Arlene Squyres v. Our Lady of Lourdes Regional Med. Center, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

06-1517

ARLENE SQUYRES, INDIVIDUALLY,
AND ON BEHALF OF THE ESTATE OF
JOSEPH SQUYRES

VERSUS

OUR LADY OF LOURDES REGIONAL
MEDICAL CENTER, INC., ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 2004-5872-K
HONORABLE PATRICK L. MICHOT,
DISTRICT COURT JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of Jimmie C. Peters, Billy H. Ezell, and James T. Genovese, Judges.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Kenneth W. DeJean
Law Offices of Kenneth W. DeJean
417 West University Avenue
Post Office Box 4325
Lafayette, Louisiana 70502
(337) 235-5294
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Arlene Squyres, Individually, and on behalf of
the Estate of Joseph Squyres

Terry Rowe
Rowe & Middleton
109 Stewart Street
Post Office Box 3323
Lafayette, Louisiana 70502
(337) 232-4744
COUNSEL FOR DEFENDANT/APPELLEE:
Karen Kemzuro

Patrick Manning Wartelle
Roy, Bivens, Judice, Roberts & Wartelle
600 Jefferson Street, Suite 800
Post Office Drawer Z
Lafayette, Louisiana 70502
(337) 233-7430
COUNSEL FOR DEFENDANTS/APPELLEES:
Our Lady of Lourdes Regional Medical Center, Inc.,
Monique Joseph, and Catherine Vaughtsteinmann

GENOVESE, JUDGE.

In this medical malpractice case, Plaintiffs appeal the trial court judgment

granting a motion for summary judgment on behalf of Defendant, Karen Kemzuro.

For the following reasons, we affirm in part, reverse in part, and remand.

FACTS

On January 9, 2003, Joseph Squyres (Mr. Squyres) was admitted to Our Lady

of Lourdes Regional Medical Center, Inc. (Lourdes) in Lafayette, Louisiana, for a left

knee replacement to be performed by Dr. Thomas Montgomery. Following surgery,

on the evening of January 12, 2003, Mr. Squyres complained of pain. The physician

on call, Dr. Barry Henry (Dr. Henry), ordered Ambien to help him rest and Percocet

to relieve the pain. In accordance with the doctor’s orders, certain nurses at Lourdes

administered the Percocet at 7:30 p.m. and the Ambien at 8:30 p.m. That same night,

due to continued complaints of pain, Dr. Henry also ordered Dilaudid, which was

administered to Mr. Squyres at approximately 11:00 p.m. In the early morning of

January 13, 2003, at 12:30 a.m., Mr. Squyres went into respiratory arrest. He was

administered cardiopulmonary resuscitation (CPR), placed on a ventilator, and moved

to the intensive care unit. Mr. Squyres died on February 4, 2004.

On July 14, 2003, Arlene Squyres, individually, and on behalf of the Estate of

Joseph Squyres, filed a Petition for a Medical Review Panel. The medical review

panel rendered a decision on October 5, 2004, wherein the panel concluded that there

was no breach of the standard of care by Dr. Henry, Lourdes, or its employees.

On November 30, 2004, Arlene Squyres, individually, and on behalf of the

Estate of Joseph Squyres, filed suit against Defendants: Lourdes; Dr. Henry; nurse

Karen Kemzuro (Ms. Kemzuro); nurse Monique Joseph (Ms. Joseph); and nurse

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Catherine Vaughtsteinmann (Ms. Vaughtsteinmann). Plaintiffs’ claims against Dr.

Henry were dismissed by the trial court pursuant to summary judgment granted in

favor of Dr. Henry on April 18, 2005. A motion for summary judgment was also filed

on behalf of Lourdes, Ms. Joseph, and Ms. Vaughtsteinmann, which was granted by

the trial court on November 28, 2005. However, in Arlene Squyres v. Our Lady of

Lourdes Reg’l Med. Ctr., Inc. et al., an unpublished opinion bearing docket number

06-744 (La.App. 3 Cir. 12/6/06), this court reversed the trial court’s grant of summary

judgment in favor of Lourdes, Ms. Joseph, and Ms. Vaughtsteinmann and remanded

the matter for further proceedings. Ms. Kemzuro subsequently filed a motion for

summary judgment on July 21, 2005, which was also granted by the trial court. A

judgment was signed in accordance therewith on March 3, 2006. It is from this

judgment granting summary judgment in favor of Defendant Ms. Kemzuro that

Plaintiffs appeal.

ISSUES

The issues raised by Plaintiffs for our review are summarized as follows:

1. whether the trial court erred in finding that a nurse was not
qualified to testify as to the standard of care of nurses and could
not testify as to whether a violation of that standard of care
caused or contributed to the death of Joseph Squyres;

2. whether the trial court erred in finding that there was no genuine
issue of material fact as to the cause of death of Joseph Squyres;
and

3. whether the trial court erred in finding that there was informed
consent for the risks associated with the medication and
administering of the medication to Joseph Squyres.

