Allen Dehart v. Bruce A. Jones, M. D.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

19-789

ALLEN DEHART, ET AL.
VERSUS

BRUCE A. JONES, M.D., ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20123593
HONORABLE THOMAS R. DUPLANTIER, DISTRICT JUDGE

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VAN H. KYZAR
JUDGE

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Court composed of Billy Howard Ezell, Phyllis M. Keaty, and Van H. Kyzar,
Judges.

JUDGMENT VACATED IN PART AND RENDERED;
AFFIRMED IN PART; AND REMANDED.

Samuel David Abraham
5040 Ambassador Caffery Parkway
Lafayette, LA 70508
(337) 234-4524
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Allen Dehart
Adrienne Dehart
Ashley Dehart
Anissa Dehart

Nicholas Gachassin, III

Brandon M. Rhodes

Julie Savoy

Gachassin Law Firm

P. O. Box 80369

Lafayette, LA 70598-0369

(337) 235-4576

COUNSEL FOR DEFENDANTS/APPELLEES:
Lafayette General Medical Center
Amy Falconer

Alan K. Breaud

Breaud & Meyers

P. O. Drawer 3448

Lafayette, LA 70502

(337) 266-2200

COUNSEL FOR DEFENDANT/APPELLEE:
Bruce A. Jones, M.D.

KYZAR, Judge.

In this medical malpractice case, the plaintiffs, Allen, Adrienne, Ashley, and
Annisa DeHart, appeal from a trial court judgment in favor of the defendants,
Lafayette General Medical Center and Amy Falconer, finding no genuine issue of
material fact as to the defendants’ breaches of the standard of care or causation, on
issues of excessive bleeding and negligent advertising/informed consent and
dismissing their claims against the defendants with prejudice. For the following
reasons, we vacate in part and render judgment, affirm in part, and remand.

DISCUSSION OF THE RECORD

The facts of this matter were addressed in our prior opinion, DeHart v. Jones,

18-764, pp. 2-3 (La.App. 3 Cir. 3/27/19), 269 So.3d 801, 803-04, as follows:

This medical malpractice action arises out of surgical
complications during a robotically-assisted heart valve repair surgery
performed on Arlene DeHart by Dr. Bruce Jones at LGMC. Ms.
Falconer acted as perfusionist. During the procedure, Mrs. DeHart bled
profusely from her femoral artery. Plaintiffs, Mrs. DeHart’s husband
and children, alleged this excessive bleeding and inadequate perfusion
flow led to the eventual failure of Mrs. DeHart’s kidneys, which
contributed to her death within a month of surgery on October 27, 2008.
After timely submitting the matter to a medical review panel, Plaintiffs
filed suit on June 26, 2012, against LGMC and Ms. Falconer, among
other defendants.

As to LGMC and Ms. Falconer, Plaintiffs alleged that the
surgical staff breached the applicable standard of care in failing to
communicate to Dr. Jones the source, extent, significance, and
magnitude of the bleed and its adverse impact on Mrs. DeHart’s
hemodynamics. Plaintiffs further alleged that LGMC was negligent in
its advertising and marketing of the robotic surgery and in obtaining
Mrs. DeHart’s informed consent for the procedure.

On May 15, 2018, LGMC and Ms. Falconer filed their motion
for partial summary judgment on the ground that Plaintiffs could not
carry their burden of proof as to breach or causation in their claims
regarding the bleeding issue. LGMC and Ms. Falconer then filed a
second motion for partial summary judgment on May 23, 2018, arguing
that Plaintiffs could not carry their burden of proof as to duty or
causation relating to their negligent advertising/informed consent
claims. Both motions were set for hearing on June 18, 2018. The
Lafayette Parish Sheriff's Office served Plaintiffs with notice of the

June 18, 2018 hearing date on May 29, 2018. Thereafter on June 1,

2018, Plaintiffs filed a motion to strike both motions because they were

not served with notice of the court date thirty days before the hearing

as mandated by La.Code Civ.P. art. 966(C)(1)(b). On June 18, 2018,

the trial court denied the motion to strike and continued the hearing on

the partial summary judgment motions to June 27, 2018. In response,

Plaintiffs filed another motion to strike, again for lack of timely notice

of the hearing date. The trial court denied the motion to strike and

ultimately granted LGMC’s and Ms. Falconer’s motions, dismissing

them “entirely from this lawsuit with prejudice on summary Judgment.”

The DeHarts appealed the trial court’s July 16, 2018 judgment in favor of
Lafayette General Medical Center (LGMC) and Amy Falconer (Ms. Falconer or “the
perfusionist”) (referred to collectively as “the defendants”). On appeal, we vacated
the judgment because the defendants’ motions “were granted without the thirty-day
notice required by La.Code Civ.P. art. 966(C)(1)(b),” granted the DeHarts’ motions
to strike the motions, and remanded the matter for further proceedings. /d. at 805.

Once the matter was back in the trial court, the defendants again moved for
partial summary judgment on the excessive bleeding and negligent
advertising/informed consent issues. The DeHarts opposed both motions with
supporting documents, including opinion evidence by Dr. Jeffery A. Green, an
anesthesiologist, and Alfred H. Stammers, a perfusionist. The defendants objected
to these exhibits and moved to strike them in their reply memorandum.

At the July 1, 2019 hearing, the trial court sustained the defendants’ objection
and granted their motion to strike Dr. Green’s opinion evidence but overruled their
objection as to Mr. Stammers. Next, the trial court granted judgment in favor of the
defendants on both the excessive bleeding and negligent advertising/informed
consent issues, finding no genuine issue of material fact as to the defendants’ breach

of the standard of care or causation on either issue. Written judgment was rendered

on July 22, 2019. It is from this judgment that the DeHarts appeal.

On appeal, the DeHarts raise four assignments of error:

l. Whether the trial court erred in not allowing
Plaintiffs/Appellants [e]xpert testimony of Jeffery Green into
evidence[.]

2. Whether the trial court erred in granting Motions for Summary

Judgment when genuine issues of material fact existed.

a. Did Lafayette General Medical Center, its Nurses,
Perfusionist and staff seek help outside of the
Operating Room as Mrs. DeHart continued to bleed
out, as the standard of care required.

b. Was Communication among the team adequate and
did the communication level comply with the
standard of care.

3. Did LGMC [sic] comply with their duty to make sure the
informed consent form was properly completed and filled out as
required by CMS and the Joint Commission for [A]ccreditation
in order to participate in their programs[.]

4. Material facts exist concerning whether the breaches of the
standards of care caused Mrs. DeHart to suffer injuries[.]

OPINION

“[S]ummary 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.” Murphy v.
Savannah, 18-991, p. 6 (La. 5/8/19), 282 So.3d 1034, 1038; La.Code Civ.P. art.
966(A). Appellate courts review summary judgment de novo using the same criteria
that governs the trial court’s determination of whether summary judgment is
appropriate, 1.e., whether there is any genuine issue of material fact, and whether the
mover is entitled to judgment as a matter of law. Wright v. La. Power & Light, 06-
118] (La. 3/9/07), 951 So.2d 1058; La.Code Civ.P. art. 966(A){3).

A material fact is one that “potentially insures or precludes recovery, affects
a litigant’s ultimate success, or determines the outcome of the legal dispute.” Hines
v. Garrett, 04-806, p. 1 (La. 6/25/04), 876 So.2d 764, 765 (per curiam). “A genuine

issue of material fact is one as to which reasonable persons could disagree; if

reasonable persons could reach only one conclusion, there is no need for trial on that
issue and summary judgment is appropriate.” Smitko v. Gulf S. Shrimp, Inc., |1-
2566, p. 8 (La. 7/2/12), 94 So.3d 750, 755.

If the mover will not bear the burden of proof at trial, it need only point out
“the absence of factual support for one or more elements essential to the adverse
party’s claim, action, or defense.” La.Code Civ.P. art. 966(D)(1). Once this occurs,
the burden shifts to “the adverse party to produce factual support sufficient to
establish the existence of a genuine issue of material fact or that the mover is not
entitled to judgment as a matter of law.” Jd. “Because it is the applicable substantive
law that determines materiality, whether a particular fact in dispute is ‘material’ for
summary judgment purposes can be seen only in light of the substantive law
applicable to the case.” Jackson v. City of New Orleans, 12-2742, 12-2743, p. 6 (La.
1/28/14), 144 So.3d 876, 882, cert. denied, 574 U.S. 869, 135 S.Ct. 197 (2014).

In order to establish their medical malpractice claim, the DeHarts must prove
by a preponderance of the evidence: (1) the standard of care appliable to the medical
provider; (2) that the medical provider breached the standard of care; and (3) a causal
connection between the breach and the resulting injury. La.R.S. 9:2794(A). Nurses
and medical technicians performing medical services are subject to the same
standard of care as physicians. Belmon v. St. Francis Cabrini Hosp., 427 $o.2d 541
(La.App. 3 Cir. 1983). The standard of care, as provided by La.R.S. 9:2794(A)(1),
is that “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.” The
standard of care for a physician or nurse practicing in a particular specialty is that
degree of care ordinarily practiced by physicians or nurses within that specialty.

La.R.S. 9:2794(A)(1).

The standard of care applicable to a hospital was discussed in Lewis v.
Cornerstone Hospital of Bossier City, LLC, 53,056, pp. 9-10 (La.App. 2 Cir.
9/25/19), 280 So.3d 1262, 1269:

Ina malpractice claim against a hospital, the plaintiff must prove,
as in any negligence action, that the defendant owed the plaintiff a duty
to protect against the risk involved, the defendant breached that duty,
the plaintiff suffered an injury, and the defendant’s actions were a
substantial cause in fact of the injury. McGlothlin v. Christus St.
Patrick Hosp., 2010-2775 (La. 7/1/11), 65 So. 3d 1218; Little v. Pou,
42,872 (La. App. 2 Cir. 1/30/08), 975 So.2d 666, writ denied, 2008-
0806 (La. 6/6/08), 983 So. 2d 920. A hospital is liable for its
employee’s negligence, including its doctors and nurses, under the
doctrine of respondeat superior. Little v. Pou, supra, and citations
therein. A hospital is bound to exercise the requisite standard of care
toward a patient that the particular patient’s condition may require and
to protect the patient from external circumstances peculiarly within the
hospital’s control. McGlothlin vy. Christus St. Patrick Hosp., supra;
Richardson v. Christus Schumpert Health Sys., 47,776 (La. App. 2 Cir.
2/27/13), 110 So. 3d 264, writ denied, 2013-0621 (La. 4/19/13), 112
So. 3d 228. The mere fact that an injury occurred or an accident
happened does not raise a presumption that the hospital was negligent.

Campo v. Correa, 2001-2707 (La. 6/21/02), 828 So. 2d 502;

Richardson v. Christus Schumpert, supra.

“Expert testimony is required to establish the standard of care of both the
physician and hospital in a medical malpractice action, unless the negligence
complained of is so obvious that a layperson can infer the negligence without the aid
of expert testimony.” Baez v. Hosp. Serv. Dist. No. 3 of Allen Parish, 16-951, pp. 5-
6 (La.App. 3 Cir. 4/5/17), 216 So.3d 98, 103.

Assignment of Error Number One

We first consider the DeHarts’ assertion that the trial court erred in excluding
Dr. Green’s opinion evidence. The defendants introduced Dr. Green’s deposition
testimony in support of their motion on the excessive bleeding issue, wherein he
stated that he did not think he was being asked to render opinions on whether the

perfusionist or LGMC’s surgical staff breached the standard of care during the

patient’s procedure. In opposing this motion, the DeHarts submitted Dr. Green’s

affidavit, report, and deposition testimony, which the defendants objected to in their
reply brief. During the July 1, 2019 hearing, the trial court sustained the defendants’
objection and ruled Dr. Green’s opinion evidence inadmissible.

On appeal, the DeHarts argue that Dr. Green testified that the surgical staff
failed to communicate the extent of the patient’s bleeding to Dr. Jones, that the
perfusionist failed to relay information to him concerning the patient’s flows and
pressures, and that these failures prevented Dr. Jones from addressing the excessive
bleeding issue properly. They further argue that Dr. Green causally connected the
blood transfusions necessitated by the patient’s blood loss to her post-operative
kidney failure, pulmonary complications, and infections. Thus, they claim that
because Dr. Green was qualified to render an opinion on these issues, his testimony
was relevant and should have been admissible.

The defendants’ argument concerning the admissibility of Dr. Green’s
opinion testimony is four-fold: 1) Dr. Green is not qualified to render opinions as to
the standard of care applicable to the perfusionist and the surgical staff because he
is an anesthesiologist; 2) his testimony did not create a genuine issue of material fact
because he admitted that he would not be rendering standard of care opinions as to
the perfusionist and the surgical staff at trial; 3) his testimony should be excluded
based on the law of the case doctrine; and 4) his testimony should be excluded
because it is based on an assumption.

