Lacy Johnson, Hattie Okoye as Tutrix of Keith Bosely and LaShae Bosley, and Rosie Watson as Tutrix of Larise Bosley VS Peter J. Bostick, M.D., Deborah Cavalier, M.D., David Boudreaux, M.D., Pathology Group of Louisiana, Woman's Hospital Foundation, and ABC Insurance Company

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2013 CA 0439 LACY JOHNSON HATTIE OKOYE AS TUTRIX OF KEITH BOSLEY AND LASHAE BOSLEY AND ROSIE WATSON AS TUTRIX OF LARISE BOSLEY VERSUS PETER J BOSTICK M DEBORAH CAVALIER M DAVID D D BOUDREAUX M PATHOLOGY GROUP OF LOUISIANA D S WOMAN HOSPITAL FOUNDATION AND ABC INSURANCE COMPANY NOV 0 1 2013 Judgment Rendered I k i x On Appeal from the 19th Judicial District Court In and for the Parish ofEast Baton Rouge State of Louisiana Trial Court No 569 619 Honorable R Michael Caldwell Judge Presiding 9C L 5s e i3 J fi Jennifer G Prescott Joshua M Palmintier Baton Rouge LA 55 S J SvaIS A E Attorneys for Plaintiffs Appellants Lacy Johnson Hattie Okoye As Tutrix of Keith Bosley and Lashae Bosley and Rosie Watson as Tutrix of Larise Bosley Tiffany Puchen Melissa Caruso Attorneys far Defendant Appellee Dr Peter J Bostick Jason Cashio Vance A Gibbs Randal R Cangelosi Baton Rouge LA BEFORE KUHN HIGGINBOTHAM AND THERIOT JJ HIGGINBOTHAM J In this medical malpractice action the plaintiffs Lacy Johnson and Hattie Okoye as tutrix of Keith Bosely and LaShae Bosley and Rosie Watson as tutrix of Larise Bosley Plaintiffs appeal the trial court granting of a motion far s summary judgment in favor of defendant PeLer James Bostick M For the D following reasons we affirm FACTS AND PROCEDURAL HISTORY In May 2004 Myrinda Bosley who had previously battled and survived both colon and breast cancer sought treatment from Dr Bostick for pain in her left arm In June and July 2004 Dr Bostick ordered biopsies of Ms Bosley chest s and left aacillary mass disease None of the biopsies revealed evidence of inetastatic Ms Bosley had follow appointments with Dr Bostick on July 29 up 2004 and September 16 2004 after which Dr Bostick prescribed medication for pain On October 21 2004 Ms Bosley returned to Dr Bostick office with s complaints of pain on her left side Dr Bostick found no palpable mass and diagnosed her with lymphedema of her upper left extremity On December 21 2004 when Ms Bosley returned to Dr Bostick for follow he scheduled her for up a set of diagnostic studies to be performed in March 2005 Ms Bosley did not follow through with the diagnostic testing scheduled by Dr Bostick Instead on March 21 2005 Ms Bosley saw Dr Carl G Kardinal an oncologist at Ochsner Medical Center Dr Kardinal ordered several tests including a PET scan performed on March 30 2005 and a needle biopsy performed on April 25 2005 The results of the needle biopsy were positive for metastatic breast cancer Sadly after having no response to chemotherapy Ms Bosley passed away On April 25 2006 Plaintiffs filed a medical review panel complaint with the Patient Compensation Fund On May 12 2008 the Medical Review Panel issued Keith Bosely LaShae Bosley and Larise Bosley aze the minor children of decedent Ms Myrinda Bosley 2 its findings As to Dr Bostick the panel four that he failed to meet the d applicable standard of care but that the complained of conduct was not a factor in the resultant damages On August 8 2008 plaintiffs filed afor Damages in the 19th Petition Judicial District Court against Dr Bosticic dn their petition PlainYi contend ffs that due to the sub treatment by Dr Bostick their mother suffered standard permanent injuries including recurrence and progression of cancer undue pain and suffering loss of consortium as well as mental anguish and distress On August 6 2012 Dr Bostick filed a motion for summary judgment in which he maintained that there were no issues of material fact in this matter and that he was entitled to summary judgment as a matter of law Specifically Dr Bostick contended that Plaintiffs failed to produce an expert report proving the causation element which is required in a medical malpractice case Prior to the hearing on the motion for summary judgment Plaintiffs filed a motion to continue which the trial court denied The matter was heard on October 22 2012 During the hearing Plaintiffs offered an affidavit of their expert Ronald Citron M and requested that he be allowed to testify during the hearing The D trial court denied the introduction of the affidavit and Dr Citron testimony In s their motions to the court and during the summary judgment hearing the parties discussed Ms Bosley cause of action for lost chance of survival s After the hearing on November 2 2012 judgment was signed granting summary judgment in favor of Dr Bostick and dismissing w prejudice all claims asserted by the th plaintiffs against Dr Bostick Plaintiffs timely filed this appeal asserting that the trial court erred in 1 granting Dr Bostick motion for summary judgment because genuine issues of s Z Plaintiffs also named Deborah Shackleton Cavalier M David Alvin Boudreaux M the Pathology Group of D D Louisiana