Shirlene and Larry Thibodeaux v. Lafayette General Surgical Hospital, LLC

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-1523

SHIRLENE AND LARRY THIBODEAUX

VERSUS

LAFAYETTE GENERAL SURGICAL HOSPITAL, LLC

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C20091160
HONORABLE KRISTIAN DENNIS EARLES, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Billy Howard Ezell, and David E. Chatelain,*
Judges.

AFFIRMED.

Nicholas Gachassin, Jr.
Gachassin Law Firm
P. O. Box 80369
Lafayette, LA 70598-0369
(337) 235-4576
Counsel for Defendant/Appellee:
Lafayette General Surgical Hospital, LLC

Sera Hearn Russell III
Attorney at Law
P. O. Box 53866
Lafayette, LA 70505-3866
(337) 237-7171
Counsel for Plaintiffs/Appellants:
Shirlene Thibodeaux
Larry Thibodeaux

*
Honorable David E. Chatelain participated in this decision by appointment of the
Louisiana Supreme Court as Judge Pro Tempore.

Julie Savoy
Gachassin Law Firm
P. O. Box 80369
Lafayette, LA 70598-0369
(337) 235-4576
Counsel for Defendant/Appellee:
Lafayette General Surgical Hospital, LLC

SAUNDERS, Judge.

This is a medical malpractice case wherein the plaintiffs, wife and husband,

brought their claims against a hospital. The wife underwent an initial surgery, had

complications, then underwent a second surgery on the same day to attempt to

alleviate those complications. The plaintiffs claim that they suffered damages from

a jarring transfer of the wife from the surgical table to a gurney following her initial

surgery and that the recovery room nursing staff’s delay in notifying the surgeon of

complications in the wife’s initial surgery led her to have permanent Complex

Regional Pain Syndrome (CRPS).

The plaintiffs filed a complaint with the Louisiana Patient’s Compensation

Fund, and a medical review panel was formed. According to the unanimous opinion

of the medical review panel, the hospital, through its nurses, did not breach the

standard of care that it owed to the plaintiffs. Further, one of the members of the

review panel opined that the wife’s outcome resulted from the complications that

occurred in the initial surgery and not from any action or inaction by the hospital

nursing staff.

The plaintiffs then filed suit against the hospital for medical malpractice. The

hospital filed a motion for summary judgment based on what it alleged was the

plaintiffs’ lack of evidence that the hospital had breached the standard of care it owed

to the plaintiffs and on the plaintiffs’ lack of evidence that any breach was causally

linked to the damages suffered by them. The trial court, without written reasons,

granted the summary judgment. The plaintiffs appeal. We affirm.

FACTS AND PROCEDURAL HISTORY:

On July 5, 2006, Shirline Thibodeaux (Ms. Thibodeaux) was admitted to

Lafayette General Surgical Hospital, LLC (LGSH) for an elective surgical procedure,

an anterior cervical discectomy at the C5-6 and C6-7 levels of the spine. The surgery

was an attempt to relieve neck pain, left arm pain, and weakness in her left arm and

hand. The surgery was performed by Dr. Ilyas Munshi, a neurosurgeon.

Following her surgery, Ms. Thibodeaux was transferred from the surgical table

to a gurney to be taken to the recovery room, then to a room located on the floor of

the hospital. According to Ms. Thibodeaux, when she was transferred from the

surgical table to the gurney she felt a jar and significant pain. Ms. Thibodeaux

contended that she notified hospital personnel immediately of this pain and that she

was administered pain medication in the recovery room.

Ms. Thibodeaux’s medical records indicate that she began showing signs of

complications in the form of inability to move her left arm and hand and significant

weakness in the grip of her left hand while in her hospital room. The floor nurse

contacted Dr. Munshi and reported those complications to him. He later performed

a second surgery to in an attempt to correct these complications. Unfortunately, these

complications resulted in Ms. Thibodeaux having permanent CRPS.

According to Ms. Thibodeaux, LGSH’s recovery room nurses were aware of

her significant pain and were negligent in failing to notify Dr. Munshi in a timely

fashion. Further, according to Ms. Thibodeaux, the jarring from her transfer from the

surgical table to a gurney caused the complications, and the recovery room nurses’

delay in notifying Dr. Munshi resulted in a loss of chance for successful recovery

from those complications and a loss of consortium on behalf of her husband, Larry

Thibodeaux.

