Walter Williams VS Niel J. Linschoten, Baton Rouge General Medical Center, ABC Insurance Company, and XYZ Insurance Company

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA T R CUi F A AL PE FIRST C IT I NO 2013 CA 0240 WALTER WILLIAMS VERSLTS NIELS J LINSCHOTEN M D Judgment Rendered OV N Q1 Z 3 k tl On l ppeal from the 19th Judicial llistrict Courk In and for the Parish ofEast Baton Rouge 1 State of Louisiana Trial Court No b07 18 Honorable Ka Bates Judge Presiding x Monique Balcer Fields attorney for Plaintiff Appellant Walter Williams LA Herbert J Mang 7r Tara S Bourgeois Carey M Nichols Baton Rouge LA Attorneys for Defendant Appellee Niels 7 Linschoten M D x BEFORE KUHN HIGGINBOTHANI AND THERIOT JJ HIGGINBOTHAM J In this medical malp action the plaintiff Walter W appeals the ractice illiams trial court granting of a mofion for summary judgment in favor of defendant s Niels J LM Far the asons that follow we affirm inschoten D FACTS AND FKt HISTORY CEDtiRAI On November 24 2008 Mro Williams was admitted to Baton Rouge General Medical Center to undergo a total left hip revision Dr Linschoten performed the operation Prior to surgery Dr Linschoten discussed with Mr Williams the possibility of lengthening his left leg as it was two inches shorter than his right leg During the operation excessive bleeding occurred from one of Mr Williams arteries and a vascular surgeon was cc After the surgery Mr Williams nsulted suffered complications including pain and tingling in his left foot swelling of his ankles feet and toes and partial paralysis of the left leg On November 28 2011 Mr Williams filed a petiYion for damages against Dr Linschoten In his petition 1VIr Williams asser that Dr Linschoten was s negligent in failing tio render the reasonable standard of care and the complications he suffered wer the direct result oi the botched surgery performed by Dr Linschoten On June 11 2012 Dr Linschoten filed a motion for summary judgment asserting that he was entitled to judgznent as a matter of law as there is no genuine issue as to material fact regarding vlr Williarr7s claim that Dr Linsehoten caused or contributed to his alleged injury Dr Linschoten also noted that I Williams 1r in his answer to znterrogataries stated that he did not have an expert witness at this titne On October 3 2012 Mr Williams filed an amended petition for damages adding Louisiana Medical Mutual Insurance Company as a defendant and asserting that Dr L lengthened Mr Williams leg during the surgery without anschoten 2 having obtained consent from Mr Williams to do so and without advising him of the risks involved in the procedure Mr V6 also filed an opposition to Dr illiams s Linschoten motion for summary judgment and attached a document entitled Review of Records signed b Uc 1 M M rdon ad D Dr Linschotezi filed a motic nto strike the Re of Records submitted in iew opposition to tl motion for summar judgment because it failed Lo establish that e Dr Mead is qualified to testify as to the standard of care and it was not sworn testimony in the form of an affidavit The motion for summary judgment came before the trial court on November 19 2012 During the hearing the trial court granted Dr Linschoten motion to s strike the Review of Recard and granted his motion for summary judgment finding that Mr Williams failed to present e testimony suf to support a ert cient breach of the applicable standard of care by Dr Linschoten On December 17 2012 judgment was signed granting summary judgment in favor of Dr Linschoten and dismissing with prejudice all claims asserted by Mr Williams against Dr Linschoten Mr Williams timely filed this appeal DISCUSSION Appellate courts review surnmary ju ue novo under the same criteria gments that govern the trial court comsi of whether summary judgment is s eration appropriate Duncan v U Ins o 2006 La 11 950 So A S 3 3C 06 29 2d 544 547 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 3 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 Gj In a meaical malpractice action againsr a physician the laintiff must establish by a pre of the evidence the applicablz standard of care a onderance violation of tk standard of care and a causal connection betw the alleged at en negligence and the plaintiff injuries See La R 9see also Pfiffner v s Se 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 1 2006 iitchell 382 La App lst Cire 12 951 So 307 31 writ denied 200 La 06 28 2d 0905 7 07 15 6 958 So 1199 Although the jurisprudence has recognized exceptions 2d in instances of obvious negligence those e are limited to instances in ceptions which the medical and factual issue are such that a lay person can perceive negligence in the charged physician conducY a well as any expert can Pfiffner s 643 So at 1234 2d Louisiana Code of Ci Yrocedwe article 96 describes the type of documentation a party may subrr in support of or in opposition to a motion for it suimnary judgt Supporting and op affidavits shall be made on personal ient osing knowledge shall