Steve L. Jackson and Debbie A. Crawford, individually and on behalf of Ora Jackson Johnson, Deceased VS Dr. Herminio Suazo-Vasquez, M.D.; Nure Donn (LNU); Bio-medical Applications of Louisiana, LLC d/b/a BMA Houma, ("BAM")
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 CA 1377 STEVE L JACKSON AND DEBBIE A CRAWFORD INDIVIDUALLY AND ON BEHALF OF ORA JACKSON JOHNSON DECEASED VERSUS I DR HERMII SUAZO M NURSE DONNA LNU BIO iIO VASQUEZ D MEDICAL APPLICATIONS OF LOUISIANA LLC DB A BMA HOi BMA JMA a j DATEOFJUDGMENT APR 2 6 2013 v ON APPEAL FROM TI THIRTY JUDICIAL DISTRICT COURT IE SECOND NiJMBER 161 PARISH OF TERREBONNE 215 STATE OF LOUISIANA HONORABLE DAVID W ARCENEAUX JUDGE Michael John Lawrence New Orleans Louisiana Erick Y Miyagi M Amedee Cynthia Baton Rouge Louisiana Barry J Boudreaux John D Schoonenberg Counsel for Plaintiffs Appellants Steve L Jackson et al Counsel for Defendant Appellee Medical Bio Applications of Louisiana LLC Counsel for Defendant Appellee Dr Herminio Suazo Vasquez Houma Louisiana BEFORE KiJIIN PETTIGREW AND McDONALD JJ Disposition AFFIRMED I KUI J In this medical malpractice case the plaintiffs Steve L Jackson and Debbie A Crawford appeal a suminary judgment dismissing their claims against defendants Dr Herminio Vasquez Suazo Dr Suazo Applications of Louisiana LLC BMA with prejudice For the and Medical Bio following reasons we affirm FACTUAL AND PROCEDURAL BACKGROUND On November 4 2008 Ora Jackson Johnson a seventy year old female four confined to a wheelchair received her regularly scheduled dialysis treatment at BMA in Houma Louisiana Her blood pressure was extremely elevated but had improved by the end of treatment It was 186 upon completion of her dialysis 84 Under BMA protocol a patient whose blood pressure exceeds 190 is s 110 not permitted to leave the premises Since Ms Johnson blood pressure did not s meet this criteria she was put on the Council on Aging van that provided her with transportation home BMA staff notified Dr Suazo a nephrologist of Ms s Johnson elevated blood pressure After having staff verify her medications he ordered an adjustment in the medication Ms 7ohnson was to take later that day Plaintiffs gave conflicting accounts of what occurred when the van arrived at Ms Johnson home In answer to two different sets of interrogatories propounded s by defendants they stated that Ms Johnson son took her off the van and brought s her inside sat her at a table whereupon she asked one question jerked became responsive non and without a pulse However in the affidavits Mr Johnsods son Mr 7ackson and daughter Ms Crawford filed in opposition to defendants motion far summary judgment they asserted that Ms Johnson was non when responsive the van arrived In any event they called 911 and Ms Johnson was transported to 2 I the hospital by ambulance She died on November 10 2008 without regaining consciousness Subsequently after a medical review panel unanimously found no breach of the applicable standard of care by either Dr Suazo or BMA Mr Jackson and Ms Crawford filed suit individually and on behalf of their mother estate against Dr s Suazo and BMA claiming damages for their mother lost chance of survival and s for her wrongful death After filing responsive pleadings defendants eventually filed a motion for summary judgment Defendants asserted therein that plaintiffs could not meet their burden of proof because they had no admissible expert evidence to establish either that a breach of the applicable standards of care occurred or that medical causation existed between the alleged breaches of care and the damages claimed In support of the motion defendants filed the affidavits of a certified board internist and a board nephrologist who each stated their certified professional opinion that 1 Dr Suazo and BMA staffmet the appropriate standard ofcare in treating Ms Johnson and 2 Ms Johnson suffered a massive stroke that was not preventable under the circumstances Dr Sauzo also filed a motion to strike the affidavit of Patric Roby Washington which he anticipated plaintiffs would offer in opposition to the motion far summary judgment Defendants alleged that Ms Washington a registered nurse was not competent to testify either as to the standard of care applicable to a nephrologist or as to medical causation In fact plaintiffs later offered an affidavit from Ms Washington in which she opined on the issues noted in the motion to strike The district court heard both defense motions on the same date It denied the motion to strike ruling that as a registered nurse Ms Washington was qualified to opine on the standard of care applicable to BMA nursing staff However the court s 3 further ruled that Ms Washington was not competent to testify either as to the standard of care applicable to Dr Suazo as a nephrologist or as to the cause of Ms s Johnson death On that basis the district court concluded that plaintiffs offered no admissible expert medical testimony to