Delvin Breaux v. Ochsner Clinic, LLC, Ochsner Clinic Foundation, Misty Suri, Md, and Deryk Jones, Md

DELVIN BREAUX * NO. 2023-CA-0062

VERSUS *
COURT OF APPEAL
OCHSNER CLINIC, LLC, *
OCHSNER CLINIC FOURTH CIRCUIT
FOUNDATION, MISTY SURI, *
MD, AND DERYK JONES, MD STATE OF LOUISIANA
*******

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2020-08056, DIVISION “G-11”
Honorable Robin M. Giarrusso, Judge
******
Judge Rosemary Ledet
******
(Court composed of Judge Rosemary Ledet, Judge Dale N. Atkins, Judge Nakisha
Ervin-Knott)

Vincent E. Odom
T. Carey Wicker, III
Michael Sepcich
Davida F. Packer
Thomas C. Wicker, IV
CAPITELLI AND WICKER
1100 Poydras Street, Suite 2950
New Orleans, LA 70163

COUNSEL FOR PLAINTIFF/APPELLANT

John Baptiste Cazale, V
Peter Elliot Sperling
FRILOT L.L.C.
1100 Poydras Street
3700 Energy Centre
New Orleans, LA 70163-3700

COUNSEL FOR DEFENDANTS/APPELLEES

REVERSED AND REMANDED
September 29, 2023

RML
This a medical malpractice case. Plaintiff-patient is Delvin Breaux (“Mr.
DNA
Breaux”); defendants-medical providers are Dr. Misty Suri, Dr. Deryk Jones, and
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their employers—Ochsner Clinic, LLC; Ochsner Clinic Foundation; or both

(collectively “Ochsner”). From the trial court’s November 21, 2022 judgment

granting the summary judgment motion filed by Dr. Suri, Dr. Jones, and Ochsner

(collectively “Physicians”) and dismissing the suit, Mr. Breaux appeals. For the

reasons that follow, we reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND

During 2017 pre-season training camp, Mr. Breaux—a New Orleans Saints’

defensive player—injured his left leg. Based on an x-ray, taken on July 30, 2017,

and an MRI, taken the next day, Dr. Suri and Dr. Jones—the Saints’ team

doctors—diagnosed Mr. Breaux’s injury as a bone contusion. During the following

week, Mr. Breaux continued to have pain. Dr. Suri and Dr. Jones ordered and

reviewed a CT scan, taken on September 2, 2017. Once again, they diagnosed Mr.

Breaux’s injury as a bone contusion.

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During the following week, Mr. Breaux continued to complain of pain. Mr.

Breaux was referred to another physician for a second opinion. On August 14,

2017, the second-opinion physician—Dr. Gregory Stewart—took another x-ray

and diagnosed Mr. Breaux’s leg injury as a fractured fibula. Dr. Stewart also

opined that he could see the fracture on the original x-ray, taken July 30, 2017. The

fracture required surgical correction. Shortly thereafter, Dr. Robert Anderson

performed surgery on Mr. Breaux’s leg. Mr. Breaux remained on injured reserve

for the entire 2017 football season. At the end of the season, the Saints did not

offer to renew Mr. Breaux’s contract.1

Mr. Breaux filed a medical malpractice complaint with the Louisiana

Patients’ Compensation Fund against Physicians.2 A medical review panel was

formed—the MRP. The MRP found that the evidence presented did not support the

conclusion that Physicians breached the applicable standard of care. The MRP

opined as follows:

• The treatment rendered to Mr. Breaux by Physicians was timely and
appropriate;

• The treatment plan and return to the sport was timely and appropriate
for a professional athlete; and

• The ordering of radiographs and advanced imaging by Physicians was
appropriate and in excess of the standard of care.

1 Mr. Breaux entered only one contract with the Saints—a three-year contract that ended at the

end of the 2017 season.
2 The medical review complaint only named three providers—Dr. Suri, Dr. Jones, and Ochsner

Clinic Foundation; Ochsner Clinic, LLC was not named.

