341 So.3d 863
La. Ct. App.2022Background
- Melissa Downing suffered serious injuries in a July 11, 2014 motor-vehicle crash and while hospitalized at Interim LSU on July 13, 2014 she "coded," suffered an anoxic brain injury, remained comatose, and died April 20, 2015.
- Appellants (family and the Estate) alleged nurses removed Ms. Downing from oxygen for ~15 minutes while she was moved, failed to timely recognize/treat intra‑abdominal sepsis and delayed life‑saving surgery, and that those failures caused the anoxic brain injury and death.
- Appellants presented the claim to the Medical Review Panel (MRP); the MRP issued a unanimous report finding no deviation from the standard of care. Interim LSU moved for summary judgment attaching the MRP report.
- After the motion, Appellants retained Dr. David Mayer and submitted his affidavit (with CV and preliminary report) plus several depositions and a family affidavit in opposition. Interim LSU objected to Mayer’s affidavit under La. C.C.P. arts. 966/967 and the trial court sustained the objection, excluded Mayer’s affidavit, and granted summary judgment for Interim LSU (also entering relief under art. 966(G)).
- The court of appeal reversed: it held Mayer’s affidavit was admissible (the records he relied upon were already in the record), that his opinions and the unobjected deposition/affidavit evidence raised genuine issues of material fact, and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of expert affidavit under La. C.C.P. arts. 966/967 | Mayer satisfied personal‑knowledge, competency, and cited identifiable medical record entries; his CV shows expertise. | Mayer failed to attach sworn/certified records, did not identify the records relied upon, so affidavit is procedurally defective. | Court: affidavit admissible — the records Mayer relied on were already part of the record, so exclusion under art. 967(A) was improper. |
| Sufficiency of expert opinion on breach and causation | Mayer articulated departures (improper TICU transfer, delayed sepsis diagnosis/surgery, failure to timely intubate/restore oxygen) and opined those departures proximately caused the anoxic injury/death. | Mayer’s causation and breach opinions were conclusory/speculative and lacked factual basis for proximate causation. | Court: Mayer’s affidavit contained factual bases and expert credentials sufficient to create genuine issues of material fact on breach and causation. |
| Role of unobjected evidence (family affidavit and depositions) | Andria Downing’s sworn statement and depositions of treating clinicians/nurses show oxygen was removed for ~15 minutes and witnesses acknowledged continuous oxygen duties; one treating physician agreed being off oxygen could cause a code. | No timely objection to those documents, but the MRP report still established prima facie lack of negligence. | Court: under La. C.C.P. art. 966(D)(2), the court must consider unobjected documents; that evidence independently raised material factual disputes precluding summary judgment. |
| Grant of summary judgment and 966(G) exclusion order | Plaintiffs argued the exclusion of their evidence and entry of 966(G) precluding future fault findings was erroneous because genuine issues existed. | Interim LSU argued MRP shifted burden and plaintiffs failed to produce admissible expert proof, entitling LSU to judgment and 966(G) protections. | Court: summary judgment reversed — genuine issues exist; 966(G) relief was therefore improper at that stage; matter remanded. |
Key Cases Cited
- Indep. Fire Ins. Co. v. Sunbeam Corp., 755 So.2d 226 (La. 2000) (summary judgment standard and de novo appellate review)
- Pfiffner v. Correa, 643 So.2d 1228 (La. 1994) (medical malpractice ordinarily requires expert proof)
- Federal Sav. & Loan Ins. Corp. v. Edwards, 562 So.2d 1148 (La. App. 4 Cir. 1990) (affidavits referencing documents generally must attach sworn records)
- Whitney Nat'l Bank v. Buchler, 615 So.2d 895 (La. App. 4 Cir. 1993) (limits Edwards when the referenced records already are in the record)
- Beilenson v. Jefferson Parish Hosp., 891 So.2d 74 (La. App. 5 Cir. 2004) (physician testimony may be used to find breach by hospital nurses where disciplines overlap)
- Mitchell v. Kenner Reg'l Med. Ctr., 951 So.2d 1193 (La. App. 5 Cir. 2007) (MRP report admissible in summary judgment and can shift burden)
- Kinch v. Our Lady of Lourdes Reg'l Med. Ctr., 181 So.3d 900 (La. App. 3 Cir. 2015) (expert causation opinions that are conclusory/indeterminate are insufficient to defeat summary judgment)