The defendants point to the following colloquy from Dr. Green's deposition,
which they relied on during the prior summary judgment hearing:

Q. I just want to make sure that I have all your opinions with regard

to Ms. Falconer’s breaches in the standard of care. Can you run
those down for me, just so I’m sure that we’ve talked about them

all?

A. I don’t believe that I’m being asked to deliver opinion about any
breaches in the standard of care for the perfusionist.

Q. You do not expect to testify to that if we go to court in this?

A. | donot.

Q. With regard to the nurses, have we -- have I heard all of your
opinions with regard to their breaches in the standard of care, or
can you run those down for me, just so I’m sure that I’ve heard

them all?

A. Like Ms. Falconer, I don’t believe that I’ll be asked to provide
standard-of-care opinions in this case.

Q. You did include that in your affidavit which is why I ask. So
despite the fact that you’ve included that in your affidavit, if this
case were to go to trial, you do not expect to give an opinion with
regard to the nurses and the techs with regard the nurses and the
techs with regard to their breaches of the standard of care?

A. Right. Not regarding standard of care. I certainly have opinions

about their activities, but I don’t believe I’ll be asked to testify to
standard-of-care breaches for them.

At the outset, we find no merit in the defendants’ argument concerning the
law of the case doctrine. The trial court’s prior ruling excluding Dr. Green’s opinion
evidence was contained in the July 16, 2018 judgment, which was vacated by this
court in the prior appeal. Accordingly, we find the law of the case doctrine
inapplicable.

The central question, which the trial court failed to address in excluding Dr.
Green’s opinion evidence, is whether he is, in fact, qualified to render opinions
regarding the standard of care and breaches by the perfusionist and surgical staff,
and not whether he was asked, or anticipated being called upon, to render those
opinions at trial. As Dr. Green stated in his deposition, he has “opinions about their
activities,” and he asserted those opinions in his affidavit, report, and deposition
testimony.

The DeHarts claim that the defendants’ objection was limited by La.Code

Civ.P. art. 966, to the timeliness of their submission and the form of their evidence.

However, the supreme court, in /adependent Fire Insurance Co. v. Sunbeam Corp.,

99-2181, 99-2257, p. 14 (La. 2/29/00), 755 So.2d 226, 235, adopted “the Daubert'"|
standards for admissibility of expert opinion evidence at the summary judgment
stage[.]” In Thomas v. Drew, 17-818, p. 5 (La.App. 3 Cir. 3/7/18), 240 So.3d 980,
983, this court held:

Dr. Drew did challenge the qualification of Dr. Gros in his reply
memorandum. Therefore, he followed the proper procedure pursuant to
La.Code Civ.P. art. 966(D)(2) in objecting to Dr. Gros’s affidavit. We
do agree with Mr. Thomas that in deciding whether to admit an expert
opinion affidavit at the summary judgment stage, the Daubert standards
should be considered by the trial court in determining whether the
expert is qualified to render an opinion. /ndependent Fire Ins. Co. v.
Sunbeam Corp., 99-2181, 99-2257 (La. 2/29/00), 755 So.2d 226.

Thus, we find that the defendants properly challenged Dr. Green’s qualifications in
their reply memorandum.

However, regarding the merits of the objection, we find that the trial court
excluded Dr. Green’s expert opinion evidence without first conducting a hearing to
properly consider whether he was qualified to render such an opinion. During the
hearing, the trial court stated the following:

The objection to Green was earlier, it was done last time. It’s done this

time. And I think pertinent to the argument is that Dr. Green does say:

I’m not a perfusionist. I’m not called to be an expert in this field. And

I don’t think you can use him in this part of your case to suggest that

there was some issue with flow and all the other stuff, and I’m going to

sustain the objection to Dr. Green’s opinion with regards to this matter.

The admissibility of expert testimony is provided for in La.Code Evid. art.
702(A), which states:

A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an opinion

or otherwise if:

(1) The expert’s scientific, technical, or other

specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue;

' Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993).

(2) The testimony is based on sufficient facts or
data;

(3) The testimony is the product of reliable
principles and methods; and

(4) The expert has reliably applied the principles
and methods to the facts of the case.

In medical malpractice cases, the qualification of an expert witness is
specifically governed by La.R.S. 9:2794(D), which provides in part:

(1) In a medical malpractice action against a physician .. . for
injury to or death of a patient, a person may qualify as an expert witness
on the issue of whether the physician departed from accepted standards
of medical care only if the person is a physician who meets all of the
following criteria:

(a) He is practicing medicine at the time such
testimony is given or was practicing medicine at the time
the claim arose.

(b) He has knowledge of accepted standards of
medical care for the diagnosis, care, or treatment of the
illness, injury, or condition involved in the claim.

(c) He is qualified on the basis of training or
experience to offer an expert opinion regarding those
accepted standards of care.

(d) He is licensed to practice medicine by the
Louisiana State Board of Medical Examiners under R.S.
37:1261 et seq., is licensed to practice medicine by any
other jurisdiction in the United States, or is a graduate of a
medical school accredited by the American Medical
Association’s Liaison Committee on Medical Education
or the American Osteopathic Association.

(3) In determining whether a witness is qualified on the basis of
training or experience, the court shall consider whether, at the time the
claim arose or at the time the testimony is given, the witness is board
certified or has other substantial training or experience in an area of
medical practice relevant to the claim and is actively practicing in that
area.

(4) The court shall apply the criteria specified in Paragraphs (1),
(2), and (3) of this Subsection in determining whether a person is

qualified to offer expert testimony on the issue of whether the physician
departed from the accepted standards of medical care.

A similar issue was addressed in Pertuit v. Jefferson Parish Hospital Service
District No. 2, 14-752 (La.App. 5 Cir. 5/14/15), 170 So.3d 1106, writ denied, 15-
1176 (La. 9/18/15), 178 So.3d 152. Therein, the plaintiff filed medical malpractice
claims against a neurosurgeon and a hospital. The plaintiffs expert, an
interventional neurologist, rendered a report and then was deposed by the defendant
three years later. Approximately two-and-a-half years later, and six weeks prior to
trial, the defendant neurosurgeon moved for summary judgment, arguing that the
plaintiff's expert, who was not a neurosurgeon, was not qualified to render an
opinion against him.

Following argument on the motion, but without holding an evidentiary
hearing, the trial court held that the plaintiff's expert was not qualified to render an
expert opinion, and that absent such an opinion, there was no genuine issue of
material fact, and the defendant neurosurgeon was entitled to summary judgment.
In reversing the judgment, the fifth circuit noted that an expert need not be engaged
in the same specialty to render an expert opinion on the specialty in question.

We note that La. R.S. 9:2794 has no absolute requirement that a
proffered expert must practice in the same specialty as the defendant,

or be board certified in that specialty. Rather, the statute allows that an

expert may be qualified on the basis of her “training or experience,”

and that board certification and practice in the area of specialty are

factors that the trial court must consider in making this determination.

Only in cases where the alleged acts of negligence raise issues peculiar

to the particular specialty involved is expert testimony limited to those

qualified in that specialty. Howard v. Vincent, 11-0912 (La.App. 4 Cir.
03/28/12), 88 So.3d 1219, 1222, writ denied, 12-0967 (La.6/22/12), 91
So.3d 970. Furthermore, our jurisprudence has recognized that where
medical disciplines overlap, it is appropriate to allow a specialist in one
field to give expert testimony as to the standard of care applicable to
areas of the practice of medicine common to both disciplines. See,
Coleman v. Deno, 99-2998 (La.App. 4 Cir. 04/25/01), 787 So.2d 446,
448, affd in part, modified in part, and remanded, 01-1517
(La.01/25/02), 813 So.2d 303.

10

Id. at 1110.

Accordingly, the fact that Dr. Green is not a perfusionist is not, in and of itself,
grounds for disqualifying his opinion as to the standard of care and potential
breaches by the perfusionist and the surgical staff. Although he might be found
unqualified to render an opinion, Dr. Green’s qualifications to do so are not clear
from the record. Additionally, the fact that he was not retained to render opinions
on these specialties has no bearing on his qualification to do so.

The need for a hearing to determine expert qualifications and methodology
was fully discussed in Pertuit, 170 So.3d at 1111-13 (last alteration ours) (footnotes
omitted), and is equally applicable here:

In Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113
S.Ct. 2786, 125 L.Ed.2d 469 (1993), the United States Supreme Court
set a new standard to assist trial courts in evaluating the admissibility
of expert testimony and required the district courts to perform a
“gatekeeping” function to “ensure that any and all scientific testimony
or evidence admitted is not only relevant, but reliable.” Daubert, 113
S.Ct. at 2795. The Daubert standard, which was adopted by the
Louisiana Supreme Court in State v. Foret, 628 So.2d 1116 (La.1993),
requires that expert scientific testimony must rise to a threshold level
of reliability in order to be admissible under La.-C.E. art. 702. Foret,
628 So.2d at 1123. The decision in Daubert, however, concerned the
admissibility of the expert’s opinion based on methodology used and
not on his or her qualification as an expert in the area tendered, which
is the issue raised in the present case. The Louisiana Supreme Court
addressed the issue of an expert’s qualification in the area tendered in
the case of Cheairs v. State ex rel. Department of Transp. and
Development, 03-0680 (La.12/3/03), 861 So.2d 536.

In Cheairs, the Court adopted a three-prong inquiry to give trial
courts more comprehensive guidance in determining the admissibility
of expert testimony. The admission of expert testimony is proper only
if: (1) the proposed expert is qualified to testify competently regarding
the matters he intends to address; (2) the methodology by which the
expert reaches his conclusions is sufficiently reliable as determined by
the sort of inquiry mandated in Daubert; and (3) the testimony assists
the trier of fact, through the application of scientific, technical or
specialized expertise, to understand the evidence or to determine a fact
in issue. Cheairs, 861 So.2d at 542. As explained in Cheairs, these
factors are reflective of the considerations under La.-C.E. art. 702 and
whether the admissibility of the expert testimony would assist the trier
of fact to understand the evidence or to determine a fact in issue. The

11

Court also recognized that experience alone is normally sufficient to
qualify a witness as an expert. /d. at 541-42.

Although the discussions in Daubert, and its progeny, clearly
contemplate the trial court conducting an evidentiary hearing in order
to perform its gatekeeping function, the Louisiana Supreme Court,
since its adoption of the Daubert standard in Foret, has not established
a rule that mandates an evidentiary hearing in all cases where an
expert’s qualifications are challenged. However, the discussion in
Foret clearly indicates that the Louisiana Supreme Court also
contemplates the holding of an evidentiary hearing in most cases where
an expert’s qualifications are challenged. In Foret, the Court noted that
the tardy submission of the expert’s report (on the morning of trial)
prevented the trial court from properly exercising its gatekeeping
function. The Court further stated: “[t]he record is silent regarding any
efforts by the trial court to determine, via some sort of evidentiary
hearing, whether or not the [expert’s] confidence in his ability to
diagnose [the condition] was well-founded.” Foret, supra at 1123
(emphasis added). The Court additionally stated: “[i]f the trial court
had conducted a hearing, it might have discovered the misgivings many
experts and courts alike have with this type of testimony [regarding
Child Sexual Abuse Accommodation Syndrome].” /d. at 1124. And
finally, the Court noted that the rules that it established in the decision
regarding the admissibility of evidence in the particular field of
expertise in question, did not preclude future trial courts, “performing
[their] gatekeeping function via an evidentiary hearing,” from
considering the admissibility of such evidence. /d. at 1131.

Likewise, in Cheairs, the Louisiana Supreme Court did not
establish a rule that mandates an evidentiary hearing whenever an
expert’s qualifications are challenged. However, the Court recognized
the benefit of such hearing, not only to the trial court, but also to a
reviewing appellate court, when it stated: “[w]e have closely reviewed
the district court’s decision to qualify [plaintiff's expert] .. . in light of
the evidence presented at the pre-trial ‘Daubert’ hearing ...” Cheairs,
supra at 543 (emphasis added).

It is clear from a reading of Foret and Cheairs, and their progeny,
that the generally accepted procedure used to challenge an expert’s
qualifications is to make a Daubert challenge, which generally will
result in an evidentiary hearing regarding the expert’s qualifications.
However, we can envision cases in which the area of discipline of the
proffered expert is so greatly divergent from that of the defendant, and
the alleged acts of negligence are so clearly limited to treatment that is
unique to the defendant’s specialty, that such an evidentiary hearing
may not be necessary, although we would anticipate that such cases
would occur infrequently. We therefore are not prepared to establish a
hard-fast rule that mandates an evidentiary hearing whenever an
expert’s qualifications are challenged. A particular specialist’s
knowledge of the subject matter on which he is to offer testimony is
determined on a case by case basis. Howard [v. Vincent, 11-912

12

(La.App. 4 Cir. 3/28/12), 88 So.3d 1219,] 1222. Likewise, we conclude
that the determination of whether an evidentiary hearing is necessary
must also be made on a case by case basis.

