126 So. 3d 524
La. Ct. App.2012Background
- Plaintiff Battaglia alleges Dr. Contreary caused an esophageal perforation during a laparoscopic Nissen fundoplication and subsequent infection.
- CRNA Hammond reportedly placed a bougie in Battaglia’s esophagus; plaintiff asserts this caused the perforation and medical complications.
- Medical Review Panel found no breach of the standard of care by Dr. Contreary or Dr. O’Sullivan; plaintiff filed a Petition for Damages in 2005.
- Dr. Contreary moved for summary judgment in 2011, arguing plaintiff lacked a qualified expert to prove breach of the standard of care.
- Plaintiff opposed, arguing there are material issues regarding standard of care for bougie placement, negligence per se, and vicarious liability for Hammond.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether expert testimony is required to prove breach of the standard of care | Battaglia argues expert testimony is not necessary to prove negligence. | Contreary contends expert testimony is required to establish standard of care and breach. | Summary judgment proper; burden shifts to plaintiff due to lack of admissible expert proof. |
| Whether Berger’s affidavit is sufficient to establish the applicable standard of care | Berger opinions show breach by causing perforation, proving standard of care. | Berger is not qualified to address Louisiana surgeon standards for Bougie placement; testimony insufficient. | Berger not qualified; does not establish the applicable standard or breach. |
| Whether plaintiff proved Dr. Contreary breached the standard of care or was vicariously liable for Hammond | Contreary directed or supervised Bougie placement; Hammond’s negligence may be imputed. | No evidence of breach; no admissible expert to connect supervision to breach. | No genuine issue of material fact; no breach proven; no vicarious liability shown. |
Key Cases Cited
- Pfiffner v. Correa, 643 So.2d 1228 (La. 1994) (expert testimony not always required for obvious negligence)
- Schultz v. Guoth, 57 So.3d 1002 (La. 2011) (expert testimony generally required for medical malpractice)
- Bester, 828 So.2d 644 (La.App. 4 Cir. 2002) (summary judgment burden shifting and triable issues)
- Coleman v. Deno, 787 So.2d 446 (La.App. 4 Cir. 2001) (overlapping specialties and expert qualification considerations)
- McLean v. Hunter, 495 So.2d 1298 (La.1986) (discipline overlap and expert testimony standards)