Demarcus Moss Versus Harold M. Stokes, Md, Pontchartrian Orthopedics & Sports Medicine, and East Jefferson Ambulatory Surgery Center

DEMARCUS MOSS NO. 21-CA-40

VERSUS FIFTH CIRCUIT

HAROLD M. STOKES, MD, COURT OF APPEAL
PONTCHARTRIAN ORTHOPEDICS &
SPORTS MEDICINE, AND EAST JEFFERSON STATE OF LOUISIANA
AMBULATORY SURGERY CENTER

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 788-793, DIVISION "E"
HONORABLE FRANK A. BRINDISI, JUDGE PRESIDING

October 20, 2021

ROBERT A. CHAISSON
JUDGE

Panel composed of Judges Robert A. Chaisson,
Hans J. Liljeberg, and John J. Molaison, Jr.

AFFIRMED
RAC
HJL
JJM

COUNSEL FOR PLAINTIFF/APPELLANT,
DEMARCUS MOSS
Richard H. Barker, IV

COUNSEL FOR DEFENDANT/APPELLEE,
HAROLD M. STOKES, MD, THE PONTCHARTRIAN BONE & JOINT
CLINIC, LTD & EAST JEFFERSON SURGERY CENTER, LLC
Raymond R. Egan, III

CHAISSON, J.

In this medical malpractice case concerning a surgical site infection,

Demarcus Moss appeals a judgment of the trial court granting the motion for

summary judgment filed by Harold M. Stokes, MD, The Pontchartrain Bone &

Joint Clinic, Ltd., and East Jefferson Surgery Center, LLC that dismissed his

claims with prejudice. For the following reasons, we affirm the judgment of the

trial court.

BACKGROUND

Mr. Moss injured his right wrist while playing football. On October 14,

2014, he underwent a surgical procedure performed by Dr. Stokes, a board-

certified orthopedic surgeon practicing with The Pontchartrain Bone & Joint Clinic

(“Pontchartrain”), at East Jefferson Surgical Center (“EJSC”). Subsequent to this

procedure, Mr. Moss developed a Methicillin-resistant Staphylococcus aureus

(MSRA) bacterial infection that progressed to a severe state necessitating further

surgical interventions and causing severe, permanent and disabling injuries

including permanent damage to the bones in the wrist.

On October 22, 2018, Mr. Moss filed a Petition for Damages wherein he

alleged that Dr. Stokes breached the standard of care by failing to perform

adequate sterilization, as well as failing to timely diagnose and treat the infection.

Mr. Moss further alleged that he repeatedly advised Dr. Stokes during post-

operation office visits that he believed he had an infection, but that Dr. Stokes

ignored and/or did not believe Mr. Moss and failed to perform necessary testing to

diagnose the infection.

In their answer to the petition, defendants denied Mr. Moss’s allegations.

On February 4, 2020, defendants filed a motion for summary judgment seeking to

have Mr. Moss’s claims dismissed on the basis that he would be unable to bear his

burden of proof at trial because he had no expert testimony to support his

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allegation that Dr. Stokes breached the standard of care required of physicians

practicing in his specialty. On October 27, 2020, following a hearing on the

motion at which both parties introduced evidence, the trial court rendered a

judgment granting the motion for summary judgment and dismissing Mr. Moss’s

claims with prejudice.

On appeal, Mr. Moss raises multiple assignments of error, all of which

concern the trial court’s failure to consider the evidence he presented at the motion

hearing regarding Dr. Stokes’s breaches of the standard of care.

DISCUSSION

Appellate courts review summary judgments de novo using the same criteria

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

appropriate. O’Krepki v. O’Krepki, 16-50, 16-51 (La. App. 5 Cir. 5/26/16), 193

So.3d 574, 577, writ denied, 16-1202 (La. 10/10/16), 207 So.3d 406. A motion for

summary judgment will be granted if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, 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; Semco, LLC v. Grand Ltd., 16-

342, 16-15 (La. App. 5 Cir. 5/31/17), 221 So.3d 1004, 1031, writ denied, 17-1291

(La. 11/6/17), 229 So.3d 475 (citing Oubre v. Louisiana Citizens Fair Plan, 11-

0097 (La. 12/16/11), 79 So.3d 987, 1002-03). The burden of proof rests with the

mover. Nevertheless, if 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

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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. La. C.C.P. art. 966.

La. R.S. 9:2794(A) sets forth the plaintiff’s burden of proof in medical

malpractice actions against licensed physicians:

A. 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.

Expert medical testimony is not always necessary in order for a plaintiff to

meet his burden of proof in establishing a medical malpractice claim. Pfiffner v.

Correa, 94-0924 (La. 10/17/94), 643 So.2d 1228, 1234. There 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. Id. For

example, expert testimony is not required where the physician does an obviously

careless act, such as fracturing a leg during examination, amputating the wrong

arm, dropping a knife or scalpel on a patient or leaving a sponge in a patient’s

body. Id. Nevertheless, because of the complex medical and factual issues

involved, a plaintiff will likely fail to sustain his burden of proving his claim

without medical experts. Id. To determine whether a physician possesses the

requisite degree of knowledge or skill or whether he exercised reasonable care or

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diligence, the court is guided by expert witnesses who are members of the medical

profession. Franklin v. Tulane Univ. Hosp. & Clinic, 06-1557 (La. App. 4 Cir.

11/21/07), 972 So.2d 369, 375, writ denied, 07-2468 (La. 2/15/08), 976 So.2d 186.

In this case, we find that the prevention, diagnosis, and treatment of surgical

site infections present complex medical and factual issues which require the

testimony of an expert witness to meet the evidentiary burden set forth in La. R.S.

9:2794(A). In the absence of such evidence, Mr. Moss cannot maintain his claim.

