Jessica M. Parker v. University Medical Center

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-1226

JESSICA M. PARKER

VERSUS

UNIVERSITY MEDICAL CENTER,
ET AL.

**********
APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT,
PARISH OF LAFAYETTE, NO. C-20054710, DIV. A
HONORABLE JOHN D. TRAHAN, DISTRICT JUDGE

**********

J. DAVID PAINTER
JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Jimmie C. Peters, and J.
David Painter, Judges.

AFFIRMED.

Jessica M. Parker, Pro Se
830 Belle Drive
Breaux Bridge, LA 70517
Plaintiff-Appellant:
Jessica M. Parker, Pro Se

Katherine Wheeler, Assistant Attorney General
P. O. Box 94005
Baton Rouge, LA 70804-9095
Counsel for Defendant-Appellee:
University Medical Center

PAINTER, Judge.

Plaintiff, Jessica M. Parker, filed a medical malpractice suit against University

Medical Center relative to two gall bladder surgeries performed on November 27,

2002, and January 29, 2003. Parker now appeals the dismissal of her suit by the trial

court’s grant of summary judgment in favor of University Medical Center. For the

following reasons, we affirm the trial court’s grant of summary judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Parker was admitted to University Medical Center in Lafayette, Louisiana, on

November 26, 2002, for removal of her gall bladder (cholecystectomy) and stones in

her common bile duct. The surgery was performed on November 27, 2002, and

Parker was discharged on December 3, 2002. On January 28, she returned for follow-

up care and complained of flank pain radiating to the lower left quadrant and nausea

and vomiting for four days. She further complained of a “foreign body” around the

incision site. She was admitted to the hospital on January 29 and underwent a

procedure to remove several small stones from her common bile duct. She was

discharged the same day. She returned for follow-up care on February 4, 2003, and

reported no complaints.

Parker requested the formation of a medical review panel, complaining that the

surgery on November 27, 2002 was “botched” and that two metallic clips or “stay

sutures” were left inside the common bile duct causing an obstruction. On June 7,

2005, the medical review panel returned an opinion in favor of University Medical

Center. Specifically, the panel concluded that University Medical Center did not

breach the applicable standard of care and that the patient received appropriate

diagnostic, therapeutic, and surgical intervention. The panel also found that metal

clips are routinely used during the course of gall bladder removals to control bleeding

or bile leakage and that the clips in this case were placed on the appropriate

structures.

Following the unfavorable panel decision, Parker filed this suit on September

2, 2005. University Medical Center filed a motion for summary judgment based on

1

the panel opinion and the fact that Parker did not have an expert witness through

whose testimony the applicable standard of care and breach thereof could be proven.

The matter was set for hearing on February 9, 2009. In opposition to the motion for

summary judgment, Parker submitted uncertified and incomplete copies of her

medical records and a case report article by V. H. Chong, H. B. Yim, and C. C. Lim

entitled, “Clip-induced biliary stone.” Following this hearing, the motion for

summary judgment was denied, and Plaintiff was instructed that if no evidence was

submitted, the case would be dismissed. The matter was re-set for hearing on May

18, 2009, and continued upon Parker’s request for September 8, 2009. Parker did not

appear at the hearing on September 8. On September 14, 2009, the trial court signed

a judgment granting University Medical Center’s motion for summary judgment and

dismissing Parker’s claims with prejudice at her cost. Parker now appeals, asserting

that the trial court erred in granting the summary judgment without ruling on her

motion to compel discovery and in not allowing her an opportunity to provide

affidavits from medical experts. For the following reasons, we affirm.

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.

Simien v. Med. Protective Co., 08-1185, p. 4 (La.App. 3 Cir. 6/3/09), 11 So.3d 1206,

1209, writ denied, 09-1488 (La. 10/2/09), 18 So.3d 117.

In Young v. Mobley, 05-547, pp. 4-5 (La.App. 3 Cir. 3/1/06), 923 So.2d 917,

920-21, we stated:

Louisiana Revised Statute 9:2794 provides the applicable burden
of proof for a plaintiff in a medical malpractice case. That article
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 [v. DePuy, 04-101, p. 3 (La.App. 3 Cir. 6/9/04)], 876

2

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 do
not find that this is such a case because, as in Butler, the procedure at
issue was an invasive one performed by a medical specialist.
Accordingly, we find that Plaintiffs would be required to produce expert
testimony to establish the applicable standard of care and a breach
thereof. We note that it has been recognized that a plaintiff can establish
these things through the testimony of the defendant's expert witness.
Thomas, 833 So.2d 548 (citing Sandifer v. Wise, 00-293, 00-294
(La.App. 4 Cir. 2/7/01), 780 So.2d 1099). However, in the present case,
this option is not available to Plaintiffs because the expert testimony, in
the form of the panel opinion and affidavit of Dr. Mobley, submitted on
behalf of Dr. Mobley and Natchitoches Parish Hospital, indicated that
there was no breach of the applicable standards of care by either
provider.

All of Parker’s arguments on appeal center on the fact that she believes that she

was not given adequate answers to discovery requests and that she was not afforded

an opportunity to complete discovery. Parker first complains that she was not

allowed to conduct sufficient discovery. Specifically, she complains that the trial

court erred in granting summary judgment without ruling on her motion to compel

discovery. However, the record reflects that her motion to compel was not processed

as a deposit was needed. The motion was filed on March 4, 2008. Parker did not file

her in forma pauperis affidavit until January 28, 2009. Parker further argues that she

was not allowed “an opportunity to provide affidavits from medical experts as a result

of obtaining answers from Defendant’s answers to interrogatories.” Parker states:

“the requested set of interrogatories were needed to depose the medical review panels

[sic] affidavits that were offered in support of the summary judgment against her” and

that “the set of interrogatories would allow her expert medical witness to substantiate

her claim and aid with developing the expert testimony.”

In Simien, 11 So.3d at 1210-11, we stated:

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

3

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 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.

Such is the case here. Parker was required to submit expert testimony to establish the

applicable standard of care and a breach thereof. Use of the medical review panelists

was not available to her since their opinion was that there was no breach. The trial

court gave Parker an additional three months from the initial hearing on the motion

for summary judgment in which to conduct discovery or obtain complete answers to

her outstanding discovery, if any. Then, upon her motion for continuance of the May

hearing, Plaintiff was given an additional four months to conduct discovery prior to

the ultimate ruling on the motion for summary judgment. We further note that Parker

was provided with copies of her medical records from University Medical Center,

including all x-rays and film. Parker had more than four years to obtain the services

of an expert and to complete discovery. Parker was given more than adequate

opportunity to secure the services of an expert and to present such testimony to the

court in opposition to the motion for summary judgment. Therefore, we find no error

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

University Medical Center.

DECREE

For all of the foregoing reasons, the summary judgment granted in favor of

University Medical Center is affirmed. Costs of this appeal are assessed against

Plaintiff-Appellant, Jessica M. Parker.

AFFIRMED.

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

4