APMC and the Women sHospiYal Foundation as defendants summary judgment on December 7 2009 and May 23 2011 3 These defendants were dismissed by material fact remain 2 denying Dr Citron the opportunity to authenticate his report with live testimony and 3 denying Plaintiffs motion to continue the hearing on Dr Botick motion for summary judgment s DISCUSSION Motion to Continue Initially we address Plaintiffs contention that the trial court erred in denying their motion to continue the summary judgment hearing Plaintiffs maintain that Dr Bostick raised for the first time loss chance of survival in his reply memorandum in support of his motion for summary judgment and that they needed additional time to respond to that assertion In denying Plaintiffs motion to continue the trial court stated defendants have raised no new issues in their reply memarandum The motion for continuance is denied The trial court pointed out that Dr Bostick discussed lost chance of survival in his reply memorandum in response to a statement made in the letter written by Dr Ronald Citron that was attached to Plaintiffs memorandum in opposition to Dr Bostick s motion for summary judgment A continuance rests within the sound discretion of the trial court and may be granted under La Code Civ P art 1601 if there is good ground therefor The trial court must consider the particular facts of a case when deciding whether to grant or deny a continuance The trial court should consider the diligence and good faith of the party seeking the continuance and other reasonable grounds and may also weigh the condition of the court docket fairness to the parties and other litigants before the court and the need for orderly and prompt administration of justice St Tammany Parish Hosp v Burris 2000 La App lst Cir 2639 O1 28 12 804 So 960 963 Absent a clear abuse of discretion in granting ar 2d denying a continuance the ruling of the trial court should not be disturbed on appeal Id 4 After careful review of the record we agree with the trial court assertion s that Dr Bostick raised no new issues in his reply memorandum because he discussed lost chance of survival in direct response to Plaintiffs memarandum in opposition to summary judgment Further the case had been pending for over six years Therefore the trial court did not abuse its discretion in denying Plaintiffs motion for continuance Live Testimonv at the Summary Jud Hearin and denial of the Motion ment for Summarv Jud ment Appellate courts review summary judgments de novo under the same criteria that govern the trial court consideration of whether summary judgment is s appropriate Duncan v U Ins Co 2006 La 11 950 So A S 363 06 29 2d 544 547 Though the trial court decision to grant or deny a motion for summary s judgment is subject to this court de novo review the trial court evidentiary s s rulings are subject to an abuse of discretion standard See Devall v Baton Rouge Fire Department 2007 La App lst Cir 11 979 So 500 503 0156 07 2 2d The judgment sought shall be rendered forthwith if the pleadings depositions answers to interrogatories and admissions together with the affidavits if any 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 2 B When a motion for summary judgment is made and properly supported an adverse party may not rest on the mere allegations of his pleading but must set forth specific facts showing that there is a genuine issue for trial La Code Civ P art B 967 If the plaintiff fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial there is no genuine issue of material fact La Code Civ P art 966 2 C In a medical malpractice action against a physician the plaintiff must establish by a preponderance of the evidence the applicable standard of care a 5 violation of that standard of care and a causal connection between the alleged negligence and the plaintiff injuries See La R 9see also Pfiffner v s S 2794 A Correa 94 La 10 643 So 1228 1233 0924 94 17 2d An expert witness is generally necessary as a matter of law to meet the burden of proof on a medical malpractice claim Lieux v Mitchell 2006 La App 1 st Cir 12 951 0382 06 28 2d So 307 314 writ denied 2007 La 6 958 So ll99 Although o905 07 15 2d the jurisprudence has recognized exceptions in instances of obvious negligence those exceptions are limited to instances in which the medical and factual issues are such that a lay person can perceive negligence in the charged physician s conduct as well as any expert can Pfiffner 643 So at 1234 2d The test for determining the causal connection is whether the plaintiff proved through medical testimony that it is more probable than not that the injuries were caused by the substandard care Hoot v Woman Hospital Foundation s 1136 96 La App lst Cir 3691 So 786 789 writ denied 97 La 97 27 2d 1651 97 3 10 701 So 209 2d In a medical malpractice case seeking damages for the loss of a less than even chance of survival because of negligent treatment of a pre condition existing the plaintiff must prove by a preponderance of the evidence that the tort victim had a