Olivia T. Bethley, Percy Bethley, Jr., Billy Bethley, Darlene Bethley and Donnie Bethley VS Dr. Reza Sheybani, Louisiana Medical Mutual Insurance Company and Baton Rouge General Medical Center

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2010 CA 0713 OLIVIA T BETHLEY PERCY BETHLEY JR BILLY BETHLEY DARLENE BETHLEY AND DONNIE BETHLEY VERSUS DR REZA SHEYBANI LOUISIANA MEDICAL MUTUAL INSURANCE COMPANY AND BATON ROUGE GENERAL MEDICAL CENTER MID CITY Judgment rendered October 29 2010 Appealed from the 19th Judicial District Court in and for the Parish of East Baton Rouge Louisiana Trial Court No C580834 Honorable Todd W Hernandez Judge DEBORAH E LAVENDER JEFFREY A MITCHELL ATTORNEYS FOR METAIRIE LA OLIVIA T BETHLEY PERCY BETHLEY JR BILLY BETHLEY DARLENE PLAINTIFFSAPPELLEES BETHLEY AND DONNIE BETHLEY HERBERT MANG JR ATTORNEYS FOR TARA S BOURGEOIS APPELLANTS DEFENDANTS DR REZA SHEYBANI AND LOUISIANA ERIC E HELM LAUREN BYRD REED MEDICAL MUTUAL INSURANCE CO BATON ROUGE LA MICHAEL M REMSON ATTORNEYS FOR CALLI M BOUDREAUX DEFENDANT APPELLEE BATON ROUGE LA BATON ROUGE GENERAL MEDICAL CENTER BEFORE KUHN PETTIGREW 33 and KLINE J Pro Tem I Judge William F Kline Jr retired is serving as judge pro tempore pursuant to special appointment of the Louisiana Supreme Court PETTIGREW J This is an action for medical malpractice wherein plaintiffs filed suit against the hospital physician and physician insurer asserting that said defendants failed to meet s the applicable standard of care and that said negligence was a factor that contributed to the death of their husband and father In response the hospital filed a motion for summary judgment asserting that the evidence does not support the conclusion that its employees were negligent in failing to meet the applicable standard of care in their treatment of decedent In response plaintiffs indicated they agreed with the hospital and did not oppose the motion for summary judgment Defendant physician filed an opposition to the motion for summary judgment of the hospital which opposition included an expert affidavit by the defendant physician The hospital filed a motion to strike said affidavit Following a hearing the trial court granted the hospital motion to strike the s defendant physician affidavit and granted the hospital motion for summary judgment s s thereby dismissing plaintiffs claims against the hospital with prejudice Defendant physician and his insurer applied for supervisory writs following the grant of the hospital s motion to strike the doctor affidavit s Defendant physician and his insurer have also appealed the granting of the hospital motion for summary judgment that dismissed s plaintiffs claims against the hospital FACTS Percy Bethley an 80year old male exsmoker with a fiveyear history of chronic obstructive pulmonary disease COPD a lung disease that rendered him oxygen dependent and cardiomyopathy heart muscle disease was admitted to Baton Rouge General Medical Center MidCity BRGMC on June 9 2007 His principal complaints were shortness of breath and stridor for which he had been seen in the emergency room two days earlier and discharged home on oral medications On that date Mr Bethley was admitted initially to the telemetry floor with a diagnosis of respiratory distress secondary to COPD and was treated accordingly Mr Bethley developed expiratory stridor which increased over his first twenty hours of four 2 admission and began to deteriorate clinically with increased shortness of breath This development ultimately prompted a transfer to the intensive care unit ICU An s examination of Mr Bethley airway was conducted revealing that his glottic opening was s almost completely occluded A 8 non fenestrated tracheostomy or trach tube was eventually inserted although with considerable difficulty On June 12 2007 Mr Bethley underwent a bronchoscopy and tracheostomy without incident Blood cultures proved positive for influenza and Mr Bethley was continued on antibiotics and steroids Mr Bethley clinical condition improved on this s regimen to the point that he was successfully weaned from the ventilator The patient was then transferred from the ICU back to the floor and Dr Reza Sheybani was asked to provide a pulmonary consult At the request of Mr Bethley primary care physician Dr Sheybani evaluated Mr s Bethley for the first time on June 21 2007 Dr Sheybani ultimately made the decision to replace Mr Bethley trach tube from a 8 non fenestrated to a smaller 6 fenestrated s