89 So. 3d 429
La. Ct. App.2012Background
- Gorbachs appeal a summary judgment in favor of Tulane Hospital; record lacks evidence supporting claimed malpractice facts.
- Record shows no deposition, affidavits, or evidence supporting alleged facts; issues focus on legal standards, not patient history.
- Gorbach treated for bladder cancer in 2002; medical review panel convened in 2009 finding no failure to meet standard of care.
- Gorbach filed a Petition for Damages in 2007 and again in 2009; Tulane filed Motion for Summary Judgment on Aug. 13, 2010.
- Motion relied on medical review panel decision and Dr. Baum affidavit; appellants opposed with discovery/retention concerns but failed to counter with evidence; trial court granted on Feb. 23, 2011 after hearings.
- Appellate court affirmed, noting defendant need not wait for all discovery deadlines; failure to present opposing evidence supports grant of summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment was proper given the medical review panel and Baum affidavit. | Gorbachs retained an expert; issues of fact remain. | Panel and Baum affidavit show no breach of standard; no genuine issue remains. | Yes; no genuine issue of material fact; panel+Baum suffice to support summary judgment. |
| Whether appellants’ delay in notifying retention of an expert undermined the judgment. | They timely retained an expert per court’s deadline. | Delay in notice violated the spirit of the order; action justified the ruling. | No reversal; deference to trial court’s control of docket; no abuse of discretion. |
| Whether the trial court abused its discretion by denying continuance for discovery/experts. | Discovery/experts needed more time; premature ruling. | Motion timely filed; plaintiff had opportunity to respond with evidence. | No abuse; record shows lack of opposing evidence and proper deference to summary judgment standard. |
Key Cases Cited
- Samaha v. Rau, 977 So.2d 880 (La. 2008) (expert testimony generally required to prove standard of care in malpractice barring obvious negligence)
- MB Industries, LLC v. CNA Ins. Co., 74 So.3d 1173 (La. 2011) (motion for summary judgment may be filed before discovery deadlines; burden shifts to plaintiff to show evidence later)
- Rowley v. Eye Surgery Center of Louisiana, Inc., 956 So.2d 680 (La. App. 4th Cir. 2007) (medical review panel report can support a prima facie defense in summary judgment)
- Blankenship v. Ochsner Clinic Foundation, 940 So.2d 12 (La. App. 4th Cir. 2006) (panel report admissible evidence in summary judgment)
- Williams v. Memorial Medical Center, 870 So.2d 1044 (La. App. 4th Cir. 2004) (expert testimony requirement in hospital malpractice cases)
- Miller v. Tulane University Hosp., 38 So.3d 1142 (La. App. 4th Cir. 2010) (establishes burden on movant and standard for summary judgment in malpractice)
- Beteta v. City of New Orleans, 950 So.2d 862 (La. App. 4th Cir. 2007) (case regarding trial court discretion in motions)
- Boykins v. Boykins, 958 So.2d 70 (La. App. 4th Cir. 2007) (inherent power of trial court to manage docket; appellate review for abuse of discretion)