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Thereafter, Mr. Breaux filed this suit against Physicians. In his petition, he

averred that during the thirteen-day period of misdiagnosis—between July 30,

2017, and August 14, 2017—he suffered “continued and progressive pain”; the

misdiagnosis “caused him to continue with a physically demanding and strenuous

practice regimen, causing severe pain, grievous injuries and damages”; and the

misdiagnosis “caused a delay in petitioner receiving the appropriate treatment and

care.” Finally, Mr. Breaux asserted the loss of a chance of a more favorable

outcome doctrine as an additional theory of negligence and recovery. As to

Ochsner, Mr. Breaux averred that Dr. Jones and Dr. Suri were acting within the

course and scope of their employment and thus Ochsner was vicariously liable for

their alleged negligent actions pursuant to the respondeat superior theory.

After answering the petition and engaging in discovery, Physicians filed a

summary judgment motion, which Mr. Breaux opposed. At the outset of the

hearing on the summary judgment motion, Mr. Breaux’s counsel conceded that

there was no genuine issue of material fact precluding summary judgment,

regarding the allegations of malpractice asserted against Dr. Suri, individually, as

well as any independent allegations of malpractice asserted against Ochsner

concerning any employee other than Dr. Jones. The summary judgment hearing

focused solely on the liability of Dr. Jones and Ochsner as his employer.

Further cabining the issues presented, Physicians, at the summary judgment

hearing, agreed that neither the standard of care nor Physicians’ breach of the

standard of care would be contested for purposes of the motion. Rather,

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Physicians’ position was that they were entitled to summary judgment because Mr.

Breaux could not establish the assumed breach of the standard of care medically

caused him any damage or worsened the outcome.

In support of their argument, Physicians pointed out that Mr. Breaux, in his

discovery responses, identified two experts to testify that Dr. Jones breached the

applicable standard of care by failing to recognize evidence of a fibular fracture on

diagnostic imaging obtained on July 30 and 31, 2017, thereby leading to a delay in

the diagnosis of this injury until August 14, 2017. But neither of Mr. Breaux’s

experts testified, when deposed, that Mr. Breaux sustained any physical harm or

damages as a result of the delayed diagnosis, that the fibular fracture worsened

during the delay, or that the ultimate outcome of this case was altered in any way

due to the delayed diagnosis. Agreeing with Physicians, the trial court granted the

summary judgment motion and dismissed the suit.

This appeal followed.

DISCUSSION

Mr. Breaux assigns as error the trial court’s grant of the summary judgment

motion based on its finding that he suffered no damages as a result of Physicians’

misdiagnosis of his fractured fibula as a contusion.

Summary Judgment Precepts and Standard of Review

A ruling on a motion for summary judgment is reviewed using a de novo

standard. Planchard v. New Hotel Monteleone, LLC, 21-00347, p. 2 (La. 12/10/21),

332 So.3d 623, 625 (citations omitted). An appellate court uses the same standards

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and rules as a trial court in deciding whether summary judgment is appropriate—

“whether there is any genuine issue of material fact, and whether the movant is

entitled to judgment as a matter of law.” Id., 21-00347, pp. 2-3, 332 So.3d at 625.

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.” La. C.C.P.

art. 966(A)(3).3 The burden of proof on a summary judgment motion is governed

by La. C.C.P. art. 966(D)(1), which provides for a shifting burden of proof.4

The summary judgment procedure is favored and shall be construed to

“secure the just, speedy, and inexpensive determination of every action, except

those disallowed by Article 969.” La. C.C.P. art. 966(A)(2). The summary

judgment procedure is designed to decide if any genuine issue of material fact

exists warranting a trial. See Cutrone v. English Turn Prop. Owners Ass’n, 19-

0896, p. 7 (La. App. 4 Cir. 3/4/20), 293 So.3d 1209, 1214 (citation omitted).

A genuine issue of 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

3 The Louisiana Legislature amended La. C.C.P. art. 966, effective August 1, 2023. The

amendment to this article, however, is not applicable to this appeal.
4 La. C.C.P. art. 966(D)(1) as follows:

[I]f the mover will not bear the burden of proof at trial on the issue that is before
the court on the motion for summary judgment, the mover’s burden on the motion
does not require him to negate all essential elements of the adverse party’s claim,
action, or defense, but rather to point out to the court the absence of factual support
for one or more elements essential to the adverse party’s claim, action, or defense.
The burden is on the adverse party 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.

