Earline Thierry, Et Vir. v. State of La., Thru the Dept. of Health & Hosp.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

06-1133

EARLINE THIERRY, ET VIR

VERSUS

STATE OF LOUISIANA, THROUGH
THE DEPARTMENT OF HEALTH AND
HOSPITALS AND UNIVERSITY MEDICAL
CENTER OF LAFAYETTE, LOUISIANA

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 2004-5270, DIV. L
HONORABLE MARILYN C. CASTLE

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J. DAVID PAINTER
JUDGE

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Court composed of Marc T. Amy, J. David Painter, and James T. Genovese, Judges.

AFFIRMED.

Jude D. Bourque
Assistant Attorney General
Louisiana Department of Justice
Division of Risk Litigation
P.O. Box 94005
Baton Rouge, LA 70804-9005
Counsel for Defendant-Appellant:
State of Louisiana through the Board of Supervisors of
LSU representing University Medical Center in Lafayette

Alfred O. Pavy
Attorney at Law
P. O. Box 690
Opelousas, LA 70571-0690
Counsel for Plaintiffs-Appellants:
Earline Thierry, et vir

PAINTER, Judge.

In this medical malpractice claim, Plaintiffs, Earline Thierry and Arthur Lee

Thierry, appeal the trial court’s grant of summary judgment in favor of Defendant,

State of Louisiana through the Board of Supervisors of LSU representing University

Medical Center in Lafayette. Defendant has answered the appeal to assert error in the

trial court’s denial of its motion to strike one of the expert affidavits submitted by

Plaintiffs. For the following reasons, we affirm both the denial of Defendant’s

motion to strike and the summary judgment dismissing Plaintiffs’ case.

FACTUAL AND PROCEDURAL BACKGROUND

In 2002, Mrs. Thierry was sixty years old and had a long history of cardiac

problems, including hypertension, coronary artery disease, and congestive heart

failure. She suffered heart attacks in 1983 and 1989 and also underwent a triple

bypass in 1987. She also had diabetes. On January 17, 2002, Mrs. Thierry was

admitted to University Medical Center in Lafayette (UMC) with a chief complaint of

shortness of breath which had been getting worse over the previous week. At the

time of admission, she was on the following medications: Lasix, Glucophage,

Vasotec, Divan, Glucotrol, Co-reg, Prevacid, and insulin. She was discharged on

January 22, 2002, with written discharge instructions, including an instruction to

return to the emergency room if she had any problems. Her medications on discharge

were Potassium, Imdur, Digoxin, a multivitamin, Norvasc, Glucotrol, and insulin.

She was also given a prescription for Zaroxolyn, among other things. Zaroxolyn is

a diuretic. Mrs. Thierry was on two diuretics, Zaroxolyn and Lasix, on discharge.

Dr. Robert Carroll, who treated Mrs. Thierry at UMC, later opined in deposition that

one of the potential causes of the Digoxin toxicity may have been dehydration.

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Mrs. Thierry alleges that she had the prescription for Zaroxolyn filled and took

the first dose on January 24, 2002. She further alleges that after taking this first dose,

she began to have tremors and shaking. Mrs. Thierry took the second dose of

Zaroxolyn on January 25, 2002. She alleges that her symptoms worsened at that time,

so she called the emergency room at UMC and reported her symptoms. She alleges

that she was advised to continue taking her medication. Mrs. Thierry also asserts that

her chart contains a notation, dated January 25, 2002, to alert the patient to stop

taking Zaroxolyn but that there is an absence of any recorded response to her

complaints. On January 26, 2002, Mrs. Thierry took the third dose of Zaroxolyn, and

her condition worsened to the extent that she went to the emergency room at UMC

with complaints of nonspecific chest pain. At that time, she was admitted to the

intensive care unit with Digoxin toxicity and renal insufficiency. She required

intubation. On January 30, 2002, the toxicity Digoxin was completely cleared. She

was not discharged until February 12, 2002.

Mrs. Thierry filed a complaint against UMC alleging numerous acts of

malpractice, including allegations that the nursing staff and physicians failed to

respond to her oral complaint of January 25, 2002, negligently monitored her

condition, failed to follow-up with her, caused Digoxin toxicity, and caused

exacerbations of her pre-existing conditions. She alleged that she cannot drive

because, ever since taking the Zaroxolyn, she gets shaky. She further alleged that

ever since being intubated, she is hoarse. Mrs. Thierry also alleged that she has

problems with weakness in her hand from the apparatus providing intravenous

injections that was inserted there.

In due course, a medical review panel was formed with Dr. Tina Wells, Dr.

