William J. Blanford v. LAMMICO, Arch Specialty Insurance Company, Lexington Insurance Co., Ochsner Medical Center-Baton Rouge, Ochsner Clinic Foundation, Walter L. Bringaze, III, M.D., Gregory P. Gaspard, M.D., Claude J. Tellis, M.D., Peter Crawford, N.P., Lei Gao, M.D., Elizab

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2021 CA 0723

WILLIAM J. BLANFORD

VERSUS

LAMMICO, ARCH SPECIALTY INSURANCE COMPANY, LEXINGTON
INSURANCE CO., OCHSNER MEDICAL CENTER -BATON ROUGE, OCHSNER
CLINIC FOUNDATION, WALTER L. BRINGAZE, III, M. D., GREGORY P.
GASPARD, M. D., CLAUDE J. TELLIS, M. D., PETER CRAWFORD, N. P., LEI GAO,
M. D., ELIZABETH LEJEUNE, N. P., AND VIRASITH RAJAPHO, M. D.

Judgment Rendered:
MAR 0 3 2022

On Appeal from the Nineteenth Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Docket No. 691211

Honorable William A. Morvant, Judge Presiding

Kara H. Samuels Counsel for Plaintiff/ 1St Appellant
Tiffany A. Morales William J. Blanford
New Orleans, Louisiana
and

Michael C. Palmintier
Baton Rouge, Louisiana

Tara S. Bourgeois Counsel for Defendants/ 2nd Appellants
Jonathan E. Thomas Walter L. Bringaze, III, M. D. and LAMMICO
Nancy B. Roberts
Baton Rouge, Louisiana

Don S. McKinney Counsel for Defendants/ Appellees
Erica P. Sensenbrenner Ochsner Clinic Foundation, Gregory P.
New Orleans, Louisiana Gaspard, M. D., Claude J. Tellis, M. D., and

Lei Gao, M. D.

BEFORE: McCLENDON, WELCH, AND THERIOT, JJ.

McCLENDON, J.

William Blanford, plaintiff herein, appeals a summary judgment dismissing his

medical malpractice claim against defendants Gregory P. Gaspard, M. D., Claude J.

Tellis, M. D., Lei Gao, M. D., and Ochsner Clinic Foundation, with prejudice. After review,

we reverse the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

Mr. Blanford was admitted to Ochsner' s Baton Rouge campus on July 16, 2012.

An echocardiogram the following day revealed that Mr. Blanford was suffering from

congestive heart failure. Mr. Blanford underwent aortic valve replacement ( AVR)

surgery on July 18, 2012. He was transferred from the ICU to the telemetry unit on July

20, 2012. However, by July 21, 2012, Mr. Blanford was in acute liver and renal failure.

He was transferred back to the ICU until July 24, 2012, when he was relocated to

Ochsner's New Orleans campus to await a liver transplant.

Mr. Blanford requested a Medical Review Panel. On August 28, 2019, in a

unanimous decision, the Medical Review Panel found no evidence that Mr. Blanford' s

healthcare providers breached the standard of care.

Mr. Blanford filed suit on November 25, 2019, asserting claims of medical

malpractice against numerous defendants regarding his surgery, pre -operative care,

and post-operative care. Pertinent to this appeal, named as defendants were Walter L.

Bringaze, III, M. D., the cardiothoracic surgeon who performed Mr. Blanford' s AVR

surgery; LAMMICO, as Dr. Bringaze' s professional liability insurer; Dr. Gao, a

subspecialist in cardiology; Dr. Gaspard, a subspecialist in gastroenterology; Dr. Tellis, a

subspecialist in pulmonology; and Ochsner Clinic Foundation ( OCF), the employer of Dr.

Gao, Dr. Gaspard, and Dr. Tellis. l

Defendants OCF, Dr. Gaspard, Dr. Tellis, and Dr. Gao ( sometimes collectively,

the Ochsner Defendants") filed a motion for summary judgment on August 4, 2020.

1 The other named defendants included Virasith Rajapho, M. D.; Peter Crawford, N. P.; Lexington
Insurance Co., as the insurer of Dr. Rajapho and Mr. Crawford; East Baton Rouge Medical Center, LLC
d/ b/ a Ochsner Medical Center -Baton Rouge; Arch Specialty Insurance Company; and Elizabeth Lejeune,
N. P. These defendants were dismissed by consent judgments dated July 16, 2020, and November 18,
2020. Both consent judgments explicitly stated that the above- named defendants were dismissed with
prejudice and that the remaining parties reserved their right to call any or all of the dismissed defendants
as witnesses at trial and/ or to put on evidence of the dismissed defendants' assessment, care, and
treatment of Mr. Blanford during the relevant time period.

