241 So. 3d 1143
La. Ct. App.2018Background
- Madere sued Dr. Collins for malpractice after a gynecological surgery allegedly resulted in the left ureter being stitched closed, kidney complications, and a corrective ureteroneocystostomy.
- Madere obtained a medical review panel opinion favorable to Dr. Collins and then filed suit in district court.
- Dr. Collins moved for summary judgment arguing Madere produced no timely expert proving breach or causation; the medical review panel opinion was submitted in support of the motion.
- Madere untimely filed an affidavit (and later an expert report) of Dr. Burnett close to the summary judgment hearing; the district court initially admitted that affidavit and denied summary judgment.
- The Louisiana Supreme Court granted Dr. Collins’ writ, finding the district court abused its discretion by considering the untimely affidavit; the case was remanded without explicit instructions.
- On remand the district court treated Dr. Collins’ post‑writ filing as a re‑urged summary judgment, excluded Burnett’s late report, granted summary judgment for Dr. Collins, and dismissed Madere’s claims with prejudice; the appellate majority affirmed while one judge dissented.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendant was required to re‑file a new motion for summary judgment after the Supreme Court granted writ vacating consideration of untimely affidavit | Madere: Dr. Collins’ "motion for rehearing/new trial" was procedurally improper and Dr. Collins should have re‑filed a new summary judgment motion with all exhibits | Dr. Collins: The Supreme Court’s writ required the trial court to reconsider the prior summary judgment motion without the untimely affidavit; re‑filing was unnecessary and would allow Madere a second chance to present the excluded evidence | Court: In these unique circumstances re‑filing was not required; trial court properly treated the motion as re‑urged on remand |
| Admissibility of Dr. Burnett’s untimely affidavit/report in opposition to summary judgment | Madere: Burnett’s affidavit and later report created genuine issues of material fact and were admitted without objection | Dr. Collins: Burnett’s affidavit/report were untimely under La. C.C.P. art. 966(B)(2) and district rules and should not be considered | Court: The Supreme Court’s writ foreclosed consideration of the untimely materials; trial court properly excluded them and Madere failed to produce timely expert evidence |
| Whether expert testimony was required to defeat summary judgment on malpractice and whether Madere met that burden | Madere: The submitted expert materials (Burnett) created triable issues on standard of care and causation | Dr. Collins: Complex surgical issues require expert proof; Madere offered no timely, admissible expert to rebut the medical review panel | Court: Alleged negligence was not obvious; expert proof was required and Madere failed to show she could meet burden at trial; medical review panel supported summary judgment |
| Whether summary judgment was appropriate after de novo review | Madere: Excluding Burnett, disputed facts remain for trial | Dr. Collins: Record (including medical review panel) shows no genuine issue and entitles her to judgment as a matter of law | Court: After excluding untimely evidence, no genuine issue of material fact existed; affirmed summary judgment for Dr. Collins |
Key Cases Cited
- Samaha v. Rau, 977 So.2d 880 (discussion that expert testimony is generally required to establish standard of care, breach, and causation)
- Pfiffner v. Correa, 643 So.2d 1228 (medical malpractice requiring expert proof where negligence is not obvious)
- Williams v. Mem'l Med. Ctr., 870 So.2d 1044 (requirement of expert testimony to defeat summary judgment in medical malpractice)
- Sims v. Hawkins‑Sheppard, 65 So.3d 154 (need to show good cause before considering untimely affidavit opposing summary judgment)
- Guillory v. Chapman, 44 So.3d 272 (upholding exclusion of late‑filed expert affidavit)
- Newsome v. Homer Mem. Med. Ctr., 32 So.3d 800 (error to continue hearing solely to allow late opposition to summary judgment)
- Buggage v. Volks Constructors, 928 So.2d 536 (time limits for serving affidavits in opposition to summary judgment are mandatory)
- McGlothlin v. Christus St. Patrick Hosp., 65 So.3d 1218 (medical review panel opinions admissible but subject to contest)