contradict the opinions of defendants experts that Dr Suazo did not breach the applicable standard of care and that Ms Johnson died as the result of a massive stroke that was not preventable Accordingly the district court granted summary judgment in favor of defendants and dismissed plaintiffs suit with prejudice Plaintiffs now appeal SUMMARY JiJDGMENT LAW On appeal summary judgments are reviewed de novo under the same criteria that govem the trial court consideration of whether summary judgment is s appropriate Duplantis x Dillard sDepartment Store 02 La App 1 st Cir 0852 03 9 5 849 So 675 679 writ denied 03 La 10 855 So 350 2d 1620 03 2d The motion should be granted only if the pleadings depositions answers to interrogatories and admissions on file together with any affidavits show that there is no genuine issue as to material fact and that the mover is entitled tojudgment as a matter of law La C art 966 Brumfield v Gafford 99 La App P 2 B 1712 lst Cir 9 00 768 So 223 225 22 2d The burden of proof is on the movant However if the movant will not bear the burden of proof at the trial of the matter the movant is not required to negate all essential elements of the adverse party claim but rather to point out an absence of s factual support for one or more essential elements Thereafter if the adverse party fails to provide factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial there is no genuine issue ofmaterial fact and summary judgment is properly granted La C art 966 Brumfield 768 P 2 C 2d So at 225 4 In ruling on a motion for summary judgment the trial court role is not to s 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 u Garreu 04 La 6 876 So 764 765 per curiam Because it is the 0806 04 25 2d applicable substantive law that determines materiality whether a particular fact in dispute is material for summary judgment purposes can be seen only in light ofthe substantive law applicable to the case Richard u Hall 03 La 4 874 1488 04 23 2d So 131 137 DISCUSSION On appeal plaintiffs argue that the district court erred by not accepting their statement of uncontested facts as being proven since those facts were unchallenged and in not finding that there were multiple issues of material fact conceming whether Dr Suazo and BMA breached the applicable standard of care Plaintiffs allege that defendants failure to immediately send Ms Johnson to a hospital emergency room and failure to address her extremely high blood pressure was a or case of obvious negligence that deprived her of a chance of survival and caused or her death They contend that the district court erred both in finding that expert testimony was required on the issue of whether defendants actions reduced Ms schance of survival and in finding that Ms Washington was not qualified Johnson to render an expert opinion on this issue Additionally plaintiffs assert the district court should have disregarded the affidavits of defendants experts because they were based on erroneous facts and were not reliable Plaintiffs further allege that defendants experts based their opinions on Ms Johnson scondition as it existed at the hospital on November 10 2008 the daxe of her death rather than on her condition from the time just before she was discharged from BMA on November 4 2008 until her arrival at the hospital that afternoon 5 In a medical malpractice action the plaintiff must establish by a preponderance of the evidence the applicable standard of care a violation of that standard of care and a causal connection between the alleged negligence and the s plaintiff injuries resulting therefrom i medical causation e See La R S A 2794 9 Pfiffner u Carrea 94 94 94 La 10 643 0924 0963 0992 94 17 2d So 1228 1233 Fagan v LeBlanc 04 La App lst Cir 2 928 2743 06 10 2d So 571 575 Generally expert testimony is 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 Pfiffner 643 So at 1233 Further except for cases 2d 34 where the causal connection between a defendant sfault and the injury alleged is obvious expert medical testimony is also necessary to establish causation See Pfiffner 643 So at 1234 see also Hutchinson x Shah 94 La App 1 st 2d 0264 Cir 12 648 So 451 452 writ denied 95 La 4 653 So 94 22 2d 0541 95 21 2d 570 Normally in cases involving patients with complicated medical histories and complex medical conditions causation is simply beyond the province of lay persons to assess See Pfiffner 643 So at 1234 2d In support of their motion for summary judgment defendants presented the unanimous opinion of the medical review panel which concluded there was no deviation from the applicable standard of care by Dr Suazo or BMA Defendant also presented the affidavits of Drs Robert Occhipinti M an internist and D Lotuce Hamm M an internist and nephrologist stating their expert opinions D that defendants did not breach the applicable standards of care and that Ms sdeath was caused by a stroke that was not preventable by anyone This Johnson evidence