Harry John Walsh, Jr. v. Dr. Jason Morris

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-885

HARRY JOHN WALSH, JR.

VERSUS

JASON MORRIS, M.D., ET AL.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT,
PARISH OF RAPIDES, NO. 224,306
HONORABLE GEORGE C. METOYER, JR., DISTRICT JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Sylvia R. Cooks, John D. Saunders, and Jimmie C. Peters,
Judges.

AFFIRMED.

Jean Walsh
2511 33rd Avenue
Meridian, MS 39301
(601)482-1018
IN PROPER PERSON, PLAINTIFF/APPELLANT

David R. Sobel
Jeremy C. Cedars
Provosty, Sadler, deLaunay,
Fiorenza & Sobel
Post Office Drawer 1791
Alexandria, LA 71309

(318) 445-3631
COUNSEL FOR DEFENDANTS/APPELLEES:
JASON MORRIS, M. D.
LSUMC-S FAMILY PRACTICE CLINIC

PETERS, J.

The plaintiff in this matter, Jean Walsh, is the surviving spouse of Harry

Walsh. She appeals from the trial court’s grant of summary judgment in favor of the

defendants, Dr. Jason Morris and the LSUMC-S Family Practice Clinic (collectively

referred to as defendants), dismissing her medical malpractice suit against them. For

the following reasons, we affirm the trial court judgment in all respects.

DISCUSSION OF THE RECORD

The facts of this case were laid out by this court in a prior opinion, Walsh v. Dr.

Jason Morris, 07-579, pp. 1-2 (La.App. 3 Cir. 10/31/07), 970 So.2d 94, 95:1

Harry Walsh was a patient of the LSUHSC Family Practice
Medical Center (Medical Center) in Alexandria, Louisiana, for a period
of time beginning in 2001. Pertinent to this matter are visits he made to
the Medical Center on April 30 and May 5 and 6, 2003. On April 30,
Mr. Walsh presented to the Medical Center with complaints of dizziness
and stated that he had been doing yard work without drinking enough
liquids. Mr. Walsh was being treated by the Medical Center for high
blood pressure, and he related recent blood pressure readings he had
obtained when visiting Wal-Mart. The staff physician, Dr. Brian Morris,
recommended that Mr. Walsh remain adequately hydrated and to return
if his symptoms persisted.

Mr. Walsh returned to the clinic on May 6, complaining of
dizziness and some chest discomfort, which Dr. Morris believed were
related to his heart beating rapidly. Mr. Walsh told Dr. Morris that he
had been working in his yard despite his chest discomfort. Dr. Morris
ordered an EKG, which revealed that Mr. Walsh was in atrial
fibrillation. According to Mr. Walsh’s chart, Dr. Morris wanted to
admit Mr. Walsh into the hospital and/or wanted him to consult with a
cardiologist, but Mr. Walsh refused.

Mr. Walsh returned the next day as recommended by Dr. Morris.
Another EKG was performed, which revealed that he was still in atrial
fibrillation. Mr. Walsh told Dr. Morris that he felt better, explaining that
his heart still was beating fast but not as fast as the previous day. Dr.
Morris made changes in Mr. Walsh’s medication and scheduled him to
return in one month.

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The first appeal arose from the grant of a summary judgment by the trial court dismissing
the plaintiff’s suit. This court reversed that judgment based on the trial court’s abuse of discretion
in not granting a continuance to the plaintiff.

On May 11, 2003, Mr. Walsh suffered a massive stroke which
caused partial paralysis and brain damage. He was hospitalized for
some time at Christus St. Francis Cabrini Hospital and was then
transferred to a rehabilitation facility. In June 2003, he returned home
where his wife cared for him until his death on November 19, 2006.

Believing Dr. Morris committed malpractice in his medical
treatment of Mr. Walsh, the Walshes filed a complaint against him and
LSUHSC Family Practice Center with the Patient’s Compensation Fund.
The medical review panel rendered a unanimous opinion that Dr.
Morris’s treatment of Mr. Walsh did not fall below the standard of care.

After this court reversed the trial court grant of summary judgment in favor of the

defendants and remanded the matter to the trial court for further proceedings, Jean

Walsh was substituted as the proper party plaintiff in this matter.

Thereafter, the defendants reurged their motion for summary judgment,

alleging that there was an absence of factual support for the elements of Mrs. Walsh’s

claims against them. In support of their motion, the defendants introduced the

Medical Review Panel Complaint; the affidavit of Dr. Eddie D. Johnson, a member

of the Medical Review Panel, which included the Medical Review Panel Opinion;

and the original petition for damages filed by Harry and Jean Walsh. Mrs. Walsh

failed to introduce any expert testimony establishing the standard of care required in

this matter. At the conclusion of the hearing, the trial court granted the defendant’s

motion for summary judgment and dismissed Mrs. Walsh’s suit. After the trial court

executed a written judgment, Mrs. Walsh perfected this appeal.

OPINION

On appeal, Mrs. Walsh offers a hodgepodge of information including

newspaper articles pertaining to strokes and her communications with the court. As

she is proceeding in proper person, we will assume that her argument is that the trial

court erred in granting summary judgment in favor of the defendants.