tube On the morning of June 22 2007 respiratory therapist Cecilia Eason began the process of changing Mr Bethley trach tube The deposition testimony provided by Ms s Eason and Dr Sheybani differ with respect to whether Dr Sheybani was actually present in Mr Bethley room at the point Ms Eason initiated the change in his trach tube The s deposition testimony of Olivia Bethley indicates Dr Sheybani was not in the patient s room when Ms Eason initiated the change in Mr Bethley trach tube but entered in the s middle of the process of Ms Eason removing the old trach tube and inserting the new tube It is undisputed that after his trach tube was changed Mr Bethley began coughing and Ms Eason was instructed by Dr Sheybani to administer suction Ms Eason experienced difficulty in getting the catheter inserted so Dr Sheybani recommended that she start Mr Bethley on oxygen At 10 a an Endo lab RN was called to Mr 05 m s Bethley bedside and Dr Sheybani administered a battery powered bronchoscope on Mr Bethley 3 Ms Eason continued to monitor Mr Bethley oxygen levels and administered s oxygen to him through his nose At 10 a Mr Bethley oxygen levels dropped to 30 m s 88 percent and a crash cart was pulled into his room Anesthesia was called in and attempts were made to intubate Mr Bethley but these attempts were not successful until after Mr Bethley had already arrested A code blue was called at 10 a and Ms 35 m Eason immediately began bagging Mr Bethley and initiating CPR Efforts to administer CPR proved unsuccessful and Mr Bethley was pronounced dead at 11 a 00 m ACTION OF THE TRIAL COURT Following Mr Bethley death on June 21 2007 his widow and children plaintiffs s herein filed a medical malpractice complaint with the Louisiana Patients Compensation Fund on December 12 2007 After plaintiffs malpractice claims were presented to a medical review panel and all parties were given the opportunity to submit evidence the medical review panel in a unanimous opinion rendered June 16 2009 found that the evidence did not support the conclusion that Baton Rouge General Medical Center Mid City BRGMC failed to meet the applicable standard of care as charged in the plaintiffs complaint The panel found however that the evidence did support the conclusion that Dr Sheybani failed to meet the applicable standard of care and that his conduct had been a factor in Mr Bethley demise s Upon receipt of the unanimous opinion of the medical review panel plaintiffs filed a Petition for Damages on July 30 2009 naming Baton Rouge General Medical Center Mid City BRGMC Dr Reza Sheybani and Louisiana Medical Mutual Insurance Company LAMMICO as defendants therein Plaintiffs alleged therein that the aforementioned defendants failed to meet the applicable standard of care and that said negligence was a factor that contributed to the death of their husband and father Percy Bethley Sr Dr Sheybani and LAMMICO filed an answer on August 14 2009 generally denying the allegations set forth in the plaintiffs petition except to admit that although Dr Sheybani was on the floor he was not present in Mr Bethley hospital room when Ms s Eason as ordered changed but then misplaced Mr Bethley trach tube In connection s Is with their answer Dr Sheybani and LAMMICO further set forth various affirmative defenses including the defenses of third party fault fault of other parties and comparative fault BRGMC also filed an answer on September 16 2009 raising affirmative defenses including third party fault contributory negligence and comparative fault Additionally on October 21 2009 BRGMC filed a motion for summary judgment asserting that the evidence did not support the conclusion that BRGMC employees were s negligent in failing to meet the applicable standard of care with respect to their treatment of Mr Bethley and that BRGMC was entitled to summary judgment and a dismissal with prejudice of plaintiffs claims against it In support of their motion for summary judgment BRGMC attached the following exhibits 1 Medical Review Panel Complaint filed December 12 2007 2 A copy of the Medical Review Panel opinion from meeting on June 16 2009 including Reasons for the opinion 3 Petition for Damages filed July 28 2009 4 Affivavit of Dr Zohair Pirzadah 5 Statement of Essential Legal Elements 6 Statement of undisputed facts and 7 Memorandum in Support of Motion for Summary Judgment Thereafter on November 16 2009 plaintiffs filed a pleading in response to BRGMC s motion for summary judgment