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the issue, and the granting of summary judgment is appropriate. Smith v. Our Lady

of the Lake Hosp., Inc., 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751 (citation

omitted). A material fact is one that “might affect the outcome of the suit.” Id.

Whether a fact is material must be determined based on the applicable substantive

law. Roadrunner Transp. Sys. v. Brown, 17-0040, p. 7 (La. App. 4 Cir. 5/10/17),

219 So.3d 1265, 1270 (citation omitted).

Because this is a medical malpractice case against private providers, the

applicable substantive law is La. R.S. 9:2794(A).5 “To establish a claim for

medical malpractice, a plaintiff must prove, by a preponderance of the evidence:

(1) the standard of care applicable to the defendant; (2) that the defendant breached

that standard of care; and (3) that there was a causal connection between the breach

and the resulting injury.” Samaha v. Rau, 07-1726, pp. 5-6 (La. 2/26/08), 977

5 La. R.S. 9:2794(A) provides:

In a malpractice action based on the negligence of a physician licensed under R.S.
37:1261 et seq., . . . 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 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.

6

So.2d 880, 883-84 (citing La. R.S. 9:2794). Here, the sole issue is whether there is

a genuine issue of material fact as to third element—causation and damages.

Genuine Issue of Material Fact Regarding Causation

Physicians’ summary judgment motion was based on the absence of any

expert testimony to establish that Dr. Jones’ delayed diagnosis (misdiagnosis)—

uncontested by Physicians for purposes of the summary judgment motion—caused

any injury or an adverse outcome. Mr. Breaux contends, contrary to Physicians’

contention and the trial court’s finding, that expert testimony is not required to

establish he suffered pain and suffering as a result of the misdiagnosis. He

contends that the connection between the misdiagnosis and his increased leg pain

falls within the “common-knowledge” exception to the expert testimony rule.

According to Mr. Breaux, it is common sense that he endured pain and suffering

because of the delay in diagnosis of his fractured fibula, particularly considering

that he was required to participate in exercises, training, and practice as a National

Football League (“NFL”) player. But even if the court determines that it is not

common sense, Mr. Breaux contends that the record is replete with specific facts

pointing to his pain and suffering.

Countering, Physicians contend that the allegations of medical negligence

asserted against them by Mr. Breaux are not of the type that are so egregious or

obvious that causation can be inferred under the circumstances without expert

testimony. Stated otherwise, Physicians’ position is that the common-knowledge

exception to the expert testimony requirement is inapposite here.

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Before reaching the issue regarding the need for expert testimony, we first

address the issue of whether the nature of this case—involving an NFL player, as

the plaintiff patient, and a team doctor as the defendant—is a relevant factor and

whether a claim for misdiagnosis is limited to cases in which the patient sustains a

physical injury or an adverse medical outcome as a result of the misdiagnosis. We,

thus, divide our analysis into three sections—nature of the case; nature of

misdiagnosis claim; and “common-knowledge” exception to expert testimony

requirement.

Nature of the case

At the summary judgment hearing, the issue of whether the nature of the

case is a relevant factor was raised. Physicians’ counsel argued that this is simply

an ordinary medical malpractice case. In support, Physicians’ counsel cited the

expert testimony that the standard of care owed to Mr. Breaux is the same as it

would be to any other medical-malpractice plaintiff. Countering, Mr. Breaux’s

counsel argued that this case could not be categorized or considered as a normal

medical malpractice case. In support, Mr. Breaux’s counsel pointed out that in

normal medical malpractice cases, the patient does not have an x-ray, a MRI, and a

CT scan within days of the injury. And, had Mr. Breaux been diagnosed correctly,

he would have undergone surgery within days.

