Sylvia Woods Brown, Individually, and Roy Brown, Individually v. LSU Health Sciences Center-Shreveport through the Board of Supervisors of Louisiana State University Agricultural and Mechanical College; Anthony H. Sin, M.D., and Willis-Knighton Medical Center

Judgment rendered April 9, 2025.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 56,195-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

SYLVIA WOODS BROWN, Plaintiffs-Appellees
INDIVIDUALLY, AND ROY
BROWN, INDIVIDUALLY

versus

LSU HEALTH SCIENCES Defendants-Appellants
CENTER-SHREVEPORT
THROUGH THE BOARD OF
SUPERVISORS OF LOUISIANA
STATE UNIVERSITY
AGRICULTURAL AND
MECHANICAL COLLEGE;
ANTHONY H. SIN, M.D.; AND
WILLIS-KNIGHTON MEDICAL
CENTER

*****
Appealed from the
First Judicial District Court for the
Parish of Caddo, Louisiana
Trial Court No. 633,113

Honorable Christopher T. Victory, Judge

*****
JEFFREY M. LANDRY Counsel for Appellants
Attorney General

LOUISIANA DEPARTMENT OF JUSTICE
By: Phyllis E. Glazer
Lakeisha J. Johnson
Timothy R. Wynn
Assistant Attorneys General

THE TOWNSLEY LAW FIRM Counsel for Appellees,
By: Damon Louis Beard Sylvia Woods Brown
David Harmon Hanchey and Roy Brown
Sage Thibodeaux

WATSON, BLANCHE, WILSON & POSNER Counsel for Appellee,
By: Courtenay S. Herndon Willis-Knighton Medical
Craig J. Sabottke Center
Hunter J. Tassin

*****

Before STONE, STEPHENS, and MARCOTTE, JJ.

MARCOTTE, J., concurs in the result that a genuine issue of material fact
exists.

STEPHENS, J., concurs for the reason set forth by Judge Marcotte.

STONE, J.

This appeal arises from the First Judicial District Court, the Honorable

Chris Victory presiding. The plaintiffs are Sylvia Woods Brown (“Mrs.

Brown”) and Roy Brown (“Mr. Brown”), her husband. They sued alleging

medical malpractice in the treatment of Mrs. Brown from April 24, 2018, to

December 4, 2018, against three defendants: (1) LSU Health Sciences

Center (“LSU”); (2) Willis Knighton Medical Center (“WK”); and (3)

neurosurgeon Anthony Sin, MD (“Dr. Sin”). WK filed a motion for

summary judgment (“MSJ”); 1 the plaintiffs did not oppose it and are not the

appellants in this matter. Rather, Dr. Sin and LSU opposed WK’s MSJ and

are the appellants herein. Finding, in effect, that the co-

defendants/appellants failed to produce prima facie evidence of causation of

injury on the part of WK, the trial court signed a judgment granting the MSJ

on March 20, 2024, and dismissing all claims against WK with prejudice.

WK’s co-defendants appeal that judgment, arguing that they introduced

prima facie evidence of WK’s causation of injury to Mrs. Brown (i.e., the

delay of the plaintiff’s anti-infection surgery). For the following reasons, we

reverse the trial court’s judgment.

1
WK’s first MSJ asserted a complete lack of evidence that it breached the
standard of care. In response, the appellants produced an expert report from
neurosurgeon Dr. Marshall Cain opining that WK did breach the standard of care in
failing to alert Dr. Sin of Mrs. Brown’s condition at the time of her hospitalization from
September 22 to October 25, 2018. Of particular importance are the results of the
September 24, 2018, MRI indicating osteomyelitis and discitis; WK failed to notify Dr.
Sin of this salient information. Dr. Cain was deposed, and therein he opined that this
breach by WK did not cause Mrs. Brown “any additional harm,” but did delay the anti-
infection surgery. Accordingly, WK filed a second MSJ asserting a total lack of evidence
of causation, and it is now before this court.

FACTS2

On April 24 and 25, 2018, Dr. Sin performed spinal surgery on Mrs.

Brown, which included implanting pedicle screws and other hardware in her

spine as part of a lumbar fusion. Mrs. Brown was rehospitalized on July 24,

2018, complaining of clear drainage from the surgical wound and

hypotension; at this point, her blood cultures were positive for MRSA, and

MRI results indicated “fluid collection with air bubbles at the posterior

epidural L2-5, [which was] concerning for abscess.” Per the MRPO’s

description, there was no mention of osteomyelitis or discitis in these MRI

results. At this point, Mrs. Brown was prescribed antibiotics to treat the

infection.

