E. Adelle SIMMONS v. Dr. Charles M. BERRY, Dr. William G. Black and Louisiana Medical Mutual Insurance Co.
No. 98 CA 0660.
Court of Appeal of Louisiana, First Circuit.
September 3, 1999.
Rehearing Denied November 30, 1999.
748 So. 2d 473
Before: CARTER, SHORTESS, LeBLANC, FOIL, GONZALES, WHIPPLE, FOGG, PARRO, FITZSIMMONS, KUHN, GUIDRY, WEIMER, and PETTIGREW, JJ.
Vance A. Gibbs, Bradley C. Myers, Baton Rouge, for Defendants-Appellees Dr. Charles M. Berry, Dr. William G. Black and Louisiana Medical Mutual Ins. Co.
In this medical malpractice case, at issue on appeal is whether or not various types of evidence were properly before the court on a motion for summary judgment. For the following reasons, we affirm the trial court‘s granting of summary judgment and the dismissal of the plaintiff‘s suit.
In 1985, E. Adelle Simmons experienced abdominal pain in the left lower quadrant and sought the medical care of Dr. Rick Staggers. Dr. Staggers determined that the pain was most likely due to a problem with one of her ovaries. Medication prescribed by Dr. Staggers resolved the pain for approximately two years. In May or June of 1987, Ms. Simmons again began to experience the same type of pain she had experienced in 1985. She consulted Dr. Charles M. Berry. After conservative measures were unsuccessful in controlling Ms. Simmons’ pain, she agreed to corrective surgery.
On July 20, 1987, Ms. Simmons underwent a left salpingo-oophorectomy with excision of varicosities in the left infundibulopelvic ligament and right ovarian cystectomy (the removal of the left fallopian tube and ovary and the removal of a cyst of the right ovary). Dr. Berry performed the surgery, with Dr. William G. Black assisting. The next day, July 21, 1987, a pathological examination revealed that a section of Ms. Simmons’ left ureter, approximately 1.5 centimeters in length, had been removed during surgery. Ms. Simmons underwent corrective surgery on July 21, 1987, and was discharged from the hospital on July 28, 1987.
Ms. Simmons filed a medical malpractice claim pursuant to
In April of 1990, the defendants propounded interrogatories and requests for production of documents to the plaintiff seeking, among other information, the name(s) of any experts who would be relied on by the plaintiff to establish that the defendant doctors had deviated from the appropriate standard of care. In her answers to the interrogatories, Ms. Simmons identified Dr. Ruary C. O‘Connell as her only expert. In March of 1992, the defendants deposed Dr. O‘Connell. No other discovery was conducted.
On August 14, 1997, the defendants filed a motion for summary judgment. A hearing was scheduled for October 20, 1997. After hearing the arguments and reviewing the exhibits submitted by the parties, the district court granted the motion for summary judgment, dismissing the plaintiff‘s claim. Ms. Simmons appeals that judgment.
An appellate court‘s review of a summary judgment is a de novo review based upon the evidence presented at the trial court level and using the same criteria used by the trial court in deciding whether a summary judgment should be granted. J. Ray McDermott, Inc. v. Morrison, 96-2337 (La.App. 1 Cir. 11/7/97), 705 So.2d 195, writs denied, 97-3055, 97-3062 (La.2/13/98), 709 So.2d 753, 754. Appellate review of questions of law is simply to determine whether the trial court was legally correct or legally incorrect. See Minor v. Casualty Reciprocal Exchange, 96-2096 (La.App. 1 Cir. 9/19/97), 700 So.2d 951, writ denied, 97-2585 (La.12/19/97), 706 So.2d 463.
A motion for summary judgment is properly granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law.
The applicable substantive law determines the materiality of facts in a summary judgment setting. See Colver v. Travelers Ins. Companies, 95-1696 (La. App. 1 Cir. 11/8/96), 685 So.2d 179, writ denied, 96-2928 (La.2/21/97), 688 So.2d 516. To prevail in a medical malpractice case, the plaintiff must establish the standard of care applicable to the charged physician, a violation by the physician of that standard of care, and a causal connection between the physician‘s alleged negligence and the plaintiff‘s injuries resulting therefrom.