On January 2, 2007, Ms. Thibodeaux and Larry Thibodeaux (the Thibodeauxs)

filed a complaint with the Louisiana Patient’s Compensation Fund. After going

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through the medical review process, the medical review panel reached a unanimous

opinion that LGSH had not breached the standard of care it owed to the Thibodeauxs.

On February 25, 2009, the Thibodeauxs filed suit against LGSH for medical

malpractice. After some discovery was conducted, LGSH filed a motion for summary

judgment. LGSH based its motion on its contention that the Thibodeauxs could not

carry their burden to prove at trial that a breach of the applicable standard of care

occurred or that there was a causal link between the Thibodeauxs’ alleged damages

and any alleged deviation from the applicable standard of care. The trial court

granted LGSH’s motion without written reasons. The Thibodeauxs timely filed this

appeal alleging the following assignments of error:

ASSIGNMENTS OF ERROR:

1. The trial court erred in accepting as true the facts set forth in the LGSH’s
motion for summary judgment and gave no weight whatsoever to the affidavit
of Ms. Thibodeaux or Dr. Munshi’s deposition testimony.

2. The trial court erred in concluding that there was no evidence of a change in
Ms. Thibodeaux’s outcome despite Dr. Munshi’s deposition testimony entered
into the record.

ASSIGNMENT OF ERROR NUMBERS ONE AND TWO:

In their first assignment of error, the Thibodeauxs allege that the trial court

erred in accepting as true the facts set forth in the LGSH’s motion for summary

judgment and giving no weight whatsoever to the affidavit of Ms. Thibodeaux or Dr.

Munshi’s deposition testimony. In their second assignment of error, the Thibodeauxs

alleged that the trial court erred in concluding that there was no evidence of a change

in Ms. Thibodeaux’s outcome despite Dr. Munshi’s deposition testimony entered into

the record. Given that both assignments of error are directed towards the trial court

granting a motion for summary judgment and the appropriate standard of review

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applicable to a motion for summary judgment, we will address whether the trial court

properly granted LGSH’s motion for summary judgment under one heading.

Summary judgments are subject to a de novo review. Covington v. McNeese

State Univ., 08-505 (La.App. 3 Cir. 11/5/08), 996 So.2d 667, writ denied, 09-69 (La.

3/6/09), 3 So.3d 491. “The 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.Code Civ.P. art.

966(A)(2). A motion for summary judgment “shall be rendered forthwith 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.Code Civ.P. art. 966(B).

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

La.Code Civ.P. art. 966(C)(2).

In this case, the Thibodeauxs filed suit against LGSH, alleging that through its

nurses and employees, LGSH’s actions were negligent and fell below the standard of

care and those actions caused damage to them. The Thibodeauxs have the burden to

prove these allegations at trial. See Smith v. State through Dep’t., Res. Admin., 523

So.2d 815 (La.1988). Therefore, LGSH, as movant for the motion for summary

judgment, does not have the burden to “negate all essential elements of the

[Thibodeauxs’] claim.” La.Code Civ.P. art. 966(C)(2). Instead, LGSH merely has

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to point out a lack of support for an essential element of the Thibodeauxs’ claim.

Thereafter, the burden is then on the Thibodeauxs to show some support that they can

satisfy their evidentiary burden on that element. If they cannot, there is no genuine

issue of material fact, and the motion for summary judgment should be granted.

A hospital is bound to exercise the requisite amount of care
toward a patient that the particular patient’s condition may require. It is
the hospital’s duty to protect a patient from dangers that may result from
the patient’s physical and mental incapacities as well as from external
circumstances peculiarly within the hospital’s control. A determination
of whether a hospital has breached the duty of care it owes to a
particular patient depends upon the circumstances and the facts of that
case.

Hunt v. Bogalusa Cmty. Med. Ctr., 303 So.2d 745, 747 (La.1974).

