Allen OREA, et al., Plaintiffs-Appellants, v. Michael BRANNAN, M.D., et al., Defendants-Appellees.
No. 30628-CA
Court of Appeal of Louisiana, Second Circuit
June 24, 1998
715 So.2d 108
Before HIGHTOWER, STEWART and GASKINS, JJ.
Pugh, Pugh & Pugh by Robert G. Pugh, Jr., Shreveport, for Defendants-Appellees Michael Brannan, M.D. and La. Medical Mutual Ins. Co.
Blanchard, Walker, O‘Quin & Roberts by A. Martin Stroud, III, Shreveport, for Defendant-Appellee Daniel E. Crook, M.D.
Mayer, Smith & Roberts by Mark A. Goodwin, Shreveport, for Defendants-Appellees Ignatius Tedesco, M.D. and St. Paul Fire & Marine Ins. Co.
Michael M. Remson, Baton Rouge, for Defendant-Appellee Willis Knighton Medical Center.
STEWART, Judge.
Allen Orea and his parents, David and Evone Orea, appeal the judgment of the trial court dismissing their action against Dr. Ignatius Tedesco, his insurer, St. Paul Fire & Marine Insurance Company, and Dr. Daniel Crook. For the following reasons, we affirm.
FACTS
On June 12, 1989, Allen Orea, a 22 year old white male, visited the emergency room of WK-North complaining of abdominal pain. Dr. Tedesco examined Orea and ordered abdominal and chest x-rays and oral administration of Maalox and Donnital. Orea‘s pain subsided during his 45 minute visit. Dr. Tedesco discharged Orea and advised him to contact Dr. Michael Brannan, Orea‘s treating gastroenterologist, for treatment if further problems developed.
On July 12, 1989, Orea visited the emergency room of WK-South complaining of severe abdominal pain. Orea related his medical history, including a previous injury to his right lung and diaphragm and a recent negative ultrasound for gallstones performed by Dr. Brannan. Dr. Crook examined Orea, noticed tenderness on his right side, prescribed a pain reliever, and discharged him with direction to see his gastroenterologist.
On July 22, 1989, Orea was admitted to WK-South, transferred to WK-North, and diagnosed with and treated for pancreatic abscess.
The Oreas filed a medical malpractice action against Dr. Michael Brannan, Dr. Ignatius Tedesco, Dr. Daniel Crook, Willis-Knighton Medical Center, St. Paul Fire & Marine Insurance Company, and LAMMICO. Dr. Tedesco, his insurer, St. Paul Fire & Marine, and Dr. Crook filed motions for summary judgment. In written reasons rendered June 30, 1997, the trial court granted these motions. On July 3, 1997, the trial court signed a judgment dismissing the Oreas’ claims against Dr. Tedesco, St. Paul Fire & Marine, and Dr. Crook. The Oreas appeal and assign three errors.
DISCUSSION
Summary Judgment
Appellants assign as error the trial court‘s dismissal of claims against Dr. Tedesco, St. Paul Fire & Marine, and Dr. Crook.
Schroeder v. Board of Supervisors, 591 So.2d 342 (La.1991), directs that an appellate court conduct a de novo review of the documents supporting and opposing a motion for summary judgment under the same criteria which governs the district court‘s consideration of whether summary judgment is appropriate pursuant to
Effective May 1, 1996,
Unlike existing jurisprudence which dictated that summary judgment was not favored and was cautiously and sparingly used, summary judgment is today favored to secure just, speedy and inexpensive determinations of all except certain disallowed actions. Hayes v. Autin, supra. As indicated by the Hayes decision, as well as the recent amendments, the jurisprudential presumption against granting summary judgment has been eliminated. In effect, the enacted changes have “leveled the playing field” for the litigants, Hayes, 96-287 (La.App. 3rd Cir. 1996), 685 So.2d at 694, so that documentation submitted by the two parties will now be scrutinized equally and the earlier overriding presumption in favor of trial on the merits has been removed. Substantially changing the law of summary judgment, the procedural amendments bring the Louisiana standard for summary judgment more closely in line with
Incorporating the federal approach to summary judgments,
On motion for summary judgment, if movant establishes an absence of factual support for one or more elements of the adverse party‘s claim, then the non-moving party must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the adverse party fails to produce such support, no genuine issue of material facts exists, and summary judgment will be granted.