In the present case, Dr. Johnston did not file a motion in limine
(or any similar type motion) challenging Dr. Wojak’s qualifications, in
effect side-stepping the generally accepted procedure. He thereby
virtually invited the trial court to perform its gatekeeping function
without conducting an evidentiary hearing. In response to Mrs.
Pertuit’s complaint regarding the procedure used, Dr. Johnston
contends that he did not argue to the trial court that Dr. Wojak’s
testimony was inadmissible, but rather that it was insufficient to meet
La. R.S. 9:2794’s burden of proof. He further contends, without
citation to authority, that a 9:2794 analysis does not require a Daubert
challenge or determination, or an evidentiary hearing.

Clearly, when a litigant seeks a ruling that his opponent’s expert
is not qualified to render an opinion, he is seeking a ruling on
admissibility of that expert’s opinion. Equally clear is that in this case,
the trial court, in finding that Dr. Wojak was not qualified to render an
opinion in this matter, was ruling Dr. Wojak’s opinion inadmissible.
Anything short of a total exclusion of her opinion would have required
the trial court to engage in an impermissible weighing of the experts’
contradictory opinions, thereby rendering summary judgment
inappropriate.

On the particular facts of the case before us, where there appears
to be a colorable claim of overlap between the disciplines of Dr. Wojak
and Dr. Johnston, we find that the proper procedure for Dr. Johnston to
have followed would have been to make a Daubert challenge, thus
affording Mrs. Pertuit an evidentiary hearing on Dr. Wojak’s
qualifications. See Guardia v. Lakeview, 08-1369 (La.App. 1 Cir.
05/08/09), 13 So.3d 625 (appellate court found summary judgment
premature where trial court disqualified plaintiff's expert without first
conducting a hearing on defendant’s motion in limine to strike
plaintiff's expert to determine if expert’s testimony constituted reliable
expert testimony as contemplated in Cheairs). We therefore conclude
that the trial court erred in not affording Mrs. Pertuit an evidentiary
hearing on Dr. Wojak’s qualifications before making the determination
that she was not qualified. Having found that the appropriate procedure
was not followed to determine Dr. Wojak’s ability to testify in this
matter, and having vacated the grant of summary judgment as
premature, we pretermit any discussion of the merits of Dr. Wojak’s
qualifications.

Thus, we conclude that the trial court erred in rejecting Dr. Green’s opinion
evidence without first conducting a hearing to determine his qualifications to render

opinions as to the perfusionist and the surgical staff. Accordingly, the trial court’s

grant of summary judgment on the excessive bleeding issue was premature, and as
such, is vacated for this reason. However, unlike the situation in Pertuit, where the
plaintiff's only opposition evidence was the sole expert’s opinion, we conclude that
there is sufficient evidence in the record, absent Dr. Green’s opinion, for us to
conduct a de novo review of the defendants’ summary judgment motion on the
excessive bleeding issue.
Assignments of Error Numbers Two and Four

In their second and fourth assignments of error, the DeHarts argue that the
trial court erred in finding no genuine issue of material fact exists regarding the
communication and chain of command issues during the procedure. The DeHarts
contend that the applicable standard of care required the perfusionist and surgical
staff to communicate the source, extent, and magnitude of the blood loss suffered by
Mrs. DeHart to Dr. Jones. They further argue that the standard of care required the
perfusionist and the surgical staff to seek help outside of the operating room as Mrs.
DeHart continued to bleed.

Based on the appeal record, the following timeline occurred during the

surgery:

0718: Start of anesthesia

0957: Start of surgery

1100: Patient on cardiopulmonary bypass machine

1106: Endoaortic clamp applied

1149: Volume added to the cardiopulmonary bypass machine for
the first time.

1228: Endoaortic clamp removed

1310: Patient off cardiopulmonary bypass machine

1356: Patient back on cardiopulmonary bypass machine because
of dropping blood levels; patient resuscitated by
anesthesia; multiple drips and volume resuscitation
performed

1403 Patient losing volume

1408 Patient losing volume

1413 Patient losing volume

1414: Patient losing volume

1415: Patient losing volume

14

1420: Patient losing volume

1527: Patient off cardiopulmonary bypass machine
Patient’s right femoral artery decannulated and Dr. Jones
attempted to close the right groin. Patient’s blood pressure
fell into twenties and thirties.

1555: Emergent sternotomy performed due to patient’s blood
pressures falling to twenties and thirties; chest opened and
open cardiac massage performed and resuscitation by

anesthesia
1720: Procedure over
1725: Patient in surgical recovery
1810: Patient in ICU

The DeHarts alleged the following acts of negligence on the part of the named
defendants in their petition:

A. — Allowing the Petitioner to undergo a surgery for which she was
not a candidate[.]

B. Failing to perform necessary and appropriate test and imaging
studies necessary to ensure safe placement of a Rummel
Tourniquet, falling below the appropriate standard of care.

C. Failing to fuily inform the deceased of alternative approaches
and the risk associated with those approaches given her pre-
existing condition, falling below the appropriate standard of care.

D. Failing to adequately secure a Rummel Tourniquet{[.]
E. Failing to adequately monitor the Rummel Tourniquet{.]

F. Failing to properly and adequately document the ongoing
procedure said documentation, [sic] falling below the
appropriate standard of care.

G. Failing to properly obtain informed consent from Arlene Dehart

[sic] [-]

H. Misleading through advertisement and marketing the risks
associated with the type of surgery offered to Arlene DeHart.

I. Failing to timely and properly tend to the excessive bleeding
during the surgery, said failure and delay falling below the
appropriate standard of care.

In light of the excessive bleeding issue, we find that the only allegations of
negligence applicable to the perfusionist are “F.” and “I.”, and the only allegations

applicable to the surgical staff are “E.”, “F.”, and “I.”

15

In their motion, the defendants moved for partial summary judgment:
[D]ismissing all claims asserted against [the perfusionist] and
[LGMC’s surgical staff] as referenced in [the DeHarts’] Petition for

Damages, relating to the patient’s intra-operative bleeding at the site of

her femoral vessel cannulization at her right groin, and the alleged

failure to notify the co-defendant surgeon, Dr. Bruce Jones, of the

bleeding and the patient’s volume replacement needs.

As the mover, the defendants bore the initial burden of pointing out an absence
of factual support for at least one essential element of the DeHarts’ claim. La.Code
Civ.P. art. 966(D)(1). We find that they carried their burden with regard to the
perfusionist with the medical review panel opinion, which found no breach of the
standard of care by Ms. Falconer. The medical review panel stated that Ms. Falconer
“monitored the pump flow rates and mean arterial pressure throughout the pump run
and notified of blood administration to the patient in a timely fashion.” The
defendants also introduced Ms. Falconer’s deposition testimony, wherein she stated
that she required Dr. Jones’ permission every time she added volume to the bypass
machine.

Although the medical review panel opinion did not specifically address
whether the surgical staff breached the standard of care, the defendants introduced
testimony from the members of the surgical staff and Dr. Jones, which indicated that
all of the surgical staff were aware of and informed Dr. Jones about the patient’s
excessive bleeding. Dr. Jones admitted that he was informed about the bleeding, he
inspected the site of the bleeding, and he decided to address the issue in the short
term by packing the site with lap pads and then more fully after the robotic procedure
was completed.

Dr. Jones outlined the steps that he took after the surgical staff notified him

about the bleeding:

Again, my practice, my normal practice would be evaluation of
it, which was done by having [Ms. Conner] expose the groin to me

16

better so I could see what was going on, and typically what we will do

is if it’s, if its deemed not emergent at that time, typically what we will

do is pack the wound with lap pads. If it’s a little more significant or

what not, however you want to define significant, we might

occasionally put a suction catheter there.

Now remember again, my focus is on trying to repair these valves

and get this patient off of bypass, get this patient off of cardiac arrest,

so I have to weigh risk and benefits of taking the time out to try to

recannulate this person, which would be, you know, have its own

inherent problems, perhaps disastrous, while her heart is stopped and

her heart is open. So my focus, again, is on the chest and fixing that,

weighing the risk of packing this wound, and that’s what we elected to

do.

Dr. Jones testified that applying direct pressure to the bleeding with the lap
pads was the standard of care applicable in this situation. He further stated that he
actually saw the site packed with lap pads. He said that once the site was packed,
he and the surgical staff continued monitoring it for additional bleeding.

The defendants also introduced Dr. Engleman’s testimony, which indicated
that the decision of when to address surgical bleeding rests with the surgeon.
Accordingly, the burden shifted to the DeHarts to present evidence sufficient to
show that they would be able to satisfy their burden of proof at trial.

In their opposition, the DeHarts introduced testimony from Dr. Jones, as well
as his operative report; testimony from Ms. Falconer, Isaiah Duhon, Jessica Reilly,
Charisse Conner, Brian Deshotel, Christopher Dunn, and Dr. Todd Ackal, the
perfusionist, surgical staff members, nurse anesthetist, and anesthesiologist; the
deposition of Dr. Azeem Khan; testimony from Dr. Daniel Engleman; expert opinion
evidence from Bernadette McDonald, a registered nurse, Alfred H. Stammers, a
perfusionist, Dr. James G. Traylor, Jr., a forensic pathologist, and Timothy F.
Hawkins, a Healthcare Safety Professional and Hospital Administration Executive;

and the defendants’ responses to their second and fifth sets of interrogatories and

requests for production of documents.

LE

In his operative report, Dr. Jones gave an overview of the surgery as follows:

The procedure went fairly unremarkable [sic], however upon
completion of the procedure, the patient required placement back on
cardiopulmonary bypass and significant cardiovascular support to
maintain adequate blood pressures. Her Rummel tourniquet in right
groin for femoral arterial cannula had inadvertently apparently become
loosened during the operation and she lost [a] significant amount of
blood from her right femoral artery during the procedure.

In describing the surgery in detail, Dr. Jones stated that the following occurred
at the conclusion of the robotic procedure:

The patient resumed spontaneous sinus rhythm and did not require
defibrillation. She was now ventilated and slowly weaned from bypass.
Suture lines were closely examined with the camera at this point. The
patient unfortunately was unable to maintain blood pressure and
necessitated resuming cardiopulmonary bypass. While anesthesia was
working to resuscitate the patient, multiple drips were used and volume
resuscitation was also performed.

The patient was eventually ventilated again and weaned from bypass.
Again, suture lines were examined closely with the camera and noted
to be hemostatic. Ports appeared to be hemostatic as well. The patient
was echoed at this time and valve findings were as above. The patient
was decannulated and Protamine was given. While closing the right
groin, the patient’s blood pressure continued to fall to where pressures
were in the 20s and 30s, and a sternotomy was emergently performed.
The chest was entered without difficulty. Open cardiac massage was
required and again anesthesia resuscitation continued. She did become
stable enough at this point to close her chest in routine fashion. Two
chest tubes were placed. The patient was now considered stable and
she was transported to the Intensive Care Unit in critical condition.

Dr. Jones testified that he did not know when the tourniquet on the patient’s
right femoral artery became loose. He stated:

To my knowledge, and again, reviewing of her records, it appears
to me that it became loosened probably at the end of the procedure,
towards the end of the procedure, the initial mitral valve and tricuspid
valve repair. I don’t think — I think it would only be speculation as to
say it was 30 minutes into the operation, an hour and a half into the
operation, I can only speculate. So I think it would be fair for me to
speculate what time that happened.

He stated that he learned about the loosened tourniquet from the surgical staff but

could not recall at what stage of the surgery this occurred.

18

Dr. Jones admitted that there was bleeding at the cannulated right femoral
artery during the eighty-two-minute robotic procedure, but he claimed that this was
a common occurrence. He stated that there would have been a lot of bleeding at the
start of the procedure when he opened the groin and cannulated the right femoral
artery, and it was not uncommon for blood to pool on the floor during this type of
surgery. Dr. Jones testified that the amount of blood loss experienced during surgery
varies with every patient and there was no way to determine the exact amount of
blood lost by the patient during the procedure. He further stated that morbidly obese
patients have a greater body mass and require more blood than leaner patients.

In his operative report, Dr. Jones stated that the patient “lost {a] significant
amount of blood from her right femoral artery during the procedure.” When asked
what he meant by “significant,” he stated that the term was subjective, but that he
could not recall whether his use of the term referred to the size of the blood pool
adjacent to the patient’s groin or her hemodynamics. However, Dr. Jones testified
that based on his review of the patient’s profusion records, he found nothing to
indicate that the patient was hemodynamically compromised during the procedure.
Although he never saw the blood pooled on the operating room floor, he said that
this was a common occurrence in these procedures.

Ms. Falconer, a three-year board-certified perfusionist at the time of the
procedure, explained that in order for cardiopulmonary bypass to work, the bypass
machine has to maintain a certain level of volume;’ otherwise, there is a risk of
pushing air into the patient. In describing the process, she stated that volume

circulates from the patient, into the bypass machine, and then back to the patient.