chance of survival at the time of the professional negligence and that the s tortfeasor action or inaction deprived the victim of all or part of that chance and must further prove the value of the lost chance which is the only item of damages at issue in such a case Smith v State Department ofHealth and Hospitals 95 0038 La 6676 So 543 546 96 25 2d 547 Louisiana Code of Civil Procedure article 967 describes the type of documentation a party may submit in support of or in opposition to a motion for summary judgment Supporting and opposing affidavits shall be made on personal knowledge shall set forth facts that would be admissible in evidence and shall 6 show affirmatively that the affiant is competerit to tesrify to the matters stated therein A document that is not an affidavit or sworn to in any way or is not certified or attached to an affidavit is not of sufficient evidentiary quality on summary judgment to be given weight in det whether or not there remain rtnining genuine issues of material fact B v i land est Feliciana Parish Police Jury 1297 2003 La App lst Cir ti12S 878 So 808 813 vrit denied 2004 04j 3d 2286 La 11 888 So 231 04 24 2d In moving for summary judgment Dr Bostick asserted that Plaintiffs had not produced a medical expert to testify that there was a causal connection between his alleged negligence and Ms Bosley injuries s As such Dr Bostick asserted that Plaintiffs lack factual support for an essential element of their claims and consequently there is no genuine issue of material fact and he is entitled to summary judgment as a matter of law In support thereof Dr Bostick attached to the motion for summary judgment a copy of the medical review panel opinion the affidavit of panelist Dr Carmen Espinoza Plaintiffs petition for damages the case management order and correspondence between the parties The medical review panel determined that Dr Bostick treated the patient appropriately and the only issue that the panel had with his care was that he should have referred the patient to hematology during the wark because of oncology up the high index of suspicion due to Ms Bosley known cancer history For that s reason the panel determined that Dr Bostick breached the standard of care However the panel found the complained of conduct was not a factor in the resultant damages because The PET scan ardered by Dr Kardinal in March 2405 showed only focal areas not extensive disease worrisome or malignancy Logically an earlier study would likely have been less revealing Considering her lack of response to chemotherapy the benefits of earlier treatment would not have altered her outcome 7 At the time Dr Bostick filed his motion for summary judgment Plaintiffs had not provided any expert reports to prove the cansation element According to the case management schedule and the c between the parties rrespondence attached to the motion for summary judgment July 2U 2012 was the deadline for Plaintiffs to identify any experts they intended to call a to provide an expert td witness report for each such expert By agreeznent f the parties the deadline was extended to July 30 2012 On August 2 2012 Plaintiffs sent to Dr Bostick conespondence naming an expert and providing his address but they did not provide an expert wimess report On October 12 2012 Plaintiffs filed an opposition to the motion for summary judgment attaching a letter signed by Dr Citron regarding Dr Bostick s care of Ms Bosley The letter was dated nine days after the extended deadline for filing an expert witness report in the scheduling arder and was not certified or attached to an affidavit Dr Bostick responded contending that the letter written by Dr Citron was untimely and was inadmissible hearsay He further contended that even if the letter was admitted it did not raise genuine issues of material fact Dr Bostick also argued that Plaintiffs failed to prove the elements for a claim of lost chance of survival as laid out in Smith 676 2d So at 547 On the day of the hearing on the motion for summary judgment in an effort to authenticate the letter written by Dr Citron Plaint requested that an affidavit iffs by Dr Citron be admitted into evidence and they further requested that he be allowed to testify during the hearirig to verify his report llr Bostick was not aware that Dr Citron would be there to testify until the morning of the hearing The trial court denied the introduction of Dr Citron affidavit and Plaintiffs s request to allow Dr Citron to testify Plaintiffs proffered Dr Citron live s testimony and his affidavit 8 i In denying the request to admit the affidavit of Dr Citron or to allow him to testify the trial court noted that the case had been pending far over six years the suit was filed in August 2008 and Plaintiffs never indentified an expert of any kind until August 2012 Plaintiffs did not provide an expert witness report until after the extended deadline in the case management and even then it was not competent evidence on summary judgment According to the record Plaintiffs did not offer evidence