On September 14, 2018, Mrs. Brown was again hospitalized, this time

at DeSoto Regional Health System for a urinary tract infection (“UTI”) and

hypotension. Dr. Sin’s September 15, 2018, notes concerning Mrs. Brown

indicate that, at that time, Dr. Sin intended to get another MRI and possibly

remove the hardware from her spine if this MRI showed signs of infection.

Mrs. Brown was transferred to WK on September 22, 2018, and

remained in-patient until her discharge October 25, 2018. On September 24,

2018, an MRI was performed, and it indicated inter alia “extensive marrow

edema throughout the lumbar spine from L1-L5,” and that “the discitis and

osteomyelitis would appear to be similar.”3 However, WK did not notify Dr.

2
The appellants’ brief to this court extensively cites exhibits that are not in the
record, and bases many factual assertions in its narrative on such non-evidence. The only
exhibits in the record are: (1) medical review panel opinions (MRPO); (2) Dr. Cain’s
deposition; and (3) an excerpt from Dr. Sin’s deposition. However, all of the appellants’
(non)exhibits are listed in the exhibit index of Dr. Cain’s deposition and were apparently
“admitted” pursuant to his authentication.
3
“Discitis (or diskitis) is an inflammation or infection that develops between the
intervertebral discs of the spine.” Richardson v. Cotter, 51,637 (La. App. 2 Cir. 9/27/17),
2

Sin of these MRI results or of Mrs. Brown’s hospitalization. Parenthetically,

the MRPO completely fails to mention this MRI in its written reasons.

Mrs. Brown was hospitalized, yet again, on November 20, 2018;

another MRI was performed and it again showed signs of spinal infection,

i.e., “worsening osteomyelitis and discitis.” This time, WK consulted Dr.

Sin and he performed the surgery removing the hardware and irrigating the

wound on December 4, 2018. Thereafter, Mrs. Brown fully and timely

recovered from the infection without any noted resurgence.

Mrs. Brown instituted a medical review panel (“MRP”) proceeding.

The panel unanimously concluded that WK did not breach the standard of

care. One panelist, Dr. Marco Ramos, concluded that in late July 2018, Dr.

Sin should have surgically re-opened, explored, and irrigated the wound as

an anti-infection measure, and thereupon determined whether to remove the

hardware. Dr. Ramos said this course was required after, on July 25, 2018,

Mrs. Brown’s blood cultures tested positive for MRSA, and her MRI results

“showed fluid collection with air bubbles in the posterior epidural L2-5

which was concerning for abscess.” These MRI results, as summarized in

the MRPO, make no mention of osteomyelitis or discitis. Dr. Ramos opined

that the delay of the anti-infection surgery at this point caused harm to Mrs.

Brown by prolonging her infection and making it more difficult to treat, and

thus Dr. Sin breached the standard of care.4

245 So. 3d 136, 138 at n.1. “[O]steomyelitis is an inflammation of the bone marrow
caused by bacteria that gain entry though a wound or injury.” Ketchum v. Roberts, 12-
1885 (La. App. 1 Cir. 5/29/14), 2014 WL 3510694, at n.14.
4
In apparent self-contradiction, however, Dr. Ramos also opined that WK did not
breach the standard of care by failing to inform Dr. Sin of the September 24, 2018, MRI
results, which, unlike the July 2018 MRI, found extensive bone marrow edema and stated
that “the discitis and osteomyelitis would appear to be similar.”
3

Dr. Cain’s testimony. As previously mentioned, in district court

proceedings, the co-defendants/appellants introduced in opposition to WK’s

MSJ the affidavit of a board-certified neurosurgeon, Dr. Marshall Cain.5 He

explained that an infection such as Mrs. Brown’s should be treated: (1) first,

only with antibiotics; and (2) if the antibiotics prove insufficient, then

surgically—by incision, drainage, and irrigation along with potential

hardware removal.

Importantly, in his deposition, Dr. Cain testified that WK’s records

indicate its failure to consult Dr. Sin regarding Mrs. Brown’s condition

during her hospitalization from September 22, 2018, to October 25, 2018.

He opined that this was a breach of the standard of care on WK’s part. That

breach, he stated, delayed full treatment of her infection. In particular, he

said, “one of the issues is the length of time…[before] she went back to

surgery and had the hardware removed...there was a two-month period

where…Dr. Sin didn’t even know she was in the hospital, so that delayed

treatment.” He also stated that “her care was delayed in terms of hardware

removal” because of WK’s failure to consult Dr. Sin. He added, “I think the

standard of care is to contact the surgeon that operated on the patient

5
In his deposition, Dr. Cain stated that: (1) he reviewed Mrs. Brown’s medical
records from WK and other hospitals multiple times, and reviewed the MRPO, but not
Dr. Sin’s deposition; (2) he had performed “thousands” of surgeries such as Mrs.
Brown’s initial surgeries in this case (i.e., spinal fusion with implantation of hardware;
then decompressive lumbar laminectomy, facetectomy, foraminotomy, and more fusions
and hardware implants); (3) such is a common procedure; (4) a few (less than one
percent) of his patients had experienced hardware failure and/or infection following this
procedure; (5) he had performed such a surgery the week before his deposition; (6) he did
not treat or speak with Mrs. Brown, nor did he speak with any doctors or nurses who
treated her, nor anyone else regarding her; (7) he specifically recalled reviewing the
relevant WK records at the time of his deposition.