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LAW AND DISCUSSION

Standard of Review

Appellate courts review grants of summary judgment de novo,
using the same criteria that govern the trial court’s consideration of
whether summary judgment is appropriate, i.e., whether there is a
genuine issue of material fact and whether the mover is entitled to
judgment as a matter of law. Ocean Energy, Inc. v. Plaquemines Parish
Gov't, 04-0066 (La. 7/6/04), 880 So.2d 1. The movant bears the burden
of proof. La. C.C.P. art. 966(C)(2). If the movant meets this initial
burden, the burden then shifts to plaintiff to present factual support
adequate to establish that he will be able to satisfy the evidentiary
burden at trial. Richard v. Hall, 03-1488 (La. 4/23/04), 874 So.2d 131,
137. Thereafter, if plaintiff fails to meet this burden, there is no genuine
issue of material fact and defendant is entitled to summary judgment as
a matter of law. Id. This court has recognized that a “genuine issue” is
a “triable issue,” an issue in which reasonable persons could disagree.
Jones v. Estate of Santiago, 03-1424 (La. 4/14/04), 870 So.2d 1002,
1006 (citing Smith v. Our Lady of the Lake Hosp., 93-2512 (La. 7/5/94),
639 So.2d 730, 751). Further, this court has defined a “material fact” to
be one in which “its existence or nonexistence may be essential to
plaintiff’s cause of action under the applicable theory of recovery.” Id.

Champagne v. Ward, 03-3211, pp. 4-5 (La.App. 3 Cir. 1/19/05), 893 So.2d 773, 776-

77.

Burden of Proof

In a medical malpractice action, La.R.S. 9:2794(A) provides that 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, dentists, optometrists, or
chiropractic 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, dentists, or chiropractic 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.

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(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.

“Thus, according to La.R.S. 9:2794(A), any medical malpractice claimant must

establish, by a preponderance of the evidence: (1) the defendant’s standard of care;

(2) the defendant’s breach of that standard of care; and (3) a causal connection

between the breach and the claimant’s injuries.” Browning v. West Calcasieu

Cameron Hosp., 03-332, p. 10 (La.App. 3 Cir. 11/12/03), 865 So.2d 795, 804, writ

denied, 03-3354 (La. 2/13/04), 867 So.2d 691 (citing Pfiffner v. Correa, 94-924, 94-

963, 94-992 (La. 10/17/94), 643 So.2d 1128).

Standard of Care and Causation

In opposition to the motion for summary judgment, Plaintiffs introduced the

affidavit of Laura Frost Oettell (Ms. Oettell), a registered nurse, who opined that

Defendants, including Karen Kemzuro, failed to meet the proper standard of care and

that their actions were a proximate cause of the death of Mr. Squyres. Plaintiffs assert

that the trial court erred in finding that Ms. Oettell was not qualified to testify as to

the standard of care of nurses. We have reviewed the record of these proceedings,

including the reasons provided by the trial court, and find this assertion to be without

merit.

When ruling on the present motion for summary judgment, which was

submitted to the trial court on the briefs of the parties, the trial court stated that “the

court finds that there is no genuine issue of material fact and for the reasons stated in

the previous ruling on the motion - - previous motion for summary judgment as well

as these reasons, the court will grant the motion for summary judgment.” In the oral

reasons of July 5, 2005, to which the trial court referred, the trial court did not state

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that Ms. Oettell was not qualified to testify as to the appropriate standard of care.

Rather, the trial court stated that Ms. Oettell, a registered nurse, was not qualified to

give an opinion as to the cause of Mr. Squyres’s death. As stated in our previous

unpublished opinion, which involved the same affidavit of Ms. Oettell, a plaintiff

may use the expert testimony of a nurse to establish the requisite standard of care.

Arlene Squyres v. Our Lady of Lourdes Reg’l Med. Ctr., Inc. et al., an unpublished

opinion bearing docket number 06-744 (La.App. 3 Cir. 12/6/06) (citing Coleman v.

Christian Home Health Care, 99-2948 (La.App. 4 Cir. 4/11/01), 786 So.2d 819;

Cagnolatti v. Hightower, 95-2598, 95-2599 (La.App. 4 Cir. 12/11/96), 692 So.2d

1104). Thus, we find from the record that the trial court correctly determined that Ms.

Oettell, a registered nurse, was competent to testify on the issue of the applicable

standard of care of nurses.

Plaintiffs also assert that the trial court erred in concluding that Ms. Oetell

could not testify as to whether a violation of the standard of care caused or

contributed to the death of Mr. Squyres. This argument was also asserted in

Plaintiffs’ prior appeal of the granting of summary judgment in favor of Lourdes, Ms.

