138 So. 3d 1280
La. Ct. App.2014Background
- Hurricane Katrina prompted executive public health emergency declarations in Louisiana, invoking special care standard for health care providers under La. R.S. 29:771(2)(c).
- Daigle underwent a laminectomy on Nov. 28, 2005, within the declared emergency period, during which a sponge was later found to be retained near the incision.
- Daigle filed a Medical Review Board complaint; panel concluded there was no gross negligence or willful misconduct and that the applicable standard was Gov’t emergency statute, not mere general malpractice.
- Daigle sued Steck and West Jefferson Medical Center; West Jefferson was dismissed; Steck moved for summary judgment arguing the emergency statute applied and required gross negligence or willful misconduct.
- Daigle offered a surgeon Dr. Larson report/affidavits alleging negligence for leaving a foreign body; Steck argued expert proof of gross negligence was lacking and material staff sponge-count protocol supported non-negligence.
- Trial court granted summary judgment, and Daigle was given a deadline to submit evidence from a surgery expert; after late submissions, the court denied; Daigle appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether RS 29:771 B(2)(c) applies to Daigle's surgery during the emergency | Daigle argues emergency provisions cover surgery and doctors generally during Katrina. | Steck maintains statute governs medical malpractice during declared emergencies and requires gross negligence or willful misconduct. | Statute applies; medical malpractice burden overrides general negligence. |
| Whether plaintiff must prove gross negligence or willful misconduct to recover | Daigle asserts res ipsa and general negligence suffice. | Steck contends plaintiff must show gross negligence or willful misconduct under the emergency statute. | Burden on plaintiff to prove gross negligence or willful misconduct; medical standard prevails. |
| Whether res ipsa loquitur applies to shift the burden or prove fault | Pfiffner-based argument that obvious careless acts permit negation without expert proof. | Res ipsa requires causal nexus demonstrated by preponderance and does not override statutory burden. | Res ipsa not applicable to create liability where statutory threshold unmet. |
| Whether late submissions from Dr. Larson could defeat summary judgment | Larson affidavits should be considered as evidence of gross negligence. | Court should not consider post-deadline submissions. | Court properly disregarded late submissions; summary judgment affirmed. |
Key Cases Cited
- Pfiffner v. Correa, 643 So.2d 1228 (La. 1994) (negligence per se and need for causal nexus)
- Rabalais v. Nash, 952 So.2d 653 (La. 2007) (gross negligence defined; high standard of care)
- In re Succession of Holbrook, — So.3d — (La. 2014) (de novo review of summary judgments; applicable law)
- Burge v. State, 54 So.3d 1110 (La. 2011) (specific statute controls over general provision when in conflict)
- Pignona v. Father, 128 So.3d 390 (La. App. 5 Cir. 2013) (statutory burden overrides general negligence standard)
- Muller v. Carrier Corp., 984 So.2d 883 (La. App. 5 Cir. 2008) (summary judgment standards; deference to evidentiary burdens)