In his report, Dr. Traylor described the volume transfused to the patient during the
procedure as packed red blood cells. reclaimed cell saver blood, platelets, fresh frozen plasma, and
various intravascular fluids.

19

Ms. Falconer testified that volume was first added to the bypass machine at
1149, when she added two units of Plasma-Lyte A. She explained that volume is
routinely added to the bypass machine in order to offset the patient’s loss of volume
from leaking blood vessels. She stated that the addition of volume decreases this
leaking by controlling the oncotic pressure’ in the blood vessels. Ms. Falconer
testified that the anesthesia records indicated that the patient was losing volume at
1403, 1408, 1413, 1414, 1415, and 1420 hours. When that occurred, she stated:

At this point in time, this — the records would be very indicative that

there is some sort of volume loss happening to the patient. And, again,

I would have expressed my concern and expressed that I believed that

there was some sort of bleeding going on with the patient because, as

you said, the first bypass run did not require this volume, and the second

bypass run did so... And I would have had that discussion with Dr.
Jones and Dr. Ackal to be allowed to give that much blood product.

She stated that every time she added blood to the bypass machine she did so only
after obtaining permission from Dr. Jones.

Ms. Falconer testified that she first learned about the excessive bleeding at
1527 hours, when she saw blood on the drapes after the patient was weaned off of
bypass. When asked if there was discussion amongst the surgical staff regarding the
source of the patient’s bleeding, Ms. Falconer testified:

I believe that after things had been addressed and the blood had been
seen that there was a general consensus that, yes, something — you
know, when we’re discussing — when we’re — when myself especially
is telling the surgeons that I’m — the surgeon that I’m seeing that there
must be bleeding coming from somewhere based on my volume status
that it’s — that I felt like that I had been redeemed in knowing that there
had been something going on. At the end of the case, I think everybody
kind of felt that way too, Okay [sic], there had been something going
on. We weren’t imagining it, we weren’t creating it, that there was
something that had gone on.

She further denied that she felt the matter was handled improperly, stating:

* The force that tends to counterbalance the capillary pressure. The capillary pressure
forces fluid out of the blood vessels, while the oncotic pressure encourages fluid into the blood
vessels,

20

No. I think things happen in surgery. We see it as the problem was

fixed ultimately. I know while she was on bypass she was adequately

perfused. I know that my responsibility in what I do every day in going

into cases was appropriate for this case. At the end of the case, she left

the operating room alive[.]

Mr. Duhon, the scrub technician, testified that he noticed blood leaking from
the patient’s cannulated right femoral artery onto the drape and floor during the first
cardiopulmonary bypass run. Although he described the leakage as slight, he
testified, “It wasn’t profuse at all. Generally in these cases there is leakage. It was
leaking, just apparently more than what | had took as normal.” He said that he
thought the leakage was more than normal “[b]ecause I’ve never done a case where
there was that much blood accumulated on the floor.”

Mr. Duhon testified that instead of notifying someone about the bleeding, he
“just said aloud that I thought there was more blood loss than normal.” He did not
recall there being any response to his comment. He stated that at one point, Mr.
Dunn asked him if there was blood loss at the patient’s groin, to which he responded
in the affirmative. While Mr. Duhon was not completely sure if everyone in the
room was aware of the bleeding, he stated, “There was an open discussion that there
was blood loss. I mean it’s hard for me to assume what everybody in the room knew.
It was out loud.” He continued, “I’m just saying that the fact that there was blood
loss at the groin was said aloud more than once. So I just — I can assume that
everybody knows but I’m not completely sure.” He could not recall whether the
bleeding was addressed by Ms. Reilly or Ms. Conner during the first bypass run.

Ms. Reilly, a registered nurse (RN), who was positioned at the surgical field,
testified that she was aware of the blood on the operating room floor, but that she
did not find the amount excessive as compared to bleeding from other cases. She

stated that at one point during the procedure, she, Mr. Duhon, and Ms. Conner asked

Dr. Jones to check the femoral cannulation site because “there was a little bleeding

2]

and we were suctioning a lot.” She stated that Dr. Jones walked over to the operating
table, looked at the site, and then walked back to the console and said, “We will just
-- You know, we will deal with it later.”

Ms. Reilly testified that Dr. Jones did not address the bleeding until after he
finished the robotic procedure and began to decannulate the artery. She said that in
addition to the two heart-valve repairs, Dr. Jones also performed a femoral
endarterectomy’ and put a graft in the femoral artery. Ms. Reilly did not recall when
she first noticed the blood or when Dr. Jones inspected the femoral artery. She stated
that in her job, she has “to address the doctor if there is any question that I have
about anything that is going on in any surgical procedure.”

Ms. Conner, a nurse practitioner and Dr. Jones’ assistant, testified that she was
located towards the patient’s head at the operating table, and Dr. Jones was located
at the robotic console in the corner of the room. She stated that she did not see the
blood on the floor, but that someone reported that blood was falling out of the drape
at some point during the procedure. She said that she and the surgical staff
immediately searched the operative field and located the bleeding, which she
described as a slow leak from around the cannula inserted in the right femoral artery.
She explained that in order to place the patient on cardiopulmonary bypass, Dr. Jones
inserted cannulas into the patient’s femoral artery and femoral vein at the start of the
procedure.

Ms. Conner testified that she, Ms. Reilly, and Mr. Duhon informed Dr. Jones
about the leak, after which he walked over to the operating table and inspected the

femoral artery. She stated that he then walked back to the robotic console and

4 . .. . .

An endarterectomy is the excision of thickened atheromatous areas of the inner-most coat
of an artery. Atheroma is a mass or plaque of degenerated thickened arterial intima. Intima is the
inner-most part of the vein.

22

continued the procedure. Although she did not recall his exact response, she said
“we were all under — I was under the impression that he was going to — not going to
do anything at that time about it.”

Ms. Conner testified that bleeding was mentioned a second time during the
robotic procedure, when someone stated that blood was running down to the floor.
She admitted that Dr. Jones did not leave the robotic console to inspect the bleeding
on this occasion. She stated that she later concluded that the patient had lost a
significant amount of blood during the surgery based on “the discussions about the
blood being on the floor, perfusion saying the blood was on the floor and the nurse
and, I guess the amount of blood that was on the floor that was leaking from the
drapes.”

Mr. Deshotel, the relief circulator nurse, testified that he noticed a lot of blood
on the operating room at 1410 hours, when he entered the room with blood requested
for the surgery. He stated that he was concerned because “there was blood on the
floor and that it was - - it was coming from somewheres [sic]. I mean, I was worried
that I’m getting blood, we are giving blood and there is blood coming on the floor.”
When asked if he notified anyone about the blood, Mr. Deshotel testified:

When I walked in I asked Jon, I said, “Hey Jon”, I said, “look, there is

blood on the floor. What is” - - I said, “What about that?” He said,

“Dr. Jones is aware of it”. He said, “We have told him and - - and we

are not going to say any more about it”, he says, “because we have told

him several times”, he told me, “and because we don’t want to add

stress to the situation”.

He then stated, ““What I remember when I walked in and - - I don’t remember exactly

4

what he told me.” He said, “I remember I said, ‘Hey, look, there is blood on the
floor’. And he - - And he said that Dr. Jones has been notified about it.”
Mr. Dunn, the nurse anesthetist, testified that he, Mr. Duhon, Ms. Reilly, and

Ms. Conner all noted and discussed the fact that there was more than normal bleeding

from the patient’s femoral artery during the first bypass run. He stated that he
reported to Dr. Ackal that the patient’s hematocrit had dropped so they assessed her
lab values. He said that although they were not excessively low, Dr. Ackal decided
to give the patient two units of packed red blood cells. He stated that Dr. Jones was
informed of this decision, and the patient’s lab values returned to acceptable levels
once the blood was administered. He did not recall that anything was done to address
the bleeding after the two units of blood were added to the bypass machine.

Mr. Dunn testified that he did not document or mention the first time he
noticed blood on the floor because he felt that it was common knowledge from the
first bypass run. He stated that when he reports blood loss to the surgeon or the
anesthesiologist, he does so only to inform them of the fact that there is blood loss.
He said that the decision to address the bleeding rests with them.

Dr. Todd Ackal, an anesthesiologist, testified that the patient was placed back
on pulmonary bypass at 1356 hours due to her inadequate hemodynamics.” He stated
that there was a lot of discussion between the surgical staff during the second bypass
run. During that time, he stated that he and Mr. Dunn were trying to improve the
patient’s blood pressure and heart function, as well as running tests and assessing
her vital signs.

Dr. Ackal testified that “the first time that I can recall that a definitive site of
blood loss was identified is when they removed the surgical drapes and there was
just a large volume of blood underneath the drapes[.]” He stated that he never saw
blood leaking from the patient during the procedure, but that he saw a large amount
of blood on the operating table and the floor afterwards, when the drapes were

removed. Dr. Ackal testified that the blood on the operating table had coagulated or

, Movement of the blood.

24

clotted. He stated, “So the inference to me is it is a significant volume when you
start to have pooling of blood and then it clots, which is the normal response.”

Dr. Ackal testified that there was discussion about the amount of blood on the
operating table:

I think there was — You know, as I recall, there was discussion about it
and that there was the — I don’t think anybody — { did not infer during
the case that that volume was blood [sic] was coming out of the patient
from underneath the drapes.

I know we were dealing with blood loss and we were transfusing blood
frequently and at times during the case we don’t typically, and then
every time we would check her blood count it was about the same. You
know, we give volume of blood and we would still have the same blood
count. So it fit as I started to put it together in my mind, but I was — ]
was taken back [sic] a little bit by the volume of blood under the drape
and on the floor

—that we could not appreciate. That I saw.

Dr. Ackal testified that neither he nor Mr. Dunn knew the source of the
bleeding when the patient was weaned off the bypass machine the second time. He
thought that whoever identified the patient’s bleeding should have informed
everyone in the operating room, even if the surgeon was aware of the problem. He
said that he wished someone had given him an idea as to why the patient’s blood
volume was dropping:

Q. Okay. Is anybody giving you any idea?

A. No, sir. I mean, and again, you go back to the patient, the profile.

It is going to be — It is a double valve case so it’s — You know,
I’m at this point probably saying, okay, we couldn’t separate the
first time what was going on. You know, we are requiring a lot
of blood. Is there blood loss. It was entertained in the room, was
there blood loss. Nothing was identified. Now we put her on
additional iatropic support. I think — I think the surgeon during
this time was just trying to confirm all the things I just described

to you. Is there a site, is there something that I need to address?
I had the echocardiogram machine that I’m looking at, I’m

25

looking at the heart screen, I’m looking at the valve function, I’m
assessing for the wall motion. Are they abnormal or is it normal,
is the valve repair replacement — Is it adequate[.]

Dr. Khan, a thoracic surgeon and a member of the second medical review
panel, testified that it was not easy to determine when the patient’s excessive
bleeding started based on Dr. Jones’ post-operative report, which he described as
incomplete due to Dr. Jones’s failure to include the endarterectomy in the report. He
stated that initially, the patient’s bleeding was not pronounced, but that it became
more pronounced towards the end of the procedure. However, Dr. Khan testified
that bleeding is common in cardiac surgeries and begins at the first incision. He
further stated that leaking or bleeding from a cannulated femoral artery is common,
occurs in every single operation, and depends on the stage of the surgery and the
issues arising therein.

Dr. Khan testified that it was irrelevant when Dr. Jones was informed about
the excessive bleeding because he knew about it and decided it was more important
to proceed with the heart-valve replacements than address the bleeding. He stated
that a surgeon applies a triage system during surgery, deciding which issue to address
based on its importance. He said that “while the heart was stopped, I’m dealing with
the heart and go to the bleeding because that’s manageable and that’s fixable.”

Dr. Khan agreed that “doctors and hospitals have a duty to ensure that medical
procedures are done safely and that they are appropriately staffed[.]” He further
agreed that “medical personnel should be available to correct known complications
during the surgery[]” and that “bleeding from the body should be stopped as soon as
possible[.]” Dr. Khan described as vague the question of whether it was the

surgeon’s responsibility to address issues of bleeding during surgery. He explained

that the situation at hand determines who addresses bleeding:

26

It depends on what the situation is. I gave you an example of a bypass
operation yesterday. We take the vein out, bleeding occurs from there.
The PA deals with it. I’m too busy in the chest dealing with that part.
So it just depends on what the situation is and what the operation is and
what portion of the operation is going on.

.. . Or sometimes a nurse will put pressure on it or if it’s too much
bleeding, for instance, in a radial artery that was placed by the
anesthesiologist, they will come take care of it.

Dr. Khan further stated that it was vague to ask whether the patient’s bleeding
during the procedure was acceptable or unacceptable. He stated that it was normal
for the patient to bleed from her femoral artery because it was calcified, but that the
artery obviously bled more than normal because Dr. Jones had to repair it. He further
stated that there is no acceptable or unacceptable rate of blood loss from the femoral
artery for a patient undergoing this type of procedure. Nevertheless, he admitted
that zero blood loss would be ideal.

