240 So. 3d 975
La. Ct. App.2017Background
- Decedent John D. Cryer, Sr. died after being transferred from Tangi Pines to North Oaks; daughter (Thelma Cryer) sued Tangi Pines Nursing Center and Nurse Rebecca Moore for malpractice alleging dehydration, malnutrition, infection, and sores due to inadequate care.
- Defendants moved for summary judgment contending plaintiff lacked an expert under La. R.S. 9:2794 to establish standard of care and causation.
- Defendants submitted an unsigned, uncertified copy of the medical review panel opinion and other referenced discovery materials that were not attached or introduced into evidence.
- Plaintiff identified Dr. Ronald Andrews as her expert and filed an affidavit (and sought to file a supplemental affidavit), but the record lacks the supplemental affidavit and the original affidavit’s filing/admission at the hearing is unclear.
- Trial court granted summary judgment for defendants (Dec. 8, 2016) and denied plaintiff’s motion for new trial; plaintiff appealed challenging the sufficiency of her expert affidavit and the trial court’s reliance on defendants’ submissions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendants met initial burden for summary judgment | Defendants failed to file admissible evidence proving absence of factual support for malpractice elements | Defendants say the unsigned medical review panel opinion and other materials shift burden to plaintiff | Court: Defendants failed to meet initial burden because submitted materials lacked evidentiary value; burden never shifted |
| Evidentiary value of unsigned medical review panel opinion | Plaintiff argued unsigned/uncertified panel opinion is inadmissible and insufficient on summary judgment | Defendants argued the panel opinion supports summary judgment (citing Schultz) | Court: Unsigned, uncertified draft has no evidentiary value and cannot support summary judgment |
| Sufficiency of plaintiff’s expert affidavit under La. R.S. 9:2794 | Plaintiff sought to rely on Dr. Andrews’ affidavit/supplement to establish standard, breach, causation | Defendants argued plaintiff’s expert evidence was insufficient/noncompliant | Court did not accept that defendants proved absence of factual support; trial court’s rejection of plaintiff’s affidavits was not dispositive because mover failed initial showing |
| Appealability/form of appeal | Plaintiff mistakenly appealed the denial of new trial but intended to appeal the final summary judgment | Defendants could argue procedural defect warrants dismissal | Court: Appeal construed as from final judgment on merits; merits considered |
Key Cases Cited
- Schultz v. Guoth, 57 So.3d 1002 (La. 2011) (expert testimony requirement in medical-malpractice cases and use of medical review panel opinion)
- Celotex Corp. v. Catrett, 477 U.S. 317 (U.S. 1986) (movant’s initial summary judgment burden explained)
- Samaha v. Rau, 977 So.2d 880 (La. 2008) (summary judgment burden and Celotex framework applied under Louisiana law)
- Unifund CCR Partners v. Perkins, 134 So.3d 626 (La. App. 1 Cir. 2013) (uncertified documents have no evidentiary value on summary judgment)
- Simmons v. Berry, 779 So.2d 910 (La. App. 1 Cir. 2000) (uncertified medical review panel opinion insufficient for summary judgment)