Patricia Flowers, Linda Daniels v. Halim Abou-Fayca, Kirtkumar Patel, Melissa L. Linn, Marius T. McFarland, and Intensive Specialty Hospital

Judgment rendered March 11, 2026.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 56,755-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

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PATRICIA FLOWERS, LINDA Plaintiffs-Appellants
DANIELS

versus

HALIM ABOU-FAYCA; Defendants-Appellees
KIRTKUMAR PATEL, MELISSA
L. LINN, MARIUS T.
MCFARLAND, AND
INTENSIVE SPECIALTY
HOSPITAL

*****

Appealed from the
First Judicial District Court for the
Parish of Caddo, Louisiana
Trial Court No. 648,560

Honorable Brady D. O’Callaghan, Judge

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DIANNE HILL Counsel for Appellants

WATSON, BLANCHE, Counsel for Appellee,
WILSON & POSNER, LLP Halim Abou-Faycal
By: Randall Louis Champagne
William A. Fell

PUGH, PUGH & PUGH, LLP Counsel for Appellees,
By: Robert Gahagan Pugh, Jr. Kirtkumar Patel,
Melissa L. Linn and
Mairus T. McFarland

JUDICE & ADLEY, APLC Counsel for Appellee,
By: J. Ryan Pierret Intensive Specialty
Hospital

*****

Before PITMAN, HUNTER, and ELLENDER, JJ.

HUNTER, J.

Patricia Flowers and Linda Daniels (“plaintiffs”) appeal a district

court ruling granting summary judgment in favor of Halim Abou-Fayca,1

Kirtkumar Patel, Melissa L. Linn, Marius T. McFarland,2 and Intensive

Specialty Hospital (“defendants”) regarding the medical malpractice claim

filed on behalf of the deceased Edna Daniels. For the following reasons, we

affirm the judgment of the trial court.

FACTS

On October 23, 2020, the children of an 86-year-old diabetic patient,

Edna Daniels, filed a malpractice claim for the injuries she sustained while

she was under care and treatment at Intensive Specialty Hospital. The

plaintiffs alleged the injuries led to Ms. Daniels’ death. In addition to Dr.

Abou-Fayca (an infectious disease specialist), Dr. Marius T. McFarland

(family practice), Melissa L. Linn (nephrology), and Kirtkumar Patel

(pulmonology/critical care) were also named defendants. Ms. Daniels was

admitted to Intensive Care on the orders of Dr. McFarland and began

treatment on August 28, 2019, for a sacral wound infection with probable

osteomyelitis. During her care and treatment, Ms. Daniels’ condition

deteriorated, forcing her into the intensive care unit (ICU), where she died.

A medical review panel was authorized, formed, and, upon review,

found the evidence did not support any finding that the care and treatment by

any defendant failed to meet the applicable standard of care. In support of its

opinion, the panel issued “Written Reasons for Conclusion of the Medical

1
Dr. Halim Abou-Fayca’s name is spelled various ways throughout the record, including “Fayca” and
“Faycal.” For clarity, we will use the spelling “Fayca” throughout this opinion.
2
Dr. Marius T. McFarland’s name is spelled various ways throughout the record, including “Marius” and
“Mairus.” For clarity, we will use the spelling “Marius” throughout this opinion.

Review Panel,” which stated the dates of the relevant treatment and

confirmed that the panelists had reviewed the medical records and all other

evidence submitted.

On February 9, 2024, the plaintiffs challenged the panel’s decision,

alleging that the panel failed to provide written reasons for its opinion. They

subsequently filed a petition for damages based on the same medical

malpractice allegations. On October 28, 2024, Drs. Abou-Fayca, Patel, and

McFarland each filed motions for summary judgment, asserting that the

plaintiffs failed to meet their burden of proof under La. R.S. 9:2794(A). The

plaintiffs argued in opposition that they lacked sufficient time to conduct

discovery and secure qualified experts. Subsequently, the plaintiffs provided

the defendants with a draft of an affidavit and later sent a notarized affidavit

prior to the hearing on the motion. On December 9, 2024, the trial court

granted summary judgment in favor of Drs. Abou-Fayca, Patel, and

McFarland. The plaintiffs filed a formal notice of appeal on January 21,

2025.

DISCUSSION

Assignment Error 1: Motion for Summary Judgment

In their first assignment of error, the plaintiffs contend the trial court

erred by granting summary judgment without adequate time for discovery.

More specifically, the plaintiffs allege the district court failed to consider the

complexity of the case, including the mailing constraints, multiple

defendants, and distinct actions in the patient’s care. As a result, the

plaintiffs argue they could not identify the critical issues required to retain

an expert under La. R.S. 9:2794(A).