In support of their motion for summary judgment, the defendants placed into evidence an uncertified copy of the opinion of the medical review panel. In the case of Robertson v. Northshore Regional Medical Center, 97-2068 (La.App. 1 Cir. 9/25/98), 723 So.2d 460, this court determined that such evidence is inadmissible in summary judgment litigation because it is not certified, is not an affidavit or sworn to in any way, and is not attached to an affidavit as required by
The defendants assert
H. Any report of the expert opinion reached by the medical review panel shall be admissible as evidence in any action subsequently brought by the claimant in a court of law, but such expert opinion shall not be conclusive and either party shall have the right to call, at his cost, any member of the medical review panel as a witness. If called, the witness shall be required to appear and testify. A panelist shall have absolute immunity from civil liability for all communications, findings, opinions and conclusions made in the course and scope of duties prescribed by this Part. (Emphasis ours).
We find no conflict between
In sum, the opinion of the medical review panel submitted in this case cannot be relied on in support of the defendants’ motion for summary judgment. It does not fall within any of the categories listed in
The movers also placed into evidence the deposition of a physician identified by the plaintiff as her expert, Dr. Ruary O‘Connell. Article 966 provides for the consideration of “pleadings, depositions, answers to interrogatories, and admissions on file” in summary judgment litigation. Article 967 does not require that these types of evidence be based on personal knowledge. Therefore, the use of opinion testimony in the form of deposition testimony is not precluded by Article 967. Such is admissible in all summary judgment litigation and was properly considered on the defendants’ motion for summary judgment.
In his deposition testimony, Dr. O‘Connell testified that he could not state that either defendant doctor had breached the standard of care. Therefore, Dr. O‘Connell‘s testimony did not support the plaintiff‘s assertion that the doctors deviated from the standard of care. With this evidence, the movers successfully showed an absence of factual support for one of the essential elements of the plaintiff‘s case and the burden shifted to the plaintiff to produce factual support sufficient to establish that she would be able to satisfy her evidentiary burden of proof at trial.
In opposition to the motion for summary judgment, the plaintiff placed into evidence the affidavit of Dr. Michael T. Valley. Therein, he testified that he is licensed to practice medicine in the State of Florida and is certified by the American Board of Obstetrics and Gynecology. His affidavit, however, was based on a review of Ms. Simmons’ medical records. As discussed fully above, affidavits not based on personal knowledge are not properly before the court on a motion for summary judgment. See
In reaching this result, we overrule the cases of Harris v. Landry, 97-0525 (La. App. 1 Cir. 4/8/98), 734 So.2d 1 and Miceli v. Armstrong World Industries, 96-1134 (La.App. 1 Cir. 3/27/97), 691 So.2d 283, writs denied, 97-1110, 97-1090 (La.6/13/97), 695 So.2d 980, 985, to the extent they conflict with the above analysis.
For the foregoing reasons, the judgment of the trial court is affirmed. Costs are assessed to the appellant, E. Adelle Simmons.
AFFIRMED.
LeBLANC, GONZALES and WEIMER, JJ., concur and assign reasons.
FITZSIMMONS, J., concurs in the result, and assigns reasons.
KUHN, J., dissents and concurs in the dissent of SHORTESS, J.
SHORTESS, J., dissents and assigns reasons.
GUIDRY, J., dissents and subscribes to and adopts the reasons assigned by SHORTESS, J.
PETTIGREW, J., dissents for reasons assigned by SHORTESS, J., and assigns additional reasons.
WHIPPLE, J., dissents for the reasons assigned by SHORTESS and PETTIGREW, JJ.
FOIL, J., dissents with statement.
LeBLANC, J., Concurring.
I respectfully concur. I agree with the majority opinion that deposition testimony of an expert is admissible in support of a motion for summary judgment. However, for the reasoning detailed below, I would also expand this holding to allow the opinions of medical review panels to be introduced in support of, or in opposition to, a motion for summary judgment.