indicating they were in agreement with BRGMC position s and would not oppose BRGMC motion for summary judgment s Dr Sheybani no later than February 11 2010 responded to BRGMC motion for s summary judgment by submitting a personal affidavit that contained his own expert medical testimony in an effort to prove the existence of genuine issues of material fact that would preclude the granting of summary judgment In his affidavit Dr Sheybani opined that Ms Eason an employee of BRGMC had been negligent or otherwise breached the applicable standard of care in connection with her treatment of Mr Bethley Dr Sheybani also attached various exhibits to his affidavit namely the medical records of 5 Mr Bethley from BRGMC his personal deposition the deposition of Ms Eason and the deposition of Mr Bethley widow plaintiff Olivia Bethley s BRGMC thereafter filed a motion to strike the affidavit of Dr Sheybani together with a memorandum in response to Dr Sheybani opposition to its motion for summary s judgment BRGMC motion to strike was set for hearing on the same date as BRGMC s s motion for summary judgment A hearing was held on February 22 2010 regarding BRGMC motion for summary s judgment and motion to strike the affidavit of Dr Sheybani At the conclusion of the hearing the trial court granted BRGMC motion to strike and thereby excluded the expert s evidence produced by Dr Sheybani that he claimed was sufficient to defeat summary judgment The trial court thereafter granted BRGMC motion for summary judgment s and counsel for Dr Sheybani and LAMMICO proffered the evidence excluded by the trial court On March 3 2010 the trial court signed two judgments the first granted s BRGMC motion to strike while the second granted BRGMC motion for summary s judgment and dismissed with prejudice plaintiffs claims against BRGMC Dr Sheybani and LAMMICO then filed a motion for devolutive appeal from the grant of summary judgment Dr Sheybani and LAMMICO also sought supervisory writs from this court challenging the trial court judgment granting BRGMC motion to strike s s Noting that the issues raised in their appeal were substantially similar to those raised in conjunction with their writ application Dr Sheybani and LAMMICO suggested that their writ application and appeal be consolidated In response to the writ application of Dr Sheybani and LAMMICO this court referred the writ application to the panel handling the appeal from the grant of summary judgment The plaintiffs did not appeal the summary judgment rendered in favor of BRGMC 2 The opposition memorandum affidavit and exhibits filed on behalf of Dr Sheybani in response to s BRGMC motion for summary judgment together with Dr Sheybani memorandum in opposition to s s BRGMC subsequent motion to strike are not contained within the record of this matter due to the trial s court grant of BRGMC motion to strike Said pleadings are nevertheless made a part hereof through a s proffer of evidence 3 See Bethley v Sheybani 2010CW0575 La App 1 Cir 6 10 21 121 ASSIGNMENT OF ERRORS ON APPEAL In connection with their appeal in this matter Dr Sheybani and LAMMICO set forth the following errors for consideration by this court on appeal 1 The trial court committed reversible error when it granted BRGMC motion s for summary judgment 2 The trial court committed reversible error when it held that the legal issues andor theories of recovery addressed in Dr Sheybani affidavit fell outside s the scope of the petition for damages and 3 Given that the trial court improperly excluded the admissible expert evidence put forth by Dr Sheybani and LAMMICO its decision to grant s BRGMC motion for summary judgment should be overturned STANDARD OF REVIEW 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 Johnson v Evan Hall Sugar Co op Inc 20012956 p 3 La App 1 Cir 12 836 So 484 486 Summary 02 30 2d judgment is properly granted if the pleadings depositions answers to interrogatories and admissions on file together with affidavits if any show that there is no genuine issue of material fact and that mover is entitled to judgment as a matter of law La Code Civ P art 966 Summary judgment is favored and is designed to secure the just speedy B and inexpensive determination of every action La Code Civ P art 966 Thomas 2 A v Fina Oil and Chemical Co 20020338 pp 45 La App 1 Cir 2 845 S0 03 14 2d 501 498 502 On a motion for summary judgment the burden of proof is on the mover If however the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment