181 So. 3d 26
La. Ct. App.2015Background
- Danny Penn was treated at Our Lady of the Lake Regional Medical Center (OLOL) in Oct–Dec 2010 for possible Enterococcal endocarditis and received Gentamicin, with subsequent home infusions by CarePoint.
- Penn developed dizziness/vertigo and later was diagnosed with Dandy’s Syndrome; he alleged ototoxicity from excessive Gentamicin dosing.
- He filed medical-malpractice claims through the Patient Compensation Fund and later sued OLOL and physicians, alleging failures in prescribing, administering, monitoring, and communicating Gentamicin dosing.
- A medical review panel found no fault by Dr. Luikart or OLOL and no hospital employee negligence; plaintiff amended pleadings to add allegations against hospitalists and OLOL vicarious liability.
- OLOL moved for summary judgment and to strike plaintiff’s expert (Dr. Hue-Teh Shih) and portions of plaintiff’s opposition as expanding claims beyond the medical review panel scope.
- The district court struck the new/different allegations and Dr. Shih’s affidavit as unqualified and irrelevant, found no admissible expert establishing OLOL’s standard-of-care breach, and granted summary judgment for OLOL; the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff alleged hospital liability within scope of claims presented to medical review panel | Penn argued OLOL is vicariously liable for hospitalist (Dr. Giarusso) and that improper Gentamicin dosing by hospital staff caused injury | OLOL argued plaintiff expanded pleading beyond issues presented to medical review panel and raised new physician-specific claims not properly amended | Court held plaintiff expanded pleadings; allegations about hospitalist dosing were beyond panel scope and were struck |
| Admissibility/qualification of plaintiff’s expert (Dr. Shih) | Penn relied on Dr. Shih (cardiologist) to opine on dosing and causation | OLOL argued Dr. Shih lacked hospitalist/hospital standard-of-care qualifications and scientific foundation | Court held Dr. Shih unqualified to opine on hospitalist/hospital standard; affidavit excluded |
| Whether expert evidence established a genuine issue of material fact to defeat summary judgment | Penn submitted medical records, depositions, pharmacist affidavit, and expert affidavit to show breach and causation | OLOL relied on medical review panel opinion clearing hospital and argued plaintiff produced no admissible expert proof of hospital breach | Court held plaintiff produced no admissible expert proof; no genuine issue for trial; summary judgment appropriate |
| Whether summary judgment was properly granted after striking evidence | Penn contended remaining record contained testimony showing incorrect discharge prescription and vicarious liability | OLOL contended stricken evidence removed any proof of hospital breach | Court held that after exclusion there was no evidence to meet plaintiff’s burden; summary judgment affirmed |
Key Cases Cited
- All Crane Rental of Georgia, Inc. v. Vincent, 47 So.3d 1024 (La. App. 1st Cir. 2010) (summary-judgment standard and evidence considerations)
- Pumphrey v. Harris, 111 So.3d 86 (La. App. 1st Cir. 2012) (materiality determined by applicable substantive law in summary-judgment review)
- Pfiffner v. Correa, 643 So.2d 1228 (La. 1994) (expert testimony generally required in medical-malpractice cases except for obvious negligence)
- Cangelosi v. Our Lady of the Lake Regional Medical Center, 564 So.2d 654 (La. 1989) (hospital liable only where its breach caused injury)
- Ardoin v. Hartford Accident and Indemn. Co., 360 So.2d 1331 (La. 1978) (statutory distinction between specialists and non-specialists’ standards of care)
- MSOF Corporation v. Exxon Corporation, 934 So.2d 708 (La. App. 1st Cir. 2005) (trial court’s broad discretion in admitting expert opinion evidence)