Opinion
CIVIL ACTION NO. 02-2506, SECTION "A"(1).
May 14, 2003.
ORDER AND REASONS
Before the Court are Motions for Summary Judgment (Rec. Docs. 12 14) filed by Hospital Service District No. 1 of the Parish of Terrebonne d/b/a Terrebonne General Medical Center ("TGMC"), Dr. Craig Walker, Dr. Peter Fail, Dr. Scott J. Comp, Dr. Eric Engeron, and Cardiovascular Institute of the South. Plaintiff, Carl Blazevich, proceeding pro se, opposes the motions. The motions, set for hearing on April 23, 2003, are before the Court on the briefs without oral argument. For the reasons that follow, the
Background
This is a medical malpractice suit by plaintiff, Carl Blazevich, against his cardiologists, their medical corporation, and TGMC for treatment conducted between July 1999 and April 2000.
According to Plaintiff's complaint, on July 28, 1999, Plaintiff underwent a procedure called percutaneous transluminal angioplasty ("PTA"), which was performed by Dr. Craig Walker. Plaintiff alleges that the balloon used to open the blocked artery broke causing arterial debris (plaque) and debris from the broken balloon to filter down into Plaintiff's lower extremity. Plaintiff alleges that the balloon breakage caused him to undergo two additional procedures which caused him to endure an additional painful convalescence.
On February 11, 2000, Plaintiff was readmitted to TGMC for a peripheral angiogram. Plaintiff alleges that this procedure might very well have been unnecessary.
On March 22, 2000, Dr. Walker performed another angioplasty at Cardiovascular Institute of the South ("CVIS"). Plaintiff alleges that he awoke in the recovery room while hemorrhaging. He states that the attending physician berated him and questioned him harshly as to whether he had AIDS or hepatitis. Plaintiff alleges that while in intensive care he suffered a massive "bleed" which required another surgery and that a hematoma was allowed to develop such that he suffered horrific swelling of his testicles. Plaintiff states that he remained in the hospital for twenty-eight days as opposed to the normal two to three day stay for such a procedure. Plaintiff also claims that his continuing requests to see Dr. Walker during this ordeal were denied and that certain hospital employees insinuated that Dr. Walker had not personally performed the angioplasty.
Plaintiff alleges that the bleed occurred when he attempted to drink some juice provided by a nurse. Defendants contend that Plaintiff had been trying to adjust the incline on his bed when the bleeding began.
Pursuant to the Louisiana Medical Malpractice Act, Plaintiff's claims were submitted to a medical review panel. The panel ultimately concluded that the evidence did not support the conclusion that Defendants failed to meet the applicable standard of care as charged in the complaint. Rec. Doc. 14, Exhibit A. Plaintiff then filed the instant lawsuit alleging inter alia that the July 28, 1999, angioplasty was improperly performed thereby necessitating two more procedures, that Dr. Walker failed to properly supervise the March 22, 2000, angioplasty, and that all of the defendant doctors failed to timely repair Plaintiff's damaged artery during the March 22, 2000, angioplasty.
Defendants' Motions
Defendants assert that the Louisiana Medical Malpractice Act and La.R.S. 9:2794 place the burden of proof upon Plaintiff to establish the standard of care expected of Defendants and to prove that Defendants failed to comply with that standard. Defendants assert Plaintiff can only meet that burden by presenting expert medical testimony yet Plaintiff has not submitted any additional evidence since the medical review panel proceedings in this case. Defendants also point out that the Medical Malpractice Act specifically states that the panel opinion shall be admissible in evidence. Because Plaintiff's expert report deadline has long passed without Plaintiff having retained an expert, the medical review panel's opinion stands uncontradicted. Thus, according to Defendants, Plaintiff cannot carry his evidentiary burden of proof at trial and Defendants are therefore entitled to summary judgment.
Trial is set to commence on June 23, 2003.
The Act provides that the panel's opinion shall be admissible in evidence in any subsequent court action and members of the panel may be called as expert witnesses in the case. La.R.S. 40:1299.39.1(H); Okpalobi v. Foster, 244 F.3d 405, 449 (5th Cir. 2001) (Dennis, J., dissenting).