Dr. Khan admitted that the patient arrested during the surgery but stated that
this is common during heart surgery, just like bleeding. He further surmised that Dr.
Jones opened the patient’s chest at 1600 hours in order to “get better control
proximally” because the femoral artery was “basically getting shredded apart
because the artery was so bad.” He assumed that Dr. Jones “opened the chest to put
her on bypass through there because he can’t go through on bypass through the same
femoral artery.”

Dr. Khan testified that Dr. Jones chose not to address the bleeding once he
completed the robotic procedure because he was still worried about the patient’s
heart. He stated that unless the femoral artery becomes a problem, “it’s like a

complete afterthought.” He said that the femoral artery would become a problem,

“Tilf it falls apart and it’s bleeding out and the patient is dying from it.” He stated

that when this occurs, “[t]he patient arrests and that’s when you open the chest to try
to fix that problem and put him on the heart/lung machine.”

Dr. Khan could point to nowhere in the medical records to establish that Dr.
Jones attempted a femoral artery repair immediately after he finished the robotic
procedure. He stated, “You’re asking me to grab straws out of the sky[,]” and “the
“operative report leaves a lot to be desired for.”

There’s not adequate things in the operative report. But what I’m
assuming happened is he tried to fix the femoral artery. It broke down.
He could not get proximal control. At that point, the bleeding was
significant enough where he had —

... Where he had to go to the chest and to gain access there in order to
put the patient on bypass to save her life.

He was — so the femoral artery — this is probably what happened.
The femoral artery is a bad artery. Okay. It’s known to be bad because
the peripheral vascular disease the patient had, which we knew. He
knew that, too. He still cannulated it in order to gain access for the
coronary bypass system. Now because it’s a bad artery and he’s on
bypass, it’s going to leak. The whole case is going to leak. You can’t
do anything about it, but kind of deal with it and adjust for it. Okay.
So it bleeds the whole time. He finishes the chest. He finishes the heart
operation. Closes up there and then says let me go down to the artery
and try to fix this problem. So when you go to the artery you
decannulate, which is naturally taking out the cannulus for the balloon
pump — I mean, for the coronary bypass system. Take all that out and
then try to repair the artery.

At that point, when there’s a hole in the artery you naturally think
of a tube with a hole in it. You have to gain control here, control here,
and then close it up. Artery is so bad and it’s so rocky that he can’t
close it up and this clamp over here is not holding the bleeding coming
from there because the clamp can’t clamp across calcium and rock.

At that point, he loses control of this artery. Okay. Then he —
bleeding occurs, so he holds pressure or whatever they do to control
pressure here and goes to the chest. Opens up to put the patient back
on bypass so that they can gain blood flow back so that the flow to the
head and then come back and fix the artery. And that’s probably what
happened.

Although Dr. Khan stated that it was common for a perfusionist to experience
difficulties in maintaining adequate volume and flow rates, he admitted that this
difficulty presented a complication during surgery. He further stated that it was
common for a tourniquet to loosen from around a cannula during cardiac surgery,
with the result that the patient experienced blood loss.

Dr. Khan admitted that he did not review all of the evidence submitted by the
DeHarts to the second medical review panel, including Dr. Engleman’s report and a
map of the patient’s flow rates during the procedure. He stated, “The panel was so
thick that I'd be sitting there until two months reading it.” When discussing Dr.
Engleman’s expertise, Dr. Khan testified:

A. So does he do any minimally invasive? Who — where

Q. Yes. He does minimally invasive. But — now we could quibble

on terms all day long. I don’t want to do that with you. I just
wanted to ask you about —

A. This whole deposition seems like it’s quibbling on terms and

time periods and all that other stuff. So we have to go — 1 mean,
I’m trying to explain to you that he’s thinking of it from — if you

sat — I'll give you a perfect example of the person in our —

Q. — LT understand.

>

— medical review panel. What was his name? I don’t even know
what his name was. What was the other guy’s name who was
with —

Mousset.

Mousset. He didn’t agree with the thing.

What’s that?

He sat there and said that this was wrong, but —

What do you mean he said this was wrong?

> Oo F&F DH F&F

He sat there and said initially that he didn’t agree with the whole
operation. Just like Dr. Engleman did.

Q. Okay.

A. — But if you sit down and explain to any sane cardiac surgeon that

this is what happened, explain to them the thing, they will all
agree, yes, there’s nothing that was done out of the ordinary.

Dr. Engleman, a thoracic surgeon, opined that Dr. Jones breached the
applicable standard of care in several instances, including his failure to appreciate
and timely address the extent of the patient’s blood loss from the groin cannulation
site. He stated that the medical records indicated that the perfusionist was having
volume problems throughout the initial two-hour bypass run. Although he admitted
that the patient’s vital signs were never critical during that time, he stated that it is
possible to maintain adequate blood pressure levels with inadequate volume. Dr.
Engleman testified that it was his recollection that the patient was transfused more
than eleven units of red blood cells while in the operating room. He stated that he
was most concerned with the documented amount of cell saver drainage, which he
said was too high and inconsistent with the patient achieving a good recovery from
cardiopulmonary bypass.

Although Dr. Engleman did not have an opinion as to whether the perfusionist
or the surgical staff breached the standard of care, he stated, “I’m concerned that for
whatever reason there was a loss of communication and situational awareness during
this procedure regarding acute blood loss. It is not clear to me, you know, how that
happened, but I am concerned that it occurred for the entire team.” He further stated
that he was concerned that the perfusionist “may not have been aware of the extent
of blood loss potentially of no fault of her own.” Dr. Engleman further agreed that
the perfusionist and surgical staff cannot “do anything to stop the bleeding without
the permission or the guidance of the surgeon.”

In his report, Mr. Stammers stated that perfusionists are required to provide

safe and competent care in the administration of cardiopulmonary bypass, under the

direction of physicians such as cardiac surgeons and anesthesiologist. He stated that

perfusionists administer care based upon directives from “1. Guidelines published
by professional societies, 2. Peer-reviewed published papers that comprise the
foundation for evidence based data, 3. Local protocols from Policy and Procedure
manuals at the hospitals that employ the perfusionists, and 4. Knowledge from
personal experiential backgrounds.” He further stated that the cardiac team, which
includes the perfusionist, “is charged with managing all aspects of care provided to
patients[]” and that “[i]t is the responsibility of the entire cardiac team to voice any
deviations from expected protocol so that corrective actions could be promptly taken
to assure patient safety and reduce the risk of harm.”

In reviewing the patient’s robotic surgery, Mr. Stammers determined that Ms.
Falconer breached the standard of care by failing to document the patient’s
calculated flow rates. He stated:

There were no identifiable calculated flow rates seen on any perfusion

record for the patient. The flow rates are calculated to guide the conduct

of [the perfusionist] providing perfusion to sustain life and prevent

injury that arises by hypoperfusion and associated flow related

phenomena. The perfusionist uses these flows to assure adequate
cardiopulmonary bypass is provided.
He further determined that the calculated flow rate for the patient was 3.6 to 4.8 liters
per minute and that Ms. Falconer failed to provide adequate perfusion to the patient
for significant periods of time during the surgery.

Mr. Stammers stated that Ms. Falconer further breached the standard of care
by failing to measure or record standard clinical values during bypass, including
arterial blood pressure, system line pressure, arterial blood gases (either
continuously or every twenty to thirty minutes), and cardioplegia solution
temperature. He stated that she further failed to timely record (every thirty minutes)

the results of a test used to assess coagulation of the patient’s blood following the

administration of heparin during cardiopulmonary. He also stated that the “use of

the volume expander (Hespan”) resulted in the excessive intra and postoperative
bleeding that contributed to the coagulopathy! and significant transfusion of blood
products.”

Mr. Stammers stated that as a member of the cardiac team, Ms. Falconer also
breached the standard of care by failing to inform the surgeon and the surgical team
“that volume was being lost during the cardiopulmonary bypass period, which would
have required an immediate evaluation of the situation to seek the source of volume
loss and identify the exsanguination!”! from the cannula in the groin.”

As to causation, Mr. Stammers stated Ms. Falconer’s failure to provide
adequate perfusion during cardiopulmonary bypass caused the patient’s low blood
flow rates and subsequent metabolic acidosis.’ He stated that the bleeding at the
femoral cannula site likely caused a decrease in the amount of blood held in the
bypass machine’s venous reservoir, which, in turn, led to the patient’s low blood
flow during bypass. Mr. Stammers stated that the patient suffered a significant loss
of blood once she was weaned from the bypass machine, “which resulted in 2.5 liters
of mediastinal shed blood being processed through the autotransfusion machine
(Cell Saver).” He stated that the processed blood would have further exacerbated
the patient’s bleeding “by inducing a dilutional coagulopathy caused by the loss of
soluble clotting factors and platelets.”

Ms. McDonald, a registered nurse (RN), is an expert in perioperative services,

standards of nursing practice, AORN (Association of periOperative Registered

° Inability of the blood to coagulate.
’ Draining of blood.

¥ . -
Accumulation of acid.

32

Nurses) standards, and Joint Commission Standards.’ She outlined the standard of
care appliable to RNs in her report and deposition and determined that the surgical
staff RNs breached the standard of care, as follows:

The RN circulator is in charge of the room and serves at all times as a
patient advocate. The Association of periOperating Room Nurses
(AORN) states that “in the operating room, patients are powerless to
make decisions on their own behalf. The circulating nurse serves as the
patient advocate while the patient is least able to care for themselves.”
The RN circulator ensures the patient’s safety during this period of
vulnerability. The Perioperative RN has the responsibility to plan and
direct care for their patients. The circulating RN duties include
thorough patient assessment, diagnosis, outcome identification,
planning, implementation and evaluation. The RN is often the single
patient advocate for the patient’s safety during the surgery. The
circulating RN must use sound nursing judgment, critical thinking
skills, and communication skills.

The RNs involved in the care of Ms. Dehart [sic] failed to function as

her patient advocate. Once the “unusual bleeding” was noticed the RN

circulator had a duty to seek assistance. A call should have been placed

to the charge nurse, manager or perioperative director. If there was still

no resolution, a call to the Chief of Surgery and administration would

be the next steps. This is the usual and customary procedure. The OR

policy and procedure manual, table of contents has a policy IJ.A.4

“Chain of Command” it is under the HR section. It would be helpful to

review this policy. (I did not see it in the provided documents.)
(Footnote and exhibit page cite omitted.)

Ms. McDonald determined that the surgical staff violated the following
policies contained in LGMC’s Operating Room Procedure Manual: 1) II: A-3,
which describes the duties of circulator nurses in the operating room, and states that
they are the patient’s advocate and are responsible for the safety and welfare of the
conscious or unconscious patient and for communicating with anesthesia and the

surgeon for any significant physical or emotional needs; 2) III: 1, which requires

effective communication of all issues related to patient care and maintains lines of

” The Joint Commission describes itself as “the nation’s oldest and largest standards-setting
and accrediting body in health care.” The Joint Commission, (Oct. 20, 2020, 2:42 PM)
https://www.jointcommission.org/about-us/facts-about-the-joint-commission/. Pursuant to LAC
48:1.6701{A), pertaining to the licensing and certification of hospitals, “accredited” is defined as
“approval by the Joint Commission on Accreditation of Hospitals.

33

communication between all departments, directors, and administrative staff; 3) VI:
B-1, which requires the hospital administrator and chief of surgery to be notified
about “any event that deviates from normal operations or appears to lead to a
potentially hazardous situation[.]” She further determined that the relief circulator
RN violated LGMC’s Handoff Communication policy by failing to discuss the
“criticality of this case, bleeding from the femoral artery, the need for blood
transfusions, vital signs, and intake and output[.]”

Ms. McDonald further determined that LGMC violated the Joint Commission
standards LD.3.60 and LD.3.90, regarding effective communication throughout the
hospital by its failure to implement policies and procedures relating to timely
communication of patient care issues by hospital staff and by failing to “ensure that
all team members are proficient in effective communication to provide a culture of
patient safety.” She also determined that the surgical staff failed to comply with the
Joint Commission standard PC.2.150, which requires patients to be reassessed as
needed. She stated that although the patient’s condition changed during her
procedure, the surgical staff failed to reassess her and take appropriate action.

In summation, Ms. McDonald stated that it was her opinion “based on a
reasonable degree of administrative and clinical certainty, based on the documents
provided that the standards of care and hospital policies were not followed. These
failed actions were a precursor to Ms. Dehart’s [sic] tumultuous post-operative
course and resulting death.”

Ms. McDonald reiterated the perioperative RN standard of care in her
deposition and testified that AORN has well-defined standards of care relative to
communication by nurses on patient care issues. She stated that an RN is only

required to seek assistance outside of the operating room when a patient is bleeding

34

if the surgeon fails to address the bleeding, ignores the RN’s conversation regarding
the bleeding, and the RN feels that the patient’s safety is compromised.

