Rene' Owens v. Dr. Ruth L. Smothers, M.D.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-575

RENE OWENS

VERSUS

DR. RUTH SMOTHERS AND
OUR LADY OF LOURDES REGIONAL
MEDICAL CENTER

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APPEAL FROM THE
FIFTEENTH JUDICAL DISTRICT COURT,
PARISH OF LAFAYETTE, NO. 2010-4152-C
HONORABLE EDWARD B. BROUSARD, PRESIDING

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J. DAVID PAINTER
JUDGE

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Court composed of Marc T. Amy, Elizabeth A. Pickett, and J. David Painter,
Judges.

AFFIRMED.

Marc W. Judice, Attorney at Law
926 Coolidge Boulevard
Lafayette, LA 70503
COUNSEL FOR DEFENDANT-APPELLEE:
Dr. Ruth Smothers

John-Michael Lawrence, Attorney at Law
Energy Center, Suite 2900, PMB 204
1100 Poydras Street
New Orleans, LA 70163-2900

COUNSEL FOR PLAINTIFF-APPELLANT:
Rene Owens

Robert A. Mahtook, Jr., Attorney at Law
Lisa M. Milazzo, Attorney at Law
600 Jefferson Street, Suite 1000
Lafayette, LA 70501
COUNSEL FOR DEFENDANT-APPELLEE:
Our Lady of Lourdes Regional Medical Center

PAINTER, Judge.

Plaintiff, Rene Owens, appeals the trial court’s grant of summary judgment in

favor of Defendants, Dr. Ruth Smothers and Our Lady of Lourdes Regional Medical

Center. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On June 30, 2008, Owens suffered burns to his lower extremities when a

welding torch that he was using “blew up.” He was admitted to Our Lady of Lourdes

and treated by Dr. Smothers. He had second degree burns over seven percent (7%) of

his body and partial thickness burns on his left and right tibias. He was discharged on

July 4, 2008, with pain medication and instructions to follow up with plastic surgery

and to continue his wound care as an outpatient. Owens alleges that this discharge

was premature and that he experienced pain to the point of considering suicide. He

alleges that the negligent discharge made additional treatment (including admission to

Louisiana Extended Care Hospital of Lafayette) necessary and caused additional pain

and suffering.

Owens filed a complaint with the Louisiana Patients’ Compensation Fund,

seeking review of the treatment provided to him by Dr. Smothers, Dr. Stephen

DeLatte (a plastic surgeon who provided a consult at Our Lady of Lourdes), and Our

Lady of Lourdes. On May 4, 2010, the medical review panel returned an opinion that

neither Dr. Smothers nor Our Lady of Lourdes breached the applicable standard of

care in the treatment of Owens. Dr. DeLatte was dismissed by Owens prior to the

panel’s opinion.

On June 18, 2010, Owens filed this suit against Dr. Smothers and Our Lady of

Lourdes. Dr. Smothers and Our Lady of Lourdes filed motions for summary

judgment, alleging that Owens failed to and cannot present any competent evidence

that either breached the applicable standard of care. Specifically, Owens identified no

expert witnesses. On March 23, 2011, the trial court granted both motions for

summary judgment, and Owens now appeals. Owens alleges that the trial court was

premature in ruling on the motions since the deposition of his expert, Dr. DeLatte,

was scheduled to take place two days after the hearings on the motions for summary

judgment and that he needed no expert testimony due to “the emergency condition

and nature” of his injuries.

DISCUSSION

In Simien v. Medical Protective Co., 08-1185, pp. 4-5 (La.App. 3 Cir. 6/3/09),

11 So.3d 1206, 1209-10, writ denied, 09-1488 (La. 10/2/09), 18 So.2d 117, this court

recognized the standard of review applicable to this case:

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 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

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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).

Owens contends that the treating physicians in this case are the experts

and that no outside experts are needed. Owens asserts that a jury could easily

determine, through the use of common sense, that he was still in need of care

when he was negligently discharged. We do not agree with Owens’ contention

that no other expert testimony is required in this case. Owens must prove that

the discharge was, in fact, negligent and a breach of the applicable standard of

care. Whether his discharge from the hospital was negligent and whether it

resulted in any damages are complex questions, and as in Simien, we find that

Owens would be required to present expert testimony to establish the elements

of his case. Defendants met their initial burden of proof on the motion for

summary judgment, and the burden shifted to Owens 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). Owens produced no

expert testimony in the form of deposition or affidavit in opposition to the

motion for summary judgment. Thus, the trial court was correct in granting

summary judgment in favor of Dr. Smothers and Our Lady of Lourdes.

Owens also claims that the granting of the motions for summary

judgment was premature in that the depositions of the personnel associated with

the two hospitals involved in his care had not been taken. Apparently, the

deposition of Dr. DeLatte, who had once been named as a defendant, was

scheduled. Nearly three years had passed between Owens’ injury and the grant

of summary judgments. We agree with Defendants that Owens should have at

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least offered an affidavit from Dr. DeLatte. Owens is not free to simply offer

no evidence to rebut the motions for summary judgment.

As we did in Simien, 11 So.3d at 1210-11:

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 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.

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

DECREE

For all of the foregoing reasons, the trial court’s grant of summary judgment in

favor of Dr. Smothers and Our Lady of Lourdes is affirmed. Costs of this appeal are

assessed to Plaintiff-Appellant, Rene Owens.

AFFIRMED.

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