2

The Ochsner Defendants maintained that Mr. Blanford could not produce expert

testimony to support his claims of medical malpractice against them, and accordingly,

requested the dismissal of Mr. Blanford' s claims.

The Ochsner Defendants' motion for summary judgment was originally set for

hearing on December 7, 2020. However, the hearing was continued to allow time for

the deposition of Mr. Blanford' s expert witness, Gregory Ahearn, M. D., a physician

board certified in pulmonary medicine, critical care medicine, and neurocritical care.

Dr. Ahearn' s deposition took place on December 16, 2020. Based on Dr. Ahearn' s

review of the medical records, Dr. Ahearn testified that Mr. Blanford was likely in multi-

organ failure prior to the AVR surgery, but his condition was not thoroughly evaluated,

nor was it medically optimized. Consequently, although Mr. Blanford was at high risk of

complications post-operatively, the severity of the risk was not appreciated and the

appropriate level of vigilance was not employed during Mr. Blanford' s post- operative

care. Dr. Ahearn testified that Mr. Blanford was prematurely discharged from the ICU

while showing signs of hepatic and renal failure on post- operative day two. Dr. Ahearn

further opined that Mr. Blanford developed hepatorenal syndrome, a complication

wherein a patient with severe liver disease develops renal failure. Dr. Ahearn testified

that the failure to diagnose and treat Mr. Blanford' s hepatorenal syndrome was a

breach of the standard of care that caused Mr. Blanford damages. Despite the fact that

numerous other physicians and subspecialists were involved in Mr. Blanford' s care both

pre -operatively and post- operatively, including the Ochsner Defendants, Dr. Ahearn

declined to find fault with any physician other than Dr. Bringaze. Dr. Ahearn explained

that this was because Dr. Bringaze, as the surgeon, was " the driving force," " in the

driver' s seat, as the surgeon," and " running the show." Dr. Ahearn explicitly testified

that, in his opinion, the Ochsner Defendants were not at fault.

Following Dr. Ahearn' s deposition, Dr. Bringaze and LAMMICO filed a pleading

captioned " Motion [ in Limine] and Request for Expedited Hearing or, in the Alternative,

Motion to Continue Hearing on Co -Defendants' Motion for Summary Judgment"

motion in limine") on January 8, 2021. The motion in limine asserted that Dr. Bringaze

3

and LAMMICO did not oppose the Ochsner Defendants' motion for summary judgment,

but requested that, should the trial court grant summary judgment:

in order to properly defend their case, [ Dr. Bringaze and LAMMICO] be
allowed to put on factual evidence at trial that Dr. Bringaze was not in
charge of certain aspects of William Blanford' s care of which plaintiff's
expert, Dr. Ahearn, is or may be critical; and factual evidence regarding
the Ochsner Defendants'] involvement in the care of William Blanford
including, but not limited to, witness testimony and/ or any entries in the
medical records by [ the Ochsner Defendants] regarding the assessment,
care and treatment provided to William Blanford and/ or any conversations
that may have taken place between Dr. Bringaze [ and the Ochsner
Defendants] concerning the assessment, care and treatment provided to
William Blanford.

Mr. Blanford opposed the motion in limine. Mr. Blanford argued that although Dr.

Bringaze ' insists that he is not opposing the motions filed by his co- defendants," he

nevertheless clearly intends to introduce evidence of their conduct and fault at the trial

of this case, in the event that the motion is granted, in violation of Code of Civil

Procedure article 966G." 2 Following a hearing, the trial court deferred ruling on the

motion in Amine to the trial on the merits.

On March 17, 2021, the Ochsner Defendants filed a supplemental memorandum

in support of their motion for summary judgment, together with excerpts of Dr.

Ahearn' s deposition as additional exhibits. The Ochsner Defendants maintained that Dr.

Ahearn' s deposition testimony " confirms that the Ochsner Defendants' motion must be

granted," because " Dr. Ahearn had criticisms of non -Ochsner defendant Dr. Bringaze,

but he confirmed very plainly under oath that he has no criticisms of the Ochsner

doctors or any other healthcare providers." Thus, the Ochsner Defendants concluded

that Dr. Ahearn"s testimony "'exonerates" them.