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The motion for summary judgment is a procedural device used when

there is no genuine issue of material fact for all or part of the relief prayed

by the litigant. La. C.C.P. art. 966 (A)(1). When addressing the adequacy of

discovery on a motion for summary judgment, courts take into consideration

the following relevant factors: (1) whether the party was ready to go to trial;

(2) whether the party indicated what additional discovery was needed; (3)

whether the party took any steps to conduct additional discovery during the

period between filing of the motion and the hearing on it; and (4) whether

the discovery issue was raised in the trial court before the entry of the

summary judgment. Thomas v. Bayonne, 54,205 (La. App. 2 Cir. 4/13/22),

339 So. 3d 71. In addition to these four factors, courts have considered

whether the ability to conduct discovery was hampered by circumstances

beyond the opponent's control. Laforge v. Golden Nugget Lake Charles,

LLC, 2020-110 (La. App. 3 Cir. 11/4/20), 307 So. 3d 266.

After an adequate time for 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 a material fact and that the mover is

entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). The

appellate court’s review of a grant or denial of a summary judgment is de

novo. Bamburg v. St. Francis Med. Ctr., 45,024 (La. App. 2 Cir. 1/27/10),

30 So. 3d 1074, writ denied, 10-0458 (La. 4/30/10), 34 So. 3d 294.

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

judgment as follows:

The burden of proof rests with the mover. If the mover will not bear
the burden of proof at trial on the issue before the court on the motion
for summary judgment, the mover’s burden 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
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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 facts or that the mover is not entitled to
judgment as a matter of law.

Under La. R.S. 9:2794(A), in a medical malpractice action, the

plaintiff has the burden of proving: (1) the applicable standard of care; (2)

that the standard of care was breached; and (3) that as a proximate result of

the breach, the plaintiff sustained injuries that would not otherwise have

been incurred.

In a medical malpractice claim, great deference should be given to the

factfinder when medical experts express different opinions relevant to

causation. Johnson v. Tucker, 51,723 (La. App. 2 Cir. 11/15/17), 243 So. 3d

1237, writ denied, 17-2075 (La. 2/9/18), 236 So. 3d 1262, and writ

denied, 17-2073 (La. 2/9/18), 236 So. 3d 1266. Expert witnesses who are

members of the medical profession are needed to establish the applicable

standard of care, whether the standard of care was breached by the defendant

doctor’s conduct, and whether that breach resulted in injury to the

plaintiff. Richardson v. Cotter, 51,637 (La. App. 2 Cir. 9/27/17), 245 So. 3d

136; Jones v. Hernandez, 38,818 (La. App. 2 Cir. 8/18/04), 880 So. 2d

248, writ denied, 04-2319 (La. 11/19/04), 888 So. 2d 203.

While in most cases a plaintiff will likely fail to sustain his burden of

proof under the requirements of La. R.S. 9:2794 without medical experts due

to the complexity of medical issues, 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, or in which the

defendant/physician testifies as to the standard of care and there is

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objective evidence, including the testimony of the defendant/physician,

which demonstrates a breach thereof. Pfiffner v. Correa, 94-0924 (La.

10/17/94), 643 So. 2d 1234. Still, unless the case involves some obviously

careless act from which a lay person can infer negligence, such as

amputating the wrong limb or leaving a sponge in a patient’s body, the

absence of expert testimony as to any of the essential elements of the

plaintiff’s malpractice claim will preclude the imposition of liability. Id.

In Gorbach v. Tulane Univ. Med. Ctr., 11-1575 (La. App. 4 Cir.

4/11/12), 89 So. 3d 429, writ denied, 12-1063 (La. 6/22/12), 91 So. 3d 978,

the plaintiff filed a medical malpractice claim against a hospital and

physician after treatment for bladder cancer and related conditions,

requesting a Medical Review Panel. The panel found that Tulane Hospital

did not fail to meet the applicable standard of care. More than eight years

after the alleged malpractice, the defendants moved for summary judgment.

The plaintiff sought additional time to retain an expert but delayed notifying

defendants and failed to comply with the trial court’s order to do so by the

deadline. The trial court granted summary judgment, and the plaintiff

appealed, arguing the ruling was based on failure to timely secure an expert

and that the motion was premature because discovery deadlines had not been

set. The fourth circuit rejected these arguments, noting the malpractice

occurred in 2002 and the motion was filed in 2010, giving the plaintiff

ample time to prepare. The court held the plaintiff had a fair opportunity to

present the case, found no abuse of discretion, and affirmed the summary

judgment dismissing the defendants.

In re Med. Rev. Panel for Claim of George, 24-0624 (La. App. 4 Cir.

