170 So. 3d 1099
La. Ct. App.2015Background
- Steven Gonzales presented a small, hard, pimple-sized lesion in his elbow to Dr. Elie Lao on Nov 7, 2006; Dr. Lao diagnosed a cyst and again on Dec 8, 2006 when the lesion grew to ~quarter size.
- Dr. Lao performed an in‑office removal on Dec 28, 2006; pathology on Jan 10, 2007 diagnosed Merkel cell carcinoma (stage II T2N0).
- Plaintiffs (Steven and Nancy Gonzales) filed a medical review panel claim; the MRP found a documentation breach but concluded it did not cause delay or harm.
- Plaintiffs sued Ochsner alleging that delayed diagnosis/treatment caused need for more extensive surgery and worse prognosis; Ochsner moved for summary judgment for lack of expert proof on causation.
- Plaintiffs produced two experts: Dr. Lee Fischer (family physician) on standard of care and breach, and Dr. Gerald Liuzza (forensic pathologist) on increased recurrence risk from delay; Liuzza’s deposition showed the literature he relied on did not distinguish survival between T1 and T2 localized tumors.
- Trial court granted summary judgment for Ochsner because plaintiffs lacked admissible expert proof of causation; the Fifth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs produced admissible expert evidence of causation linking delay to increased harm | Gonzales: delay increased risk of recurrence and worse prognosis; experts support causation | Ochsner: plaintiffs’ experts don’t establish causation—medical literature relied on shows no increased risk from the delay | Held: No. Expert Liuzza’s deposition and the article he relied on show no increased risk; plaintiffs failed to meet causation burden |
| Whether plaintiffs established standard of care and breach without a cancer specialist | Gonzales: Dr. Fischer’s testimony shows breach (failure to document, not remove earlier) | Ochsner: Fischer is not a cancer specialist and defers on specifics of tumor timing; breach alone insufficient without causation evidence | Held: Fischer may address breach but cannot prove causation; absence of causation proof is dispositive |
| Whether causation is inappropriate for summary judgment because it’s a factfinder issue | Gonzales: causation should go to jury, not decided on summary judgment | Ochsner: where reasonable minds could not differ, causation can be resolved on summary judgment | Held: Causation was decidable on summary judgment because the evidence (plaintiffs’ own expert and literature) left no genuine issue |
| Whether plaintiffs may recover for negligent infliction of emotional distress absent physical injury or proven malpractice | Gonzales: seek emotional damages from alleged delay | Ochsner: Louisiana generally requires physical injury or special circumstances; recovery requires proof of malpractice | Held: No recovery; plaintiffs failed to prove malpractice, so emotional distress claim fails |
Key Cases Cited
- Int’l Ass’n of Heat & Frost Insulators v. Patemostro, 142 So.3d 284 (La. App. 5th Cir. 2014) (summary judgment standard and liberal application)
- Pfiffner v. Correa, 643 So.2d 1228 (La. 1994) (expert testimony generally required in malpractice cases)
- Samaha v. Rau, 977 So.2d 880 (La. 2008) (absence of expert testimony precludes malpractice liability except for obvious negligence)
- MacFadden v. Ochsner Clinic Found., 998 So.2d 161 (La. App. 5th Cir. 2008) (plaintiff must show ability to satisfy evidentiary burden at trial to avoid summary judgment)
- Moresi v. Dept. of Wildlife & Fisheries, 567 So.2d 1081 (La. 1990) (limits on negligent infliction of emotional distress; special circumstances required)
- Straughan v. Ahmed, 618 So.2d 1225 (La. App. 5th Cir. 1993) (emotional distress recoverable where ‘‘cancerphobia’’ arises from physician negligence)