Cleotter Simien, Et Ux. v. Medical Protective Company

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-1185

CLEOTTER SIMIEN, ET AL.

VERSUS

MEDICAL PROTECTIVE
COMPANY, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT,
PARISH OF LAFAYETTE, C-20073915
HONORABLE PATRICK L. MICHOT, DISTRICT JUDGE

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J. DAVID PAINTER
JUDGE

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Court composed of Sylvia R. Cooks, J. David Painter, and Shannon J. Gremillion,
Judges.

AFFIRMED.

Cooks, Judge, dissents and assigns written reasons.

Lloyd Dangerfield, Attorney at Law
703 E. University Avenue
Lafayette, LA 70503
Counsel for Plaintiffs-Appellants:
Cleotter Simien, et al.

Marc W. Judice
Judice & Adley, A.P.L.C.
926 Coolidge Boulevard
Lafayette, LA 70505
Counsel for Defendants-Appellees:
Medical Protective Company and Dr. John Rainey
PAINTER, Judge.

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Plaintiffs, Cleotter and Ruben Simien, filed a medical malpractice suit against

Medical Protective Company and Dr. John Rainey relative to the recurrence of Mrs.

Simien’s thyroid cancer. Plaintiffs now appeal the dismissal of their suit by the trial

court’s grant of summary judgment in favor of Defendants. For the following

reasons, we affirm the trial court’s decision.

FACTUAL AND PROCEDURAL BACKGROUND

In January of 1998, Mrs. Simien was diagnosed with thyroid cancer and

underwent a total thyroidectomy. She began treating with Dr. Rainey following a

consult request from Dr. Ernest Kinchen, Jr. after the surgery. She continued treating

with Dr. Rainey and numerous other physicians for various medical problems until

she failed to show for an appointment with Dr. Rainey on September 22, 2005. Mrs.

Simien, who was hoping to become pregnant, was seen at M.D. Anderson Cancer

Center on February 14, 2005, and was informed that her thyroid cancer had recurred.

She underwent surgery for the removal of multiple nodules and the recurrent tumor.

Following this diagnosis, Mrs. Simien, in proper person, requested that a medical

review panel be formed to review her allegations that Dr. Rainey failed to order or

perform the necessary medical testing based on her earlier diagnosis of thyroid cancer

and that such failure allowed her cancer to recur and grow undetected.

In due course, a medical review panel was convened. The panelists were Dr.

Deborah Abernathy, Dr. Howard G. Wold, and Dr. Bashar Saad. On March 22, 2007,

the panel rendered its opinion that Dr. Rainey fell below the requisite standard of care

in his treatment of Mrs. Simien, stating:

The [p]anel is of the opinion that the tests ordered by Dr. Rainey
throughout the follow-up care did not include an annual measurement
of the thyroglobulin.

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In 2004, when the elevated thyroglobulin was noted, this result was
elevated for someone who had previously had a total thyroidectomy.
Therefore, a more aggressive work-up at that time, looking for evidence
of recurrence, would have been appropriate.

However, the panel went on to find that the conduct complained of was not a

factor of the resultant damages. The panel stated: “In fact, the prognosis for the

patient is excellent and the failure to take such test did not contribute negatively to

the condition of the patient.”

Thereafter, on or about July 24, 2007, Mrs. Simien and her husband, again in

proper person, filed suit in district court against Dr. Rainey and Medical Protective

Company. Defendants answered the petition and propounded discovery upon

Plaintiffs, requesting, among other things, that Plaintiffs identify all experts with

whom they had consulted or whom they would call to testify at trial. Plaintiffs failed

to respond to said discovery. In December 2007, Defendants filed a motion for

summary judgment on the ground that Plaintiffs were unable to produce the required

expert evidence needed to support their assertion that Dr. Rainey breached the

applicable standard of care and that this breach caused the alleged damages. In

February 2008, Plaintiffs obtained legal counsel, requested a continuance of the

hearing on the motion for summary judgment (to which Defendants did not object),

and filed an opposition to the motion for summary judgment alleging that there had

not been adequate time for discovery. Other than the panel opinion and an affidavit

of Mrs. Simien, who is herself a registered nurse, outlining her medical treatment,

Plaintiffs submitted no evidence in opposition to the motion for summary judgment.

A hearing on the motion for summary judgment was held on April 21, 2008.

Plaintiffs still had not responded to the outstanding discovery. When questioned by

the trial court as to whether an expert could be retained by Plaintiffs by the first of

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June, Plaintiffs’ counsel indicated that he was unable to make such an assurance. The

trial court then granted Defendants’ motion for summary judgment, implicitly

agreeing with Defendants’ assertions that expert testimony was required and that

Plaintiffs could not offer sworn expert testimony to meet their burden of proving the

essential elements of their claim, and further stated that there was no good faith effort

on the Plaintiffs’ part to move the case forward. Plaintiffs now appeal, again

asserting that adequate discovery had not been taken and that there existed a genuine

issue of material fact regarding causation.