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In Samaha v. Rau, 07-1726, pp. 3-5 (La. 2/26/08), 977 So.2d 880, 882-83

(footnotes omitted), the Louisiana Supreme Court discussed the review standard

applicable to motions for summary judgment:

A 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 for by a litigant. Duncan v. U.S.A.A. Ins. Co., 2006-363 p. 3
(La.11/29/06), 950 So.2d 544, 546, see La. C.C.P. art. 966. A summary
judgment is reviewed on appeal de novo, with the appellate court using
the same criteria that govern the trial court’s determination of whether
summary judgment is appropriate; i.e. whether there is any genuine issue
of material fact, and whether the movant is entitled to judgment as a
matter of law. Wright v. Louisiana Power & Light, 2006-1181 p. 17
(La.3/9/07), 951 So.2d 1058, 1070; King v. Parish National Bank,
2004-0337 p. 7 (La.10/19/04), 885 So.2d 540, 545; Jones v. Estate of
Santiago, 2003-1424 p. 5 (La.4/14/04), 870 So.2d 1002, 1006.

The parameters of a motion for summary judgment have been
described by this court as follows:

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 mover is entitled to judgment as a matter of law.” La.
C.C. P. art. 966(B). This article was amended in 1996 to
provide that “summary judgment procedure is designed to
secure the just, speedy, and inexpensive determination of
every action . . . The procedure is favored and shall be
construed to accomplish these ends.” La. C.C.P. art.
966(A)(2). In 1997, the legislature enacted La. C.C.P. art.
966 C(2), which further clarified the burden of proof in
summary judgment proceedings, providing:

The burden of proof remains with the movant.
However, if the movant will not bear the burden of
proof at trial on the matter that is before the court on
the motion for summary judgment, the movant'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
that there is an absence of factual support for one or
more elements essential to the adverse party's claim,
action, or defense. Thereafter, if the adverse party
fails to produce factual support sufficient to
establish that he will be able to satisfy his

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evidentiary burden of proof at trial, there is no
genuine issue of material fact.

This amendment, which closely parallels the language of
Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986), first places the burden of producing
evidence at the hearing on the motion for summary
judgment on the mover (normally the defendant), who can
ordinarily meet that burden by submitting affidavits or by
pointing out the lack of factual support for an essential
element in the opponent’s case. At that point, the party
who bears the burden of persuasion at trial (usually the
plaintiff) must come forth with evidence (affidavits or
discovery responses) which demonstrates he or she will be
able to meet the burden at trial. . . . Once the motion for
summary judgment has been properly supported by the
moving party, the failure of the non-moving party to
produce evidence of a material factual dispute mandates
the granting of the motion. (Emphasis added; citation
omitted)

Wright, 2006-1181 p. 16, 951 So.2d at 1069-1070, citing Babin v.
Winn-Dixie Louisiana, Inc., 2000-78 (La.6/30/00), 764 So.2d 37, 39-40;
see also King, 2004-337 p. 8, 885 So.2d at 545-546; Jones, 2003-1424
p. 4, 870 So.2d at 1005-1006; Costello v. Hardy, 2003-1146 p. 8-9
(La.1/21/04), 864 So.2d 129, 137-138; Racine v. Moon’s Towing,
2001-2837 p. 4-5 (La.5/14/02), 817 So.2d 21, 24-25.

The plaintiff bears the burden of proof in a medical malpractice case. Pursuant

to La.R.S. 9:2794(1), the plaintiff must prove three elements in order to prevail

against a physician:

(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.

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In Samaha, 977 So.2d at 883-84, the supreme court stated with regard to claims

sounding in medical malpractice:

To establish a claim for medical malpractice, a plaintiff must prove, 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. La. R.S. 9:2794. Expert testimony is generally
required to establish the applicable standard of care and whether or not
that standard was breached, except where the negligence is so obvious
that a lay person can infer negligence without the guidance of expert
testimony. Pfiffner v. Correa, 1994-0924, 1994-0963, 1994-0992
(La.10/17/94), 643 So.2d 1228.

In this instance, the defendants will not bear the burden of proof at the trial in

this matter. Accordingly, they were only required to point out to the trial court the

absence of factual support for one of the three aforementioned elements. La.Code

Civ.P. art 966(C)(2). In that regard, the opinion of the Medical Review Panel stated

the following conclusion:

We have been advised that the law generally considers medical
records to be inherently reliable. The medical records indicates that the
patient refused hospitalization. Even if hospitalized immediately, it is
unlikely to have prevented a stroke. The record indicates several
instances where numerous therapies were refused while in the hospital,
recommended by several doctors. His initial symptoms were general
and not indicative of impending stroke.

Dr. Johnson’s affidavit attests that the Medical Review Panel unanimously found no

evidence that Dr. Morris deviated from the applicable standard of care and that none

of his actions caused any harm to Mr. Walsh. He further stated that the opinion and

conclusions reached were based on Mr. Walsh’s medical records and were fully

consistent with medical literature, peer review studies, and scientific studies which

had been tested and accepted in the medical community.

In light of evidence presented by the defendants and Mrs. Walsh’s failure to

present any expert testimony establishing that the defendants breached the standard

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of care, we find no error in the trial court’s grant of the summary judgment. Thus, we

find no merit in Mrs. Walsh’s appeal.

DISPOSITION

We affirm the trial court judgment granting summary judgment in favor of Dr.

Jason Morris and the LSUMC-S Family Practice Clinic dismissing the plaintiff’s

claims against them. We assess the cost of this appeal to the plaintiff, Jean Walsh.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Rule
2-16.3, Uniform Rules, Courts of Appeal.

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