent's daughter; (4) the affidavit of Penny Bryant, decedent's daughter; (5) the affidavit of Teresia Babin, decedent's daughter; (5) copies of the emergency room records from Our Lady of the Lake Regional Medical Center; and (6) copies of Dr. Pearce's office notes from decedent's chart.¹

On May 11, 2009, the trial court heard arguments on the motion for partial summary judgment.After considering the applicable law and the evidence in the record, the trial court granted Dr. Pearce's motion for partial summary judgment, dismissing plaintiffs' claims for wrongful death, with prejudice.A judgment in accordance with the trial court's findings was signed on June 12, 2009.It is from this judgment that plaintiffs have appealed, assigning the following specifications of error:²

1.The Trial Court erred in holding a “ wrongful death ” claim is reduced to ... “ a loss of a chance of survival claim ” in a Motion for Summary Judgment.This judgment does not deal with material issues of fact, but, instead, assesses damages in a summary proceeding.

2.The Trial Court erred in holding that the record supports the conclusion that [decedent] had less than a 50% chance of survival had proper medical intervention been made where there is no evidence on the issue of damages.

SUMMARY JUDGMENT

A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine issue of material fact.Gonzales v. Kissner, 2008-2154, p. 4(La.App. 1 Cir.9/11/09), 24 So.3d 214, 217.Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that mover is entitled to judgment as a matter of law.La.Code Civ. P. Art. 966(B).Summary judgment is favored and is designed to secure the just, speedy, and inexpensive determination of every action.La.Code Civ. P. art. 966(A)(2);Aucoin v. Rochel, 2008-1180, p. 5(La.App. 1 Cir.12/23/08), 5 So.3d 197, 200writ denied,2009-0122 (La.3/27/09), 5 So.3d 143.

On a motion for summary judgment, the burden of proof is on the mover.If, however, the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover's burden on the motion does not require that all essential elements of the adverse party's claim, action, or defense be negated.Instead, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense.Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial.If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment.La.Code Civ. P. art. 966(C)(2);Robles v. ExxonMobile, 2002-0854, p. 4(La.App. 1 Cir.3/28/03), 844 So.2d 339, 341.

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.Boudreaux v. Vankerkhove, 2007-2555, p. 5(La.App. 1 Cir.8/11/08), 993 So.2d 725, 729-730.An appellate court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover-appellant is entitled to judgment as a matter of law.Ernest v. Petroleum Service Corp., 2002-2482, p. 3(La.App. 1 Cir.11/19/03), 868 So.2d 96, 97writ denied,2003-3439 (La.2/20/04), 866 So.2d 830.

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.Guardia v. Lakeview Regional Medical Center, 2008-1369, p. 3(La.App. 1 Cir.5/8/09), 13 So.3d 625, 628.A trial court cannot make credibility decisions on a motion for summary judgment.Monterrey Center, LLC v. Ed.ucation Partners, Inc., 2008-0734, p. 10(La.App. 1 Cir.12/23/08), 5 So.3d 225, 232.In deciding a motion for summary judgment, the trial court must assume that all of the witnesses are credible.Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, pp. 16-17(La.2/29/00), 755 So.2d 226, 236.Despite the legislative mandate that summary judgments are now favored, 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, p. 2(La.12/8/00), 775 So.2d 1049, 1050.

In Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27(La.7/5/94), 639 So.2d 730, 751, the Louisiana Supreme Court set forth the following parameters for determining...