4

if…[that patient has] a problem. She apparently had an infection,” Dr. Cain

said, despite Mrs. Brown having negative blood tests at that point.6

Dr. Cain later testified again that WK breached the standard of care in

not contacting Dr. Sin, and that this caused delay of the anti-infection

surgery (after which the infection timely resolved without any noted

resurgence). He read aloud Dr. Sin’s September 15, 2018, notes concerning

Mrs. Brown—indicating that, at that time, Dr. Sin intended to get another

MRI and possibly remove the hardware from her spine if this MRI showed

signs of infection.

However, after reading aloud the September 24, 2018, MRI results,

described supra, Dr. Cain stated it would not have been appropriate to

remove the hardware from her spine “in September.” This he stated despite

the fact that he had already testified repeatedly that WK’s nonconsultation of

Dr. Sin delayed the anti-infection surgery. It appears that he believed that

the September 24, 2018, MRI results were “basically” the same as the July

25, 2018, MRI results. However, per the MRPO, the July 25, 2018, MRI

results did not mention marrow edema or osteomyelitis/discitis; per Dr.

Cain’s recitation, the September 24, 2018, MRI results did mention all those

factors.

Dr. Cain’s further testimony indicates that he did not consider this

delay an “additional injury,” and that “[h]er delay of care didn’t have

anything to do with her problems.” However, he also testified that a spinal

infection such as Mrs. Brown’s can be severely painful, that the “most

common” complaint for post-surgical spinal infection is pain, and that a

6
The MRPO states that Mrs. Brown’s blood cultures were negative when she was
admitted to WK on September 22, 2018.
5

worsening infection can cause increased pain. He also stated that Mrs.

Brown’s spine got worse between July and December of 2018.

Dr. Cain also testified that he only reviewed medical records and

MRP documents in preparation for his testimony. Other than asserting Mrs.

Brown’s delayed care caused her no “additional injury,” he made no

indication whatsoever that these records suggested to him that Mrs. Brown’s

spinal infection was painless, that it caused her no emotional suffering, or

that she enjoyed her life as much while hospitalized at WK for over a

month7 with a spinal infection as much as she would have without that spinal

infection.

Dr. Sin’s testimony. In his deposition, which was taken

approximately 4 and 1/2 years after the events in question, Dr. Sin stated he

did not: (1) recall whether WK consulted him regarding the September 24,

2018, MRI and associated hospitalization; (2) recall whether he ever

reviewed WK records from that time period; or (3) know whether he would

have performed the surgery sooner if WK had notified him of the September

MRI results. He testified:

Q. What if you were contacted [about plaintiff’s
condition], hypothetically, what would you have done?

A. I don’t know.

Q. Can you say you would have done anything
(indiscernible) (coughing in room) [?]

A. I was not contacted.

ISSUES

7
(I.e., September 22 to October 25 of 2018.)

6

On appeal, the appellants argue: (1) there is prima facie evidence that

the delay of the surgery resulted from a breach of the standard of care by

WK; (2) that delay extended the duration of Mrs. Brown’s infection;8 (3) Dr.

Sin’s statement that he did not know whether would have performed the

second surgery earlier had he been timely notified of the September 24,

2018, MRI results is not conclusive evidence in light of what he did once

WK consulted him regarding similar MRI results in late November of 2018;

(4) expert evidence of damages is unnecessary because a lay jury can

reasonably conclude on its own that the delay caused Mrs. Brown additional

pain and suffering. The appellants also (5) cite Farooqui, infra, as authority

for the proposition that proof that a defendant’s substandard care “was a

substantial factor depriving the patient of some chance of a better outcome”

suffices to establish causation of injury.

LAW

After an opportunity for adequate discovery, a motion for summary

judgment shall be granted if the summary judgment evidence shows 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). A fact is “material”

when its existence or nonexistence may be essential to plaintiff’s cause of

action under the applicable theory of recovery. Peironnet v. Matador Res.

Co., 12-2292 (La. 6/28/13), 144 So. 3d 791, 814.