On March 26, 2021, Dr. Bringaze and LAMMICO filed an opposition to the

Ochsner Defendants' motion for summary judgment in order to maintain a possible

Z Mr. Blanford also argued that the motion was premature, because the trial court allowed additional
discovery following Dr. Ahearn' s deposition, but Dr. Ahearn had not had the opportunity to review the
defendants' responses, such that Mr. Blanford was unable to determine whether he should oppose the
motion for summary judgment or not.

0

defense of comparative fault.3 Dr. Bringaze and LAMMICO argued that genuine issues

of material fact existed as to whether the Ochsner Defendants negligently failed to

diagnose and appropriately treat or medically optimize Mr. Blanford' s conditions pre-

operatively and post-operatively, and whether, if the Ochsner Defendants had timely

diagnosed and appropriately treated Mr. Blanford, it would have changed their

recommendations regarding Dr. Bringaze' s treatment of the patient and resulted in the

chance of a better medical outcome. Dr. Bringaze and LAMMICO pointed out that while

Dr. Ahearn gave the opinion that Dr. Bringaze alone breached the standard of care

because he " call[ ed] all the shots in this dynamic," Dr. Ahearn also acknowledged that

the Ochsner Defendants were " on board" with Mr. Blanford' s care and monitored Mr.

Blanford' s condition both pre -operatively and post-operatively.

Also on March 26, 2021, Mr. Blanford filed a " Motion to Adopt Any Opposition

and Exhibits Filed by [ Dr. Bringaze and LAMMICO]" (" motion to adopt"). The trial court

granted Mr. Blanford' s motion to adopt on April 6, 2021.

The Ochsner Defendants' motion for summary judgment was heard on April 12,

2021. Following the hearing, the trial court granted the Ochsner Defendants' motion for

summary judgment and dismissed Mr. Blanford' s claims against them with prejudice.

The written judgment, executed April 15, 2021, provided in pertinent part:

Based on the pleadings, the evidence, and the arguments of
counsel, and for the reasons stated orally, the Court finds that the
Ochsner Defendants' Motion for Summary Judgment shall be and is
hereby GRANTED. The Court also finds La. C. C. P. Art. 966G does not
apply to this ruling, as the Court has made no finding that the Ochsner
Defendants were not negligent, not at fault, or did not cause in whole or
in part the injury alleged.

Accordingly, IT IS ORDERED, ADJUDGED AND DECREED that
Defendants Ochsner Clinic Foundation, Gregory Gaspard, M. D., Claude
Tellis, M. D., and Lei Gao, M. D. shall be and are hereby DISMISSED WITH
PREJUDICE but without the application of La. C. C. P. Art. 966G based on
the Court' s findings.

3 Dr. Bringaze and LAMMICO' s opposition first noted their objection to the Ochsner Defendants'
supplemental memorandum and exhibits, as the supplemental memorandum and exhibits were not
proper or timely under LSA- C. C. P. art. 966( B) or Uniform Rules for District Courts, Rule 9. 10. Further, the
supplemental memorandum and exhibits were not concurrently served on Dr. Bringaze and LAMMICO as
required by Uniform Rules for District Courts, Rule 9. 9. However, because Dr. Bringaze and LAMMICO
offered the entirety of Dr. Ahearn' s deposition in support of their opposition, they later withdrew their
objection.

5

Mr. Blanford has appealed the April 15, 2021 judgment. On appeal, Mr. Blanford

maintains that the trial court erred in granting the Ochsner Defendants' motion for

summary judgment because the motion was opposed by expert medical testimony

offered by Dr. Bringaze, which Mr. Blanford timely adopted. Alternatively, in the event

this Court finds that the trial court properly granted the Ocshner Defendants' motion for

summary judgment, Mr. Blanford argues that the trial court erred in ruling that LSA-

C. C. P. art. 966( G) was inapplicable.

Dr. Bringaze and LAMMICO also appealed the April 15, 2021 judgment. Dr.

Bringaze and LAMMICO first maintain that in the event this Court upholds the trial

court's grant of the Ochsner Defendants' motion for summary judgment on appeal, Dr.

Bringaze and LAMMICO have no objection to the trial court's ruling that LSA- C. C. P, art.