In a medical malpractice action, plaintiffs must prove the applicable standard of care, a breach of that standard, and a casual connection between the breach and the injuries suffered by plaintiff.
Certified copies of the WKMC emergency room records, the affidavit of Lacey Wallace, attorney chair of the medical review panel, the January 28, 1992 deposition of Allen Orea, and the deposition of Dr. Thomas B. Hargrave III, plaintiffs’ expert, were submitted in support of summary judgment.
The deposition testimony of Dr. Hargrave, plaintiffs’ expert, established the standard of care applicable to emergency room physicians. Dr. Hargrave testified that an emergent care doctor is required “to determine the acuteness of a problem, potential seriousness of a problem, and after appropriate evaluation, determine whether a person should be admitted or can be appropriately discharged.” Dr. Hargrave stated that he had no specific criticisms of Dr. Crook‘s treatment of and prescribed medication for Orea, that he found no indication that Dr. Crook should have admitted Orea to the hospital, and that Dr. Crook‘s referral of Orea to Dr. Brannan was appropriate. Further, Dr. Hargrave testified that Dr. Tedesco‘s treatment of Orea was appropriate and opined that the symptoms exhibited by Orea when examined by Dr. Tedesco were probably unrelated to pancreatitis. Dr. Hargrave did not conclude that either Dr. Tedesco or Dr. Crook breached the standard of care.
The record evidence, particularly the deposition testimony of plaintiffs’ medical expert, unequivocally demonstrates that neither Dr. Tedesco nor Dr. Crook breached the standard of care applicable to emergency room physicians. Clearly, Drs. Tedesco and Crook have made a prima facie case that no genuine issue of material fact exists regarding a breach of the applicable standard of care.
The burden now shifts to plaintiffs to prove that a genuine issue of material fact exists. No factual support was offered by plaintiffs prior to or during hearing of the motions to demonstrate any material factual issues regarding a breach in the standard of care by the emergent care physicians. Although plaintiffs assert numerous arguments in support of their contention that both doctors committed malpractice by failing to perform specific medical tests and procedures and by misdiagnosing Orea‘s condition, these assertions are irrelevant to the primary issue of whether either doctor breach the standard of care applicable to emergency care physicians and are not supported by any evidence offered by plaintiffs.
Therefore, these assignments are without merit.
Affidavit of Dr. Hargrave
Plaintiffs further assign as error the trial court‘s failure to consider the affidavit of Dr. Hargrave which was attached to plaintiffs’ post-hearing brief. Plaintiffs contend that the trial court‘s directions at the conclusion of hearing on the motions did not preclude filing of additional evidence after hearing.
The trial court did not consider the affidavit based on
The May 19, 1997 minute entry reflects that the motions for summary judgment were argued and submitted, with post-trial briefs to be filed by 5:00 p.m. on May 23, 1997. (Our emphasis.) Nothing in the record indicates that the trial court held the record open for filing of additional evidence. On May 23, 1997, plaintiffs filed a document styled “Plaintiffs’ Supplemental Opposition to Motion for Summary Judgment Filed by Defendant,
Plaintiffs’ assertion that the late-filed affidavit should have been considered because the trial court did not “rule or specify that supplemental exhibits or affidavits could not be filed” with post-trial briefs is untenable. When the motions for summary judgment and memoranda in support of those motions were filed, defendants basis for moving for summary judgment was revealed to plaintiffs. Additionally, plaintiffs’ knew or should have known that, upon movants’ negating one or more elements essential to plaintiffs claim, the burden shifted to them to produce factual support sufficient to establish that they were able to satisfy their evidentiary burden at trial.
This assignment is without merit as we do not find that plaintiffs were prejudiced by the trial court‘s failure to consider the late-filed affidavit of Dr. Hargrave. However, even were we to consider that affidavit, we would not find that plaintiffs have established any genuine issue of material fact regarding a breach in the applicable standard of care by either Dr. Tedesco or Dr. Crook.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the trial court dismissing plaintiffs’ claims against Dr. Ignatius Tedesco, his insurer, St. Paul Fire & Marine Insurance Company, and Dr. Daniel Crook. Costs of this appeal are assessed to Allen Orea and his parents, David and Evone Orea.
AFFIRMED.