In opposition, Plaintiff pro se asserts that evidence of the applicable standard of care will be obtained at trial through the testimony of "doctors subpoenaed, including CVIS doctors, Medical Panel, Terrebonne General Medical Center employees, all medical records, FDA investigation, exchange of interrogatories, and all other facts gathered during this lawsuit." Plaintiff points out that "[d]octors in Louisiana will not testify against other doctors," and that he cannot afford to bring out-of-state doctors to testify. He further argues that the medical review panel is a farce and unconstitutional. He asserts that the panel opinions were obviously prepared for the reviewing physicians because all three opinions are worded the same.
The Fifth Circuit has previously rejected a challenge to the constitutionality of Louisiana's medical malpractice review procedure. See Seoane v. Ortho Pharmaceuticals, Inc., 660 F.2d 146 (5th Cir. 1981).
Discussion
1. Summary Judgment Standards
In determining whether a party is entitled to summary judgment, the court views the evidence in the light most favorable to the non-moving party. Littlefield v. Forney Indep. School Dist., 268 F.3d 275, 282 (5th Cir. 2001) (citing Smith v. Brenoettsy, 158 F.3d 908, 911 (5th Cir. 1998); Tolson v. Avondale Indus., Inc., 141 F.3d 604, 608 (5th Cir. 1998)). Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). The moving party bears the burden, as an initial matter, of showing the district court that there is an absence of evidence to support the nonmoving party's case. Id. (citing Celotex, 477 U.S. at 325, 106 S.Ct. at 2548). If the moving party fails to meet this initial burden, the motion must be denied regardless of the nonmoving party's response. Id.
2. Louisiana Medical Malpractice Act
It is well-settled that under Louisiana law a medical malpractice plaintiff bears the burden of proving the standard of care applicable to the charged physician, a breach by the physician of that standard of care, and a causal connection between the physician's alleged breach and the plaintiff's injuries. Pfiffner v. Correa, 643 So.2d 1228, 1233 (La. 1994) (citing La.R.S. 9:2794(A) (West 1991)). The Medical Malpractice Act grants any party to the suit the right to subpoena any physician without his consent for a deposition or testimony at trial to establish the requisite standard of care. Id. (citing La.R.S. 9:2794(B)). The Act does not expressly state that experts are necessary in order for plaintiff to meet his burden of proof. Id.
In Pfiffner v. Correa, the Louisiana Supreme Court specifically addressed whether expert testimony is required for a medical malpractice plaintiff to meet his burden of proof. The crux of Pfiffner's holding is that the medical complexity of the alleged negligence dictates whether expert testimony is a necessary part of plaintiff's case. For instance, expert testimony is not required where a physician does an obviously careless act from which a lay person can infer negligence.Pfiffner, 643 So.2d at 1233 (citing Hastings v. Baton Rouge Gen. Hosp., 498 So.2d 713, 719 (La. 1986)). Examples of such obvious acts would be amputating the wrong limb, dropping a scalpel on the patient, or leaving a sponge inside the patient's body. Id. Further, for purposes of establishing the appropriate standard of care or even a breach thereof, plaintiff can rely upon the testimony of the defendant physician or other defense experts to support his claim. Id. at 1234 (citing Riser v. American Medical Int'l, Inc., 620 So.2d 372, 377 (La.App. 5th Cir. 1993)). Thus, the Louisiana Supreme Court has recognized that expert testimony is not always necessary in order to establish a medical malpractice claim. Id. at 1234.
However, plaintiff would still have to offer affirmative expert testimony to establish a causal connection between his injuries and the breach. Pfiffner, 643 So.2d at 1234.
However, the Pfiffner court went on to note that in most cases a medical malpractice plaintiff will not be able to meet his burden of proof without medical experts due to the complex medical and factual issues involved. 643 So.2d at 1234. Where the issues involved in the case are beyond the province of lay persons to assess, plaintiff cannot meet his burden without expert medical evidence. See id.