Lana Metoyer, and Dr. David Booher as panelists. On August 4, 2004, the panel

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rendered an opinion finding no breach in the standard of care. Specifically, the panel

found that Zaroxolyn was appropriately prescribed to Mrs. Thierry, given her

diagnoses but that there was a question of patient compliance causing the toxicity.

Apparently, when Mrs. Thierry was re-admitted to UMC on January 26, 2002, her list

of current medications included: Klor, Glucotrol, Vasotec, Neurontin,

Spironolactone, Isosorbide, Zaroxolyn, Preevacid, Lasix, Norvasc, iron, and Lanoxin.

These were not the same medications that were listed on the discharge list from

January 22, 2002.

Following the unfavorable medical review panel opinion, Plaintiffs filed suit

in district court. Plaintiffs obtained an affidavit from Dr. Metoyer which Plaintiffs

assert was a “supplement” to her medical review panel opinion. In that affidavit,

dated October 22, 2004, Dr. Metoyer retreated somewhat from her original opinion

as given in the medical review panel proceedings. In the affidavit, Dr. Metoyer stated

that the failure to respond to the patient’s complaints on January 25, 2002 was

substandard medical care by the nursing personnel and probably resulted in an

aggravation of the patient’s renal insufficiency, an exacerbation of her congestive

heart failure, and Digoxin toxicity. Defendant then took Dr. Metoyer’s deposition on

February 16, 2006. Following that deposition, Defendant filed a motion for summary

judgment alleging that there was no genuine issue of material fact and that Plaintiffs

did not have an expert to contradict the opinion of the medical review panel such that

they had no evidence to support the basic elements of their case. Following a

hearing, the trial court granted Defendant’s motion for summary judgment.

Specifically, the trial court found that Plaintiffs failed to present factual support to

establish that they would be able to satisfy their evidentiary burden of proof at trial

that Mrs. Thierry suffered any damages due to the one-day delay in her reporting to

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the emergency room. Plaintiffs assert that there several genuine issues of material

fact that preclude a grant of summary judgment and now appeal.

Defendant answered the appeal, asserting that the trial court erred in denying

its motion to strike and admitting the affidavit of Dr. Metoyer. Defendant argues that

Dr. Metoyer’s affidavit is based upon inadmissible hearsay from Plaintiffs’ attorney

and not on admissible medical records or facts.

DISCUSSION

Motion to Strike

We first address Defendant’s contention that the affidavit of Dr. Metoyer was

inadmissible since it was based upon hearsay information from Plaintiffs’ attorney

rather than upon personal knowledge. The trial court denied Defendant’s motion to

strike and, in its answer to Plaintiff’s appeal, Defendant appeals that portion of the

trial court’s judgment.

Louisiana Code of Civil Procedure article 967 requires that affidavits submitted

in connection with summary judgment be made on “personal knowledge,” which

“encompasses only those facts which the affiant saw, heard or perceived with his own

senses.” Dominio v. Folger Coffee Co., 05-357, p. 4 (La.App. 4 Cir. 2/15/06), 926

So.2d 16, 18. Based on this, Defendant argues that Dr. Metoyer’s affidavit must be

stricken as it was not based upon personal knowledge. We disagree.

The Louisiana Supreme Court case of Independent Fire Ins. Co. v. Sunbeam

Corp., 99-2181, 99-2257, pp. 14-15 (La. 2/29/00), 755 So.2d 226, 235 has considered

this issue:

[I]t follows that we now adopt the Daubert standards for admissibility
of expert opinion evidence at the summary judgment stage, as do the
federal courts.

After all, it would be inequitable and illogical to allow a party
who has eyewitness testimony to be granted a summary judgment over

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a party who has no eyewitness testimony, but who does have expert
opinion evidence, which if believed, would contradict the eyewitness
testimony. In such a case, the party with only expert opinion evidence
may have actually prevailed at trial but would lose on summary
judgment because his evidence would not be admissible as it is not
based on personal knowledge. For example, a driver of a vehicle,
claiming that her brakes were defective, may testify that she was
pressing the brakes of her car but nonetheless the car increased its
forward speed before a collision. She could file a motion for summary
judgment attaching her affidavit attesting to the facts as she remembers
them. The car or brake manufacturer, who has no eyewitness evidence,
may nonetheless have expert opinion evidence that, based on his
knowledge of the brake system and his training and experience, the
brakes did not fail and the driver must have pressed the accelerator
instead of the brakes. A jury may not believe the driver and may be
convinced that based on the defendant’s expert evidence, which is based
on the circumstances of the case (i.e., increased, rather than decreased,
speed), the driver did in fact press the accelerator and not the brakes,
and would find in favor of the defendant at trial. In such a case, it would
be illogical and inequitable to allow that same plaintiff, who would have
lost at trial, to prevail on summary judgment because the defendant’s
evidence submitted in opposition to the motion was not based on
personal knowledge under La. C.C.P. art. 967.