We find, as Mr. Breaux contends, that the nature of this case—an NFL

player, as the plaintiff-patient, and a team doctor as the defendant—is a relevant

factor. See Wilson v. Prusmack, 08CV10376 (Colo.Dist.Ct. May 6, 2001) (unpub.),

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2011 WL 3791780.6 We also note that the MRP, in this case, considered this a

relevant factor; the MRP stated in its opinion that “[t]he treatment plan and return

to the sport was timely and appropriate for a professional athlete.” Moreover, as

discussed elsewhere in this opinion, the circumstances of the case are one of three

6 In the Prusmack case, the district court denied a summary judgment motion filed by the

defendant—an NFL team doctor—seeking to dismiss a similar type claim. The plaintiff-patient
in that case was a Denver Broncos’s football player. The player’s claim was that the team doctor
misdiagnosed a spinal cord injury that the player sustained during a professional game. The team
doctor’s summary judgment motion was based on the argument that the scope of any duty the
doctor owed the player did not extend to offering advice or treatment on how to preserve the
player’s NFL career. In the alternative, the doctor asserted the absence of a genuine issue of fact
as to causation and that the player’s damage claims were too speculative to survive summary
judgment. Denying the doctor’s summary judgment motion, the district court judge observed:

[T]he medical professional at issue was acting as the consulting neurosurgeon to an
NFL team. This role contemplates some obligation to provide medical care that
accounts for the player’s specific line of work. A physician who chooses to consult
for an NFL team may be presumed to have some understanding of the physical
demands placed on players and the scrutiny to which a player’s health is subjected
in evaluating whether they may continue to earn a living playing in the NFL. Cf.
M. Mitten, “Team Physicians and Competitive Athletes: Allocating Legal
Responsibility For Athletic Injuries,” 55 U. Pitt. L. Rev. 129, 147 (discussing
standard of care, not duty, but observing: “In providing medical care to a
competitive athlete, the team physician should adhere to accepted sports medicine
standards under the circumstances. The level of competition at which an athlete is
playing appears to be a relevant factor in determining the accepted medical practice.
Professional and college players receive more comprehensive medical
examinations because of the extreme physical demands of these levels of play and
the economic ability of teams to pay for extensive examinations.”) Accordingly,
the scope of the duty in this instance encompasses the responsibility to advise a
player about basic treatment options which may affect the player’s ability to
continue in his chosen profession.

Defendant is correct that even in the sports medicine environment the physician’s
primary, if not singular, concern should be the medical treatment of the patient and
not getting the player back on the field or worrying about how long he will be able
to play at an elite level. Even if I am therefore wrong to predicate the scope of the
duty on the peculiar nature of this physician/patient-athlete relationship, the
overarching obligation to provide any patient with treatment options still exists.
This general obligation also suffices to defeat Defendant’s bid for summary
judgment.

I conclude a legal duty exists and the scope of that duty reaches the conduct about
which Plaintiff complains.

The other questions which the parties take up in the pleadings are more easily
resolved. Genuine issues of material fact remain as to causation. The damages
sought are not so speculative as to justify summary judgment.

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ways in which general damages may be established. Jones v. Capitol Enters., Inc.,

11-0956, pp. 46-47 (La. App. 4 Cir. 5/9/12), 89 So.3d 474, 506 (citation omitted).

Thus, we consider the nature of the case a relevant factor.

Nature of Misdiagnosis Claim

As a commentator has observed, a patient can claim that a misdiagnosis

injured a patient in one or more of the following three situations:

(1) the erroneous or delayed diagnosis may lead to injurious delay in
treatment or even in a fatal failure to treat;

(2) the patient may be injured by being given the wrong advice or
treatment on diagnostic errors or absence of diagnosis; or

(3) the mere fact that the erroneous diagnosis is made and conveyed to
plaintiff or to others may result in injury to the plaintiff.

Stuart M. Speiser, et al., 4 AMERICAN LAW OF TORTS § 15:23 (March 2023

Update).

Here, Physicians seek to cabin a misdiagnosis claim to the first two

situations. They suggest that a misdiagnosis claim is confined to cases in which the

patient sustains a physical injury or an adverse medical outcome as a result of the

misdiagnosis. But, the third situation is the principal basis on which Mr. Breaux

hinges his misdiagnosis claim—an injury due to the conveying of an erroneous

diagnosis to him and to others. According to Mr. Breaux, the others to whom the

information was conveyed were his employer (the New Orleans Saints team), the

team’s trainers, and the team’s coach. The others, in turn, expected Mr. Breaux to

perform at pre-season training camp based on the misdiagnosis of his leg injury as

a bone contusion.

