215 So. 3d 715
La. Ct. App.2017Background
- Jarrard Green donated a kidney to his sister Bernadine in May 2010; the transplanted kidney failed and was later removed.
- Plaintiffs (Jarrard individually and on behalf of Bernadine) initiated a Medical Review Panel, which unanimously found no breach of the standard of care.
- Plaintiffs then filed a medical malpractice suit alleging negligence and lack of informed consent.
- Defendants (two doctors and Tulane University Hospital) moved for summary judgment in 2016, arguing plaintiffs lacked expert proof; defendants submitted the panel opinion and signed consent forms.
- Plaintiffs opposed with affidavits and internet printouts but had no retained medical expert and filed opposition untimely.
- Trial court granted summary judgment; appeal challenges the need for expert testimony on negligence and informed consent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether expert testimony is required to prove breach of standard of care in complex transplant surgery | Green: expert not necessary; genuine issues of material fact exist | Defendants: transplant malpractice requires expert proof; plaintiff has none and MR panel found no breach | Expert testimony required; absent expert, summary judgment proper |
| Whether informed consent claim can be proved without expert opinion on materiality/probability of risks | Green: risks (e.g., clotting) were not sufficiently disclosed and caused loss; affidavits deny informed consent | Defendants: multiple signed consent forms and Hondroulis requires expert to establish materiality/probability | Hondroulis governs; expert testimony needed to establish materiality and causation; summary judgment affirmed |
| Admissibility/timeliness of plaintiff's opposition evidence | Green: affidavits and online materials suffice | Defendants: opposition untimely and included inadmissible documents under La. C.C.P. art. 966 | Court noted untimeliness and inadmissibility; plaintiff’s evidence insufficient to defeat summary judgment |
| Effect of Medical Review Panel opinion | Green: panel does not preclude trial | Defendants: panel supports lack of breach and undermines plaintiff’s case | Panel opinion considered persuasive evidence supporting summary judgment |
Key Cases Cited
- Hondroulis v. Schuhmacher, 553 So.2d 398 (La. 1988) (establishes informed consent doctrine and need for expert to prove materiality/probability of risks)
- Pfiffner v. Correa, 643 So.2d 1228 (La. 1994) (examples where lay opinion suffices are limited to obvious negligence)
- Schultz v. Guoth, 57 So.3d 1002 (La. 2011) (elements plaintiff must prove in medical malpractice action)