Ramona Scott, Wife of/and Cedric Scott, Sr., Individually and as Natural Tutors of Minor Cedric Scott, Jr. VS Leonard J. Chabert Medical Center through Board of Supervisors of Louisiana State University Agricultural and Mechanical College

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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 CA 0192 RAMONA SCOTT WIFE OF AND CEDRIC SCOTT SR INDIVIDUALLY AND AS NATURAL TUTORS OF THE MINOR CEDRIC SCOTT JR VERSUS LEONARD J CHABERT MEDICAL CENTER THROUGH BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND AGRICULTURAL AND MECHANICAL COLLEGE DR FADI NADDOUR V 11 Judgment rendered DEC 2 2 2010 On Appeal from the 32 Judicial District Court Parish of Terrebonne State of Louisiana No 1 713 36 The Honorable George J Larke Judge Presiding James P Desonier Counsel for the Plaintiffs nts Appelia Mandeville Louisiana Cedric Scott et al Jude D Bourque Assistant Attorney General Baton Rouge Louisiana Counsel for Defendant Appellee Alfred R Gould Jr Counsel for Defendant Covington Louisiana The Blood Center Leonard J Chabert Medical Center et al BEFORE KUHN PETTIGREW AND KLINE JJ 1 Judge William F Kline Jr retired is serving as judge pro tempore by special appointment of the Louisiana Supreme Court TT 0 Pe Jl 2e C eA KLINE J In this appeal the trial court granted a hospital motion for partial summary s judgment concerning a single issue i whether the hospital breach of the e s applicable standard of care caused plaintiffs son to contract the hepatitis C virus A judgment was signed that dismissed plaintiffs allegations and cause of action pertaining to the hepatitis C virus The judgment was designated as final for purposes of LSA C art 1915 For the reasons that follow we affirm P B the partial summary judgment PERTINENT FACTS AND PROCEDURAL HISTORY This litigation arises from a boating accident on May 30 1999 when thirteenyear old Cedric Scott Jr was injured and taken to the Leonard J Chabert Medical Center Chabert emergency room Dr Fadi Naddour the emergency room doctor diagnosed Cedric Jr with abrasions to his low back contusions and complaints of abdominal pain He was treated and released His condition did not improve and on June 4 1999 he returned to Chabert where he was diagnosed with a lacerated ruptured spleen and internal bleeding A splenectomy was performed and afterwards he was given two units of blood supplied by a third party blood bank Cedric Jr was discharged on June 9 but returned on July 11 1999 once again complaining of abdominal pain He was released after being diagnosed with transient abdominal pain On October 2 1999 Cedric Jr again returned to Chabert complaining of abdominal pain and nausea Again he was treated and released His condition worsened and on February 29 2000 Cedric Jr was re admitted into Chabert where he was diagnosed with jaundice the following day test results revealed he had hepatitis C Eventually he suffered liver failure and received a transplant in 2003 2 The Scatty filed a notion on May 26 2010 requesting to supplement the record with documentary evidence so that Cedric Scott Jr medical records would be consolidated In accordance with Rule 2 of the Unilorrn Rules of s 4 12 the Courts of Appeal however the Scotts provided appropriate page numbers for the medical records for our review Accordingly the motion to add documentary evidence into the record is unnecessary for this appeal and is therefore denied ba On October 10 2002 Ramona Scott wife of Cedric Scott Sr and individually and as natural tutors of the minor Cedric Scott Jr hereinafter the Scotts filed a petition for damages against Leonard J Chabert Medical Center through the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College and Dr Fadi Naddour The petition was later amended and the Blood Center of Southeast Louisiana Inc Blood Center was added as a defendant The petition alleges numerous acts of negligence including that the blood transfusion received in June 1999 caused him to contract hepatitis C The matter was submitted to the Medical Review Panel The panel found that Dr Fadi Naddour failed to comply with the appropriate standard of care in his treatment of Cedric Jr The panel also unanimously concluded that neither Chabert nor the Blood Center breached its applicable standard of care regarding the collection testing screening and distribution of the two units of blood Cedric Jr received On June 23 2005 Chabert filed a motion for partial summary judgment on the issue of its liability regarding the blood transfusion Chabert submitted Cedric s Jr medical records and an affidavit from Cedric Jr physician in the liver s transplant program to support its claim that the hepatitis C virus did not come from the blood transfusion The medical record dated May 16 2002 states Mr Scott is a 16yearold boy who probably have sic Hepatitis C for long time He has been rapidly progressive for the last one year His most recent liver biopsy showed cirrhosis with moderate inflammatory activity He has no other underlying etiology of liver disease I really doubt whether he acquired Hepatitis C at the time of transfusion 1999 and this is extremely unusual for hepatitis to progress this rapidly so it likely that he may have acquired this s before He has a history of some pneumothorax and a chest tube placement about three days after birth On July 11 2005 the Blood Center filed a similar motion for summary judgment In support of its motion it submitted a physician affidavit stating that s plaintiffs have no evidence showing that the units of blood received by Cedric Jr 3 were infected with hepatitis C On July 29 2005 the motions were heard the trial court denied them on the basis that discovery was incomplete Nearly two years later Chabert reasserted its motion The matter was heard on December 21 2007 By judgment dated July 2 2009 the trial court granted s Chabert motion for partial summary judgment concerning the issue of hepatitis and designated it as a final judgment pursuant to LSAC art 1915 P C B A judgment was signed and the Scotts appealed By interim