La. R.S. 9:2794(D) states that when a plaintiff brings a medical malpractice

claim against a physician, the plaintiff’s expert on the issue of whether the

physician departed from the accepted standards of medical care must be a

physician meeting the criteria specified below:

D. (1) In a medical malpractice action against a physician, licensed to
practice medicine by the Louisiana State Board of Medical Examiners
under R.S. 37:1261 et seq., for injury to or death of a patient, a person
may qualify as an expert witness on the issue of whether the physician
departed from accepted standards of medical care only if the person is
a physician who meets all of the following criteria:

(a) He is practicing medicine at the time such testimony is given or
was practicing medicine at the time the claim arose.

(b) He has knowledge of accepted standards of medical care for the
diagnosis, care, or treatment of the illness, injury, or condition
involved in the claim.

(c) He is qualified on the basis of training or experience to offer an
expert opinion regarding those accepted standards of care.

(d) He is licensed to practice medicine by the Louisiana State Board
of Medical Examiners under R.S. 37:1261 et seq., is licensed to
practice medicine by any other jurisdiction in the United States, or is a
graduate of a medical school accredited by the American Medical
Association's Liaison Committee on Medical Education or the
American Osteopathic Association.

(2) For the purposes of this Subsection, “practicing medicine” or
“medical practice” includes but is not limited to training residents or
students at an accredited school of medicine or osteopathy or serving
as a consulting physician to other physicians who provide direct
patient care, upon the request of such other physicians.

21-CA-40 4

(3) In determining whether a witness is qualified on the basis of
training or experience, the court shall consider whether, at the time the
claim arose or at the time the testimony is given, the witness is board
certified or has other substantial training or experience in an area of
medical practice relevant to the claim and is actively practicing in that
area.

(4) The court shall apply the criteria specified in Paragraphs (1), (2),
and (3) of this Subsection in determining whether a person is qualified
to offer expert testimony on the issue of whether the physician
departed from accepted standards of medical care.

See also Relly v. Spinazze, 45,209 (La. App. 2 Cir. 4/14/10), 34 So.3d 1069,

1075.

In support of their motion for summary judgment, defendants introduced

into evidence their requests for production of documents and interrogatories as

well as the decision of the medical review panel that stated there was no breach of

the standard of care by defendants.1

In opposition to the motion, Mr. Moss submitted an affidavit from a

registered nurse, Kamel Boughara, which attached a document that he identified as

a “medical review panel position paper . . . prepared by Margie Bixler.”2 Mr.

Bhoughara stated that he “read said position paper and the supporting evidence and

authorities” and further indicated that he agreed “with the opinions and conclusions

relative to Demarcus Moss’s claims against Dr. Harold Stokes and the

Pontchartrain Orthopedic and Sports Medicine clinic for medical malpractice, and

adopts these opinions and conclusions as his own.” The affidavit did not provide

any information or attach a resume or curriculum vitae regarding Ms. Bixler’s

qualifications. Plaintiff’s counsel explained at oral argument on the summary

judgment motion that Ms. Bixler is a registered nurse, who also worked as a

paralegal.

1
Mr. Moss argues that he did not participate in the medical review panel process and that the
determination of the panel was reached solely on evidence presented by defendants.
2
We note that the attached “medical review panel position paper” itself does not indicate by whom it was
authored and is unsigned and not sworn to in affidavit form.

21-CA-40 5

As an initial matter, we find that the trial court did not err in granting the

motion for summary judgment on behalf of defendants Pontchartrain and EJSC.

Although Ms. Bixler or Mr. Boughrara are medical professionals, the opposition

filed by Mr. Moss in response to the summary judgment motion is devoid of any

indication that the testimony of Ms. Bixler or Mr. Boughrara is based on any

particular training, experience, knowledge or expertise regarding the prevention,

diagnosis, or treatment of surgical site infections which may aid the court in its

determination of whether these defendants breached the standard of care in their

treatment of Mr. Moss. Additionally, the opposition contains no discussion or

details of any alleged negligence of Pontchartrain and EJSC that would create a

genuine issue of material fact as to those defendants; it concerns only the actions

and alleged negligence of Dr. Stokes. We therefore affirm that portion of the trial

court’s judgment dismissing Mr. Moss’s claims against Pontchartrain and EJSC

with prejudice.

With respect to the medical malpractice claims alleged against Dr. Stokes,

defendants argue that because neither Ms. Bixler nor Mr. Boughrara are

physicians, as required by La. R.S. 9:2794(D), they are not qualified to provide

expert testimony regarding Dr. Stokes’s treatment of Mr. Moss. Defendants

further argue that the report allegedly prepared by Ms. Bixler and adopted by Mr.

Boughrara, both registered nurses, is therefore insufficient evidence to create a

genuine issue of material fact as to whether Dr. Stokes breached the applicable

standard of care in his treatment of Mr. Moss.

Upon our de novo review, we find that because Mr. Moss has failed to

identify any physician who would testify as an expert witness on the issue of

whether Dr. Stokes departed from the accepted standards of medical care, as would

be required pursuant to La. R.S. 9:2794(D), the motion for summary judgment as

21-CA-40 6

to Dr. Stokes was also properly granted. Accordingly, we affirm the judgment of

the trial court granting summary judgment and dismissing Mr. Moss’s claims as to

all defendants with prejudice.

AFFIRMED

21-CA-40 7

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

NANCY F. VEGA
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN S. BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
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OCTOBER 20, 2021 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

21-CA-40
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE FRANK A. BRINDISI (DISTRICT JUDGE)
RAYMOND R. EGAN, III (APPELLEE)

MAILED
RICHARD H. BARKER, IV (APPELLANT)
ATTORNEY AT LAW
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