966( G) was not applicable to the dismissal of the Ochsner Defendants. However, in the

event this Court reverses the trial court's judgment as it pertains to the applicability of

LSA- C. C. P. art. 966( G), Dr. Bringaze and LAMMICO contend that the trial court erred in

granting the motion for summary judgment because genuine issues of material fact

exist. Specifically, Dr. Bringaze and LAMMICO maintain that the trial court failed to

properly consider Dr. Bringaze' s affidavit, and/ or improperly weighed conflicting

evidence in contravention of LSA- C. C. P. art. 966.

SUMMARY JUDGMENT

Appellate courts review summary judgments de novo, using the same criteria

that govern the trial court' s determination of whether summary judgment is

appropriate. Jones v. Baton Rouge General Medical Center -Bluebonnet, 2020-

1250 ( La. App. 1 Cir. 6/ 4/ 21), 327 So. 3d 512, 516. After an opportunity for adequate

discovery, a motion for summary judgment shall be granted if the motion,

memorandum, and supporting documents show that there is no genuine issue as to

material fact and that the mover is entitled to judgment as a matter of law. LSA- C. C. P.

art. 966( A)( 3).

The burden of proof to establish that no material factual issues exist is on the

mover. However, if the mover will not bear the burden of proof at trial, the mover is not

required to negate all essential elements of the adverse parry' s claim. Rather, the

0

mover must point out to the trial court that there is an absence of factual support for

one or more elements essential to the adverse party's claim. Thereafter, the burden is

on the adverse parry to produce factual support sufficient to establish the existence of a

genuine issue of material fact or that the mover is not entitled to judgment as a matter

of law. See LSA- C. C. P. art. 966( D)( 1); Mariakis v. North Oaks Health System,

2018- 0165 ( La. App. 1 Cir. 9/ 21/ 18), 258 So. 3d 88, 93. If the adverse party fails to do

so, there is no genuine issue of material fact and summary judgment will be granted.

McCoy v. Manor, 2018- 1228 ( La. App. 1 Cir. 5/ 9/ 19), 277 So. 3d 344, 347.

A genuine issue of material fact is one as to which reasonable persons could

disagree; if reasonable persons could reach only one conclusion, there is no need for

trial on that issue and summary judgment is appropriate. Marks v. Schultz, 2020-

0197 ( La. App. 1 Cir. 12/ 10/ 20), 316 So. 3d 534, 538. Material facts are those that

potentially insure or preclude recovery, affect the litigant's success, or determine the

outcome of a legal dispute. Jenkins v. Hernandez, 2019- 0874 ( La. App. 1 Cir. 6/ 3/ 20),

305 So. 3d 365, 371, writ denied, 2020- 00835 ( La. 10/ 20/ 20), 303 So. 3d 315. Because it

is the applicable substantive law that determines materiality, whether a particular fact in

dispute is material can be seen only in light of the substantive law applicable to the

case. Galliano v. CB & I, LLC, 2018- 0844 ( La. App. 1 Cir. 4/ 10/ 19), 275 So. 3d 906,

M

MEDICAL MALPRACTICE

The substantive law at issue in this appeal is the law governing medical

malpractice. To establish a claim for medical malpractice, a plaintiff must prove the

following by a preponderance of the evidence: ( 1) the standard of care applicable to

the defendant; ( 2) the defendant breached that standard of care; and ( 3) there was a

causal connection between the breach and the resulting injury. LSA- R. S. 9: 2794( A) 4;

4 Louisiana Revised Statutes 9: 2794 provides, in part, that:

A. In a malpractice action based on the negligence of a physician ..., the plaintiff shall

have the burden of proving:
1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised
by physicians, ... licensed to practice in the state of Louisiana and actively practicing in a
similar community or locale and under similar circumstances; and where the defendant
practices in a particular specialty and where the alleged acts of medical negligence raise
issues peculiar to the particular medical specialty involved, then the plaintiff has the
burden of proving the degree of care ordinarily practiced by physicians, ... within the
7

Vanner v. Lakewood Quarters Retirement Community, 2012- 1828 ( La. App. 1 Cir.

6/ 7/ 13), 120 So. 3d 752, 755. Expert testimony is generally required to establish the

applicable standard of care and whether that standard of care was breached, except

where the negligence is so obvious that a lay person can infer negligence without the

guidance of expert testimony. Williams v. Our Lady of Lake Hospital, Inc., 2009-

0267 ( La.App. 1 Cir. 9/ 11/ 09), 22 So. 3d 997, 999.