“A genuine issue is one regarding which reasonable persons could

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

8
They argue that (a) the deposition of Dr. Cain; (b) the MRP opinion of Dr.
Ramos; and (c) circumstantial evidence, namely, that Dr. Sin’s response to the November
2018 MRI show that Dr. Sin would likely have responded the same to the September 24,
2018, MRI.
7

need for a trial on that issue and summary judgment is appropriate.” Hines

v. Garrett, 04-0806 (La. 6/25/04), 876 So. 2d 764. Furthermore, “[i]n

determining whether an issue is genuine, a court should not consider the

merits, make credibility determinations, evaluate testimony, or weigh

evidence.” Marioneaux v. Marioneaux, 52,212 (La. App. 2 Cir. 8/15/18),

254 So. 3d 13, 20-21. Thus, when the valid summary judgment testimony of

one witness contradicts that of another, there is a genuine issue; to choose

between them is to make a credibility determination, which is the function of

a trial, not summary judgment.

La. C.C.P. art. 967(A) establishes the criteria that testimonial evidence

must satisfy to invoke the presumption of credibility:

Supporting and opposing affidavits shall be made on
personal knowledge, shall set forth such facts as would be
admissible in evidence, and shall show affirmatively that
the affiant is competent to testify to the matters stated
therein. The supporting and opposing affidavits of experts
may set forth such experts’ opinions on the facts as would
be admissible in evidence under [La. C.E. art. 702], and
shall show affirmatively that the affiant is competent to
testify to the matters stated therein.

If the expert opinion testimony meets these criteria, the prohibition on

making credibility determinations on summary judgment extends to the

expert’s opinions; i.e., the opinion is deemed credible. Tully v. Granillo,

55,211 (La. App. 2 Cir. 4/24/24), 384 So. 3d 470, 484 (Stone, J., dissenting),

writ granted, decision rev’d, 24-00794 (La. 10/15/24), 394 So. 3d 812.

However, any testimony that is merely conclusory and fails to establish a

factual foundation for the matters it concerns is ineffectual. Nelson v. Shelat,

54,099 (La. App. 2 Cir. 8/18/21), 325 So. 3d 1170, writ denied, 21-01354

(La. 11/17/21), 327 So. 3d 997; Nelson v. Shelat, 55,434 (La. App. 2 Cir.

2/28/24), 381 So. 3d 248.
8

“[F]actual inferences reasonably drawn from the evidence must be

construed in favor of the party opposing the motion, and all doubt must be

resolved in the opponent’s favor.” Willis v. Medders, 00-2507 (La. 12/8/00),

775 So.2d 1049, 1050. The intermediate appellate courts have reaffirmed

this principle. Wyrick v. Golden Nugget Lake Charles, LLC, 20-0665 (La.

App. 1 Cir. 12/30/20), 317 So. 3d 708; Johnson v. Entergy Corp., 36,323

(La. App. 2 Cir. 9/20/02), 827 So. 2d 1234, 1237.

“The purpose of a motion for summary judgment is to weed out those

cases where it is obvious that the evidence, even if accepted as true, is

insufficient to establish an essential element of a party’s case.” Id. La.

C.C.P. art. 966(D)(1) allocates the burden of proof on a motion for summary

judgment as follows:

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 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.

Therefore, to avoid summary judgment, a nonmoving party who

would bear the burden of proof at trial on the factual issues concerned in the

MSJ needs only to introduce prima facie evidence of such facts. McGee v.

Ashford Place Apartments, LLC, 54,795 (La. App. 2 Cir. 11/16/22), 351 So.

3d 899; Cyprien v. Bd. of Sup’rs ex rel. Univ. of Louisiana Sys., 08-1067

(La. 1/21/09), 5 So. 3d 862, 866. “Prima facie evidence is defined as

evidence sufficient to establish a given fact which, if not rebutted or

9

contradicted, will remain sufficient.” Ganey v. Cupstid, 55,798 (La. App. 2

Cir. 8/28/24) 400 So. 3d 172, 2024 WL 3959267, quoting Livingston Par.

Sch. Bd. ex rel. Sales & Use Tax Div. v. Hwy 43 Cornerstore, LLC, 12-0103

(La. App. 1 Cir. 5/23/12), 93 So. 3d 709. If such nonmover fails to

introduce prima facie evidence, there is no genuine issue of material fact.

Appellate courts review trial court decisions on summary judgment

using the de novo standard of review. Catahoula Par. Sch. Bd. v. Louisiana

Mach. Rentals, LLC, 12-2504 (La. 10/15/13), 124 So. 3d 1065.

La. R.S. 9:2794(A) sets forth the essential elements of a medical

malpractice action; they follow the traditional formulation of negligence –

duty, breach, causation, and injury:

(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...
(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.9

A defendant assigning comparative fault to a co-defendant has the

same burden of proof, as would the plaintiff. La. C.C.P. art. 966(D)(1); La.

