Evelyn Schilling, Lawrence Conleay, Ronald Conleay, Nelda Carrol and Betty Verret VS Grace Health and Rehabilitation
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2007 CA 0424 EVELYN SCHILLING LAWRENCE CONLEA Y RONALD CONLEAY NELDA CARROL AND BETTY VERRET t 01 VERSUS GRACE HEALTH AND REHABILITATION cJ Judgment Rendered On Appeal November 2 2007 from the 20th Judicial District Court In and for the Parish of East Feliciana State of Louisiana Trial Comi No 37202 Honorable Donovan J O Pry Lafayette LA and Erik M Tadda Baton Rouge Rouge H Ware Jr Judge Presiding Attorneys for Plaintiffs Appellants Evelyn Schilling Lawrence Conleay Ronald Conleay Nelda CalTol and Betty VelTet LA Rene J Pfefferle Baton II George LA BEFORE Attorney for Defendant Appellee Grace Health Rehabilitation Center CARTER C J PETTIGREW AND WELCH n CARTER C J Plaintiffs Nelda Sue CaITol granting Lawrence Evelyn Schilling summary and Verret Betty judgment and appeal judgment of Conleay the trial comi dismissing their medical malpractice against Grace Health and Rehabilitation reasons a Ronald Conleay Center For the Grace suit following we reverse FACTS AND PROCEDURAL HISTORY This suit arises from a hip fracture that the 79 year old plaintiffs mother Bernice Juanita Conleay suffered while home resident at Grace Following complaints of leg pain and notations by nurses of swelling where she Olihopedic Lewis was Conleay that the fracture or complaining found fracture hospital by approximately no Lewis surgery an Dr three weeks old and likely been caused by most ambulance Dr Janet Conleay and performed Ms documentation of Ms medical instituted plaintiffs that Grace treat Ms no a ambulatory nursing Conleay falling Conleay being falling The timely hip was The records from Grace contain dropped the examined Ms further that the fracture had transported to was diagnosed with surgeon opined Ms a non s Conleay malpractice employees dropped s deviation of the standard of noted that the record contained no care by Conleay then failed Ms resulting hip injury 1 to A medical review panel the panel Grace evidence Ms proceedings Specifically Conleay was dropped or During oral argument before this court the parties indicated that plaintiffs to originally filed suit in district court against Grace but the suit was dismissed pursuant Grace s exception raising the objection of prematurity for failure to proceed before a On appeal the pmiies do not dispute that this is a medical medical review panel at trial malpractice claim However we note that the trier of fact will ultimately decide Pendleton Lacoste v whether this case is one in medical malpractice or negligence Methodist Hosp L C L 07 0008 07 0016 La 9 5 07 2 2d So 2 n of complained reasonable Conleay hip pain concluding nothing in the record would lead to nurse was suspect to the transferred hip fracture prior a wheelchair the so that he could take her orderly threatened that Grace s Ms employees refused went noticed her pain contusions pain and failing to record Ms answered the elements of their medical evidence of any fall or care Conleay evidence review by Grace panel opposed panel members that Grace deviated from the Plaintiffs In Plaintiffs claim allege Ms complaints of judgment Grace proof there argued at Grace and there on essential was no was no breach support thereof Grace submitted the as who well as the affidavit of attested that after plaintiffs one of the reviewing did not the establish applicable standard of care as s motion for summary judgment to whether Conleay and whether Grace failed fracture Plaintiffs for summary their burden of members found that Grace issues of material fact exist authorities negligently dropping then moved malpractice dropped Conleay and visited Ms s a complaints of pain dropping incident panel he and the s not carry decision of the medical review medical plaintiffs to proper to allege that reveal that she had been including Grace orderlies s transfer her from her bed large hematoma a petition contending plaintiffs could of the standard of of Grace report the injury ignoring Ms Conleay to Grace one report the incident and negligence by Conleay failure Ms day before dinner Plaintiffs further untreated until injury acts of to to to not to Conleay and that the multiple alleging that Conleay while attempting Ms the hospital Plaintiffs then instituted suit dropped to a to a Grace report and supported their position with 3 arguing that employee dropped treat Ms Conleay s Ms hip various medical records and excerpts of Dr Lewis fracture likely was two to four weeks caused looking at by the a After at the time of diagnosis that it a fracture would be obvious they consistently testified who indicated she mother testified that in response she had been in which she testified that the most was to her leg Finally plaintiffs submitted excerpts of two of their to their they spoke old fall and that such in which depositions deposition testimony s dropped to their questions that after the was surgery They scared hip fmiher and had been threatened not to reveal what reviewing all of the evidence before it the trial motion for summary judgment In oral reasons own Conleay acknowledged Ms by that happened court the granted the trial judge stated I t does not appear to me that at trial you re going to be able to if it did in fact prove that it s more probable than not that happen that it happened at Grace or that it happened through the negligence of someone at Grace And Dr Lewis can only say that there is an injury and in her opinion that it was probably caused by some type of trauma Plaintiffs now appeal DISCUSSION Summary judgments comi appellate are using the reviewed