251 So. 3d 1107
La. Ct. App.2018Background
- Salvador Faldetta underwent transforaminal epidural steroid injections by Dr. Mohamed Elkersh and subsequently developed discitis (infection) at L4-L5 (and possibly L5-S1).
- A product recall suggested the injectable solution used in the procedure may have been contaminated; Faldetta and his wife sued the pharmacy and later amended to add claims against Dr. Elkersh and his clinic.
- A medical review panel concluded Dr. Elkersh did not deviate from the standard of care and that discitis is a known risk of the procedure.
- Plaintiffs settled and dismissed their claims against the pharmacy; defendants moved for summary judgment on the remaining claims against Dr. Elkersh and Advanced Pain Institute.
- Faldetta relied primarily on treating-physician deposition excerpts and medical records; he argued the infection’s intradiscal location permits an inference the needle penetrated the disc (breach), urged res ipsa loquitur, and alleged lack of informed consent in briefing.
- The trial court granted summary judgment dismissing the malpractice claims with prejudice; the court earlier sustained an exception of prematurity dismissing Elvie Faldetta’s claims without prejudice (which she did not appeal).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment was improper because disputed material facts exist to show breach of standard of care | Evidence and Dr. Domangue’s testimony permit a reasonable inference needle penetrated disc causing infection | Medical review panel opinion and lack of expert testimony establishing breach show absence of factual support for essential element | Summary judgment affirmed: plaintiff failed to produce expert evidence creating genuine issue on breach of care |
| Whether res ipsa loquitur applies to infer negligence | Circumstances (intradiscal infection) allow inference of negligence | Discitis can occur absent negligence and contaminated drug is an alternative cause; res ipsa not supported | Res ipsa inapplicable: injury can occur without negligence and other probable causes not eliminated |
| Whether plaintiff sufficiently pleaded/invoked an informed-consent claim | Plaintiff argued lack of informed consent (post hoc) | Pleadings contained only negligence claims; no facts pleaded to support informed-consent cause | Court refused to consider informed-consent claim not pleaded; claim not before the court |
| Whether dismissal of Elvie Faldetta for prematurity is reviewable here | Appellants challenge sustaining exception of prematurity and dismissal without prejudice | Defendants note the dismissal was a final appealable judgment and Elvie failed to timely appeal | Appellate court lacks jurisdiction to review the 2015 dismissal because it is a final judgment that was not timely appealed |
Key Cases Cited
- Samaha v. Rau, 977 So.2d 880 (La. 2008) (expert testimony generally required to establish standard of care and breach)
- Pfiffner v. Correa, 643 So.2d 1228 (La. 1994) (expert evidence required except for obvious negligence)
- Schultz v. Guoth, 57 So.3d 1002 (La. 2011) (medical matters beyond lay understanding require expert proof)
- Linnear v. CenterPoint Energy Entex/Reliant Energy, 966 So.2d 36 (La. 2007) (doctrine of res ipsa loquitur sequential analysis and standards)
- Gisclair v. Bonneval, 928 So.2d 39 (La. App. 1 Cir. 2005) (res ipsa cannot substitute for factual evidence in medical malpractice)
- Raborn v. Albea, 221 So.3d 104 (La. App. 1 Cir. 2017) (distinguishing malpractice and informed-consent claims; pleading requirements)
- Tolis v. Board of Supervisors of Louisiana State University, 660 So.2d 1206 (La. 1995) (final unappealed judgments acquire the authority of a thing adjudged)