C.C. art. 2323; Pruitt v. Nale, 45,483 (La. App. 2 Cir. 8/11/10), 46 So. 3d

780, 783; Trahan v. Savage Indus., Inc., 96–1239 (La. App. 3 Cir. 3/5/97),

9
The plaintiff must establish these elements by a preponderance of the evidence.
Id. If there are multiple sufficient causes of an injury, a party responsible for one of them
may be liable regardless of the other (concurring) causes. Restatement (Third) of Torts:
Liability for Physical Harm § 27 PFD No 1 (2005). Thus, if Mrs. Brown would have
needed to be hospitalized even without the infection, such would not absolve WK of
liability for necessitating her hospitalization for the infection.

10

692 So.2d 490; Otillio v. Entergy Louisiana, Inc., 02-718 (La. App. 5 Cir.

12/11/02), 836 So. 2d 293, 295. Accordingly, to defeat a co-defendant’s

MSJ, a defendant assigning comparative fault to the mover needs only to

introduce prima facie evidence of the elements for which the MSJ claims

proof is lacking. McGee, supra; Cyprien, supra.

Expert testimony is not binding on a jury:

[A] jury may accept or reject the testimony of an expert in
whole or in part...Further, a jury may substitute common
sense and judgment for that of an expert when such
substitution appears warranted on the record as a whole.
(Internal quotation marks omitted).

Ryan v. Zurich Am. Ins. Co., 07-2312 (La. 7/1/08), 988 So. 2d 214, 222.

One caveat to this principle is that expert evidence is necessary to establish

the standard of care in a medical malpractice case. Pfiffner v. Correa, 94-

0924 (La. 10/17/94), 643 So. 2d 1228, 1230. This requirement, however,

does not extend to the breach and causation elements of a claim governed by

La. R.S. 9:2794 in all cases. Id.

Moreover, the existence of general damages for pain and suffering

and lost chance may be established by purely circumstantial evidence. Est.

of Adams v. Home Health Care of Louisiana, 00-2494 (La. 12/15/00), 775

So. 2d 1064; Ainsworth v. Am. Home Assur. Co., 17-0778 (La. App. 4 Cir.

2/21/18), 239 So. 3d 359, writ denied, 18-0582 (La. 6/1/18), 243 So. 3d

1061; Jones v. Capitol Enterp., Inc., 11-0956 (La. App. 4 Cir. 5/9/12), 89

So. 3d 474, 506, writ denied, 12-1634 (La. 10/26/12), 99 So. 3d 651, citing

Frank L. Maraist & Thomas C. Galligan, Jr., Louisiana Tort Law § 7–

2(c)(1996).

Est. of Adams, supra, and Ainsworth, supra, recognized as prima facie

proof purely circumstantial evidence of general damages. In Est. of Adams,
11

a nursing malpractice case under La. R.S. 9:2794, the patient was diabetic

and had problems with her foot. As a result, she was hospitalized; her

treating physician recommended amputation. She declined, was discharged

from the hospital, and placed under the home health nursing care of the

defendant. The patient was also prescribed orthopedic shoes. These caused

her to develop a blister on her foot. The wound became infected with

gangrene and her lower leg had to be amputated roughly two weeks after her

aforementioned discharge from the hospital. The patient filed suit but died

from unrelated causes approximately two years into the litigation. Neither

the appellate court’s opinion nor the supreme court’s opinion mentioned the

preservation of her testimony or its use in the litigation. The home

healthcare provider filed a MSJ based on the plaintiff’s total lack of

admissible expert testimony asserting causation of damages. The trial court

granted the MSJ in light of the uncontroverted expert testimony that

amputation plaintiff’s foot would have been necessary regardless of the

defendant’s allegedly substandard nursing. The supreme court reversed,

holding:

[T]he 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. (Emphasis added).

Id. at 1064-65. The supreme court cited approvingly the dissent of the

appellate court, which stated:

[E]xpert testimony by a physician was not required to
establish some degree of damages and thereby defeat the
motion for summary judgment. Amputation of plaintiff’s
12

leg was required, even if only hastened by one day,
following alleged sub-standard care by defendant.
Plaintiff’s damages are obvious and the exact amount of
those damages can be established at the trial on the merits.

Est. of Adams v. Home Health Care of Louisiana, 99-1263 (La. App. 5 Cir.

7/25/00), 767 So. 2d 855, 859–60, judgment set aside, 00-2494 (La.

12/15/00), 775 So. 2d 1064.

Given the absence of both patient testimony and expert testimony

(regarding pain and suffering or lost chance of a better outcome), the

supreme court’s holding necessarily implies that the patient’s gangrene

infection alone was prima facie evidence of those items of damage, albeit

purely circumstantial.