DISCUSSION

As set forth above, the Ochsner Defendants sought summary judgment on the

basis that Mr. Blanford would not be able to produce expert medical testimony in

support of the claims asserted against them. As the movers, the Ochsner Defendants

have the initial burden of proving their entitlement to summary judgment as a matter of

law. See LSA- C. C. P. art. 966( D)( 1). However, because the Ochsner Defendants will not

bear the burden of proof at trial, they are under no burden to disprove medical

malpractice. Rather, the Ochsner Defendants need only point out that Mr. Blanford

cannot support his burden of proof at trial to demonstrate medical malpractice. Should

the Ochsner Defendants make a prima facie showing that their motion should be

granted, the burden would then shift to Mr. Blanford to produce factual support

sufficient to establish the existence of a genuine issue of material fact or that the

Ochsner Defendants are not entitled to judgment as a matter of law. LSA- C. C. P. art.

966( D)( 1); see Mariakis, 258 So. 3d at 94.

In support of their motion, the Ochsner Defendants initially offered Mr. Blanford' s

Medical Review Panel requests5 and the Medical Review Panel opinion unanimously

finding no breach of the standard of care by any of Mr. Blanford' s treating healthcare

providers. 6 Following Dr. Ahearn' s deposition, the Oschner Defendants supplemented

involved medical specialty.
2) That the defendant either lacked this degree of knowledge or skill or failed to use
reasonable care and diligence, along with his best judgment in the application of that
skill.

3) That as a proximate result of this lack of knowledge or skill or the failure to exercise
this degree of care the plaintiff suffered injuries that would not otherwise have been
incurred.

5 Mr. Blanford amended and supplemented his original request for a Medical Review Panel several times.

6 The Ochsner Defendants also submitted Mr. Blanford' s petition for damages and discovery requests the
Ochsner Defendants propounded to Mr. Blanford, though without Mr. Blanford' s responses to same.

their submission with an excerpt from the deposition transcript. The excerpt included

Dr. Ahearn' s explicit testimony that he did not have any criticisms of Dr. Gao, Dr.

Gaspard, or Dr. Tellis regarding the decision to offer surgery to Mr. Blanford, Mr.

Blanford' s pre -operative care, or the decision to transfer Mr. Blanford out of the ICU.

Dr. Ahearn further testified that he did not have any criticisms of any physicians or

other health care providers in Mr. Blanford' s care and treatment, other than Dr.

Bringaze. Thus, the Ochsner Defendants pointed out the absence of factual support

necessary to establish elements of Mr. Blanford' s claim, specifically the applicable

standard of care and whether that standard of care was breached.

Accordingly, the burden then shifted to Mr. Blanford to produce factual support

sufficient to establish the existence of a genuine issue of material fact or that the

Ochsner Defendants were not entitled to judgment as a matter of law. LSA- C. C. P. art.

966( D)( 1); see Mariakis, 258 So. 3d at 94. As noted above, Mr. Blanford did not file an

opposition to the Ochsner Defendants' motion for summary judgment, but he adopted

the opposition filed by Dr. Bringaze and LAMMICO. In support of Dr. Bringaze and

LAMMICO' s opposition, they offered Dr. Bringaze' s affidavit; the entirety of Dr. Ahearn' s

deposition and the exhibits attached thereto, including Dr. Ahearn' s expert report,

verified by Dr. Ahearn' s affidavit; excerpts of Mr. Blanford' s medical records; and Mr.

Blanford' s July 16, 2020 responses to the Ochsner Defendants' discovery requests,

wherein Mr. Blanford had originally produced Dr. Ahearn' s expert report.

While the Ocshner Defendants offered an excerpt of Dr. Ahearn' s deposition

testimony, Appellants offered Dr. Ahearn' s deposition testimony in its entirety, together

with Dr. Ahearn' s affidavit. In forming his opinion of Mr. Blanford' s care, Dr. Ahearn

reviewed the medical review panel opinion and reasons, Mr. Blanford' s submission of

evidence, the defendants' submissions of evidence, and Mr. Blanford' s medical records.

Dr. Ahearn' s extensive testimony primarily addressed his assessment of the pre-

operative and post- operative care rendered to Mr. Blanford.'

Regarding the July 18, 2012 AVR surgery, Dr. Ahearn testified that he had no opinion about either Dr.
Bringaze' s technical performance or Mr. Blanford' s intraoperative treatment.

