128 So. 3d 390
La. Ct. App.2013Background
- Pignona sues Farber for medical malpractice after a two-part September 2009 surgery; first part performed, second not due to Farber leaving practice.
- Farber retired shortly after first procedure, providing no follow-up care; disciplinary proceedings against him culminated in license implications.
- Plaintiff claims shortcomings in disclosure, informed consent, and eligibility for Louisiana Patients’ Compensation Fund; also alleges deception under Unfair Trade Practices Act.
- Court granted Farber summary judgment, holding plaintiff failed to prove breach of standard of care without expert testimony.
- Trial court allowed limited discovery; plaintiff’s UTPA claim deemed trumped by the Medical Malpractice Act; attorney’s fees not awarded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment was proper without expert testimony | Pignona argues discovery needed; expert not required for deception facts | Farber asserts no expert evidence shows standard-of-care breach | Yes, for lack of expert proof of breach |
| Whether UTPA claim survives medical malpractice framework | Pignona contends UTPA independently supports relief | Farber argues MMA preempts UTPA claim | UTPA claim rejected as MMA governs the action |
| Whether discovery delay invalidates summary judgment | Pignona contends she needed more time to obtain expert | Farber argues no absolute right to delay; ample time given | Court did not abuse discretion in denying more discovery |
| Whether appeal properly challenges merits of judgment | Pignona intended to appeal merits despite phrasing | Farber contends appeal from denial of new trial is improper | Appeal treated as merits review of summary judgment |
| Whether timing of proceedings affected admissibility of evidence | Pignona maintains timeliness for expert disclosure. | Farber maintains timely briefing allowed summary judgment | Not needed; evidence on file sufficient to grant summary judgment |
Key Cases Cited
- Orillion v. Alton Ochsner Med. Found., 97-115, 695 So.2d 1063 (La.App. 5 Cir. 1997) (trial court can control discovery in summary judgment)
- Musa v. Litton-Avondale Indus., Inc., 10-627, 63 So.3d 243 (La.App. 5 Cir. 2011) (trial court may deny further discovery in summary judgment)
- Samaha v. Rau, 2007-1726, 977 So.2d 880 (La. 2/26/08) (standard of care expert testimony generally required)
- Pfiffner v. Correa, 94-0924, 94-0963, 94-0992, 643 So.2d 1228 (La. 10/17/94) (negligence may be inferred by laypersons only for obvious negligence)
- Sun Belt Constructors, a Div. of MCC Constructors, Inc. v. T & R Dragline Service, Inc., 527 So.2d 350 (La.App. 5 Cir. 1988) (summary judgment standards applied to medical malpractice)