What is implied in Est. of Adams, supra, is stated explicitly in

Ainsworth, supra, which involved a survival action for pain and suffering

against a hospital. In Ainsworth, the court stated that the deceased patient’s

testimony was neither preserved nor reflected in her medical records nor

otherwise used in the litigation; nor did the plaintiff adduce expert testimony

to establish pain and suffering. However, the plaintiff did introduce a fact

witness’s testimony establishing the substandard conditions to which the

plaintiff was subjected—namely, “unbearable” heat and lack of clean water

resulting from the non-evacuation of the defendant hospital (located in New

Orleans) prior to the impending landfall of Hurricane Katrina. The court of

appeal reversed the trial court’s grant of summary judgment in favor of the

defendant hospital:

To begin with, Ms. Ainsworth seeks general damages for
pain and suffering. She 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
13

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 Ms. Ainsworth’s mother...We find that the
physical and emotional symptoms Ms. Ainsworth claims
her mother suffered are within the common knowledge of
an average lay person or trial court to understand…Given
the facts presented, we find medical expert testimony is
not required to establish causation for temporary pain and
suffering. (Emphasis added.)
Id.

Additionally, “[t]he Louisiana courts have deemed any lost chance of

a better outcome[,] [however slight,] a compensable injury in a medical

malpractice action.” Farooqui v. BRFHH Shreveport, LLC, 55,081 (La.

App. 2 Cir. 11/15/23), 374 So. 3d 364, 366–67, writ denied, 23-01661 (La.

2/14/24), 379 So. 3d 27.

Smith v. State, Dept. of Health and Hospitals, 95-0038 (La. 6/25/96),

676 So. 2d 543, reminds that, in a lost chance case, the burden of proof by

preponderance of the evidence remains:

Allowing recovery for the loss of a chance of survival is
not...a change or a relaxation of the usual burden of
proof by a preponderance of the evidence. Rather,
allowing such recovery is a recognition of the loss of a
chance of survival as a distinct compensable injury
caused by the defendant’s negligence, to be
distinguished from the loss of life in wrongful death
cases, and there is no variance from the usual burden in
proving that distinct loss.
…
[T]he plaintiff must prove by a preponderance of the
evidence that the tort victim had a chance of survival at
the time of the professional negligence and that the
tortfeasor’s action or inaction deprived the victim of all
or part of that chance

Smith, supra, recognized lost chance of survival as an item of compensable

damage. However, lost chance of a better outcome is also a compensable

injury in the Louisiana jurisprudence. Burchfield v. Wright, 17-1488 (La.

6/27/18), 275 So. 3d 855, 863. Therein the court explained:
14

The loss of a chance of a better outcome is a theory of
recovery recognized in...[Louisiana jurisprudence]. It is
not a separate cause of action distinct from a statutory
malpractice claim...[A] plaintiff may carry his burden of
proof by showing that the defendant’s negligence was a
substantial factor in depriving the patient of some
chance of…a better outcome...Consequently, the
plaintiff does not have to shoulder the burden of
proving the patient would have survived if properly
treated; he need only demonstrate the decedent had a
chance of…[a better outcome] that was denied him as a
result of the defendant’s negligence. (Emphasis added.)

Est. of Adams, supra, held that the lost chance of delaying necessity of an

amputation by one day constituted a compensable injury, i.e., the lost chance

of a better outcome. The court recognized delaying the necessity of

amputation by one day a better outcome.

ANALYSIS

Dr. Cain’s expert testimony, combined with the respective MRI

results and Dr. Sin’s September 15, 2018, notes, constitute prima facie

evidence that WK, in failing to consult Dr. Sin, delayed the anti-infection

surgery which ultimately resolved Mrs. Brown’s spinal infection. The

prolonged existence of the infection, and the approximate 33-day

hospitalization which that prolongment necessitated, are prima facie

evidence that the delay caused Mrs. Brown to suffer general damages.

Because this is a difficult case, we provide a thorough explanation.

Causation of delay. Dr. Cain testified that WK delayed the anti-

infection surgery by its failure to consult Dr. Sin concerning Mrs. Brown’s

hospitalization at WK from September 22 to October 25 of 2018. That

consultation, had it actually occurred, would have included the September

24, 2018, MRI results showing that “in the interval there appears to be

development in extensive marrow edema throughout the lumbar spine from

15

L1-L5,” and that “the discitis/osteomyelitis would appear to be similar.” In

contrast, no such mention was made in the MRPO’s rendition of the July 25,

2018, MRI results, i.e., the most recent MRI results known to Dr. Sin until

Dr. Sin was notified of the late-November 2018 MRI on or about November

21, 2018.

Dr. Cain’s testimony alone constitutes prima facie evidence that WK,

more likely than not, caused the delay of the anti-infection surgery from

September 24 until November 21, 2018. In the absence of a timely

objection, Dr. Cain’s testimony is deemed by law to be credible for purposes

of summary judgment. Tully, supra. Furthermore, Dr. Sin’s notes and

actions corroborate Dr. Cain’s testimony: (1) his September 15, 2018, notes

indicated he wanted an MRI then and may have removed the hardware then

if the MRI showed infection; and (2) after seeing the November 21, 2018,

MRI results showing “worsened discitis/osteomyelitis,” Dr. Sin responded

by surgically removing the hardware and irrigating the wound—within two

weeks of this MRI.10 WK’s causation of this delay is established for

purposes of the appellants’ opposition to WK’s MSJ.

In justifying our conclusion regarding causation, there are statements

by Dr. Cain and Dr. Sin which must be addressed for the sake of judicial

transparency. Dr. Cain made two particular statements in his deposition that

require discussion: (1) he summarized the September 24, 2018, MRI results

as “basically saying it hasn’t progressed”; and (2) based on that

understanding of the September 24, 2018, MRI results, he did not think it

Dr. Sin performed this surgery on December 4, 2018. The results of the late-
10

November 2018 MRI are not in the record, but they are discussed in the MRPO as being
“compatible with worsened discitis/osteomyelitis.”
16

would have been appropriate to remove the hardware in September 2018.

These statements do not conflict with a prima facie showing that the

nonconsultation caused some delay. First, they must be understood in

context—not as sound bites. Elsewhere in his deposition, Dr. Cain stated

multiple times that WK’s nonconsultation of Dr. Sin delayed proper

treatment. Second, the latter statement must not be expanded beyond what it

actually says, i.e., only that hardware removal would not have been

appropriate in September, i.e., within the immediately following six days

after these MRI results of September 24, 2018. The latter statement says

nothing about surgery involving only incision and drainage/wound irrigation

being improper during those six days, nor anything about hardware removal

in October or November of 2018. Taken in context, these statements by Dr.

Cain do not and cannot preclude a prima facie showing of causation of some

delay.

Additionally, we must acknowledge that Dr. Sin testified that he did

not “know” whether he would have performed that surgery earlier had WK

timely consulted him. The record contains only a one-page excerpt of his

deposition testimony—which does not overtly explain what Dr. Sin meant

by this. However, the excerpt does provide important context: (1) Dr. Sin

also denied any recollection of ever reviewing the relevant WK records (of

September 22 to October 25, 2018); and (2) Dr. Sin’s deposition was taken

approximately 4 and 1/2 years after the events in question. Under these

circumstances, a reasonable factfinder could interpret Dr. Sin’s statement as

meaning that, as of his deposition taken 4 and 1/2 years after the fact, he was

uncertain whether he would have performed the anti-infection surgery

sooner either because he did not remember the relevant facts or never
17

reviewed the subject records in the first place.11 Therefore, the court is

mandated to adopt that construction for purposes of WK’s MSJ. Willis,

supra; Wyrick, supra.

Accordingly, Dr. Sin’s testimony would not preclude a factfinder

from reasonably concluding, based on Dr. Cain’s testimony and the

corroborating evidence, that WK delayed Dr. Sin’s performance of the anti-

infection surgery. In other words, a reasonable factfinder could still

conclude that Dr. Sin more likely than not would—or at a minimum might—

have performed the anti-infection surgery sooner but for WK’s failure to

consult him. La. R.S. 9:2794 does not require certainty, but merely a

preponderance of the evidence. Regardless, under any construction, Dr.

Sin’s denial of knowledge no more refutes the contention that he would have

performed the surgery earlier had he been timely consulted than it supports

that contention.

General damages. The remaining issue is whether there is, in the

summary judgment evidence, prima facie proof that the delay caused

damages to Mrs. Brown. For several reasons, we hold that it does, even

though it may not have changed the ultimate outcome of Mrs. Brown’s

treatment. First, but for this delay of the anti-infection surgery, Mrs.

Brown’s infection presumably would have been eradicated sooner. This can

be reasonably inferred from the undisputed fact that, only after the anti-

infection surgery was completed, the infection resolved timely and without

noted resurgence. Therefore, to the extent WK prolonged the infection, WK,

in effect, empirically and proximately caused the infection. Second, this

11
In generally prevailing usage, knowing a fact is roughly equivalent to being
certain as to the existence of a fact.
18

prolongment resulted in Mrs. Brown being subjected to over a month of

otherwise unnecessary hospitalization. Third, the infection worsened during

this delay: thus, the delay also aggravated Mrs. Brown’s pre-existing

infection. This suffices as prima facie evidence of past pain and suffering,

past hedonic damages,12 and lost chance of a better outcome, i.e., eliminating

the infection sooner. Est. of Adams, supra;13 Ainsworth, supra. The

appellants are not at this point required to prove quantum—merely the

existence of damages. Est. of Adams, supra.