X

Regarding Mr. Blanford' s pre -operative care, Dr. Ahearn testified that several

warning flags in Mr. Blanford' s medical records indicated that Mr. Blanford was suffering

from multi- organ failure, which placed him at an extraordinarily high risk for " renal

failure, prolonged respiratory failure, liver failure, encephalopathy... infections, wound

infections, [ and] hospital- acquired infections." Given these circumstances, Dr. Ahearn

was critical of the pre -operative assessment, referring to it as a " paltry" assessment

consisting of an insufficient pre -operative investigation and " no optimization." He

attested that, in his opinion, Dr. Bringaze " grossly underestimated his patient's

operative risk and failed to recognize, investigate, and treat the brewing storm that was

evident pre -operatively and was obvious immediately post[ -operatively]."

With respect to whether the care rendered to Mr. Blanford pre -operatively

breached the standard, Dr. Ahearn' s testimony was less than clear. At one point during

his deposition, Dr. Ahearn testified that the lack of investigation and optimization was a

breach of the standard of care. When asked, "[ B] y whom?" Dr. Ahearn ascribed the

fault to Dr. Bringaze as the " driving force," responsible for performing heart surgery on

Mr. Blanford " without really understanding the basis for his underlying abnormalities,"

which led to a failure to exercise the appropriate level of vigilance post-operatively.

However, when later asked whether it was a breach of the standard of care not to delay

the surgery in an effort to optimize Mr. Blanford' s physiology prior to surgery, Dr.

Ahearn testified that he didn' t believe it was " necessarily" or " strictly" a breach of the

standard of care " to take [ Mr. Blanford] urgently to the operating room with[ out]... a

more detailed evaluation," though under those circumstances, " post[ -] operatively... you

need to be extra careful in the intensive care unit, because things may unravel..." Dr.

Ahearn stated that he would defer to Dr. Bringaze' s judgment with respect to whether

to proceed with the AVR surgery without further assessment, " but what [ he] would

object to is that [ Dr. Bringaze] elected to take a big risk up front, but didn' t really play

good defense on the back end of the surgery... post[-] operatively."'

10

Dr. Ahearn also testified that the alleged failure to diagnose Mr. Blanford with

cardiac cirrhosis$ pre -operatively was a breach of the standard of care. When asked

which medical specialists would have been involved in working up the patient for

cardiac cirrhosis, Dr. Ahearn responded "[ c] ardiology and hepatology." However, when

asked to whom he attributed this breach, Dr. Ahearn again identified Dr. Bringaze as

the "'driving force," taking Mr. Blanford into surgery without recognizing significant liver

disease and the impact the condition would have on Mr. Blanford' s operative risks and

post- operative care.

With respect to Mr. Blanford' s post- operative care, Dr. Ahearn testified that on

post-operative day 2, July 20, 2012, Mr. Blanford' s kidney function, liver function, and

heart function were all deteriorating. In addition, Mr. Blanford was experiencing fevers

that " no one really under[ stood]." Dr. Ahearn believed that Mr. Blanford was in liver

failure "' immediately post[ -]operatively" and was " developing multi- organ failure right

under their nose." Under these circumstances, it was Dr. Ahearn' s opinion that the

order to transfer Mr. Blanford from the ICU, which was given by Dr. Bringaze on July

20, 2012, was premature. By post-operative day 3, July 21, 2012, Mr. Blanford " was in

fulminant complete liver failure and renal failure" with a poor prognosis.

Dr. Ahearn' s assessment of Mr. Blanford' s condition post-operatively was that

more likely than not, Mr. Blanford had developed hepatorenal syndrome, " a dreaded

complication of severe liver disease [ that] carries a grim prognosis... a patient with liver

disease develops renal failure that is often refractory to treatment." Dr. Ahearn testified

that the failure to treat Mr. Blanford for hepatorenal syndrome post-operatively was a

breach of the standard of care. Dr. Ahearn explained that in his practice, critical care

would manage hepatorenal syndrome, so while he " would have no expectation that [ Dr.

Bringaze] actually treat the hepatorenal syndrome," he felt that "[ Dr. Bringaze needed]

to be cognizant of it... and the risk it imparts on his surgery... he needs to recognize the

possibility of it."

Throughout his deposition, and in his affidavit, Dr. Ahearn consistently opined

that Dr. Bringaze alone was responsible for any breach in the standard of care rendered

8 Dr. Ahearn explained that in cardiac cirrhosis, the "[ h] eart failure directly causes the cirrhosis."

11

to Mr. Blanford. He maintained this position while simultaneously acknowledging that

the medical records documented that Mr. Blanford was seen by all three of the Ochsner

Defendants on the day prior to surgery, that the Ochsner Defendants were aware of Mr.