In this instance, Ms. McDonald testified that the only manner in which the
surgical staff could address the patient’s bleeding was by informing the surgeon
about the bleeding and about the amount of blood that was on the floor. She stated
that the surgical staff complied with the first duty when they informed Dr. Jones
about the bleeding after Mr. Duhon noticed the blood dripping on the floor.
However, she opined that Mr. Deshotel, the relieving circulator RN, breached his
duty of seeking assistance outside of the operating room after he saw the blood
puddled on the floor and learned that Dr. Jones knew about the bleeding but that
none of the staff were going to mention it to him again. Ms. McDonald testified:

I don’t know if there was a culture of fear in the room, meaning

they feared the surgeon and didn’t want to bring it up again because he

was going to holler and scream or throw something. I don’t know that.

I don’t know whether they brought it to him multiple times, because the

documentation is poor. Did they bring it to him multiple times and he

chose, or maybe they didn’t bring it to him multiple times and he was
unaware of the extent of the bleeding. I don’t know the answers to

those questions.

However, if you see a lot of bleeding like that on the floor and

the doctor’s not addressing it, that’s the time I would have sent it out

the door.

Ms. McDonald testified that she also felt that Ms. Reilly, an RN, could have
provided an opinion on the bleeding that Dr. Jones would have respected because
she was over the cardiovascular line during the surgery. She said that “ultimately,
the control of the room and the communication and the safety of the patient belongs
with the circulators.” However, she felt that the leadership of LGMC also breached

their standard of care by failing to implement training and ensuring that a culture of

safety existed in the hospital.

Ms. McDonald testified that the duty to ensure the Rummel tourniquet is
properly secured and the decision of when to address a leaking cannula rests with
the surgeon. She stated that the duty of adjusting the tourniquet during surgery also
rests with the surgeon, and his assistant, if properly trained and supervised.
However, she stated that the surgical staff could pack the site of the bleeding with
sponges or put in place a suction catheter. She further said that she was not offering
opinions as to the perfusionist or the nurse practitioner.

Ms. McDonald acknowledged that cannulation is used in all cardiopulmonary
bypass surgeries, whether or not robotic, and that there is a risk of loosened
tourniquets and leaking cannulas in these surgeries. She agreed that bleeding occurs
in every surgery. Ms. McDonald further admitted that the patient had preexisting
comorbid conditions, including diabetes, anemia, chest pain, hypertension, and a leg
amputation.

Ms. McDonald testified that it was her opinion that the circulator RNs’ failure
to report the amount of bleeding contributed to the patient’s outcome. She stated:

Yes. I do believe — again, I’m just speaking as a nurse. I would
like, you know, from my, from my years of experience and running an
operating room and dealing with all kinds of surgeries, hypovolemial"”!
can cause a number of problems. And this patient was already, had lots
of comorbid conditions, as we’ve already discussed. So for her to have
that amount of hypovolemia and it not being addressed adequately
enough, I think it led to her rocky postoperative — well, she coded in the
OR, they had to open up her chest. I believe those were all due to the
amount of bleeding not being addressed in a timely manner. And I
believe the circulators in that room had a duty to report and did not.

Ms. McDonald testified that she was involved in approximately five
surgeries where, as operating room director, she referred a problem up
the chain of command to administration. In one case, she said that she
called her administrator and the chief of surgery after a surgeon, who
was performing a laparoscopic hysterectomy, refused help even though
the patient was bleeding, and the procedure was taking longer than
normal. Ms. McDonald testified that she called the chief of surgery in
a second case when a patient undergoing an abdominal aortic aneurysm

" Abnormally decreased volume of circulating blood in the body.

36

repair was obviously bleeding out and the surgeon chose only to pack

the bleeding.

Mr. Hawkins is a board-certified healthcare safety professional and hospital
administration executive from the State of Florida. In his report, he stated that he is
an expert in hospital administrative standards, the duties and responsibilities of
hospital chief executive officers (CEOs), and the national community standards for
all acute care hospitals as promulgated by the Joint Commission and the Center for
Medicare and Medicaid Services (CMS) Conditions for Participation.

Mr. Hawkins offered six expert opinions “to a reasonable degree of
administrative certainty[,]” as follows: 1) LGMC’s chief executive officer (CEO)
failed to foster an environment of patient safety and advocacy as evidenced by the
surgical staff's failure to escalate the excessive bleeding up the chain of command
in compliance with LGMC’s own policy; 2) Pursuant to 42 C.F.R. § 482.12(e),'
LGMC is responsible for Dr. Jones’ negligence even though his services were
contracted through a separate corporation; 3) LGMC’s CEO and governing board
would be guilty of negligent credentialing if they granted privileges to Dr. Jones and
Ms. Conner without verifying that they met the privileging criteria; 4) LGMC’s
surgical staff failed to obtain a complete informed consent from the patient prior to

surgery because sections of the informed consent form informing the patient of

additional risks caused by her underlying medical conditions and reasonable

'" 42 C.E.R. § 482.12(e) provides:

Standard: Contracted services. The governing body must be responsible
for services furnished in the hospital whether or not they are furnished under
contracts. The governing body must ensure that a contractor of services (including
one for shared services and joint ventures) furnishes services that permit the
hospital to comply with all applicable conditions of participation and standards for
the contracted services.

(1) The governing body must ensure that the services performed under a
contract are provided in a safe and effective manner.

(2) The hospital must maintain a list of all contracted services, including the
scope and nature of the services provided.

37

therapeutic alternatives and their associated risks were left blank, contrary to
LGMC’s policy, as well as Joint Commission and CMS Conditions of Participation
standards; 5} LGMC violated the Joint Commission’s staffing standards by its failure
to comply with its own protocol requiring two perfusionists for the patient’s robotic
case; and 6) Based on Mr. Stammers’ report, LGMC was negligent in failing to
properly supervise Ms. Falconer.

In his July 13, 2017 affidavit, Dr. Traylor, a board certified anatomic and
forensic pathologist, stated that it was his opinion “[w]ithin a reasonable degree of
medical certainty that had the hemorrhage at the femoral artery cannula site been
addressed in a more timely fashion that the complications and ultimate death of Mrs.
A. Dehart [sic] would most likely not have occurred.” In his June 21, 2018 affidavit,
he explained that “the field of Forensic Pathology is the medical study of causation
as it relates to injury or death of humans[,]” and as an anatomic and forensic
pathologist, it is his “duty to determine the cause and manner of death.”

In his report,” Dr. Traylor estimated that prior to the surgery, the patient’s
whole blood volume equaled 5,902 mL, and her red blood cell mass equaled 1,753
mL. Based on the anesthesia records, he determined that the patient was transfused
a total of 25,198 mL of volume during the surgery, the majority of it occurring
between 1330 and 1650 hours. Dr. Traylor further determined that based on the
5,150 mL of blood hemorrhaged by the patient and reclaimed by the cell saver
machine, she lost 87% of her whole blood volume and 70% of her red blood cell

mass between 1330 and 1407 hours.

” This January 23, 2015 report is a revised version of Dr. Traylor’s July 2, 2013 report and
was attached to both affidavits. However. the fifth page of the report contains Dr. Traylor’s
calculations from his July 2, 2013 report. A copy of this report, with the correct fifth page, was
introduced by the DeHarts in support of their October 15, 2018 opposition to Dr. Jones’ September
25, 2018 motion for summary judgment. Accordingly, we will include the original and revised
findings from the fifth page, with the revised findings in brackets.

38

On the fifth page of his report, Dr. Traylor calculated that the patient’s red
blood cell mass was replaced 2.47 [2.76] times, and her whole blood volume was
replaced 3.6 [4.26] times. Based on the patient’s hematocrit and her calculated red
blood cell mass lost during surgery, Dr. Traylor determined that the patient
hemorrhaged 9,342 [11,138] mL of whole blood during the surgery. He stated that
this would have been the blood that soaked the drapes and pooled on the operating
room floor during the surgery.

With regard to Mrs. DeHart’s cause of death, Dr. Traylor further stated:

The intraoperative hypotension was the direct result of the
intraoperative hemorrhage resulting in ischemia to the kidney tubules
causing acute tubular necrosis. Mrs. A. Dehart [sic] became
progressively oliguric with creatinine and blood urea nitrogen levels
trending upward, was third-spacing fluids (body weights ranging from
a low of 251 |b to a high of 274 lb [admission body weight 200 Ib] and
blood natriuretic peptide of 2890 on 10/6/2008) and ultimately required
a catheter placement for dialysis. It is my opinion with a reasonable
degree of medical certainty that had the hemorrhage at the femoral
artery cannula site been addressed in a more timely fashion that the
complications and ultimate death of Mrs. A. Dehart [sic] would most
likely not have occurred.

LGMC’s 2008 Operating Room Procedure Manual” outlined the duties of the
circulating nurse, as follows:

The circulating nurse is primarily responsible for the safety and welfare
of the conscious or unconscious patient. The patient must be the center
of everyone’s attention. The role of the nurse is truly that of patient
advocate. The circulating nurse demonstrates nursing skills and
exercises judgment in giving or delegating nursing care to the physical,
spiritual, and psychological needs of the patient. The nurse directs and
assist in carrying out procedures as adopted by the department aided by
his/her knowledge of basic science, psychology, interpersonal skills,
and nursing knowledge.

Two of the thirty-seven tasks outlined in the circulating nurse’s duties require the

circulating nurse to “[c]ommunicate with anesthesia and surgeon for any significant

13 ws: .
The exhibit was produced by the defendants in response to the DeHarts’ second set of
interrogatories and request for production of documents.

39

physical or emotional needs[,] and “[mJaintain a high level of awareness for the
needs of both the patient and the surgeon.” In response to the DeHarts’ fifth set of
interrogatories and requests for the production of documents, the defendants
admitted that LGMC’s surgical department did not have a chain of command policy
and procedure in 2008, and that this policy was not created until January 2010.

In Independent Fire Insurance, 755 So.2d at 236 (first and fourth alterations
in original), the supreme court, in reversing prior jurisprudence finding expert
opinion evidence inadmissible in summary judgment proceedings, reinforced
“several important underlying principles” with regard to the summary judgment
hearings:

The first is that the trial judge cannot make credibility determinations
on a motion for summary judgment. See Sportsman Store of Lake
Charles, Inc. v. Sonitrol Security Systems of Calcasieu, Inc., 99-C-
0201, p. 6 (La.10/19/99), 748 So.2d 417 (“[t]he rule that questions of
credibility are for the trier of fact applies to the evaluation of expert
testimony”); [Frank L. Maraist and Harry T. Lemmon, | LOUISIANA
CiviL LAW TREATISE, CIVIL PROCEDURE, § 6.8,] p. 145 [(1999)] (“[iJn
deciding a motion for summary judgment, the court must assume that
all of the affiants are credible ...”). Second, the court must not attempt
to evaluate the persuasiveness of competing scientific studies. In
performing its gatekeeping analysis at the summary judgment stage, the
court must “focus solely on the principles and methodology, not on the
conclusions they generate.” Daubert |v. Merrell Dow Pharm., Inc., 509
U.S. 579,] 595, n. 6, 113 S.Ct. 2786 [(1993)]. Third, the court “must
draw those inferences from the undisputed facts which are most
favorable to the party opposing the motion.” Maraist & Lemmon,
supra, p. 145. Fourth, and most importantly, summary judgments
deprive the litigants of the opportunity to present their evidence to a
jury and should be granted only when the evidence presented at the
motion for summary judgment establishes that there is no genuine issue
of material fact in dispute. If a party submits expert opinion evidence
in Opposition to a motion for summary judgment that would be
admissible under Daubert-[State v.] Foret[, 628 So.2d 1116 (La.1993)|
and the other applicable evidentiary rules, and is sufficient to allow a
reasonable juror to conclude that the expert’s opinion on a material fact
more likely than not is true, the trial judge should deny the motion and
let the issue be decided at trial.

40

After performing a de novo review of the record, we find that the DeHarts
established the standard of care applicable to Ms. Falconer and the surgical staff
involved in the patient’s September 30, 2008 surgery.

Based on the evidence, it is clear that knowledge of the excessive bleeding
originated with the surgical staff, rather than Ms. Falconer. In fact, Ms. Falconer
testified that she was not aware of the bleeding until 1527 hours, after the patient
was weaned from the cardiopulmonary bypass machine.

Although the defendants objected to Mr. Stammers’ opinion evidence, the
trial court ruled that the evidence was admissible, and the defendants did not appeal
that ruling. After reviewing the DeHarts’ evidence in accordance with the principles
laid out by the supreme court in /ndependent Fire Insurance, we find that Mr.
Stammers’ opinion evidence is sufficient to allow a reasonable juror to conclude that
his opinion with regard to Ms. Falconer’s breach of the standard of care is more
likely than not true. Accordingly, we find that a genuine issue of material fact exists
with regard to whether Ms. Falconer failed to adequately document the ongoing
cardiopulmonary bypass and whether this failure caused her to provide inadequate
perfusion during the robotic procedure. We further find that a genuine issue of
material fact exists with regard to whether Ms. Falconer failed to timely inform Dr.
Jones and the surgical staff that the patient was losing volume during the first bypass
run.

