Penn v. Carepoint Partners La., L.L.C.

• Decision Date: 30 July 2015
• Docket Number: No. 2014 CA 1621.,2014 CA 1621.
• Citation: Penn v. Carepoint Partners La., L.L.C., 181 So.3d 26 (La. App. 2015)
• Parties: Danny PENN v. CAREPOINT PARTNERS OF LOUISIANA, L.L.C. and/or The Infusion Network of Louisiana, Inc. dba CarePoint Partners.
• Court: Court of Appeal of Louisiana — District of US

181 So.3d 26

Danny PENN

v.CAREPOINT PARTNERS OF LOUISIANA, L.L.C. and/or The Infusion Network of Louisiana, Inc. dba CarePoint Partners.

No. 2014 CA 1621.

Court of Appeal of Louisiana, First Circuit.

July 30, 2015.

Patrick R. Jackson, Jeffery F. Speer, Lafayette, LA, for Plaintiff–Appellant, Danny Penn.

Douglas K. Williams, Jordan L. Faircloth, Cullen J. Dupuy, Thomas R. Temple, Jr., Baton Rouge, LA, for Defendant–Appellee, Our Lady of the Lake Regional Medical Center.

Before McCLENDON, HIGGINBOTHAM, and THERIOT, JJ.

HIGGINBOTHAM, J.

In this medical malpractice action, plaintiff, Danny Penn, appeals the district court's grant of a motion to strike and motion for summary judgment in favor of the defendant, Our Lady of the Lake Regional Medical Center ("OLOL").

FACTS AND PROCEDURAL HISTORY

On October 28, 2010, plaintiff consulted Dr. Carl Luikart due to fever and night sweats after a colonoscopy performed on September 30, 2010. Plaintiff was admitted to OLOL on October 29, 2010, and treated for possible Enterococcal Endocarditis. Plaintiff was treated with antibiotics, including Gentamicin, and he was discharged on November 1, 2010. After discharge, CarePoint Partners of Louisiana, L.L.C. ("CarePoint") administered plaintiff's home infusion treatments of Gentamicin.

Plaintiff complained of dizziness, nausea, and symptoms of vertigo from November 17, 2010, through December 3, 2010. Dr. Luikart and CarePoint were notified of plaintiffs complaints, and his Gentamicin was discontinued on December 3, 2010. On December 20, 2010, plaintiff was readmitted to OLOL and observed by Drs. John McLachlan and William Gladney. After his discharge on December 23, 2010, he began treatment with Dr. Moises Arriaga and was diagnosed with Dandy's Syndrome.

In July 2011, plaintiff filed a medical malpractice complaint with the Patient Compensation Fund alleging malpractice and contending that his injuries would not have occurred but for the negligence of Dr. Luikart, OLOL, and CarePoint and that there were "serious deviations in the standards of care relating [to] the prescribing, administering, and monitoring of Gentamicin, which were done by Dr. Luikart as well as [CarePoint], the dispensing pharmacists."

On October 31, 2011, plaintiff filed a petition for damages against CarePoint and/or The Infusion Network of Louisiana, Inc. d/b/a CarePoint to recover damages sustained while he was under its care. In January 2013, a medical review panel found that the evidence did not support the conclusion that Dr. Luikart and OLOL failed to meet the applicable standard of care as charged in plaintiffs complaint. As to OLOL, the panel found no fault with the care rendered by the nurses nor any other employees of the hospital. On April 11, 2013, plaintiff filed a supplemental and amending petition adding as defendants Dr. Luikart and OLOL and alleging that Dr. Luikart was at fault for, among other things, treating plaintiff with an excessive dose of Gentamicin. The supplemental petition further alleged:

The sole and proximate cause of the above-described injuries is the grossly negligent acts and/or inactions of Defendant, OUR LADY OF THE LAKE REGIONAL MEDICAL CENTER, is specifically but not exclusively, averred to be as follows:

1.) Failure of [OLOL], and [its] staff and employees, through its administration, to properly monitor the actions and abilities of its staff and employees;

2.) Failure to have adequate written policy and implemented it, in order to insure coordination of the care of the discharging physician and the primary physician[;]

3.) Failure to closely and timely assess, monitor, implement and evaluate a plan of care for client;

4.) Failure to communicate plan of care, lab results, and planned interventions to physicians;

5.) Failure to ensure patient safety.

According to plaintiff, OLOL was vicariously liable and/or strictly liable for the negligence that occurred during the course and scope of employment of its employees.