Likewise, the appellants are not required to rebut Dr. Cain’s

statement—that the delay caused “no additional injury” to Mrs. Brown—to

defeat WK’s MSJ. Ganey, supra. For the purpose of defeating WK’s MSJ,

their burden is only to introduce prima facie evidence of WK’s causation of

damages to Mrs. Brown. La. C.C.P. art. 966(D)(1); McGee, supra; Cyprien,

supra. As explained above, the appellants have appropriately done so. In

determining whether prima facie evidence has been established, rebuttal

evidence is disregarded. Ganey, supra. Thus, to hold that Dr. Cain’s

statement —i.e., that the delay caused “no additional injury”—negates the

circumstantial evidence that the delay caused damages to Mrs. Brown (as

discussed above) would misunderstand the entire concept of prima facie

evidence. In other words, assigning any significance to this statement by Dr.

Cain in determining whether the appellants carried their burden under La.

12
A jury could reasonably infer that Mrs. Brown enjoyed her life less while
hospitalized because of a spinal infection than she would have without a spinal infection
and without hospitalization.
13
As previously noted, the supreme court in Est. of Adams recognized the lost
chance of delaying amputation by one day as compensable injury—i.e., lost chance of a
better outcome.
19

C.C.P. art. 966(D)(1) would constitute weighing evidence, which is strictly

verboten on summary judgment. Marioneaux, supra.

Even if we could weigh this statement (“no additional injury”) against

the positive evidence of general damages, construing this statement as WK

suggests would constitute an inversion of a bedrock principle of summary

judgment: courts are mandated to resolve all doubt in favor of to the

nonmoving party and draw all reasonable inferences in favor of the

nonmover. Johnson, supra; Willis, supra; Wyrick, supra. A factfinder could

reasonably conclude that Dr. Cain intended for this statement to mean only

that, despite the delay, Mrs. Brown obtained the same ultimate medical

outcome. Stated conversely, a factfinder could reasonably conclude that Dr.

Cain did not mean that: (1) while hospitalized with a spinal infection from

September 22 to October 25, 2018, Mrs. Brown enjoyed her life just as

much as she would have otherwise; (2) she did not experience any physical

pain or emotional suffering (e.g., fear, anxiety, stress) during that time as a

result of the spinal infection; and (3) eliminating the spinal infection earlier

would not have been a better medical outcome for Mrs. Brown.

This is especially so given that Dr. Cain testified that a spinal

infection such as Mrs. Brown’s can be severely painful, that the “most

common” complaint for post-surgical spinal infection is pain, and that a

worsening infection can cause increased pain. Finally, Dr. Cain testified that

he only reviewed medical records (including MRP documents) in

preparation for his testimony. Aside from his totally conclusory assertion

that the delay caused Mrs. Brown “no additional injury,” he made no

indication whatsoever that these records asserted or implied that Mrs.

Brown’s spinal infection was painless, that it caused her no emotional
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suffering, that she enjoyed being hospitalized at WK for over a month as

much as she would have enjoyed being infection-free and free from the

hospital during that time, or that being rid of her infection a month or two

sooner would not have been a better outcome for her. Thus, reading his

testimony as a whole, Dr. Cain clearly did not claim to know or believe that

Mrs. Brown actually experienced zero physical pain, zero emotional

suffering, and zero loss of enjoyment of life because of the delay.

Furthermore, if Dr. Cain’s statement were misinterpreted as intending

that, during the prolongment of her infection, Mrs. Brown in fact did not

experience any such general damages, then his statement is totally

ineffective because his entire deposition fails to establish any foundation

whatsoever for how he could know that. La. C.C.P. art. 967(A); Nelson,

supra. Dr. Cain admittedly never spoke with Mrs. Brown or any other fact

witness. Instead, he relied entirely on medical records which are not in the

record on appeal. Other than his conclusory statement that Mrs. Brown

experienced no “additional injury,” Dr. Cain never stated or implied that

those medical records somehow indicated the nonexistence of such general

damages. This statement by Dr. Cain, so misinterpreted, fails the criteria of

La. C.C.P. art. 967(A). A factfinder does not need any “help” from an

expert, via his conclusory assertions (or otherwise), to determine that Mrs.

Brown suffered general damages. Est. of Adams, supra; Ainsworth, supra;

La. C.E. art. 702(A). Rather, such a statement would amount to officious

overreach. Thusly (mis)construed, Dr. Cain’s statement is without effect.

Nelson, supra.

Finally, if Dr. Cain meant that he does not consider physical pain,

emotional suffering, loss of enjoyment of life, and lost chance of being rid of
21

the infection sooner to be “additional injuries,” then he thereby uttered an

irrelevancy: for it is the law, not Dr. Cain, that defines compensable injuries.

CONCLUSION

The trial court judgment is REVERSED. The costs of this appeal are

taxed to the appellee.

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