In a medical malpractice action, the plaintiff has the burden of proving the
We have generally followed the rule that expressions of an expert‘s opinion are inadmissible to support a motion for summary judgment. See Pope, 96-1604 at 4-5, 693 So.2d at 1289; Miceli, 96-1134 at 10, 691 So.2d at 289. However, these decisions were based in part on our summary judgment law as it existed prior to recent amendments which substantially changed the law. Furthermore, the language of
This potentially creates a procedural quagmire for the medical malpractice claimant. If, as in this case, the medical review panel opinion states the physician defendant did not breach the applicable standard of care, and if this report must be admissible in support of the defendant‘s motion for summary judgment, the burden shifts to the plaintiff to demonstrate the existence of a genuine issue of material fact. In most cases, this burden could only be met by contrary opinion testimony from another medical professional. But if opinion testimony is not admissible to support or oppose a motion for summary judgment, the plaintiff usually will not be able to meet that burden. However, there may be avenues other than those utilized by the other appellate courts in interpreting the meaning and effect of LSA-R.S. 40:1299.47(H). For example, perhaps LSA-R.S. 40:1299.47(H) and the pertinent summary judgment laws can be read together to conclude that no conflict exists; rather, the language of LSA-R.S. 40:1299.47(H) does not extend the admissibility of a report by a medical review panel to use in summary judgment proceedings. The more farreaching possibility that expert opinion evidence should be admissible in all summary judgment litigation must also be considered in the appropriate case.
The recent amendments to our summary judgment procedure were aimed at eliminating the jurisprudential inclination against granting summary judgments and statutorily overruling all cases inconsistent with Hayes v. Autin, 96-287 (La.App. 3 Cir. 12/26/96), 685 So.2d 691, writ denied, 97-0281 (La.3/14/97), 690 So.2d 41. See Acts 1997, No. 483. The amendments also serve to bring Louisiana‘s standard for summary judgment closely in alignment with
I am also influenced by the fact that in certain medical malpractice actions, the opinions of medical expert witnesses who are members of the medical profession and who are qualified to testify on the subject are necessary to determine whether or not defendant physicians possessed the requisite degree of knowledge or skill, or failed to exercise the applicable standard of care. Cf. Pfiffner v. Correa, 94-0924, 94-0963, 96-0992 (La.10/17/94), 643 So.2d 1228, wherein our supreme court recognized that expert testimony as to the standard of care is not always necessary, if a lay person can infer negligence from the facts, such as when a physician commits an obviously careless act, including fracturing a leg during examination, amputating the wrong limb, dropping a knife, scalpel, or acid on a patient or leaving a sponge in the patient‘s body. However, in cases where expert testimony is necessary to establish the standard of care and determine if that standard was breached, it would be virtually impossible to obtain, or defend, a summary judgment without the use of expert testimony. To interpret
For these reasons, some courts have determined that, in medical malpractice cases where expert opinion is necessary to establish the standard of care and the breach thereof, if any,
Accordingly, following the spirit of the new law favoring summary judgments, and so that summary judgments will be possible in medical malpractice actions, I believe
GONZALES, J., Concurring.
I agree with the result reached in this case for the reasons which I previously set out in my concurrence in Harris v. Landry, 97-0525 (La.App. 1 Cir. 4/8/98), 734 So.2d 1. As I said in Harris, 734 So.2d at 7:
It is obvious that the requirement of personal knowledge in
La. C.E. art. 602 does not apply toLa. C.E. art. 703 , which provides as follows:The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in a particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. (Emphasis added.)
It is not and it has never been the law of evidence relative to an expert opinion that such opinion can only be given based on facts within the expert‘s personal knowledge. It always has been the practice to make facts known to the expert, even at trial, in order for the expert to state his position. Some experts may also have personal knowledge of the facts they perceive. Even hypothetical questions are allowed to expert witnesses. Judge Lottinger, in Miceli v. Armstrong World Industries, 96-1134 (La.App. 1st Cir.3/27/97), 691 So.2d 283, writs denied, 97-1100, 97-1090 (La.6/13/97), 695 So.2d 980, 985, gives a complete analysis of the difference between the circuits on the issue of personal knowledge. The thing Judge Lottinger does not do, nor do any of these cases do, is make a distinction between the requirement of personal knowledge in affidavits, as opposed to a requirement of personal knowledge in depositions. There is no question that the Code of Civil Procedure itself requires that affidavits, given, pursuant to
articles 966 and967 , in furtherance of a motion for summary judgment, must be made on personal knowledge. Nowhere in either of those articles is there a reference to the fact that expert opinion given during the course of a deposition must be given upon personal knowledge. The statement of Judge Lottinger‘s panel, found in Miceli, 691 So.2d at 287, which says:A statement of opinion is not sufficiently certain or probative to justify a conclusion that there is no issue of fact which should be determined by a trial on the merits. Expert opinions or statements or testimony requires evaluation by the trier of fact as to probative value.
is simply a rehashing of the conclusion by then Judge Pike Hall in McCoy v. Physicians & Surgeons Hospital, Inc., 452 So.2d 308 (La.App. 2nd Cir.), writ denied, 457 So.2d 1194 (La.1984). This often cited quote by Judge Hall concludes that:
A statement of opinion is not sufficiently certain or probative to justify a conclusion that there is no issue of fact which should be determined by a trial on the merits. Expert opinion statements or testimony requires evaluation by the trier of fact as to probative value. A motion for summary judgment is not the proper vehicle for the trier of fact to evaluate evidence and determine the facts which are disputed.
Both the McCoy case and the Miceli case were written at a time prior to Acts 1997, No. 483. It is clear that that Act determines that the Hayes v. Autin, 96-287 (La.App. 3rd Cir.12/26/96), 685 So.2d 691, writ denied, 97-0281 (La.3/14/97), 690 So.2d 41, interpretation of the summary judgment article is the correct one, and all cases in conflict with Hayes are overruled. I submit that, to the extent that McCoy
However, where there are conflicting opinions, a fact issue may be in dispute. But where there is only one set of opinions and the opponent does not come forward with a rebutting opinion, then Hayes requires the court to grant a summary judgment to the defendant-movant, where the plaintiff has the burden of proof.
The problem with McCoy and Miceli and the question of opinion testimony is not one that is founded on the issue of personal knowledge of facts by the expert. There is obviously a distrust of expert opinion testimony, as voiced by Judge Hall in his McCoy case. That same problem of mistrust of expert opinion testimony has been addressed by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The Louisiana Supreme Court has followed the reasoning of the U.S. Supreme Court in Daubert in the case of State v. Foret, 628 So.2d 1116 (La.1993). If a trial court believes that expert testimony is of such dubious value, that its probative weight cannot be determined absent an in-court observation of the expert witness, then the court should utilize its gate-keeping role under Daubert-Foret and exclude the testimony. Trial lawyers need to be made aware that the possibility of exclusion of expert testimony looms down the road and thus should make their Daubert-Foret challenges during the course of the deposition. No expert testimony under Daubert-Foret should be admitted, either in a motion for summary judgment or at trial, if it is not “relevant and reliable.” The determination of what is reliable evidence is set out in the test in Daubert-Foret.
If we do not make the distinction between affidavits and depositions, then in no case where an expert opinion is an essential element of either the plaintiff‘s case or the defense‘s case will a summary judgment be possible. There are cases on the plaintiff‘s side where the medical review panel is of the opinion that substandard conduct has occurred and that the substandard conduct was a cause of the plaintiff‘s injury. There are cases where doctors are willing to give testimony in depositions to the effect that the standard of care has been breached and that breach caused plaintiff‘s injury. Summary judgment should be available to a plaintiff in such a case, at least as to liability. I do not see how we can take the position, after Acts 1997, No. 483, favoring the granting of summary judgment, that both sides in a malpractice case are precluded from using the device of summary judgments based on an expert‘s deposition. It does not matter whether it is the plaintiff‘s expert‘s deposition or the defendant‘s expert‘s deposition. Expert testimony should be filtered through the Daubert-Foret process and not the loose language of McCoy and Miceli. McCoy and Miceli give no basis for excluding opinion testimony, except the fact that the courts then had a clear, well defined and jurisprudentially established aversion and dislike for summary judgments. The admissibility of testimony is a matter of evidence and should be judged by the standards in
A recent amendment to
In sum, I do not believe the requirement of “personal knowledge” for affidavits should be used to preclude the use of expert testimony by deposition for summary judgment. If a deposition can be read to a jury and be given full probative value without a showing of “personal knowledge,” then why cannot a judge read this same deposition for summary judgment?