On July 29, 2013, OLOL filed a motion for summary judgment, pointing out to the court that there was an absence of factual support for one or more elements essential to plaintiff's claims. Attached to OLOL's motion were the plaintiff's original and supplemental petitions for damages and the medical review panel's opinion.

Plaintiff filed an opposition to OLOL's motion for summary judgment and a supporting memorandum wherein he argued that OLOL, Dr. Luikart, and Dr. Giarusso¹ deviated from the standard of care. Plaintiff included his medical records, excerpts from Dr. Giarusso's deposition, excerpts from Dr. Luikart's deposition, the affidavit of Dr. Hue–Teh Shih, and the affidavit of pharmacist Gary McGarity, to support his contention that OLOL and Dr. Giarusso breached the applicable standard of care.

OLOL filed a reply memorandum to the plaintiff's opposition arguing that plaintiff's allegations of negligence by Dr. Giarusso pertaining to the Gentamicin dosage were not heard before the medical review panel or raised in subsequent pleadings. According to OLOL, plaintiff's patient compensation fund complaint did not raise any issue that Dr. Giarruso negligently prescribed home infusion dosing of Gentamicin contrary to OLOL pharmacy recommendations, and plaintiff failed to properly amend his pleadings to include that allegation. OLOL also argued that Dr. Shih's report should be "struck and excluded" because Dr. Shih, a cardiologist, was not qualified to offer opinions regarding the standard of care for Dr. Giarusso, a hospitalist, and because his report raised no genuine issues of material fact. OLOL further contended that Dr. Shih's report lacked a scientific basis to establish that the discharge order of Dr. Giarruso caused plaintiff's injuries.

A hearing was held on June 23, 2014. At the outset of the hearing, the district court addressed OLOL's motion to strike. OLOL sought to strike plaintiff's opposition to the motion for summary judgment, arguing that it was an improper expansion of the pleadings and went beyond the scope of that presented before the medical review panel, which included only "generic care" by the hospital without mention of Dr. Giarusso. OLOL also complained that Dr. Shih's affidavit was inadequate in that Dr. Shih was not a hospitalist, and he failed to state the standard of care for a hospital internal medicine doctor. The plaintiff argued that the primary issue relative to OLOL was the adjusting of his dosage of Gentamicin. The district court pointed out plaintiff's argument regarding the appropriate dosages raised an entirely new claim and expanded the pleadings beyond that which was presented to the medical review panel. According to the court, plaintiffs argument was related to physician standards, rather than a hospital's standard of care, and he was "expanding the pleadings by making those allegations." For those reasons, the district court struck the arguments raised in plaintiff's opposition to OLOL's motion for summary judgment and excluded the evidence attached to the opposition, specifically allegations of Dr. Giarusso's improper reinstatement of Gentamicin. The court also found that Dr. Shih was "not qualified" and that his opinion was "immaterial." The court struck Dr. Shih's report, noting that it was "irrelevant" and lacked a scientific foundation.

In support of his argument that the motion for summary judgment filed by OLOL should be denied, plaintiff argued that testimony of OLOL employees established that the incorrect discharge prescription was used. According to the district court, the issue was whether the hospital breached its duty, not whether a physician breached his duty by changing the plaintiff's medication. Plaintiff responded that Dr. Giarusso was an employee of OLOL, and thus, OLOL was vicariously liable for her actions. OLOL responded that the arguments raised by plaintiff's opposition had been stricken, and even if they had not, none of the testimony established that Dr. Giarusso breached the standard of care. Finding that the plaintiff failed to set forth specific facts showing that there was a genuine issue for trial, the district court granted OLOL's motion for summary judgment.

The district court signed a judgment on July 17, 2014, granting OLOL's motion to strike the affidavits of plaintiff's experts and plaintiff's opposition to OLOL's motion for summary judgment to the extent that it alleged liability issues not set forth in the original or amended petitions. The judgment also granted OLOL's motion for summary judgment and dismissed plaintiff's claims against OLOL with prejudice. It is from this judgment that the plaintiff appeals.

DISCUSSION

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. All Crane Rental of Georgia, Inc. v. Vincent, 2010–0116 (La.App. 1st Cir.9/10/10), 47 So.3d 1024, 1027, writ denied, 10–2227 (La.11/19/10), 49 So.3d 387. The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions, together with any affidavits, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. La. Code Civ. P. art. 966(B)(2).

The burden of proof on a motion for summary judgment is on the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion, the movant's burden on the motion does not require him to negate all essential elements of the adverse party's claim, but rather to 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. Thereafter, if the adverse party fails to produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue...