290 So.3d 280
La. Ct. App.2020Background
- Margaret Staten (age 73) presented to Glenwood Regional Medical Center in April 2015 with abdominal pain; CT/MRI showed possible pancreatitis and mesenteric "studding" suspicious for neoplasm; CA 19‑9 was mildly elevated (66 then 180.1).
- Dr. Robin Sharp (hospitalist) treated and discharged Staten April 24, 2015 with follow‑up; Dr. Arthur Richert (gastroenterologist) saw her and ordered further imaging and labs; EGD with biopsy was nondiagnostic.
- Staten was later admitted to St. Francis (June 8, 2015) with peritoneal carcinomatosis and died July 17, 2015.
- Plaintiff (daughter) sought a Medical Review Panel (MRP); the MRP concluded no breach of care. Plaintiff sued; defendants moved for summary judgment attaching certified medical records and copies of the MRP opinion.
- Plaintiff opposed with an affidavit from Dr. Andrew Schneider (oncologist) asserting breach and causation, but the affidavit omitted detail on Schneider’s credentials and documentary bases; a CV was later filed unsworn. District court granted summary judgment and denied a motion for new trial; plaintiff appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility/use of the MRP opinion at summary judgment | MRP copies were not certified; therefore defendants' reliance was improper | MRP opinions are admissible and plaintiff failed to timely object, so court could consider them | Court considered the MRP opinion (plaintiff did not timely object) and treated it as summary‑judgment evidence in defendants' favor |
| Adequacy of plaintiff's expert affidavit to create a genuine issue | Schneider's affidavit states standard, breach, and loss of chance—sufficient to defeat summary judgment | Affidavit fails to show Schneider’s competence (no education/board/experience), fails to list documents relied on; CV unsworn; affidavit therefore inadmissible | Court found the affidavit deficient under La. C.C.P. arts. 966/967, disregarded it, and held plaintiff failed to meet evidentiary burden—summary judgment affirmed |
| Motion for new trial based on supplemented affidavit | Supplemental affidavit cured defects; discretionary new trial justified to avoid miscarriage of justice | Supplemental opinion was not new evidence and could have been submitted earlier; motion is an impermissible second bite | Court did not abuse discretion in denying new trial: addendum was not newly‑acquired evidence and would not excuse the original deficiency |
| Requirement that plaintiff's expert be the same specialty as defendants | Plaintiff: expert need only have adequate knowledge of subject matter (not identical specialty) | Defendants: Schneider was the wrong specialty to opine on gastro/hospitalist care | Majority disposed on affidavit defects (specialty question immaterial); dissent concluded Schneider was competent and would have reversed as to the physicians but affirmed as to hospital/system claims |
Key Cases Cited
- Samaha v. Rau, 977 So. 2d 880 (La. 2008) (MRP report is admissible evidence in subsequent malpractice litigation, including summary judgment)
- McLean v. Hunter, 495 So. 2d 1298 (La. 1986) (specialist’s knowledge—rather than mere specialty title—governs qualification to testify on standard of care)
- Nettle v. Nettle, 212 So. 3d 1180 (La. App. 1 Cir. 2016) (unsworn or uncertified documents are not proper summary‑judgment evidence)
- J & L Oil Co. v. KM Oil Co., LLC, 247 So. 3d 147 (La. App. 2 Cir. 2018) (when movant shows absence of factual support for an element, nonmovant must produce sufficient factual support to meet trial burden)
- Creek Mgmt., L.L.C. v. Unopened Succession & Unknown Heirs or Legatees of Williams, 223 So. 3d 1194 (La. App. 2 Cir. 2017) (appellate review of summary judgment is de novo; same standard as trial court)