WEIMER, J., concurring.
I agree with the majority opinion and write to make the following observations.
I believe that
The reason for the “personal knowledge” requirement in Article 967 is to limit the affidavit to facts which the affiant perceived with his own senses. The opinion of an expert witness, based solely on his training, experience, and expertise, is not based on “personal knowledge” as this term is used in Article 967. See Hidalgo v. General Fire & Casualty Company, 254 So.2d 493, 496 (La.App. 3 Cir.1971).
If a medical review panel opinion and report are made on personal knowledge and set forth facts, as opposed to opinions, they are admissible if offered in affidavit form and may be considered to decide a motion for summary judgment. However, generally speaking, a medical review panel opinion and report are not based on personal knowledge and are simply an opinion. As such, the medical review panel opinion and report would not be admissible to support or defend a motion for summary judgment.
Reading
Article 967 requires affidavits be made on personal knowledge; therefore, testimony not based on personal knowledge is inadmissible if contained in an affidavit. There is no statutory prohibition against opinion testimony contained within a deposition offered to support or defend a motion for summary judgment. Obviously, the trial court is not to weigh the opinion testimony or evaluate the credibility of the experts in determining whether to grant or deny the motion for summary judgment. If the opinions of the experts conflict, then the motion for summary judgment should be denied because there would exist a “genuine issue as to material fact.”
In this matter, the affidavit of the expert retained by the plaintiff is inadmissible because it is not based on personal knowledge. As such, the grant of summary judgment in favor of the defendants is correct.
FITZSIMMONS, J., concurring in the result, with reasons.
For medical review panel reports, I rely on a plain reading of
In my opinion, by clear language,
Based on the admissible documents submitted by defendants, and the plaintiffs subsequent failure (notwithstanding admission of the affidavit) to rebut or “produce factual support sufficient to establish that [plaintiff] will be able to satisfy [plaintiffs] evidentiary burden of proof at trial,” I believe the grant of summary judgment was correct. Thus, I respectfully concur in the result.
SHORTESS, J., Dissenting.
The majority embarks on an ambitious voyage, differentiating between experts’ opinions in depositions and in affidavits, and leaves years of jurisprudence in its wake. A doctor‘s sworn statement of the standard of care, based on his training and expertise, is acceptable in a deposition, but not in an affidavit. The majority navigates these treacherous waters to reach the result that the plaintiff loses because she relies on an expert‘s opinion set forth in an affidavit, while the defendants rely on an opinion set forth in a deposition and win.
By permitting this 180-degree change of course, most cases will no longer be tried-all a defendant needs to do to defeat a plaintiff‘s action is to find an expert who has an opinion and depose him since article 966 now completely trumps the article 967 requirement of personal knowledge. We will now no longer have effective cross-examination, the most successful tool to determine the truth ever created. Of course, there may be cross-examination during a discovery deposition, but how often is thorough cross-examination done at that stage? So, the discovery process will become even more acrimonious, and no magistrate will be present to separate the fractious parties.
Juries and trial judges no longer will be necessary as credibility determinations will cease to be part of truth seeking. Just take an expert‘s deposition and all litigation will be very neatly handled without muss or fuss to the detriment of finding the truth, i.e., justice.
I respectfully dissent.
PETTIGREW, J., Dissenting.
I will respectfully join with Judge Shortess‘s dissent to the majority opinion, and I add my additional following reasons.
I feel this case is not appropriate for summary judgment. I feel there are still material issues of fact in dispute including, but not limited to, whether the doctors identified the ureter, not only at the beginning of surgery, but also during surgery. This evidence was presented through the deposition of Dr. O‘Connell, submitted by the defendant as an attachment, being the operative report of Dr. Berry concerning the initial surgery on Mrs. Simmons.
Further, it is not always necessary to have an expert to meet the plaintiffs burden of proof in a medical malpractice case. In many cases, the plaintiff can carry its burden by using the defendant‘s experts in
Lastly, it is my understanding and appreciation of the facts that the affidavit of Dr. Valley, submitted by the plaintiff, was introduced without objection by the defendants at the hearing on the motion for summary judgment.
I respectfully dissent.
FOIL, J., dissenting.
Summary judgment was not proper in this particular case.