set forth facts that would be admissible in evidence and shall show affirmatively that the affiant is competent ta testify to the inatters stated therein A document that is not an affidavit or swom to in any way or is not certified or attached ko an affida is not of suffieient evidentiary quality on summary judgment to be given weight in determining whether or not there remain genuine issues of material fact Bc v West Feliciana Parish Police Jury land 1297 2003 La A lst Cir 6 878 Soe2d 808 813 writ denied 2004 p 04 25 2286 La 11 888 So 231 04 24 2d 4 At the summary judgment hearing 1V1r W relied on the Review of illiams Records a report prepared and signed by Dr Mead in which Dr Mead summarized the medical history of Mr Williams includin his review of the surgical procedure performed by Dr Lizischoten The document submitted by Mr Williams was not certified or attached to an affidavit or swozn to in anyway and therefore the trial court correctly deYermined that it had no evidentiary value on the motion for summary Commerce judgment See Bunge North America v Board of Industry and Louisiana Department of Economic Development 1746 2007 La App lst Cir 5 991 So 511 530 writ denied 2008 0 2 2d 1594 La 11 21 08 Mr Williams did not submit any other expert evidence in opposition to the motion for summary judgment Mr Williams produced no admissible testimony of an expert witness which is generally necessary as a matter of law to meet the burden of proof on a medical malpractice claim Further as noted by the trial court this case involved a complicated procedure and does not fit into the exception of obvious negligence Therefore ivlr Williams failed to present competent evidence in support of his claim of negligence on the part of Dr Linschoten because Mr Williams failed to establish the standard of care that Dr Linschoten breached the standard of care or a causal connection between the alleged negligence and Mx Williams injuries as required by La R 9 S 2794 A Mr Williams also alleges that during the procedure Dr Linschoten proceeded to lengthen Mr Williams leg withaut having obtained consent or advising him of the risks involved At the time of the surgery the duty to obtain informed consent was found at La R 40 known as Louisiana IIniform S 1299 Consent law The informed consent doctrine is based on the principle that every human being o adult years and sound mind has a right to determine what shall be F S 1299 La R 40was repealed by Acts 2012 now contained in La R 40 S 129939 5 5 No 759 3 effective June 12 2012 and is done to his ar her own body Hondroulis v Schuhmacher 553 So 398 411 2d La 1988 Surgeons and other doctors are thus Yequired to provide their patients with sufficient information to permit the patient himself to make an informed and intelligent decision on whether to submit ta a proposed course of treatnnent Id Where circumstances permit the patient should be told the nature of the pertinent ailment or condition the general nature of the roposed treatment or procedure the risks involved in the proposed treatment or procedure the prospects of success the risks of failing to undergo any treatment or procedure at all and the risks of any alternate methods of treatment Id Mr Williams again relied on the inadmissible report of Dr Mead to prove that he did not consent to the lengthening of his leg After thorough review of the record presented in this case and the applicable law we conclude that Mr Williams failed to produce factual support to show that he will be able to bear his burden of proof under the Uniform Consent Law Mr Williams did not attach the informed consent document he signed prior to surgery that he alleges did not include informed consent far the lengthening of his leg He provided no evidence to prove that the leg lengthening was done or if it was done that Dr Linschoten did not have informed consent to perform the procedure Further we note that Mr Williams original petition states The revision of the left hip replacement was to be performed by Dr Linschoten and the objecti ewas to lengthen Mr Williams leg due to the fact that one leg was two 2 inches shorter than the other When a motion for summary judgment is made and supported as provided in La Code Civ P art 967 an adverse parly may not rely on the mere allegations or denials of his pleading but must respond with affirmative evidence See Thomas v Hodges 2010 La App lst Cir 10 48 So 1274 1281 writ 0678 29 3d denied 2010 La 2 54 So3d ll09 2637 11 11 6 Mr Williams has failed tc prc an affirmative evidence that Dr duce Linschoten was negligent ar viol the Unifors Consent Law in this case ted r therefore we find no error in the summar judgment granted by the trial court V CUNCLUSIO For the foregoing reasans the judgmer uf ihe trial court grariiing summary t judgment ir favor of defenaant appellee Dr vieis J Linschoten is affirmed All costs of this appeal are assessed to plaintiff Mr Walter Williams appellant AFFIRMED

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