2/17/25), 409 So. 3d 268, a patient sued two doctors for malpractice related
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to gallbladder surgery and a subsequent repair that allegedly injured her

vocal cords. Defendants moved for summary judgment because the plaintiff

failed to identify a medical expert to establish a breach of the standard of

care. The trial court granted the motion, finding the plaintiff had ample time

to retain an expert but failed to do so. On appeal, the court held that without

expert testimony, the plaintiff could not prove malpractice and her claims

that the experts “were being consulted” were insufficient. The summary

judgment in favor of the defendants was affirmed.

In the instant matter, the plaintiffs assert that the trial court’s

determination that the failure to obtain a medical expert precludes them from

succeeding at trial lacks merit. Based on the record, we note that this matter

requires expert medical testimony regarding the applicable standard of care.

Additionally, the defendants’ motion was heard five years after Edna

Daniels’ death, four years after the complaint was filed, and ten months after

the petition for damages was filed. The plaintiffs had years to pursue

discovery and identify qualified experts, and no discovery was pending or

sought. They requested no conferences or motions to compel and could not

point to any evidence that would create a factual dispute. Accordingly, we

find that the plaintiffs had ample opportunity to develop their case, and their

request for additional discovery lacked merit.

Assignment Error 2: Medical Review Panel

In their second assignment of error, the plaintiffs argue that the district

court erred in granting motion for summary judgment based on inadequate

opinions of the Medical Review Panel. According to the plaintiffs, the

rendered written opinion by the Medical Review Panel does not comply with

La. R.S. 40:1231.8. The plaintiffs further assert the panel failed to provide
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any findings for damages or written reasons for its opinion as required by the

statute.

Under the Louisiana Medical Malpractice Act, the medical review

panel is composed of three physicians and a non-voting attorney-chairman.

La. R.S. 40:1231.8(C). “The panel shall have the sole duty to express its

expert opinion as to whether or not the evidence supports the conclusion that

the defendant or defendants acted or failed to act within the appropriate

standards of care.” La. R.S. 40:1231.8(G). After reviewing all evidence,

the medical review panel shall render one or more of the following expert

opinions, which shall be in writing and signed by the panelists, together with

written reasons for their conclusions:

(1) The evidence supports the conclusion that the defendant or
defendants failed to comply with the appropriate standard of
care as charged in the complaint.

(2) The evidence does not support the conclusion that the
defendant or defendants failed to meet the applicable standard
of care as charged in the complaint.

(3) That there is a material issue of fact, not requiring expert
opinion, bearing on liability for consideration by the court.

(4) When Paragraph (1) of this Subsection is answered in the
affirmative, that the conduct complained of was or was not a
factor of the resultant damages. If such conduct was a factor,
whether the plaintiff suffered: (a) any disability and the extent
and duration of the disability, and (b) any permanent
impairment and the percentage of the impairment.

La. R.S. 40:1231.8(G)(1)-(4); Sebble on Behalf of Est. of Brown v. St. Luke’s

#2, LLC, 23-00483 (La. 10/20/23), 379 So. 3d 615. Furthermore, La. R.S.

40:1231.8 (H) provides, in part, that: “Any report of the expert opinion

reached by the medical review panel shall be admissible as evidence in any

action subsequently brought by the claimant in a court of law[.]”

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In the instant case, we find the plaintiffs’ argument meritless. In their

brief, plaintiffs argue the panel’s opinion must be “together with reasons for

their conclusions” in accordance with La. R.S. 40:12318(G); however, as the

defendants correctly note, there is no requirement or specification in

Louisiana jurisprudence for the content of written reasons rendered by the

Medical Review Panel. A medical review panel was convened and

determined that the evidence did not show Dr. Abou-Fayca or any defendant

violated the applicable standard of care. The panel’s written reasons

identified the relevant treatment, described it, and confirmed that the

members reviewed the medical records, and all submitted evidence before

reaching their conclusion. The plaintiffs have cited no authority and

identified no defects in the panel’s written reasons, compliance with the

Medical Malpractice Act, or available remedies as Louisiana jurisprudence

allows parties to seek court enforcement, mandamus, or informal

clarification if needed. Consequently, we find the district court did not err in

considering the opinion of the Medical Review Panel in granting summary

judgment in favor of the defendants.

CONCLUSION

Accordingly, based on our de novo review of the record, we find no

error in the trial court’s grant of the motion for summary judgment in favor

of defendants. For the reasons set forth above, the judgment of the trial court

is hereby AFFIRMED. The costs of this appeal are assessed to the plaintiffs,

Patricia Flowers and Linda Daniels.

AFFIRMED.

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