to authenticate the letter of Dr Citron until the day of the hearing It has long been settled that oral testimony should not be received or considered at the hearing on a motion for summary judgment even with the consent of counsel because to sanction such procedure can have no practical effect save the fostering and encouragement of piecemeal trials and appeals See Hemphill v Strain 341 So 1186 ll88 La App lst Cir 1976 writ 2d denied 343 So 1072 La 1977 2d Therefore the trial court did not abuse its discretion in denying Plaintiffs request to allow Dr Citron to testify at the summary judgment hearing See Devall 979 So at 503 2d Considering that the trial court denied Plaintiffs attempts to authenricate the letter written by Dr Citron the letter remained unsworn uncertified or otherwise unauthenticated and accordingly not of sufficient evidentiary quality on summary judgment to be given weight in determining whether there remain genuine issues of material fact Plaintiffs introduced no admissible evidence to prove that Ms Bosley had a chance of survival at the time of the professional negligence and that Dr Bostick s We note that although the trial court determined that Dr Citrods letter was not of sufficient evidentiary value on the motion for summary judgment the uial court did state that even if it were to admit the letter it did not raise any genuine issues of material fact that would preclude summary judgment Dr Citron letter acknowledged that Ms s scancer was not curable but concluded that timely diagnosis and treatment would have resulted in a better Bosley response to therapy which would have resulted longer survival We agree with the trial court that this conclusory statement did not raise a genuine issue of material fact In favor of their position that oral testimony should be allowed Plaintiffs cite Leflore v Coburn 95 La 0690 App 4th Cir 12 665 So 1323 1331 n 5 writs denied 96 96 La 3670 So 1234 95 28 2d 0411 0453 96 29 2d where the trial court received live testimony and reasoned that it was permissible as long as he did not weigh it or make any credibility calls However even in the Lellore case the decision was left to the discretion of the hial court 9 inaction deprived Ms Bosley of all or part of that chance Further Plaintiffs failed to introduce any evidence as to the value of any alleged lost chance of survival CONCLUSION In the absence of admissible expert testimony proving that there is a causal connection between the alleged negligence and Ms Bosley damages and sad s death Plamtiffs have not presented factual support sufficient to establish that genuine issues for trial exist Thus Dr Bostick is entitled to summary judgment as a matter of law Finally even if the court considered the contested letter it does not fully address Plaintiffs burden for a medical malpractice action or for an action regarding the lost chance of survival For these reasons the judgment of the trial court is affirmed Costs of the appeal are assessed to Plaintiffs AFFIRMED 10 LACY JOHNSON FIRST CIRCUIT ET AL COURT OF APPEAL VERSUS STATE OF LOUISIANA PETER J BOSTICK M D ET AL NO 2013 CA 0439 KUHN J dissenting I disagree with the majority conclusion that absent expert evidence the s trial court correctly dismissed plaintiffs lawsuit The object of the claim is a chance of survival As the majority correctly determined plaintiffs are required to prove by a preponderance of the evidence that Ms Bosley had a chance of survival at the time of the professional negligence that Dr Bostick inaction deprived her s of part of that chance and the value of that lost chance See Smith u State Dep t of Health and Hospitals 95 La 6 676 So 543 546 But 0038 96 25 2d 47 plaintiffs do not have to prove a reasonable or substantial chance of survival the only issue is whether the patient lost any chance of survival because of Dr snegligence IaG Bostick With the introduction of the medical s panel conclusion expressly finding that Dr Bostick should have referred Ms Bosley to hematology during oncology the work because of the high index of suspicion due to Ms Bosley known up s cancer history plaintiffs introduced evidence that supports a finding that Dr Bostick breached the standard of care A trier of fact could reasonably infer from that same evidence that but for Dr Bostick breach Ms Bosley would have s been timely diagnosed and treated resulting in a better response to the chemo therapy and therefore a longer survival even if that was one additional day oflife This is a common sense finding for which no expert opinion is required And clearly a trier of fact can conclude that an additional day of life is of some value I Thus because plaintiffs produced sufficient faction support to establish that they are able to satisfy their evidentiary burden of proofat trial on all the requisite issues to prove their case including the issue of causation the trial court usurped the role of the trier of fact in granting summary judgment Accordingly I dissent 2

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