With regard to the surgical staff, we further find that a reasonable juror could
conclude that Ms. McDonald’s opinion evidence regarding the surgical staff's
breach of the standard of care is more likely than not true. According to the
defendants’ evidence, Dr. Jones testified that after inspecting the bleeding, he
ordered the site packed with lap pads. However, not one of the surgical staff

mentioned this in their testimonies. According to Ms. Reilly and Ms. Conner, Dr.

4]

Jones walked from the console to the operating table, inspected the site, walked back
to the console, and stated that he would address the issue later. Further, according
to Mr. Duhon and Mr. Dunn, nothing was done to address the bleeding during the
first bypass run. Whether Dr. Jones instructed the surgical staff to pack the bleeding
with lap pads and whether this was carried out by the surgical staff is a genuine issue
of material question of fact. Furthermore, Dr. Jones testified that although he saw
the blood located next to the patient’s groin, he never saw the blood located on the
floor. This raises a question of whether he was aware of the extent and the magnitude
of the patient’s bleeding during the robotic surgery.

Accordingly, we find that genuine issues of material fact exist with regard to
whether the surgical staff failed to adequately monitor the tourniquet or document
the procedure. We further find genuine issues of material fact exist with regard to
whether the surgical staff failed to timely and properly tend the excessive bleeding
by failing to effectively communicate the bleeding issue and the magnitude of the
bleeding to the surgeon and by failing to seek assistance up the chain of command
when the surgeon failed to address the bleeding.

With regard to causation, Mr. Stammers causally related the patient’s low
blood flow rates and subsequent metabolic acidosis to Ms. Falconer’s failure to
provide adequate perfusion during cardiopulmonary bypass. Ms. McDonald,
considering the patient’s comorbidities, causally related the patient’s hypovolemia,
the fact that she coded on the operating table, and her rocky post-operative outcome,
to the surgical staff's failure to effectively communicate the extent of the bleeding
and their failure to seek assistance up the chain of command when the surgeon failed
to address the bleeding. Furthermore, Dr. Traylor causally related the patient’s

complications and ultimate death to the failure to timely address the hemorrhage at

the femoral artery cannula site. Whether this issue relates to Ms. Falconer and the
surgical staff is a genuine issue of material fact.

Although Mr. Hawkins and Ms. McDonald both found violations by LGMC’s
leadership of the Joint Commission and CMS Conditions for Participation standards
based on their failure to implement policies, procedures, and training relative to
patient safety and advocacy, as well as its own protocols and policies, none of these
allegations were alleged in the DeHarts’ petition. These types of claims were
included in the DeHarts’ January 20, 2015 amended petition. However, this petition
was vacated and dismissed with prejudice by the trial court’s March 12, 2015
judgment. Once the matter returned to the trial court following the second medical
review panel opinion, the DeHarts never amended their petition to include these
allegations.

Accordingly, based on our finding that genuine issues of material fact exist
with regard to both Ms. Falconer’s and the surgical staff's breach of the standard of
care and causation on the issue of excessive bleeding, we render judgment denying
LGMC and Ms. Falconer’s motion for partia] summary judgment on this issue.
Assignment of Error Number Three

In this assignment of error, the DeHarts argue that the trial court erred in
granting summary judgment on the informed consent issue because they established
that genuine issues of material fact exist with regard to whether LGMC breached its
duty of obtaining a properly completed informed consent form from Mrs. DeHart.
Despite acknowledging that the duty of obtaining informed consent rested with Dr.
Jones, they argue that LGMC, as a Medicare provider, was bound by the standards
imposed by the Joint Commission and CMS Conditions of Participation, vis-a-vis
implementing informed consent policies and procedures “to make sure that informed

consent is provided to and properly executed by the patient via the surgeon[,}” and

43

“to outline how the informed consent procedure is to be achieved.” They argue that
this was especially true based on the marketing campaign utilized by LGMC to
promote Dr. Jones and the da Vinci” Surgical Robot to cardiac patients.

Thus, the DeHarts claim that “the duty [LGMC] assumed was not to ‘obtain’
informed consent but to make sure the informed consent was ‘obtained’ by making
sure the form they required to be executed was filled out properly.” Because Mrs.
DeHart’s informed consent form contained blanks, they argue that it failed to comply
with either LGMC’s Operating Room Procedure Manual or La.R.S. 40:1157.2.
Thus, they claim this raised a rebuttable presumption of negligent failure by LGMC
to conform to the duty of disclosure.

The DeHarts alleged the following acts of negligence related to informed
consent in their petition:

B. Failing to fully inform the deceased of alternative approaches

and the risk associated with those approaches given her

preexisting condition, falling below the appropriate standard of
care.

G. _ Failing to properly obtain informed consent from Arlene Dehart

[sic][.]

H. Misleading through advertisement and marketing the risks
associated with the type of surgery offered to Arlene DeHart.

Based on the DeHarts’ acknowledgment of Dr. Jones’ duty with regard to informed
consent, we find that the only allegations pertaining to LGMC are “G.” and “H.”

In their motion, the defendants moved for partial summary judgment on the
issue of whether LGMC had a legal duty to inform Mrs. DeHart of the risks
associated with the robotic surgery and whether there was a causal link between its
advertising campaign for its robotically-assisted surgical program and her damages.

The defendants satisfied their burden of pointing out an absence of factual support

44

for the DeHarts’ claim through the medical review panel opinion, which found that
LGMC “was not responsible for informing the patient of the risk benefit of the
procedure and did not mislead in any fashion.” Thus, the burden shifted to the
DeHarts to present sufficient evidence to show that they would be able to satisfy
their burden of proof at trial.

In their opposition, the DeHarts introduced advertising material used by
LGMC to market Dr. Jones and the da Vinci* Surgical Robot to cardiac patients;
deposition testimony from Dr. Raghotham Patlola; La.R.S. 40:1157.2, relative to the
Louisiana Medical Disclosure Panel; Mrs. DeHart’s informed consent form; Dr.
Jones’ deposition testimony; Dr. Engleman’s affidavit, report, and deposition
testimony; Ms. McDonalds’ affidavit and report; Mr. Hawkins’ affidavit and report;
and the defendants’ responses to the DeHarts’ second set of interrogatories and
requests for production of documents and third requests for production of
documents.

The evidence submitted by the DeHarts established that LGMC did market
Dr. Jones and the da Vinci" Surgical Robot to cardiac patients by promoting the
minimally invasive nature of the robotic surgery as effectuated through smaller
incisions and reduced recovery time. However, the advertisements did state in
several instances that “[m]inimally invasive heart procedures are performed daily at
Lafayette General, with or without the one and only da Vinci* Surgical Robot,
depending on your condition.”

The evidence further established that Mrs. DeHarts’ treating cardiologist, Dr.
Patlola, diagnosed her with severe central mitral valve regurgitation and determined
that her only surgical option was open heart surgery. He referred Mrs. DeHart to

Dr. Jones at her request after she had seen LGMC’s advertisements regarding Dr.

Jones’ robotic surgery. He stated that she decided to proceed with the robotic
procedure after seeing Dr. Jones and having the procedure explained to her in detail.

In his April 15, 2008 medical report, Dr. Jones noted that Mrs. DeHart
reported some shortness of breath with exertion and that she had a mitral
insufficiency murmur. He reported:

This is a very pleasant 52-year-old female with a preserved left
ventricular function and severe mitral and tricuspid insufficiency.

I have had a long discussion with the patient regarding her activities of

daily living and her lifestyle issues. It does not appear that the valvular

status is giving her any symptoms at this time; however, she does have

a preserved left ventricular function. I have suggested that if she does

so desire to have her valves repaired, now would be the appropriate

time to fix her valves. I am certainly amenable to that and I have sent

her and her husband home to discuss her options and to return in two

weeks with plans for either the surgical scheduling or further medical

management.
In his notes from Mrs. DeHart’s follow-up visit, Dr. Jones noted she “Does not want
sternotomy.”

Dr. Engleman opined that Dr. Jones breached the standard of care by not
conducting pre-operative imaging of the patient’s aorto-iliac vascular system prior
to surgery and by failing to properly control the femoral artery during surgery. He
further stated that “[s]evere peripheral vascular disease is a_ relative
contraindication[] to femoral cannulation when other access sites are available.” He
testified that when he rejects a patient for femoral cannulation, he either cannulates
through the chest, if the patient is on cardiopulmonary bypass, or at the apex of the
heart, if bypass is not involved.

The stated purpose of LGMC’s policy, III: A-2 Consents, is “[s]urgery is
performed only when the patient has given informed consent.” In its general

information subsection, the manual states:

Each circulator must check the patient’s chart for a properly executed
consent form. Ifthe consent form is not properly executed or the patient

46

is unaware of the procedure to be performed the case is put on “hold”
and the attending surgeon notified. Surgery is performed only when
these criteria are met in order to ensure the highest quality of patient

care.

A properly completed consent form contains:

in BW he

-

Correct operative procedure.

Patient’s name written in full in the proper space.

Patient’s signature or designee according to hospital policy.
Witnessed by a person 18 years or older.

Properly dated and timed according to when the patient’s
signature was obtained.

All blanks filled in or with line drawn through blank spaces.

The procedure subsection provides the following:

—
.

wa

The September 30, 2008 informed consent form, signed by Mrs. DeHart,

Review chart for presence of consent form.

Interview patient.

If the consent form is missing or incorrect and/or the patient is
not aware of the procedure to be done notify the OR Director or
designated authority immediately. The case will be placed on
“hold” and the surgeon notified of the situation.

If the consent form is incorrect the patient must sign a new
consent form.

If the patient has received a mind altering drug (pre-op
medication), an assessment of the patient’s cognition will be
made and a determination if the patient is able to sign the
consent.

Two people must witness consent when a patient uses a “X” ora
mark for signature.

Two people, each of who must have heard the conversation in
which a verbal permission was granted via a_ telephone
conference call, must witness telephone consents.

In the case of an emergency, document in the Interoperative
Nurses Notes that the surgeon was notified of the absence of a
consent before the beginning of the procedure.

states that the procedure to be performed is a robotic mitral valve and tricuspid valve
repair and replacement with video. The form states that purpose of the procedure is
to improve heart function and that Dr. Jones and Ms. Conner would be performing
the procedure. The form states that the procedure is being performed with the robot
to repair and replace the damaged mitral valve, and lists the procedure specific risks

as bleeding, infection, death, and stroke. Those sections of the form pertaining to

47

the patient’s condition, the additional risks particular to the patient because of a
complicating medical condition, the reasonable therapeutic alternative and
associated risks, and the risks of no treatment were left blank.

Ms. McDonald determined that based on III: A-2, LGMC breached its duty of
educating its surgical staff on the requirement that surgical patients’ informed
consent forms must be properly executed. She stated that the informed consent form
contained blanks that were not struck through, and it failed to disclose all of the
material risks identified by the Louisiana Medical Disclosure Panel for any
procedure requiring cardiopulmonary bypass (LAC 48:1.2333) and the insertion of
an intra-aortic augmentation balloon (LAC 48:1.2335).

Based on nursing standards of care, Ms. McDonald admitted that nurses are
not required to obtain informed consent, but stated that nurses have a duty to validate
that the informed consent form is signed and that the patient understands the
procedure as explained by the surgeon. She stated, “If the patient expresses doubt
or hesitates[,] the nurse has a duty to notify the physician and not allow the patient
to sign until full understanding is obtained and all questions answered. Nurses must
follow hospital policies on Informed Consent.”

Mr. Hawkins stated that LGMC, as a Medicare approved facility, agreed to
abide by the CMS Conditions of Participation and “to meet or exceed all of the
national standards of the accrediting body (in this case) the Joint Commission which
the CMS program has granted ‘deeming’ status.” He further stated that “[s]hould
[LGMC] fail to meet or exceed the CMS conditions of participation or the Joint
Commission national standards they place at risk the entirety of their
Medicare/Medicaid funding which on a national basis represents approximately 50%
of an acute care [hospital’s] revenue.” Mr. Hawkins’ report, as discussed under the

DeHarts’ second and fourth assignments of error, offered six expert opinions to a

48

reasonable degree of administrative certainty. He also included a copy of CMS’s
Medicare Enrollment Application for Institutional Providers.