order dated October 5 2010 this court remanded the matter for the limited purpose of having the trial court sign a judgment that contains the proper decretal language indentifying the specific relief granted in regards to the issue of hepatitis and ordered the district s court clerk of court to supplement the appellate record with that judgment On October 8 2010 the trial court signed an amended judgment which granted s Chabert motion for partial summary judgment concerning the issue of hepatitis and further dismissed plaintiffs allegations and cause of action pertaining to Cedric Jr hepatitis C virus Additionally the trial court also designated the s amended judgment as a final judgment for purposes of LSAC art 1915 P C B We now consider the Scott appeal of this partial summary judgment s FINALITY OF PARTIAL SUMMARY JUDGMENT This court appellate jurisdiction extends to final judgments LSAC s P C art 2083 A partial judgment may be a final judgment even if it does not grant the successful party all of the relief prayed for or does not adjudicat all of the issues in the case LSA C art 1915 Article 1915 provides in pertinent part as P A follows A A final judgment may be rendered and signed by the court even though it may not grant the successful party or parties all of the relief prayed for or may not adjudicate all of the issues in the case when the court 3 Fhe 1 Blood Center also reasserted its motion which was granted in tune 2009 and has not been appealed 4 3 Grants a motion for summary judgment as provided by Articles 966 through 969 but not including a summary judgment granted pursuant to Article 966 E B 1 When a court renders a partial judgment or partial summary judgment or sustains an exception in part as to one or more but less than all of the claims demands issues or theories whether in an original demand reconventional demand crossclaim third party claim or intervention the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay 2 In the absence of such a determination and designation any order or decision which adjudicates fewer than all claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties and shall not constitute a final judgment for the purpose of an immediate appeal Any such order or decision issued may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties As here stated LSAC art 1915 particularly provides that partial P C 3 A summary judgments are final and appealable unless the summary judgment is rendered pursuant to art 966 as was the judgment before E us LSA C art P E 966 provides as follows E A summary judgment may be rendered dispositive of a particular issue theory of recovery cause of action or defense in favor of one or more parties even though the granting of the summary judgment does not dispose of the entire case Because the trial court granted Chabert motion for partial summary with respect s to a particular issue as referenced in LSAC art 966 the judgment under P C E consideration is not final under Article 1915 LSAC art 1915 A P C 3 A Thus we consider whether it was properly designated as a final judgment pursuant to LSA C art 1915 P B PROPRIETY OF FINALITY DESIGNATION As stated above LSA C art 1915 provides that when a court P 1 B renders a partial judgment as to one or more but less than all of the claims demands issues theories or parties the judgment shall not constitute a final judgment unless designated as a final judgment by the court after an express 5 determination that there is no just reason for delay Under Louisiana law a final judgment is one that determines the merits of a controversy in whole or in part LSA C art 1841 P Although Article 1915 dispenses with finality in the sense of completion of the litigation the judgment rendered must be sufficiently final in that it disposes of the claim or dispute in regard to which the judgment is entered Van ex rel v Davis 000206 p 5 La 1 Cir 2 808 So 478 483 App 01 16 2d Furthermore in determining whether a partial judgment is a final one for the purpose of an immediate appeal a court must always keep in mind the historic policies against piecemeal appeals Id 000206 at pp 56 808 So at 483 2d Although the trial court designated the judgment as final the court failed to provide reasons to support this designation When the propriety of the certification is not apparent and the trial court has failed to give reasons for its certification we review the case de novo using the factors listed in R Messinger Inc v J Rosenblum 041664 p 14 La 3 894 So 1113 1122 as follows 05 2 2d 1 The relationship between the adjudicated and unadjudicated claims 2 The possibility that the need for review might or might not be mooted by future developments in the trial court 3 The possibility that the reviewing court might be obligated to consider the same issue a second time and 4 Miscellaneous factors such as delay economic and solvency considerations shortening the time of trial frivolity of competing claims expense and the like Regarding the first factor we observe that the only relationship between the adjudicated and unadjudicated claims is that they allege breaches of the applicable standards of care of Cedric Jr treatment s Regarding the second and third factors there is little likelihood that future developments in the trial court will moot the need to review this issue Moreover this court would not be required to consider Chabert negligence on the hepatitis s C issue a second time 2 The fourth factor requires this court to consider miscellaneous issues affecting the efficient administration of justice While we recognize that this partial summary judgment resolves only one of the issues on which the Scott s claims against Chabert are based we also recognize that this one issue appears to be the compelling issue in the litigation Resolution of the hepatitis C claim now will promote speedy adjudication and save the parties a considerable expense in litigating this issue or preserving it for appeal Further resolving this issue now will shorten the time of trial In designating a judgment as final the overriding