the mover burden on the motion does s not require that all essential elements of the adverse party claim action or defense be s negated Instead the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party claim action or s defense Thereafter the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial If the adverse party fails to meet this burden there is no genuine issue of material fact and the 7 mover is entitled to summary judgment La Code Civ P art 966 Robles v 2 C ExxonMobile 20020854 p 4 La App 1 Cir 3 844 So 339 341 03 28 2d In determining whether summary judgment is appropriate appellate courts review evidence de novo under the same criteria that govern the trial court determination of s whether summary judgment is appropriate Allen v State ex rel Ernest N Morial New Orleans Exhibition Hall Authority 2002 1072 p 5 La 4 842 So 373 03 9 2d 377 Because it is the applicable substantive law that determines materiality whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to this case Foreman v Danos and Curole Marine Contractors Inc 972038 p 7 La App 1 Cir 9 722 So 1 4 writ denied 982703 La 98 25 2d 98 18 12 734 So 637 2d LAW AND ANALYSIS The initial error assigned by Dr Sheybani and LAMMICO concerns propriety of the trial court grant of BRGMC motion for summary judgment We note at the outset s s and as correctly pointed out by BRGMC in its appellee brief that our decision as to whether BRGMC was entitled to summary judgment can have no effect on the plaintiffs in this matter Due to the fact that plaintiffs did not oppose BRGMC motion for summary s judgment and did not thereafter appeal or file an answer to the appeal of Dr Sheybani and LAMMICO the judgment of the trial court has now become final as between the plaintiffs and BRGMC and is not subject to reversal andor remand by this court See Grimes v Louisiana Medical Mutual Insurance Company 20100039 La 10 28 5 36 So 215 We must now decide whether the remaining defendants i 3d e Dr Sheybani and LAMMICO may reduce or defeat their liability to the plaintiffs by establishing the fault negligence andor breach of care by BRGMC andor its employees On appeal BRGMC contends that the trial court grant of its motion for summary s judgment was proper for the reason that the affidavit of Dr Sheybani was self serving and drafted in an attempt to create a false issue of material fact sufficient to defeat summary judgment BRGMC cites and relies upon Douglas v Hillhaven Rest Home Inc 970596 La App 1 Cir 4 709 So 1079 a case in which this court 98 8 2d E concluded that a subsequent affidavit in contradiction of prior deposition testimony is not sufficient to create an issue of fact precluding summary judgment Douglas 970596 at p 6 709 So at 1083 BRGMC further cites Wheelock v Winn Dixie Louisiana 2d Inc 01 1584 pp 5 7 La App 1 Cir 6 822 So 94 97 as authority for the 02 21 2d proposition that where there are unexplained inconsistencies between deposition testimony and a subsequent affidavit the affidavit is not sufficient to create a genuine issue of material fact with regard to the temporal element in order to defeat a motion for summary judgment By way of response Dr Sheybani cites La Code Civ P art 967 for the proposition that when a motion for summary judgment is properly supported he as the adverse parry may not rest on the mere allegations or denials of his pleadings but must generally respond by affidavit to provide evidence of a material dispute that precludes the granting of summary judgment Despite the fact that Dr Sheybani is an expert in the field of pulmonology the trial court without assigning specific oral or written reasons deemed Dr Sheybani affidavit inadmissible s Given the trial court failure to assign specific s reasons for its ruling it must be presumed that the trial court failure to admit the s affidavit of Dr Sheybani resulted from arguments put forth at the hearing by BRGMC At the hearing on its motion for summary judgment BRGMC contended that the affidavit of Dr Sheybani which was submitted in opposition to its motion was merely a self serving lastminute attempt by Dr Sheybani to avoid summary judgment BRGMC argued that Dr Sheybani affidavit contradicted his earlier deposition testimony and also s created issues of fact that were outside the scope of the plaintiffs cause of action and should accordingly be stricken from the record BRGMC claimed that Dr Sheybani affidavit contained three basic allegations s regarding a breach in the