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“Common-Knowledge” Exception to Expert Testimony Requirement

In granting summary judgment, the trial court, agreeing with Physicians’

argument, found that the lack of expert testimony to establish a causal connection

between Dr. Jones’ assumed misdiagnosis and any injury to Mr. Breaux was

dispositive. Mr. Breaux contends that the causal connection between the

misdiagnosis and his increased leg pain falls within the “common-knowledge”

exception to the expert testimony rule.

The “common-knowledge” exception is defined as “[t]he principle that lay

testimony concerning routine or simple medical procedures is admissible to

establish negligence in a medical-malpractice action”; and as “a narrow exception

in some jurisdictions to the rule that a medical-malpractice plaintiff must present

expert testimony to establish negligence.” Common-Knowledge Exception,

BLACK’S LAW DICTIONARY (11th ed. 2019). This exception is recognized in

Louisiana. See Pfiffner v. Correa, 94-0924, 0963, 0992, pp. 9-10 (La. 10/17/94),

643 So.2d 1228, 1234.

The Louisiana Supreme Court, in Pfiffner, explained the exception as

follows:

[T]here are instances in which the medical and factual issues are such
that a lay jury can perceive negligence in the charged physician’s
conduct as well as any expert can, or in which the defendant/physician
testifies as to the standard of care and there is objective evidence,
including the testimony of the defendant/physician, which
demonstrates a breach thereof.

Id. The jurisprudence has also recognized that the exception extends to establishing

causation. Rogers v. Hilltop Ret. & Rehab. Ctr., 13-867, p. 8 (La. App. 3 Cir.

11

2/12/14), 153 So.3d 1053, 1060 (citing Pfiffner and observing that “[e]xpert

testimony is also required to establish causation unless the causal connection

between the breach of the standard and the plaintiff’s damages are obvious”).

The “common-knowledge” exception “does not give the members of the

medical profession a monopoly on common sense, and the [exception] is limited to

those matters clearly within the domain of medical science.” Webb v. Lungstrum,

223 Kan. 487, 490, 575 P.2d 22, 25 (1978). Three elements are required to invoke

the common-knowledge exception:

1) the plaintiff has asserted a claim of medical malpractice;

2) the care or result of the care is patently bad; and

3) a person without the pertinent medical knowledge can assess the
wrongfulness of the diagnosis, treatment, or care and attribute the
plaintiff's injury to the wrongful conduct without the assistance of
expert testimony.

Hubbard v. Mellion, 48 Kan.App.2d 1005, 1015; 302 P.3d 1084, 1093 (2013).

Given Physicians, for purposes of the summary judgment motion, did not

contest the misdiagnosis, only the third element is in dispute. A case cited by Mr.

Breaux—Ainsworth v. Am. Home Assurance Co., 17-0778 (La. App. 4 Cir.

2/21/18), 239 So.3d 359—is instructive in determining whether the third element is

satisfied.

In Ainsworth, the plaintiff was a deceased patient’s daughter; the defendant

was Touro Hospital. The suit stemmed from the conditions at Touro Hospital in the

aftermath of Hurricane Katrina. Those conditions were alleged to have caused the

decedent to sustain temporary pain and suffering while at the hospital following

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the hurricane—the survival claim—and decedent’s death—the wrongful death

claim. We divided our analysis of the plaintiff-daughter’s claims into two separate

categories—survival and wrongful death claims. We concluded that “the issue of

whether the principal conduct about which [the plaintiff-daughter] complains

caused [her mother] temporary pain and suffering falls within the knowledge and

experience of the average lay person.” Ainsworth, 17-0778, pp. 10-11, 239 So.3d at

365. Conversely, we concluded that the plaintiff-daughter could “only properly

challenge Touro’s conduct as having caused her mother’s death [her wrongful

death claim] through expert testimony.” Id.

Explaining our different treatment of the survival and wrongful death claims,

we observed that “whether Touro's alleged negligent acts exacerbated [the

decedent’s] pre-existing condition and/or contributed to or caused [the decedent’s]

death is beyond the province of lay persons to assess; and therefore, [plaintiff-

daughter] must proffer expert testimony as to her wrongful death claim.”