Joseph, and Ms. Vaughtsteinmann. As we previously opined, “for the purpose of

summary judgment, expert testimony is not required to prove that a patient’s death

is causally connected to the defendant’s conduct.” Id. (citing Browning, 865 So.2d

795). Therefore, we find that the trial court erred in holding that Ms. Kemzuro was

entitled to summary judgment on the grounds that Plaintiffs failed in their burden of

proving causation.

Genuine Issues of Material Fact

Another issue raised by Plaintiffs in the present appeal is whether the trial court

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erred in finding that there was no genuine issue of material fact as to the cause of

death of Mr. Squyres. We find, based on our review of the record of these

proceedings, that there remain questions of fact as to what caused the death of Mr.

Squyres.

In support of the motion for summary judgment, Ms. Kemzuro introduced the

Opinion and the Reasons for Opinion of the medical review panel. Relevant to the

present motion for summary judgment is the panel’s conclusion that “[t]he evidence

does not support the conclusion that the defendant, Karen Kemzuro, L.P.N[.] failed

to meet with the appropriate standard of care as charged in the complaint.”

Additionally, on the issue of causation, the medical review panel concluded that

“[t]he conduct complained of was not a factor of any resultant damages to plaintiff.”

In opposition to the motion for summary judgment on behalf of Ms. Kemzuro,

Plaintiffs introduced the affidavit of Ms. Oettell, and the deposition testimony of Dr.

Albert R. Corne, Jr. (Dr. Corne), an internist. Ms. Oettell stated in her affidavit that

“[i]t is impossible for one to assume that the medication was administered correctly

based on the lack of patient monitoring and documentation including the unfortunate

event and outcome of Joseph Squyres following the administration of a potent opiate

narcotic.” On the issue of causation, Ms. Oettell opined that “the breaches of the

applicable standards of nursing care stated within [her] affidavit contributed to

respiratory depression of Joseph Squyres and ultimately his death.” Dr. Corne, who

had seen Mr. Squyres post-operatively as the physician on call on January 13, 2003,

testified that Mr. Squyres “got enough medicine to produce respiratory arrest and a

vegetative state.” Dr. Corne agreed with Ms. Oettell that the cause of death was the

“volume of medication” and the resulting “snowball effect.”

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Considering the expert opinions of Ms. Oettell and Dr. Corne and their conflict

with the expert opinions of the members of the medical review panel pertaining to the

cause of death of Mr. Squyres, we find that genuine issues of material fact remain as

to whether or not the actions or inactions of Ms. Kemzuro breached the applicable

standard of care and whether her actions or inactions caused or contributed to his

death. These unresolved genuine issues of material fact preclude the granting of

summary judgment. Therefore, we find that the trial court erred in holding that Ms.

Kemzuro was entitled to summary judgment because there was no genuine issue as

to any material fact that the cause of Mr. Squyres’ death was not caused by or

contributed to by any act, omission, or breach of standard of care by Ms. Kemzuro.

Informed Consent

Plaintiffs, on appeal, also raise the issue of a lack of informed consent by Mr.

Squyres for the risks associated with the medication and its administration. However,

we find this assertion to be misplaced. The duty to obtain informed consent is found

at La.R.S. 40:1299.40(E)(7)(c), which provides that in order to be covered by the

statutory provisions relative to informed consent, “the physician or other health care

provider who will actually perform the contemplated medical or surgical procedure”

must make the requisite disclosures. Thus, by the express terms of the statute, the

duty of obtaining the informed consent of a patient is owed only by the physician or

health care provider who will actually be performing the procedure. Because

Plaintiffs bear this burden of proof at trial, it was their burden to show that Ms.

Kemzuro performed a procedure which required that she obtain the informed consent

of Mr. Squyres. There is nothing in the record establishing the fact that Ms. Kemzuro

performed the procedure which is the subject matter of this litigation. We find that

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Plaintiffs failed to meet this burden. Therefore, there is no genuine issue of material

fact, and Ms. Kemzuro is entitled to summary judgment as a matter of law on the

issue of informed consent. Accordingly, we affirm the trial court’s grant of summary

judgment in favor of Ms. Kemzuro dismissing the claims of Plaintiffs against Ms.

Kemzuro solely related to her alleged failure to obtain the informed consent of Mr.

Squyres for the risks associated with the medication and administration of the

medication to him.

DECREE

For the foregoing reasons, we affirm the trial court’s grant of summary

judgment in favor of Karen Kemzuro dismissing the claims of Arlene Squyres,

individually, and on behalf of the Estate of Joseph Squyres, against Karen Kemzuro

only as to her failure to obtain the informed consent of Joseph Squyres. In all other

respects, the judgment of the trial court granting summary judgment in favor of Karen

Kemzuro is reversed, and this matter is remanded for further proceedings consistent

herewith.

Costs of this appeal are assessed against Defendant, Karen Kemzuro.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

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