standard of care by Ms Eason Dr Sheybani attested that 1 Ms Eason was negligent or otherwise breached the applicable standard of care in failing to advise Dr Sheybani as to the limitations of her expertise capability and experience in changing the trach tube 2 Ms Eason undertook the changing of Mr Bethley trach tube s without first reviewing Mr Bethley chart and 3 Ms Eason was negligent or otherwise s 9 breached the applicable standard of care in failing to summon Dr Sheybani when she first experienced difficulty in changing the trach tube or observed signs that Mr Bethley was in respiratory distress BRGMC further claimed that Dr Sheybani affidavit contained no s reference or indication that the actions of Ms Eason fell below the applicable standard of care with respect to the misplacement of Mr Bethley trach tube s Counsel for Dr Sheybani argued in response that the cases of Douglas and Wheelock involved instances where the plaintiffs provided affidavits that differed substantially from or were inconsistent with the testimony given by said plaintiffs in their previous depositions Counsel for Dr Sheybani pointed to the fact that in his earlier deposition testimony Dr Sheybani stated that he had known Ms Eason for years and that she was a wonderful therapist Dr Sheybani was emphatic that contrary to Ms s Eason testimony it had been Ms Eason who changed Mr Bethley trach tube prior to s the time he happened to stop by Mr Bethley room Although Dr Sheybani declined to s give an opinion as to whether Ms Eason had breached the applicable standard of care Dr Sheybani stated that Mr Bethley trach tube was misplaced and done incorrectly s Mrs Bethley deposition testimony generally supported Dr Sheybani testimony as to s s the pertinent facts regarding who performed the procedure and at what time Dr Sheybani entered the room It was asserted that the statements set forth in Dr Sheybani affidavit did not s contradict his earlier deposition testimony but rather merely clarified or supplemented Dr s Sheybani previous deposition testimony Counsel for Dr Sheybani cited Terrebonne v Floyd 991036 p 6 La App 1 Cir 5 767 So 754 757 for the proposition 00 23 2d that when an affidavit merely supplements rather than contradicts prior deposition testimony a court may consider the affidavit when evaluating genuine issues of material fact when ruling on a motion for summary judgment Since the statements made by Dr Sheybani in his subsequent affidavit merely clarified and were not inconsistent with testimony given by Dr Sheybani in his earlier deposition we conclude the affidavit and the attached exhibits were admissible For these reasons we grant the writ in the matter of Bethley v Sheybani 2010 CW0575 T La App 1 Or 6 and reverse the judgment rendered by the trial court on 2010 21 March 3 2010 which granted BRGMC motion to strike Dr Sheybani affidavit s s Dr Sheybani affidavit with attached exhibits including the deposition of Mrs s Bethley should have been considered by the trial court in evaluating BRGMC motion for s summary judgment After a de novo review by this court of the entire record and exhibits including the affidavit of Dr Sheybani with its attached exhibits we conclude that there are genuine issues of material fact regarding whether BRGMC andor its employees failed to meet the applicable standard of care with respect to their treatment of Mr Bethley CONCLUSION For the above and foregoing reasons in civil writ Bethley v Sheybani 2010 CW 0575 La App 1 Cir 6 the judgment of the trial court granting BRGMC 2010 21 s motion to strike the affidavit of Dr Sheybani and its attached exhibits is hereby reversed We affirm the trial court summary judgment insofar as it dismissed the plaintiffs claim s against BRGMC Since the plaintiffs have failed to appeal that judgment it has acquired the authority of a thing adjudged and is final between plaintiffs and BRGMC However we conclude that genuine issues of material fact remain regarding the issues raised in that motion for summary judgment which may ultimately have bearing on plaintiffs claims against Dr Sheybani and LAMMICO and the judgment is not final as to these parties This matter is hereby remanded to the trial court for further proceedings consistent with this opinion and all costs associated with the filing of said motions and the costs of this appeal shall be assessed against BRGMC AFFIRMED IN PART REVERSED IN PART AND REMANDED 11

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