Ainsworth, 17-0778, pp. 12-13, 239 So.3d at 366. In contrast, we observed that a

different outcome was warranted as to the decedent’s temporary pain and suffering

claim—the survival claim; we observed:

[Plaintiff-daughter] alleges that because of Touro’s actions and
inactions, her mother experienced physical and emotional symptoms of
dehydration, overheating, exhaustion, mental anguish, fear, stress,
anxiety, and depression. The question is whether the admitted failures
of Touro, if proven at trial, are so obvious that a lay person could rely
on their common knowledge without the aid of expert testimony to
determine the harm, if any, resulting to [Plaintiff-daughter’s] mother.
This Court has held that “[g]eneral damages for pain and suffering may
be established in three ways: (i) the circumstances of the case, (ii)
expert medical testimony, and (iii) the tort victim’s testimony.” Jones
v. Capitol Enterprises, Inc., 11-0956, p. 46-47 (La. App. 4 Cir. 5/9/12),

13

89 So.3d 474, 506 (citing Frank L. Maraist & Thomas C. Galligan, Jr.,
LOUISIANA TORT LAW § 7–2(c)(1996) ). We find that the physical and
emotional symptoms [Plaintiff-daughter] claims her mother suffered
are within the common knowledge of an average lay person or trial
court to understand. Id., 11-0956, p. 46, 89 So.3d at 506-07 (finding
plaintiffs' claims for physical symptoms were “not esoteric” problems
that required expert testimony). Given the facts presented, we find
medical expert testimony is not required to establish causation for
temporary pain and suffering.

Ainsworth, 17-0778, pp. 10-12, 239 So.3d at 365-66.

Mr. Breaux contends that, as in Ainsworth, his pain and suffering is not an

“esoteric problem” that requires expert testimony. According to Mr. Breaux, the

average lay person certainly understands that running on a fractured leg increases

the pain. He contends, as a matter of common sense, it can be inferred that living

with a broken fibula for two-plus weeks is painful. Mr. Breaux emphasizes that he

has presented significant evidence to establish his pain and suffering. Indeed, he

points out he has presented evidence falling within two of the three categories

identified in the Jones case—the circumstances of the case and his own testimony.

We find this argument persuasive.

Our finding is buttressed by the Louisiana Supreme Court’s holding in

Estate of Adams v. Home Health Care of La., 00-2494, pp. 1-2 (La. 12/15/00), 775

So.2d 1064. There, the defendant, Home Health Care of Louisiana (“HH”), was

alleged to be negligent both in failing to properly care for the plaintiff at home

after an extensive period of hospitalization and in failing to call the attending

doctor when the plaintiff’s condition worsened. For purposes of its summary

judgment motion, HH did not contest its negligence. Rather, HH contended that the

amputation of the plaintiff’s foot would have been required regardless of its

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negligence. HH further contended that the plaintiff had no expert witness to

establish the causal connection between its negligence and the amputation. The

trial court granted HH’s summary judgment motion; the appellate court, with one

dissent, affirmed. Granting writs and reversing the lower courts, the Supreme

Court observed:

As the dissenting judge on the intermediate court noted, the admitted
negligence clearly caused some damages, even if it merely hastened the
amputation by one day. Plaintiff’s damages for pain and suffering
during the period of negligence, for aggravation of her medical
condition, and for loss of any chance of saving her foot or of delaying
the amputation is more appropriately decided by trial on the merits,
even if plaintiff’s case regarding the amount of damages is considerably
weakened by the dearth of expert testimony.

Estate of Adams, 00-2494, pp. 1-2, 775 So.2d at 1064-65. The Supreme Court,

thus, implicitly rejected the need for expert testimony to withstand summary

judgment on a claim for pain and suffering arising out of a medical provider’s

uncontested negligence. Such is the case here.

Recapping, all three requirements for the application of the “common-

knowledge” exception are met here. First, Mr. Breaux’s suit asserts a claim for

medical malpractice. Second, Physicians, for purposes of the summary judgment

motion, did not contest the misdiagnosis. Third, a lay person can attribute Mr.

Breaux’s alleged injury to the wrongful conduct without the aid of expert

testimony. Accordingly, we find the trial court erred in granting Physicians’

summary judgment motion.

DECREE

For the foregoing reasons, the trial court’s November 21, 2022 judgment is

reversed; and this matter is remanded.

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REVERSED AND REMANDED

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