Blanford' s condition pre -operatively, and that Mr. Blanford was seen by all three of the

Ochsner Defendants post- operatively. Pre -operatively, Dr. Gaspard saw Mr. Blanford

twice on July 17, 1012, and was following him for hepatic congestion; Dr. Gao saw Mr.

Blanford on July 17, 2012, diagnosed valvular disease, and consulted with Dr.

Bringaze's medical group for the AVR surgery; and Dr. Tellis saw Mr. Blanford on July

17, 2012, and was on board and aware that Mr. Blanford had elevated liver enzymes

possibly related to hepatitic congestion. Post-operatively, the medical records include

notes dated July 18 and 19, 2012, from pulmonology, though the notes were otherwise

illegible; notes dated July 19, 20, and 21, 2012, from Dr. Gao in cardiology; and orders

dated July 19, 20, and 21, 2012, from Dr. Gaspard in gastroenterology. When asked

whether these physicians were aware of and monitoring Mr. Blanford' s liver and kidney

function, Dr. Ahearn responded affirmatively, and also stated, "[ w] ell, so every hospital

and ICU has its own culture, who manages what."

Relative to this motion for summary judgment, Dr. Ahearn repeatedly expressed

his opinion that Dr. Bringaze was the physician at fault. Dr. Ahearn specifically stated:

I think Dr. Bringaze was the mover and the shaker. Dr. Bringaze wrote
all the orders for the fluids. Dr. Bringaze managed the pressures. Dr.
Bringaze managed the ventilator, and Dr. Bringaze made the decision to
transfer him out of the intensive care unit, and also, he' s the one who
decided to do the surgery. You know, by the time these doctors are
brought to the table, especially the nephrologist, the proverbial cat is out
of the bag. It's too late.

With respect to the roles the Ochsner Defendants and other healthcare providers

played in the care rendered to Mr. Blanford, Dr. Ahearn stated, "[ t] he dynamic of the

physicians there is that Dr. Bringaze is the mover and -- you know, thoracic surgery

calls all the shots in this dynamic. The rest of those physicians are fairly useless,

honestly." Dr. Ahearn also testified that in his opinion, " nobody else on his medical

team is going to say, no... you can' t go to surgery because of his liver disease."

However, Dr. Ahearn admitted that he, as a critical care medicine physician, '[ could]

tell a surgeon that it' s contraindicated to go to surgery."

12

Additionally, Dr. Ahearn criticized Dr. Bringaze for not soliciting advice from other

consulting physicians. However, he also opined that:

None of the other clinicians that are involved in this case really carry --
really have the expertise to manage the patient in the intensive care unit
and to deal with these issues... post[ -] operatively... [ T] he hospitalist is not
going to manage the patient post[ -] operatively. The gastroenterologist is,
you know, he's just thinking about why his liver function tests are
elevated. He' s not going to manage the complex hemodynamic issues.
The cardiologists are, they' re sort of -- you know, [ managing complex
multi- organ failure is] just not their expertise.

Dr. Bringaze' s affidavit, offered in support of the opposition to the Ochsner

Defendants' motion for summary judgment, squarely contradicted Dr. Ahearn' s

testimony that Dr. Bringaze was solely responsible for the patient care and decisions

that Dr. Ahearn identified as breaches in the standard of care. Dr. Bringaze's testimony

was based on his knowledge and experience as a cardiothoracic surgeon. Dr. Bringaze

attested, in pertinent part:

As a consulted cardiothoracic surgeon, I was not called upon to participate
in nor was I responsible for diagnosing, treating, and/ or medically
optimizing Mr. Blanford' s underlying cardiac, hepatic, or renal conditions
upon his admission to [ Ochsner -Baton Rouge] or at any time prior to AVR
surgery on July 18, 2012. In conformity with the purpose and expected
scope of my cardiothoracic surgery consultation, I did not participate in
these aspects of [ Mr. Blanford' s] pre -operative care.