LGSH based its motion for summary judgment on two contentions: that the

Thibodeauxs failed to produce sufficient admissible evidence showing that the

applicable standard of care was breached and that the Thibodeauxs failed to show that

there was a causal link between their damages and any alleged deviation from the

applicable standard of care. If LGSH can show either of its contentions to be accurate

and the Thibodeauxs fail to put forth sufficient evidence that they can satisfy their

evidentiary burden on that element, then summary judgment is appropriate.

LGSH submitted, inter alia, the unanimous opinion of the medical review

panel to support its contention that it did not breach the applicable standard of care.

It states as follows:

The evidence does not support the conclusion that
[LGSH, through its nursing staff] failed to meet the
applicable standard of care as charged in the complaint.

This opinion is based upon the following:

The patient’s recovery room course was not unusual,
and the pain medication administered was reasonable in
light of the pre-op symptoms. After the patient arrived to

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the floor, and after a nursing assessment demonstrated a
new motor deficit, Dr. Munshi was immediately notified.
Therefore, the nursing care was professional and adequate.

The Thibodeauxs countered with the affidavit of Ms. Thibodeaux. Her

affidavit states, in pertinent part:

5. When she got to the recovery room, she was still groggy but
complained of severe pain;

6. She was given Morphine (she does not know how much), but this
did not relive the pain;

7. She recalls getting at least one additional unit of Morphine;

8. She was eventually transferred to a “room[]”[;]

9. She advised the nurses in the room of her condition;

10. The nurses then advised her that they had discussed this among
themselves and that they would call Dr. Munshi (her
neurosurgeon);

11. Dr. Munshi was eventually called.

Additionally, the Thibodeauxs cite the deposition of Dr. Munshi. In his

deposition, Dr. Munshi clearly indicated that, given the records he reviewed, he

would have liked to have been notified earlier that Ms. Thibodeaux was suffering

difficulties related to pain and strength in her upper, left extremity.

This set of facts arguably creates a genuine issue of material fact regarding

whether LGSH breached the standard of care it owed to the Thibodeauxs with respect

to the length of time it took the LGSH nursing staff to notify Dr. Munshi of Ms.

Thibodeaux’s complications. However, we need not reach such a conclusion

regarding the delay of notifying Dr. Munshi because the record is completely devoid

of evidence that causally links that potential breach to the damages suffered by Ms.

Thibodeaux. The only evidence in the record that reaches a definite conclusion on

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the causal link between the delay and the Thibodeauxs’ damages is the affidavit of

Dr. John R. Clifford, a neurosurgeon who has been practicing since 1976. After

having viewed all of Ms. Thibodeaux’s medical records, the Thibodeauxs’ complaint,

and Dr. Munshi’s deposition, Dr. Clifford stated the following in his affidavit:

It is my opinion that all of Ms. Thibodeaux’s problems are due to
the initial surgery on July 5, 2006, not to anything that the nurses did or
did not do in caring for Ms. Thibodeaux subsequent to the surgery. It
is my opinion that the patient would have had the same subsequent
problems even if Dr. Munshi had re-operated sooner.

It is my opinion that Ms. Thibodeaux exhibits the symptoms of
central cord syndrome caused by problems from the initial surgery on
July 5, 2006; the outcome would not have been different even had Dr.
Munshi re-operated sooner.

The Thibodeauxs respond by referencing the deposition of Dr. Munshi.

However, our review of Dr. Munshi’s deposition indicates that he spoke to a causal

link between the damages suffered by the Thibodeauxs and any potential breach of

the standard of care by LGSH on one occasion. On that occasion, he stated:

Q Doctor, do you believe that if you had been notified earlier, you
could have given Ms. Thibodeaux a better chance of recovery?

A She may still have had the problems she’s had, but if somebody
develops an acute onset of neck pain, weakness in the recovery
room or soon after surgery, the surgeon needs to be notified and
the surgeon needs to take care of whatever needs to be taken care
of, meaning obtaining a CT scan, re-operating, whatever needs to
be done[.] I would have loved to have known sooner.