Applying these principles, Louisiana courts readily grant summary judgment where plaintiff fails to offer expert testimony to rebut the medical review panel's opinion that the defendant physician did not breach the appropriate standard of care where the medical issues involved in the case are complex in nature. See, e.g., Taplin v. Lupin, 700 So.2d 1160 (La.App. 4th Cir. 1997); Alex v. Dr. X, 692 So.2d 499 (La.App. 3d Cir. 1997). Moreover, even if a jury would be able to infer negligence from a physician's conduct, plaintiff must still provide expert testimony to establish a causal connection between his injury and that negligence. Alex, 692 So.2d at 506. In short, "[a]n unsuccessful course of treatment is not per se an indication of [medical] malpractice." Id. at 503 (citingGibson v. Bossier City Gen. Hosp., 594 So.2d 1332 (La.App. 2d Cir. 1991)).
The record shows that Plaintiff presented at the CVIS in May 1999 due to bilateral leg pain as well as chest and neck pain. Rec. Doc. 14, Exhibit F. At the time Plaintiff had severe bilateral claudication (limping), poor circulation, and angina among other ailments. Id. He was on six medications and weighed 326 pounds. Id. An angiography revealed severe coronary artery disease. On May 24, 1999, Plaintiff underwent triple coronary artery bypass surgery. Rec. Doc. 14, Exhibit J. That procedure was performed by a cardiovascular surgeon (Dr. Tommy Fudge) who is not a party to this lawsuit.
Plaintiff's height is 6'2".
Plaintiff later complained to Dr. Walker of discomfort around the area of the incision on his chest as well as some of the symptoms that had originally brought him to CVIS. Rec. Doc. 14, Exhibits O Q. Plaintiff was then on ten prescribed medications. Rec. Doc. 14, Exhibit 0. Plaintiff elected to proceed with angioplasty and on July 28, 1999, Dr. Walker performed the procedure. This procedure, during which the angioplasty balloon broke, began the chain of events which constitute the basis for Plaintiff's lawsuit.
After reviewing the voluminous medical record in this case, and considering the complexity of the medical issues involved, the Court concludes that this case is one in which Plaintiff cannot meet his burden of proof under Louisiana law without the aid of expert medical testimony. Assuming arguendo that the Defendant physicians will provide expert testimony as to the requisite standard of care, Plaintiff nevertheless has no evidence to support his contention that the Defendants' conduct was a breach of that standard of care or that any such breach was the cause of Plaintiff's pain and suffering. The record shows that Plaintiff had significant health problems going into the July 28, 1999, angioplasty. The various procedures Plaintiff underwent during the course of his treatment by Defendants were complex and highly specialized to say the least. Given the medical complexity of this case it is wholly unrealistic to expect a jury of lay persons to be able to determine whether various procedures were unnecessary to Plaintiff's treatment and whether any untoward results were attributable to negligence on the part of Defendants as opposed to non-negligence-related complications given the risks involved and the patient's prior medical history. Likewise, without expert medical testimony, the jury will not be in a position to determine that Dr. Walker failed to properly supervise the other physicians or that Plaintiff's treatment for the hematoma was untimely. Assuming those allegations are true, Plaintiff cannot causally link those acts to his injuries without expert testimony.
In support of their motions for summary judgment, Defendants submitted the opinion of the medical review panel which concludes that Plaintiff's treatment was adequate. Rec. Doc. 14, Exhibit B. Dr. William Condos, a cardiologist and member of the panel, also submitted an affidavit confirming that the panel's published opinion accurately reflects his conclusions, which he reached after reviewing all pertinent medical records and literature. Id. Given that Plaintiff has offered no expert medical testimony to rebut the evidence put forth by Defendants, Plaintiff has failed to create an issue of fact for trial.
Accordingly;
IT IS ORDERED that the Motions for Summary Judgment (Rec. Docs. 12 14) filed by Hospital Service District No. 1 of the Parish of Terrebonne d/b/a Terrebonne General Medical Center ("TGMC"), Dr. Craig Walker, Dr. Peter Fail, Dr. Scott J. Comp, Dr. Eric Engeron, and Cardiovascular Institute of the South should be and are hereby GRANTED. Plaintiff's complaint is DISMISSED WITH PREJUDICE.