As a consulted cardiothoracic surgeon, I was not called upon to participate
nor was I responsible for
diagnosing, treating[,] and/ or medically
optimizing Mr. Blanford for heart failure, liver failure or liver dysfunction,
kidney failure or kidney dysfunction, hepatorenal syndrome, or cardiac
cirrhosis of the liver after he was admitted to [ Ochsner -Baton Rouge] and
prior to his AVR surgery on July 18, 2012. In conformity with the purpose
and expected scope of my cardiothoracic surgery consultation, I did not
participate in these aspects of Mr. Blanford' s pre -operative care.

As a consulted cardiothoracic surgeon, I was not called upon to participate
nor was I responsible for diagnosing, treating, and/ or medically optimizing
Mr. Blanford' s liver or kidney function or any alleged liver or kidney failure,
cardiac cirrhosis of the liver, hepatorenal syndrome, and/ or hepatic
encephalopathy post- operatively while Mr. Blanford was in the ICU and/ or
on the telemetry floor. In conformity with the purpose and expected
scope of my cardiothoracic surgery consultation, I did not participate in
these aspects of Mr. Blanford' s care.

If there was a negligent failure to timely diagnose and/ or appropriately
treat or medically optimize Mr. Blanford for heart failure, cardiac cirrhosis
of the liver, significant liver disease, liver dysfunction or liver failure,
kidney dysfunction or kidney failure, and/ or hepatorenal syndrome prior to
AVR surgery on July 18, 2012, it would have been the responsibility of the
internal medicine specialists and subspecialists evaluating and treating the
patient in the pre -operative period, including Dr. Tellis, Dr. Gaspard, [ and]

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Dr. Gao... to diagnose and treat or medically optimize these conditions
prior to surgery.

If, as Dr. Ahearn has testified in his deposition, it was a breach of the
standard of care to fail to timely diagnose and/ or appropriately test or
medically optimize Mr. Blanford for heart failure, cardiac cirrhosis of the
liver, significant liver disease, liver dysfunction or liver failure, kidney
dysfunction or kidney failure, and/ or hepatorenal syndrome prior to AVR
surgery on July 18, 2012, then the internal medicine specialists and
subspecialists evaluating and treating the patient in the pre -operative
period, including Dr. Tellis, Dr. Gaspard, and Dr. Gao, were negligent.

If, as Dr. Ahearn has testified in his deposition, it was a breach of the
standard of care to fail to timely diagnose and/ or appropriately treat Mr.
Blanford for liver failure and kidney failure or hepatorenal syndrome in the
post-operative period and to prematurely transfer the patient out of the
ICU with these conditions, then the internal medicine specialists and
subspecialists evaluating and treating the patient [ in the ICU], including
Dr. Tellis, Dr. Gaspard, and Dr. Gao, were negligent.

On appeal, Dr. Bringaze, LAMMICO, and Mr. Blanford contend that the trial court

erred in granting the Ochsner Defendants' motion for summary judgment because

genuine issues of material fact exist. Having conducted a thorough de novo review of

the record before us, we agree. Dr. Ahearn' s deposition testimony set forth breaches in

the standard of care regarding Mr. Blanford' s pre -operative care, transfer from the ICU,

and post-operative care. While Dr. Ahearn ascribed all responsibility and fault for these

breaches to Dr. Bringaze, he repeatedly stated that the reason he found Dr. Bringaze at

fault was because Dr. Bringaze was the physician in charge of and ultimately

responsible for Mr. Blanford' s care. However, Dr. Bringaze' s affidavit provided expert

testimony that disputed Dr. Ahearn' s testimony regarding which physicians bore the

actual responsibility for investigating and optimizing Mr. Blanford' s pre -operative

condition and diagnosing and treating Mr. Blanford' s post- operative condition. Further,

Dr. Bringaze's testimony disputed Dr. Ahearn' s opinion that Dr. Bringaze was the

physician at fault in the breaches in the standard of care that Dr. Ahearn identified.

Thus, a genuine issue of material fact remains, and summary judgment was not

appropriate. Further, having found that the summary judgment was improperly

granted, we pretermit consideration of the remaining assignments of error.

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CONCLUSION

For the foregoing reasons, we reverse the April 15, 2021 judgment of the trial

court granting summary judgment in favor of Lei Gao, M. D., Gregory P. Gaspard, M. D.,

Claude 1. Tellis, M. D., and Ochsner Clinic Foundation, and dismissing them as

defendants in this case. Costs of this appeal are assessed equally to Lei Gao, M. D.,

Gregory P. Gaspard, M. D., Claude J. Tellis, M. D., and Ochsner Clinic Foundation.

REVERSED.

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