appeal on criteria that same govelTI judgment when there is Louisiana 13 7 Inc 07 no v is procedural device used genuine issue of material Louisiana Ins answers any affidavits material fact and that Guar Ass to avoid fact n mover to show that there is is entitled 4 to judgment as a court s A motion for a full scale trial App 1 Cir granted if the La and admissions no the Southern Silica of 06 2023 intenogatories with the trial The motion should be So 2d pleadings depositions together with a novo appropriate determination of whether summary judgment is summary de genuine matter on issue of law file as to LSA C C P In 966B art determining whether must Any doubt be resolved merits Haydel 934 So 2d 726 as comi elements s to essential do applicable proof so the to plaintiffs Co not required person can amputating trial on the However moving party bear the burden of to claim s in the a La by pointing action one or 1 App negligence the wrong more defense or to So 2d at malpractice suit must negligence and is required a Cir the to meet care establish the and a causal patient s injuries this burden of proof motion for summary judgment that Boudreaux 11 3 06 950 v Mid Continent So 2d 839 948 So 2d 171 However 844 i e fracturing appendage dropping 5 a a bone knife writ expert testimony is in limited instances of obvious carelessness in which infer out genuine issue of material fact LSA no violation of that standard of medical La 1 26 07 at trial satisfy its evidentiary burden of proof at trial medical a proof on factual support sufficient produce expert opinion evidence 05 2453 denied 06 2775 not party when the defendant has filed with the Southern Silica of Louisiana Inc standard of care suppOlied Cas on must Generally expeli medical testimony is is adverse shows that there is connection between especially a 1 Cir 3 24 06 App La absence of factual support for an nonmoving party C C P art 966C 2 The and in favor of 05 0701 Co or material issue of fact a burden of proof on the motion is satisfied establish that it will be able failure dispute regarding moving pmiy will that there is Thereafter the comis cannot genuine 728 moving pmiy the a State Farm Ins v issues for which the to to against granting the motion The initial burden of the issue is credibility determinations evaluate testimony consider the merits make weigh evidence an a lay during examination scalpel or acid on a patient leaving when the circumstances Pfiffner failure sponge in a So 2d 1228 body s person a patient serious consequences of this demonstrate the La 94 17 10 643 1233 1234 Conleay alleged and 2 two causes failure to treat Ms of action based Conleay s the affidavit of Plaintiffs COlTectness countered with medical records various portions of as well as Dr dropping suppOlied Grace and panel opinion panel members attesting of the one 1 on injury its motion for summary judgment with the medical review testimony attend to failing or Correa 94 0924 94 0963 94 0992 v Plaintiffs have Ms a Lewis portions opinion the to s deposition s of two of the plaintiffs deposition testimony After we reviewing all of the evidence contained find that The action creates a genuine issues of material fact exist testimony of Dr Lewis genuine issue of fact Grace Moreover Dr Lewis creates a genuine Conleay timely for the court to reviewing In s as together to in the record before regarding both with that of the two whether Ms Conleay was causes us of plaintiffs dropped at testimony together with the medical records issue of fact to as whether Grace failed reaching this decision weigh credibility or we are mindful that it is See Haydel Ms improper consider the merits of the judgment the motion for summary to treat case in 934 So 2d at 728 Grace argues that it is entitled to summary judgment because have not from produced expert testimony that will preclude plaintiffs medical meeting their burden of proof proceedings plaintiffs and based failure to on at the record produce expert plaintiffs trial as it stands before medical 6 However at this testimony us stage of the we find that in addition to that of Dr Lewis does not entitle Grace to summary judgment not Ms in always required Conleay dropped conduct medical as non certainly 2 as any expert present in this review novo case Herein left untreated was Ms can plaintiffs allege Conleay find that s plaintiffs treating genuine and that summary judgment was If plaintiffs prove perceive negligence Moreover can we case ambulatory nursing home resident lay jury a testimony of Dr Lewis After de malpractice resulting injury at trial well medical elderly an and that the those facts a Expert testimony is in that have offered the surgeon issues of material fact was are improperly granted CONCLUSION The trial court fmiher proceedings s 3 judgment is reversed and the matter is remanded for Costs of appeal are assessed to Grace Health and Rehabilitation Center REVERSED AND REMANDED 2 However rule out the stage ofthe 3 we base our possibility that proceedings conclusion only medical expert on the record testimony presented herein and do not may become necessary at a later question plaintiffs right to assert their claims However Grace did not raise the issue during proceedings before the trial comi or on now appeal During oral argument plaintiffs counsel indicated that Ms Conleay is deceased and the plaintiffs are her heirs Counsel for Grace stated they do not object to ofaction plaintiffs right of action at this time We do not raise the exception of no right here but note that there is a question in this regard so that it may be addressed on Based on the record before us we remand 7
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