Expert testimony is frequently based on hearsay or other evidence that would

be inadmissible at trial. For example, expert testimony based on police reports, which

are inadmissible as hearsay, is allowable. Wiley v. City of New Orleans, 00-1544

(La.App. 4 Cir. 5/16/01), 809 So.2d 151, writ denied, 02-616 (La. 5/10/02), 815

So.2d 842, writ denied, 02-641 (La. 5/10/02), 815 So.2d 843. Furthermore, the

admissibility of the opinion of the medical review panel and the testimony of the

panelists is provided for by statute. La.R.S. 40:1299.47(H).

For these reasons, we find no error in the trial court’s denial of Defendant’s

motion to strike the affidavit of Dr. Metoyer.

Motion for Summary Judgment

We will review this summary judgment de novo, “using the same criteria

applied by the trial courts to determine whether summary judgment is appropriate.”

Butler v. DePuy, 04-101, p. 3 (La.App. 3 Cir. 6/9/04), 876 So.2d 259, 261 (citing

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Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La. 7/5/94), 639 So.2d 730). In

Butler, 876 So.2d at 261, we explained that:

The initial burden of proof remains with the mover to show that
no genuine issue of material fact exists. However, if the mover will not
bear the burden of proof at trial, he need not negate all essential
elements of the adverse party’s claim, but rather he must point out that
there is an absence of factual support for one or more elements essential
to the claim. La.Code Civ.P. art. 966(C)(2). Once the mover has met
his initial burden of proof, the burden shifts to the non-moving party to
produce factual support sufficient to establish that he will be able to
satisfy his evidentiary burden at trial. Id.

The applicable burden of proof for a plaintiff in a medical malpractice case is

found in La.R.S. 9:2794, which provides that a plaintiff must establish the following

elements 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. Expert

testimony is usually required to establish the applicable standard of care and whether

or not that standard of care was breached. Butler, 876 So.2d 259 (citing Davis v.

Atchison, 37,832 (La.App. 2 Cir. 10/29/03), 859 So.2d 931).

We do not find this to be a case of obvious negligence where expert testimony

is not required because a lay person would be able to infer negligence without the

guidance of expert testimony. See Thomas v. Southwest La. Hosp. Ass’n., 02-654

(La.App. 3 Cir. 12/11/02), 833 So.2d 548, writ denied, 03-476 (La. 4/25/03), 842

So.2d 401. Therefore, we find that Plaintiffs would be required to produce expert

testimony to establish the applicable standard of care, that there was a breach thereof,

and that there was a causal connection between the breach and any resultant injuries.

Plaintiffs rely on the deposition testimony of Dr. Carroll and the affidavit of Dr.

Metoyer to meet their burden of proof. However, we agree with the trial court that

Plaintiffs failed to present factual support to establish that they could satisfy the

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evidentiary burden of proving that Mrs. Thierry suffered any damages caused by the

one-day delay in her reporting to the emergency room. In her deposition, taken after

she signed the affidavit submitted by Plaintiffs, Dr. Metoyer clearly stated that she

had not found or received any evidence to indicate that her original medical review

panel opinion was contradicted in any way. She further testified that it was not her

opinion that any renal condition suffered by Mrs. Thierry at present was caused by

either hospitalization at UMC. Importantly, even though Dr. Metoyer agreed that

quicker intervention would have been helpful in alleviating Mrs. Thierry’s

complaints, Dr. Metoyer further testified as follows:

Q: . . . Did the time delay between this phone call and when she
presented to the emergency room and was treated, what effect, if
any, did that have on this patient’s eventual outcome and how she
is doing today?

A: It didn’t have any effect.

Dr. Carroll does not address causation of Mrs. Thierry’s alleged resultant injuries.

Accordingly, we find that Plaintiffs failed to successfully rebut Defendant’s showing

on its motion for summary judgment and that the trial court’s grant of summary

judgment in favor of Defendant was, therefore, appropriate.

DECREE

For all of the foregoing reasons, the judgment of the trial court is affirmed in

its entirety. Costs of this appeal are assessed to Plaintiffs-Appellants, Earline Thierry

and Arthur Lee Thierry.

AFFIRMED.

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