This excerpt of testimony is clear. While Dr. Munshi would have liked to have

been notified earlier of Ms. Thibodeaux’s complications, he cannot say that earlier

notification would have changed her result. In order to recover for medical

malpractice, the Thibodeauxs must be able to prove by a preponderance of the

evidence that this delay is causally linked to their damages. Here, Dr. Munshi simply

stated that Ms. Thibodeaux may have had the same problems without the delay. Thus,

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it is clear, that this testimony does not rise to the level that the Thibodeauxs must

prove at trial. Therefore, Dr. Clifford’s opinion on causation is uncontested and is the

only evidence in the record available to this court on the issue of causation with

respect to the delay in notification of Dr. Munshi. His opinion, as stated above, is

that it was the first surgery that caused the complications that led to the Thibodeauxs’

damages. Accordingly, we find that there is no genuine issue of material fact

regarding this essential element of the Thibodeauxs’ claim for a loss of chance for a

better outcome from Ms. Thibodeaux’s surgery.

The Thibodeauxs did allege in their suit against LGSH that the jarring that Ms.

Thibodeaux underwent when she was transferred from the surgical table to the gurney

by LGSH employees caused her significant pain. The affidavit of Ms. Thibodeaux

states, in pertinent part:

2. [Ms. Thibodeaux] was conscious and aware of her move from the
operating table to the gurney that would take her to the recovery
room;

3. During the move from the operating table to the gurney, she felt
a jar and significant pain;

4. She reported this immediately to the people attempting to move
her;

While this is evidence of pain suffered by Ms. Thibodeaux, there is no

indication in the record that this transfer caused Ms. Thidobeaux’s permanent CRPS.

To the contrary, as stated above, the only evidence in the record that speaks

definitively on this issue is the affidavit of Dr. Clifford. He opines that the bone plug

at C5-6 was indenting and impinging her spinal cord, and this impingement is what

caused her permanent CRPS.

However, the question remains whether the Thibodeauxs have raised a genuine

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issue of material fact as to a potential recovery from LGSH for the pain that she

alleges she endured from the less than ideal transfer. Similar to our finding regarding

the delay issue, when this court views the record on this issue, we find it clear that

regardless of whether the alleged jarring transfer was a breach of the standard of care

owed by LGSH to the Thibodeauxs, the level of pain that Ms. Thibodeaux endured

just moments after her surgery is not an unexpected result. Ms. Thibodeaux reported

a level of pain of 4 out of 10, a tolerable level, just after the transfer and transport to

the recovery room. Moreover, Dr. Munshi testified to the following via deposition:

Q After the [first] surgery, were you able to communicate with Ms.
Thibodeaux to see how she was doing?

A She was groggy. When I left the operating room, she was groggy.
She had been extubated. I went and talked to the family at that
time. She was not completely awake and completely alert, but she
was groggy[,] and I know she was being extubated and she would
be waking up at that time.

Q Was there any problems that you were aware of at that moment in
time with either her surgery or any other condition associated
with the surgery?

A No. Not from what I could tell.

This testimony indicates that Ms. Thibodeaux, even if she was experiencing

some pain post surgery, was not experiencing pain at a level that was unusual directly

following this type of surgery and the subsequent transfer from the surgical table to

a gurney. Therefore, we find that the Thibodeauxs have failed to raise a genuine issue

of material fact regarding whether the transferring action is causally linked to any

damage suffered by them. As such, we affirm the trial court’s judgment granting

LGSH’s motion for summary judgment.

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CONCLUSION:

The Thibodeauxs raised two assignments of error. Both assignments allege

that the trial court erred in granting LGSH’s motion for summary judgment. Given

that the standard of review for a motion for summary judgment is a de novo review

of the record, we simply addressed whether the trial court properly granted LGSH’s

motion.

We found that the Thibodeauxs could not prove causation at the trial level

regarding their claim for loss of chance for a better outcome of Ms. Thibodeaux’s

surgery because they put forth no evidence that causally linked that delay to any

damages they suffered. Further, we found that the Thibodeauxs could not prove that

the jarring that Ms. Thibodeaux endured when she was being transferred from the

surgical table to a gurney caused them damages, as they produced no evidence that

such an event could have caused the damages that occurred. As such, we affirm the

trial court’s judgment granting LGSH’s motion for summary judgment All costs of

this appeal are assessed to the Thibodeauxs.

AFFIRMED.

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