367 So.3d 689
La. Ct. App.2022Background
- Pro se plaintiff Geneva Hawthorne sued multiple Tulane providers after her son, Tajwayne Hawthorne, was hospitalized 12/16/2014–12/18/2014 and died 12/25/2014; she alleged premature discharge and failure to dialyze/treat renal failure and related conditions.
- A Medical Review Panel (MRP) unanimously found no breach of the standard of care by Dr. Anish Patel and the other treating physicians.
- Dr. Patel moved for summary judgment relying on the MRP report; he argued Hawthorne had no medical expert to rebut the MRP.
- Hawthorne had identified Dr. Leonardo Seoane as an expert in discovery but Ochsner said he never agreed to serve; she attempted to subpoena him and submitted an unsworn e‑mail/letter she claimed supported her claim.
- The trial court granted Dr. Patel’s motion; Hawthorne appealed, arguing she was not subpoenaed/served and that the court erred in not compelling or admitting Dr. Seoane’s evidence.
- The Fourth Circuit affirmed: Dr. Patel’s MRP‑based showing shifted the burden, Hawthorne produced no admissible expert evidence to create a factual dispute, and procedural/admissibility objections were untimely or not preserved.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service/subpoena notice of hearing | Hawthorne contends she was not subpoenaed/served for hearings and therefore SJ was improper | Dr. Patel notes Hawthorne did not object below and the issue was not raised at the hearing | Waived/not preserved on appeal; court will not consider it for the first time on appeal |
| Burden to produce expert evidence after favorable MRP | Hawthorne says she identified Dr. Seoane and his letter shows deviation from standard of care | Dr. Patel relied on the MRP to show absence of factual support for malpractice; plaintiff must produce admissible expert proof to defeat SJ | Dr. Patel met his initial burden with the MRP; Hawthorne produced no admissible expert testimony showing breach and causation, so SJ proper |
| Compelling expert attendance / admissibility of unsworn letter | Hawthorne argues the court should have compelled Seoane to appear or admitted his e‑mail letter | Defendants argue Seoane never agreed, no good cause to continue, and the letter is unsworn/untimely and conclusory | No continuance required; Seoane’s letter was properly excluded (not affidavit/deposition and late); even if admitted it was conclusory and insufficient to establish breach/causation |
Key Cases Cited
- Descant v. Herrera, 890 So. 2d 788 (La. App. 4th Cir. 2004) (summary judgment reviewed de novo)
- Varnado v. 201 St. Charles Place, LLC, 344 So. 3d 241 (La. App. 4th Cir. 2022) (summary judgment standards under La. C.C.P. art. 966)
- Samaha v. Rau, 977 So.2d 880 (La. 2008) (MRP favorable opinion may support defendant’s summary judgment)
- Wright v. Louisiana Power & Light Co., 951 So.2d 1058 (La. 2007) (nonmoving party’s failure to produce evidence mandates SJ)
- Pfiffner v. Correa, 643 So.2d 1228 (La. 1994) (obvious‑negligence exception to expert requirement)
- Jordan v. Community Care Hospital, 276 So.3d 564 (La. App. 4th Cir. 2019) (plaintiff generally needs expert testimony in malpractice cases)
- Buggage v. Volks Constructors, 928 So.2d 536 (La. 2006) (time limits for opposition affidavits are mandatory)
- Simon v. Allen Oaks, LLC, 298 So.3d 881 (La. App. 3d Cir. 2020) (conclusory expert opinions insufficient to defeat summary judgment)