pointed out the absence of a causal connection medical causation between the defendants conduct and the damages claimed by plaintiffs 6 I Therefore in arder to avoid summary judgment in favor of defendants the burden shifted to plaintiffs to provide expert evidence establishing that they would be able to sustain their evidentiary burden at trial ofproving not only that breaches of the applicable standard of care occurred but also that the alleged breaches s Johnson death and lost chance of survival See Samaha or v I caused Ms I 1726 Rau 07 La i 08 26 2977 So 880 887 2d 88 Contrary to plaintiffs assertions the instant case is not one of obvious negligence where a lay person can infer a physician sfault and medical causation or of the alleged injury without expert guidance Plaintiffs assert that every lay person knows that strokes are ar can be related to high blood pressure However the facts of this case are not so simple In so arguing plaintiffs ignore the undisputed fact that Ms Johnson had an extremely complicated medical history which included chronic hypertension diabetes and end renal disease stage According to the affidavit of Dr Suazo offered in support of summary judgment clinical evaluation later showed that artery Acute Ms Jol had Thrombotic occlusion nson increase in blood pressure in this condition is I of the Middle Cerebral not the cause I but may be I instead an adaptive counterproductive response and vigorous decrease in blood Among other conditions Ms Johnson pressure may be also suffered from severe gastroparesis Parkinsonism cerebrovacular disease with previous stroke and pulmonary embolism and had had two previous myocardial infarctions and four caronary stent placements Furthermore in the two years prior to her death she was admitted to the hospital seven times and had six other hospital encounters Under Plaintiffs also argue that the doctrine of res ipsa loquitur should be applied to find negligence in this case because it was obvious that when Ms Johnson blood pressure spiked defendants s should have intervened or called 911 rather than placing her on the van to return home This argument lacks merit as res ipsa loquftur is applicable only when the injury complained of is of the t which does not ordinazily occur without negligence Denton u Critikon Inc 95 pe 1602 La App lst Cir 5 674 So ll69 1173 Strokes do not fall into this category of 96 10 2d occurrences 7 I the circumstances expert medical testimony was required to meet plaintiffs burden of proving that medical malpractice occurred in the treatment of Ms Johnson and that the alleged malpractice caused her death or lost chance of survival Even if as alleged by plaintiffs material issues of fact existed regarding defendants alleged breach of the applicable standards of care plaintiffs still failed to produce any admissible expert evidence establishing medical causation of Ms sdeath or lost chance of survival Such expert testimony is necessary in Johnson this case because whether or not defendants alleged fault caused Ms Johnson s death or loss of a chance of survival turns on complex medical issues far beyond the capacity of lay persons to assess See Pfiffner 643 So at 1234 Thus as 2d pointed out by defendants plaintiffs cannot prove an essential element of their claims without providing expert evidence on medical causation Plaintiffs attempted to provide such evidence tl the affidavit of Ms rough Washington On appeal they argue that the district court erred in disregarding Ms s Washington affidavit in determining whether they would be able to satisfy their evidentiary burden at trial on the issue of Ms Johnson alleged loss chance of s survival They assert the district court erred in failing to conduct a Daubert hearing on Ms s Washington qaalification to testify and in failing to conclude that as a registered nurse she was qualified to give expert testimony on whether or not defendants actions reduced Ms Johnson chance of survival We disagree s 2 Plaintiffs contend Louisiana medical malpractice law is inapplicable to that portion of their claim against Dr Suazo that is based on his alleged order to put Ms Johnson on the van for transportation home rather than allowing BMA nursing staff to properly treat her They azgue that Dr Suazds order does not fall within the scope of inedical mal P ractice because it was not the P erformance of a medical function However we find this contention meritless in view of the broad definition of malpractice provided in La R 40 This provision defines malpractice in S 1299 13 41 pertinent part as any unintentional tort ar any breach of contract based on health care or professional services rendered or which should have been rendered by a health care provider to a patient including failure to render services timely At the time of his interaction with BMA staff on November 4 2008 Dr Suazo clearly was acting in his professional capacity as a nephrologist rendering professional services