inquiry is whether there is no just reason for delay Messinger 041664 at p 14 894 So at 1122 2d 23 Considering the Messinger factors there is no just reason to delay disposing of the hepatitis C claim Rather the interests of judicial efficiency militates in favor of our deciding this issue Accordingly we turn to the merits ofthe appeal CORRECTNESS OF SUMMARY JUDGMENT A motion for summary judgment is properly granted if the pleadings depositions answer to interrogatories and admissions on file together with affidavits if any show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law LSAC art 966 P C B The burden of proof is on the movant This burden does not require mover to negate all essential elements of the adverse party claim action or defense but s 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 claim s Thereafter if the adverse party 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 LSA C art 966 P 2 C In determining whether summary judgment is appropriate appellate courts review evidence de novo under the same criteria that govern the trial court s 7 determination of whether summary judgment is appropriate Roccaforte v Wing Zone Inc 072451 p 3 La 1 Cir 8 994 So 126 128 writ App 08 21 2d denied 082266 La 11 996 So 1112 Because it is the applicable 08 21 2d substantive law that determines materiality whether a particular fact in dispute is material for summary judgment purposes can be seen only in light of the substantive law applicable to this case Id 072451 p 4 994 So at 128 2d The Scotts assert that genuine issues of material fact exist regarding the hospital s breaches ofthe standard of care in connection with Cedric Jr contracting hepatitis C and the resulting sequelae including but not limited to a liver transplant It is undisputed that Chabert did not supply the two units of blood at issue s Chabert evidence includes a document showing the chain of custody of the blood It also shows that the blood tested negative for hepatitis An affidavit from the blood bank indicates that the donors of the blood had been screened before donating and that two of the three donors were retested and found negative after Cedric Jr was diagnosed with hepatitis C The other donor could not be located but there is no evidence he had hepatitis Chabert also submitted the affidavit of Satheesh Nair M Cedric Jr treating physician D s Dr Nair stated that it was his opinion that Cedric Jr contracted hepatitis C much earlier than 1999 Moreover two physicians stated in affidavit that it is more likely that Cedric Jr contracted hepatitis C when he was treated as a newborn for bilateral spontaneous pnemothorax In their opposition to Chabert motion for partial summary judgment the s Scotts presented no evidence to show that the blood Cedric Jr received was defective Rather their expert William N Grant M merely stated in his D affidavit that Hepatitis C is most commonly transmitted by blood transfusion He also said that Cedric Scott developed liver cirrhosis more likely than not secondary to his blood transfusions during the splenectomony at Chabert Medical 8 Center Dr Grant suggested that more likely than not hospital protocol was not adhered to and consequently more likely than not Cedric Jr contracted Hepatitis C from the blood transfusion The Scotts appear to argue that their witness s affidavit is enough to rebut Chabert evidence s To defeat Chabert motion for summary judgment the Scotts must produce s factual support sufficient to establish that they will be able to satisfy their evidentiary burden at trial LSAC art 966 Dr Grant statements s P C 2 C however are opinions unsupported by facts and insufficient to show the Scotts can win at trial Here they are unable to meet their burden therefore there is no genuine issue of material fact Accordingly the Scotts assignment of error is without merit and the summary judgment is affirmed DECREE For the above stated reasons we affirm the partial summary judgment of the trial court The costs of this appeal in the amount of 2 are assessed to the 00 484 plaintiffsappellants Ramona Scott wife ofand Cedric Scott Sr individually and as natural tutors of the minor Cedric Scott Jr AFFIRMED W RAMONA SCOTT WIFE OFAND FIRST CIRCUIT CEDRIC SCOTT SR INDIVIDUALLY AND AS NATURAL TUTORS OF THE MINOR CEDRIC SCOTT JR VERSUS COURT OF APPEAL LEONARD J CHABERT MEDICAL CENTER THROUGH BOARD OF STATE OF LOUISIANA SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND AGRICULTURAL AND MECHANICAL COLLEGE AND DR FADI NADDOUR NO 2010 CA 0192 wf Kuhn J dissenting By exercising jurisdiction in this case the majority caters to the desires of the parties to litigate this suit one issue at a time and ignores the historic policy against multiple appeals and piecemeal litigation The result is that a single issue is decided and the matter is remanded for further proceedings wherein the same parties will be involved and much of the same evidence will be considered to resolve the outstanding issues of this litigation Louisiana Civil Code article 1915B attempts to strike a balance between the undesirability of piecemeal appeals and the need for making review available at a time that best serves the needs of the parties J R Messinger Inc v Rosenblum 041664 p 13 La 3 894 05 2 2d So 1113 1122 To allow an immediate appeal in this instance only causes delay and judicial inefficiency there is nothing in the record to suggest that an immediate appeal of the partial summary judgment at this stage of the proceedings best serves the needs of the parties or that other compelling or urgent circumstances weigh in favor of immediate review Further no injustice would result from delaying this appeal until the remaining issues which all pertain to the medical care that Cedric Scott Jr received while at the Leonard J Chabert Medical Center have been resolved Accordingly 1 would dismiss this appeal because it is based on a judgment that was improperly designated by the trial court and by this court as a final judgment pursuant to Article 1915B

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