DISCUSSION

We review this matter de novo. Reynolds v. Select Properties, Ltd., 93-1480

(La. 4/11/94), 634 So.2d 1180. Accordingly, we must determine, using the same

criteria applied by the trial court, whether any genuine issue of material fact exists

and whether the mover is entitled to judgment as a matter of law. La.Code Civ.P. art.

966(B) and (C). The initial burden of proof is with the mover to show that no

genuine issue of material fact exists. However, in Butler v. DePuy, 04-101, p. 3

(La.App. 3 Cir. 6/9/04), 876 So.2d 259, 261 (citing Smith v. Our Lady of the Lake

Hosp., Inc., 93-2512 (La. 7/5/94), 639 So.2d 730), we noted:

[I]f 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.

Moreover, in Young v. Mobley, 05-547, p. 5 (La.App. 3 Cir. 3/1/06), 923 So.2d

917, 920-21, we explained:

Louisiana Revised Statute 9:2794 provides the applicable burden
of proof for a plaintiff in a medical malpractice case. That article

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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. Generally, expert testimony is 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). There is an exception to
this general rule for cases where the negligence is so obvious that a lay
person can infer negligence without the guidance of expert testimony.
Thomas v. Southwest La. Hosp. Ass’n., 02-0645 (La.App. 3 Cir.
12/11/02), 833 So.2d 548, writ denied, 03-0476 (La.4/25/03), 842 So.2d
401 (citing Pfiffner v. Correa, 94-0924, 94-0963, 94-0992
(La.10/17/94), 643 So.2d 1228).

We agree with the trial court’s finding that this is not a case where negligence

is so obvious that expert testimony is unnecessary. Issues of the relation between any

alleged failure on the part of Dr. Rainey to properly test Mrs. Simien, the recurrence

of her cancer, and any resultant damages are complex, and we find that Plaintiffs

would be required to present expert testimony to establish the elements of her case.

As in Young, we note that Plaintiffs would not be able to use the testimony of defense

experts (in the form of the medical review panel opinion) to establish causation since

the panel indicated that its opinion was that the conduct complained of was not a

factor of the resultant damages.

Defendants met their initial burden of proof on the motion for summary

judgment. The panel opinion shows that there is an absence of factual support for an

essential element of Plaintiffs’ claim, i.e., that there was a causal connection between

the breach and the resulting injury. As such, the burden shifted to Plaintiffs to

“sufficiently establish the existence of proof of an essential element of his claim on

which he is to bear the burden of proving at trial.” Alex v. Dr. X, 96-1196, p. 4

(La.App. 3 Cir. 3/5/97), 692 So.2d 499, 502; La.Code Civ.P. art. 966(C). Plaintiffs

produced no expert testimony as to causation in opposition to the motion for summary

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judgment and could not agree to any time frame in which to retain such an expert.

Therefore, we find the Plaintiffs did not successfully rebut Defendants’ showing on

summary judgment. Accordingly, because Plaintiffs failed to produce factual

support sufficient to establish that they would be able to satisfy their evidentiary

burden of proof at trial, the trial court was correct in granting summary judgment in

favor of Defendants.

We next address Plaintiffs’ argument that there had been insufficient time to

conduct discovery. Nearly three years elapsed between the alleged malpractice and

the grant of the summary judgment in favor of Defendants. Approximately nine

months passed between the filing of Plaintiffs’ petition and the hearing on the motion

for summary judgment. Plaintiffs had retained counsel nearly two months before the

hearing. No answers to outstanding discovery were made during that time. Further,

Plaintiffs could not, or would not, commit to any time frame for the retention of

experts when such an option was offered by the trial court. Plaintiffs were given

every opportunity to present expert testimony to support their claims.

We further note, as we did in Young, 923 So.2d at 921 (citing Simoneaux v.

E.E. du Pont de Nemours and Co., Inc., 483 So.2d 908, 912 (La.1986)), that “[t]here

is no absolute right to delay action on a motion for summary judgment until discovery

is completed.” Louisiana Code of Civil Procedure article 966 provides that a defense

motion for summary judgment may be made at “any time” and that “[a]fter adequate

discovery or after a case is set for trial, a motion which shows that there is no genuine

issue as to material fact and that the mover is entitled to judgment as a matter of law

shall be granted.” [Emphasis added.] The trial court has discretion to render a

summary judgment or to require further discovery. Estate of Loveless ex rel Loveless

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v. Gay, 41,575 (La.App. 2 Cir. 12/13/06), 945 So.2d 233. As such, on the facts of this

case, we find no error in the trial court’s grant of summary judgment while there was

outstanding discovery or before Plaintiffs retained an expert.

DECREE

The trial court’s grant of summary judgment in favor of Defendants, Medical

Protective Company and Dr. John Rainey, is affirmed. Costs of this appeal are

assessed against Plaintiffs-Appellants, Cleotter and Ruben Simien.

AFFIRMED.

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