221 So. 3d 104
La. Ct. App.2017Background
- Plaintiff Frank Raborn underwent lumbar fusion in June 2006; post-op care ultimately involved Dr. Shawn G. Dunn, who performed a discogram (March 9, 2007) and two autologous lumbar epidural blood patches (March 12 and March 16, 2007).
- After the procedures Raborn experienced headaches, worsening lower-extremity symptoms and altered bladder/bowel function; he was later diagnosed with a spinal fluid leak and ultimately with cauda equina syndrome on April 3, 2007.
- Raborn filed a malpractice claim with the Patient’s Compensation Fund; a medical review panel unanimously found no deviation from the standard of care on July 21, 2009.
- Raborn sued Dr. Dunn (Oct. 19, 2009). Dr. Dunn moved for summary judgment (Apr. 25, 2016), arguing Raborn could not prove the applicable standard of care or breach; Dr. Dunn supported the motion with the panel decision and expert testimony excerpts.
- The trial court struck several of Raborn’s opposition exhibits as improper under amended La. C.C.P. art. 966(A)(4) (including uncertified medical record excerpts), declined to allow a late sur-reply with certified records, and granted summary judgment for Dr. Dunn; this appeal followed.
Issues
| Issue | Raborn's Argument | Dunn's Argument | Held |
|---|---|---|---|
| Admissibility of certain opposition exhibits under Art. 966(A)(4) | Exhibits were certified/produced in discovery and should be considered | Exhibits are not among the exclusive list in Art. 966(A)(4) and were properly objected to | Court affirmed exclusion: only documents listed in Art. 966(A)(4) are admissible on summary judgment; excluded exhibits were not certified medical records |
| Failure to allow supplementation with certified medical records (sur-reply) | Trial court abused discretion by refusing to accept a late sur-reply with certified records | Sur-reply was not authorized by Art. 966; even if allowed, it was untimely under Art. 966(B) | Court affirmed refusal: sur-reply not an authorized supplement and the materials were untimely (filing deadline mandatory) |
| Necessity of expert proof of standard of care and breach | Raborn argued he should not be required to present expert proof of both standard and deviation at summary judgment | Dunn showed absence of factual support for essential elements (medical review panel decision and expert agreement) | Court held plaintiff needed expert support to dispute standard/breach; Raborn’s admissible evidence did not meet responsive burden |
| Existence of genuine issues of material fact re: March 16–April 3, 2007 events | Raborn contended factual disputes about warnings, post-patch care, and deterioration required trial | Dunn maintained the medical review panel and expert evidence established no deviation; remaining evidence addressed informed consent, not pleaded surgical negligence | Court found no genuine issue on pleaded malpractice claims; evidence only implicated informed consent (not pled) and was insufficient to defeat summary judgment |
Key Cases Cited
- Buggage v. Volks Constructors, 928 So.2d 536 (La. 2006) (untimely summary-judgment opposition may be excluded)
- Hines v. Garrett, 876 So.2d 764 (La. 2004) (trial court determines existence of genuine issue of triable fact on summary judgment)
- Temple v. Morgan, 196 So.3d 71 (La. App. 1 Cir. 2016) (appellate review of summary judgment is de novo)
- Bice v. Home Depot U.S.A., Inc., 210 So.3d 315 (La. App. 1 Cir. 2016) (materiality assessed by substantive law)
- Schultz v. Guoth, 57 So.3d 1002 (La. 2011) (elements plaintiff must prove in LMMA actions)
- Boudreaux v. Mid-Continent Cas. Co., 950 So.2d 839 (La. App. 1 Cir. 2006) (medical expert testimony generally required in malpractice cases)
- Lieux v. Mitchell, 951 So.2d 307 (La. App. 1 Cir. 2006) (distinguishing surgical malpractice claims from informed-consent claims)
- Gunter v. Plauche, 439 So.2d 437 (La. 1983) (informed-consent claims distinct cause of action)