325 So.3d 1170
La. Ct. App.2021Background
- Plaintiff Thomas Nelson sued neurologist Dr. Vipul Shelat (and neurosurgeon Dr. Jorge Alvernia) after his son, Thomas Nelson II, died of a seizure on August 15, 2015; Nelson II had an implanted vagus nerve stimulator (VNS).
- On August 7, 2015 Dr. Shelat checked the VNS and found a low battery; he referred Nelson II to neurosurgeon Dr. Alvernia and arranged a consult for battery replacement.
- Dr. Alvernia scheduled replacement for 8–10 days later; the patient did not complete the appointment and died before the procedure; autopsy listed seizure as cause of death.
- The Medical Review Panel unanimously found for both doctors; Shelat moved for summary judgment relying on his affidavit and the Panel opinion.
- Nelson opposed with an affidavit from neurosurgeon Dr. Paul Kaloostian, who opined the battery should have been replaced immediately and that the failure caused the death.
- The trial court granted summary judgment for Shelat, finding Kaloostian’s affidavit conclusory as to Shelat’s obligations; the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a genuine issue of material fact exists to avoid summary judgment for alleged failure to replace VNS battery | Nelson: Kaloostian’s expert affidavit shows Shelat should have recognized high risk and ensured immediate replacement, creating a triable issue | Shelat: as a neurologist he properly referred the surgical battery replacement to a neurosurgeon; he had no duty to perform or ensure the surgery | Held: No genuine issue — Shelat showed absence of factual support for an essential element; Kaloostian’s conclusory statement lacked factual foundation |
| Whether the Medical Review Panel opinion can support summary judgment | Nelson: disagrees with the Panel’s conclusion and relies on contrary expert opinion | Shelat: Panel’s written opinion supports that his care met the standard of care and may be used on summary judgment | Held: Panel opinion admissible and properly used to support summary judgment (supports Shelat) |
| Whether expert affidavit opposing summary judgment must do more than assert ultimate conclusions | Nelson: contends his expert’s opinion is reasonable and creates dispute | Shelat: contends opposing affidavit is conclusory and insufficient | Held: Opposing expert must provide factual basis; conclusory affidavit insufficient to defeat summary judgment |
Key Cases Cited
- Samaha v. Rau, 977 So. 2d 880 (La. 2008) (medical review panel report is admissible and may be considered in summary judgment proceedings)
- Independent Fire Ins. Co. v. Sunbeam Corp., 755 So. 2d 226 (La. 2000) (expert opinions must be more than conclusory to defeat summary judgment)
- Peironnet v. Matador Res. Co., 144 So. 3d 791 (La. 2013) (appellate courts review summary judgment de novo)
- Staten v. Glenwood Reg'l Med. Ctr., 290 So. 3d 280 (La. App. 2 Cir. 2020) (defendant-healthcare provider may rely on a favorable medical review panel opinion to support summary judgment)
- Hines v. Garrett, 876 So. 2d 764 (La. 2004) (definition and assessment of a genuine issue of material fact)