132 So. 3d 495
La. Ct. App.2014Background
- Plaintiff Kerry Foster underwent TLIF lumbar surgery by Dr. Ravish Patwardhan in Sept. 2008 and awoke with new right lower‑extremity pain, numbness, and right foot weakness. Postoperative imaging showed hardware placement but a portion of the cage extended beyond vertebral boundaries.
- Continued pain led to another surgeon removing the hardware in April 2010; that surgeon documented the implant was not affixed and was subsided into the vertebral body.
- A unanimous medical review panel (Dec. 2011) found Dr. Patwardhan breached the standard of care, failed to follow up and inform Foster, and that Foster was not an appropriate candidate for the surgery; the panel opinion favored Foster.
- Foster moved for partial summary judgment on liability, relying on the panel opinion and a panel physician affidavit; Dr. Patwardhan opposed with his own affidavit and an affidavit (and later an unsworn report) from Dr. Robert Lieberson asserting care met the standard.
- The trial court granted summary judgment on liability and later granted summary judgment on statutory damages (applying the $100,000 cap against the physician). Court of Appeal affirmed liability but reversed the statutory‑damages ruling due to factual dispute over whether Foster has a true right foot drop.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment on liability was proper given the medical review panel opinion and expert affidavits | Panel opinion and panel physician affidavit establish breach and causation; no genuine issue of material fact | Two opposing affidavits (Dr. Patwardhan and Dr. Lieberson) create genuine factual disputes about standard of care | Affirmed: plaintiff entitled to summary judgment on liability; defendant affidavits insufficient to create genuine issue |
| Whether Dr. Patwardhan could serve as an expert via affidavit | N/A (Plaintiff challenged competency) | Dr. Patwardhan asserted he was qualified to opine on standard of care | Court found he lacked required competence under La. R.S. 9:2794(D) (not board certified, lacked substantial recent neurosurgical practice); affidavit excluded for expert opinion |
| Sufficiency/admissibility of Dr. Lieberson’s affidavit and expert report | N/A | Lieberson’s affidavit/opinion rebuts panel opinion; report supplements affidavit | Lieberson affidavit too conclusory (failed to state facts/reasoning) and unsworn/unverified expert report inadmissible for summary judgment; excluded |
| Summary judgment on statutory damages (whether $100,000 physician cap applies) — whether Foster suffers true right foot drop | Foster’s affidavit and Dr. Adams’ report indicate right foot drop and significant damages exceeding economic claims | Dr. Patwardhan and treating surgeons submitted affidavits/reports showing 5/5 motor strength and no foot drop; factual dispute exists | Reversed as to statutory damages: genuine factual dispute over right foot drop precludes summary judgment on damages cap |
Key Cases Cited
- Samaha v. Rau, 977 So.2d 880 (La. 2008) (summary judgment standard and burdens)
- Wright v. Louisiana Power & Light, 951 So.2d 1058 (La. 2007) (summary judgment burdens and procedure)
- Bijou v. Alton Ochsner Med. Found., 679 So.2d 893 (La. 1996) (summary judgment on damages may be proper if no factual dispute)
- Boland v. West Feliciana Parish Police Jury, 878 So.2d 808 (La. App. 1st Cir. 2004) (unsworn/unverified documents not competent summary judgment evidence)
- Independent Fire Ins. Co. v. Sunbeam Corp., 755 So.2d 226 (La. 2000) (credibility determinations are for the trier of fact)