to Ms Johnson 3 Daubert x Merrell Dow Pharmaceuticals Inc 509 U 579 113 S 2786 125 L S Ct 2d Ed 469 1993 8 I The admissibility of expert testimony is governed by La C art 702 which E states that i scientific tecl or other specialized knowledge will assist the f nical trier of fact to understand the evidence or to determine a fact in issue a witness qualified as an expert by knowledge skill experience training or education may testify thereto in the form of an opinion or otherwise The Daubert standard which was adopted by the Louisiana Supreme Court in State u Foret 628 So 2d 1116 ll23 La 1993 requires that expert testimony must rise to a threshold level of reliability in order to be admissible under La C art 702 Terrebonne v B J E Martin Inc 03 La App 1 st Cir 10 906 So 431 440 2658 04 29 2d In support oftheir assertion that the district court erred in not considering Ms s Washington affidavit plaintiffs cite Guardia u Lakeview Regional Medical Center 08 La App lst Cir 5 13 So3d 625 631 a medicai 1369 09 8 malpractice case in which this Court held that the trial court ened in disregarding the affidavits and deposition testimony of a registered nurse without first holding a hearing on ber qualifications to testify However a review of Guardia a case in which the plaintiff developed pressure ulcers while hospitalized following surgery reveals that it is inapplicable herein In Guardia the plaintiff alleged that the nursing staff was at fault in failing to assess his skin condition and regularly change his position which clearly were nursing duties In contrast the issue in this case of whether Ms Johnson chance of survival was reduced by defendants actions s clearly is not a nursing issue Rather this issue is inextricably bound to the complex medical determination of the cause of Ms Johnson death s Such a determination requires an assessment of her complicated medical history the multitude of serious medical conditions from which she suffered and the effect the defendants acts or and omissions had upon her It is evident to this Court as it was to the district court that such a complex medical determination is beyond the expertise of Ms 9 Washington a registered nurse Consequently the district court properly excluded her opinion testimony on the issue ofinedical causation We also find no merit in plaintiffs argument that the district court should not have considered the affidavits offered by defendants experts because they were based on erroneous facts as they did not take into account the facts alleged in the statement of uncontested facts included in plaintiffs opposition memarandum Plaintiffs assert the facts alleged in their statement should have been accepted as proven since these facts were not challenged by defendants who did not file a statement of uncontested facts as required by district court rules Additionally plaintiffs claim that the opinions of defendants eaperts were unreliable because they were based on Ms Johnson condition on the date of her death rather than at s the time of defendants alleged negligence Plaintiffs cite no evidence far their assertions that defendants experts based their opinions on erroneous material facts and did not consider her condition on the date of her last dialysis treatment at BMA Even thougl defendants failed to file a statement of uncontested facts as required by Rule 910 of the Uniform b 2 Louisiana District Court Rules a trial court has the authority to dispense with the strict application of local rules when such is unnecessary to the resolution of a dispute Dan Construction Company Inc v Thrasher 08 La App Cin 1552 lst Cir 2 9 So 205 208 In this case a statement of uncontested facts 09 13 3d was unnecessary in view of the fact that there was an absence of any admissible expert evidence establishing medical causation an essential element of plaintiffs claims Moreover the affidavits of defendants experts state that in addition to the submissions of the parties the expert opinions expressed were based on a review of Ms Johnson medical records including the records of her dialysis treatment at s 10 BMA the records of her primary care physician the records of the ambulance company that transported her to the hospital and her hospital records CONCLUSION Defendants submitted expert medical evidence sufficient to point out an absence of factual support establishing medical causation which is an essential element of plaintiffs claims Thereafter the burden shifted to plaintiffs to produce admissible expert evidence sufficient to establish that they would be able to satisfy their evidentiary burden of proving medical causation at trial Because plaintiffs failed to do so the district court properly granted summary judgment dismissing their suit against defendants with prejudice Accordingly the judgment of the district court is affirmed Plaintiffs are to bear all costs of this appeal AFFIRMED 11
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