The informed consent statute in effect at the time of Mrs. DeHart’s surgery
was contained in La.R.S. 40:1299.40, rather than La.R.S. 40:1157.2, as cited by the
DeHarts."’ Louisiana Revised Statutes 40:1299.40 provided three methods by which
the physician actually performing the surgical procedure could obtain informed
consent from the patient. In Snider v. Louisiana Medical Mutual Insurance Co., 13-
579, pp. 7-15 (La. 12/10/13), 130 So.3d 922, 929-35 (alteration in original)
(footnotes omitted), the supreme court thoroughly explained the uniform consent
law:

Louisiana enacted its Uniform Consent Law, as LSA-R.S.
40:1299.40, in 1975. Prior to the amendment of LSA-R.S. 40:1299.40
in 1990 to add Subsection (E), battery-principle cases and negligence
cases involving lack of informed consent were concurrently available
to a patient/plaintiff. See Thibodeaux v. Jurgelsky, 2004-2004
(La.3/11/05), 898 So.2d 299, 303 (citing Pizzalotto v. Wilson, 437
So.2d 859 (La.1983) (discussing the cause of action for battery);
LaCaze v. Collier, 434 $o0.2d 1039 (La.1983) (discussing the cause of
action for lack of informed consent); and Gary L. Boland, The Doctrine
of Lack of Consent and Lack of Informed Consent in Medical Procedure
in Louisiana, 45 La.L.Rev. 1 (1984)). As stated in Subsection (E) of
LSA-R.S. 40:1299.40, in a suit against a physician or other health care
provider, involving a health care liability or medical malpractice claim
based on the failure of the physician or other health care provider to
disclose or adequately to disclose the risks and hazards involved in the
medical care or surgical procedure rendered by the physician or other
health care provider, “the only theory on which recovery may be
obtained is that of negligence in failing to disclose the risks or hazards
that could have influenced a reasonable person in making a decision to
give or withhold consent.” See LSA-R.S. 40:1299.40(E)(2)(a).
Louisiana jurisprudence requires that a plaintiff in an action based on a
failure to obtain informed consent prove the following four elements in
order to prevail: (1) a material risk existed that was unknown to the
patient; (2) the physician failed to disclose the risk; (3) the disclosure
of the risk would have led a reasonable patient in the patient’s position
to reject the medical procedure or choose another course of treatment;

* La.R.S. 40:1299.40 was repealed and re-enacted as La.R.S. 40:1299.39.5, 40:1299.39.6,
and 40:1299.39.7 by 2012 La. Acts No. 759, § 2, effective June 12, 2012. La.R.S. 40:1299.37.5
and 40:1299.39.6 were redesignated as La.R.S. 40:1157.1 and 40:1157.2 by 2012 La. Acts No.
600. § 2, effective June 7, 2012.

49

and (4) the patient suffered injury. See Brandt v. Engle, 2000-3416
(La.6/29/01), 791 So.2d 614, 619 n. 1.

The informed consent doctrine is based on the principle that
every human being of adult years and sound mind has a right to
determine what shali be done to his or her own body. Surgeons and
other doctors are thus required to provide their patients with sufficient
information to permit the patient himself to make an informed and
intelligent decision on whether to submit to a proposed course of
treatment. Where circumstances permit, a patient should be told the
nature of the pertinent ailment or condition, the general nature of the
proposed treatment or procedure, the risks involved in the proposed
treatment or procedure, the prospects of success, the risks of failing to
undergo any treatment or procedure at all, and the risks of any alternate
methods of treatment. Hondroulis v. Schuhmacher, 553 So.2d 398, 411
(La.1988) (on rehearing).

The Uniform Consent Law provides three approaches for
obtaining informed consent. See LSA-R.S. 40:1299.40(E)(2)(b)
(“Consent to medical treatment may be evidenced according to the
provisions of Subsections A and C of this Section or, as an alternative,
a physician or other health care provider may choose to avail himself
of the lists established by the Louisiana Medical Disclosure Panel
pursuant to the provisions of... Subsection [E] as another method by
which to evidence a patient’s consent to medical treatment.”).

First, under Subsection (A) of LSA-R.S. 40:1299.40, consent to
any medical or surgical procedure could be obtained by “handwritten
consent,” which: (1) sets forth in general terms the nature and purpose
of the procedure(s) and the known risks of death, brain damage,
quadriplegia, paraplegia, the loss or loss of function of any organ or
limb, and/or of disfiguring scars associated with such procedure(s); (2)
acknowledges that such disclosure of information has been made and
that all questions asked about the procedure(s) have been answered in
a satisfactory manner; and (3) is signed by the patient. Upon
compliance with Subsection (A), consent is “presumed” to be valid and
effective, in the absence of proof that execution of the consent was
induced by misrepresentation of material facts. See LSA-R.S.
40:1299.40(A)(1).

Second, under Subsection (C) of LSA-R.S. 40:1299.40, when
consent to medical treatment from a patient has been secured ‘other
than” in accordance with Subsection (A) of LSA-R.S. 40:1299.40, the
explanation to the patient must include the matters set forth in
Subsection (A), and an opportunity must have been afforded to the
patient for asking questions concerning the procedure(s) to be
performed, which must have been answered in a satisfactory manner.
Consent obtained under LSA-R.S. 40:1299.40(C), is considered “valid
and effective” and is “subject to proof according to the rules of evidence
in ordinary cases.”

50

Third, under Subsection (E) of LSA-R.S. 40:1299.40, informed
consent may be obtained by making the disclosures required by the
Louisiana Medical Disclosure Panel (“Panel”), which was created
within the Department of Health and Hospitals to determine which risks
and hazards related to medical care and surgical procedures must be
disclosed by a physician or other health care provider to a patient and
to establish the general form and substance of such disclosure, pursuant
to LSA-R.S. 40:1299.40(E)(3)(a). The Panel is tasked with identifying
and examining all medical treatments and surgical procedures in which
physicians and other health care providers may be involved, in order to
determine which of those treatments and procedures do or do not
require disclosure of the risks and hazards to the patient. The Panel
prepares separate lists of those medical treatments and surgical
procedures that do or do not require disclosure, and, for those
treatments and procedures that do require disclosure, the Panel
establishes the degree of disclosure required and the form in which the
disclosure will be made. See LSA-R.S. 40:1299.40(E)(4)(a) and (b).
The Panel lists are promulgated in accordance with the Administrative
Procedure Act, LSA-R.S. 49:950 et seq. See LSA-RS.
40:1299.40(E)(4)(c). Before a patient gives consent to any medical or
surgical procedure that appears on a Panel list requiring disclosure, the
physician or other health care provider must disclose to the patient the
risks and hazards involved in that kind of care or procedure. See LSA-

R.S. 40:1299.40(E)(5).

A physician or other health care provider who chooses to utilize
the lists prepared by the Panel in connection with obtaining a patient’s
consent is considered to have complied with the requirements of the
subsection if disclosure is made as provided in LSA-RS.
40:1299.40(E)(6). See LSA-R.S. 40:1299.40(E)(5). Pursuant to LSA-
R.S. 40:1299.40(E)(6), consent to medical care that appears on a Panel
list requiring disclosure is considered effective if it: (1) is given in
writing; (2) is signed by the patient; (3) is signed by a competent
witness; and (4) specifically states, in such terms and language that a
layman would be expected to understand, the risks and hazards that
were involved in the medical care or surgical procedure in the form and
to the degree required by the Panel. When the Panel has made no
determination regarding a duty of disclosure for medical care or a
surgical procedure, the physician or other health care provider is under
a general duty to disclose as otherwise imposed by the Uniform Consent
Law. See LSA-R.S. 40:1299.40(E)(7)(b).

In order “to be covered” by the provisions of Subsection (E) of
LSA-R.S. 40:1299.40, Paragraph (E)(7)(c) directs that the physician or
other health care provider who will actually perform the contemplated
medical or surgical procedure must also: (1) disclose the risks and
hazards in the form and to the degree required by the panel; (2) disclose
additional risks, if any, particular to a patient because of a complicating
medical condition; (3) disclose reasonable therapeutic alternatives and
risks associated with such alternatives; (4) relate that he is obtaining a
consent to medical treatment pursuant to the lists formulated by the

5]

Panel; and (5) provide an opportunity for the patient to ask any
questions about the contemplated medical or surgical procedure, risks,
or alternatives and acknowledge in writing that he answered such
questions, the receipt of which must also be acknowledged in writing.
See LSA-R.S. 40:1299.40(E)(7)(c).

When the disclosures are given as required by, and a consent
form is executed in accordance with, Subsection (E), the consent is
admissible in evidence and creates a rebuttable presumption of
compliance with LSA-R.S. 40:1299.40(E)(5) and (6), and this
presumption must be included in a jury charge. See LSA-R.S.
40:1299.40(E)(7)(a)(i). Conversely, the failure to disclose risks and
hazards required to be disclosed under LSA-R.S. 40:1299.40(E)(5) and
(6) is also admissible in evidence and creates a rebuttable presumption
of a negligent failure to conform to the duty of disclosure set forth in
LSA-R.S. 40:1299.40(E)(5) and (6); such a presumption must likewise
be included in a jury charge. See LSA-R.S. 40:1299.40(E)(7)(a)(i1).
Nevertheless, a failure to disclose may be found not negligent if there
was an emergency as defined in LSA-R.S. 40:2113.6(C) or if for some
other reason it was not medically feasible to make a disclosure of the
kind that would otherwise have been negligence.

Based on La.R.S. 40:1299.40(E)(7)(a}(i1), a rebuttable presumption of
negligent failure to conform to the duty of disclosure only arises if the physician
actually performing the surgery fails to comply with disclosure requirements of
La.R.S. 40:1299.40(E}\(5) or (6). Here, the DeHarts’ allegations are against LGMC,
rather than Dr. Jones. Thus, despite their argument otherwise, there is no rebuttable
presumption of negligence pursuant to La.R.S. 40:1299.40(E)(7)(a)(ii) on the part
of LGMC.

Furthermore, the jurisprudence has held that the sole duty of obtaining
informed consent rests with the physician actually performing the surgery.
Crockerham vy. La. Med. Mut. Ins. Co., 17-1590 (La.App. 1 Cir. 6/21/18), 255 So.3d
604 (hospital has no duty to inform patient of the risks associated with the
procedure); Phillips v. State ex rel. LSU Med. Ctr., 08-1411 (La.App. 3 Cir. 4/15/09),
9 So.3d 1080 (duty of obtaining informed consent from patient rests with physician
who is actually performing the procedure); Mohsan v. Roule-Graham, 05-122

(La.App. 5 Cir. 6/28/05), 907 So.2d 804, writ denied, 05-1976 (La. 2/3/06), 922

52

So.2d 1184 (hospital and its staff were not responsible for obtaining informed
consent from the patient); and Kelley v. Kitahama, 96-45 (La.App. 5 Cir. 5/15/96),
675 So.2d 1181, writ denied, 96-1555 (La. 9/27/96), 679 So.2d 1352 (hospital was
not responsible for describing the nature and purpose of the procedure to patient).

We further find that the Joint Commission and the CMS’ Conditions for
Participation’s informed consent standards, as adopted by LGMC, do not impose
tort liability upon LGMC as a result of the surgical staff's failure to ensure that Mrs.
DeHart’s informed consent form was properly filled out. A similar argument was
raised in Godwin v. University of South Florida Board of Trustees, 203 So.3d 924,
(Fla. 2d DCA 2016), review denied, SC16-2107, 2017 WL 1034486 (Fla. March 17,
2017), regarding the CMS Conditions for Participation’s standard regarding
contracted services, as promulgated in 42 C.F.R. § 482.12(e). There, the court
stated:

Finally, Mr. Godwin argues that a statutory duty imposed by
Medicare cannot be delegated to an independent contractor. More
specifically, Mr. Godwin asserts that the regulations promulgated under
the Medicare Act require hospitals that participate in the Medicare
program to maintain a nondelegable duty to provide nonnegligent care.
See 42 C.F.R. § 482.12. No Florida appellate court has reached this
conclusion. We decline the invitation to be the first.

Section 482 identifies the conditions of participation for
hospitals in the Medicare program. 42 C.F.R. § 482.1(b). This section
was intended to specify the standards that the federal government will
assess when determining whether or not a hospital will continue to be
eligible to treat Medicare patients. /d. (“[T]he provisions of this part
serve as the basis of survey activities for the purpose of determining
whether a hospital qualifies for a provider agreement under Medicare
and Medicaid.”); see also Sepulveda v. Stiff, No. 05cv167, 2006 WL
3314530, at *8 (E.D.Va. Nov. 14 2006) (finding that section 482.1 et
seq. are “intended to set out the guidelines for determining whether a
hospital may participate in Medicaid”); Blackmon v. Tenet
Healthsystem Spalding, Inc., 288 Ga.App. 137, 653 S.E.2d 333, 340
(2007) (“[Section 482.12(e)] does not purport to impose state tort
liability on hospitals for the negligence of their independent
contractors; rather it simply outlines that with which the hospitals must
comply to receive Medicare.”), rev ‘d in part on other grounds, 284 Ga.

33

369, 667 S.E.2d 348 (2008), vacated in part on other grounds, 294
Ga.App. 423, 669 S.E.2d 237 (2008).

The Department of Health and Human Services clarified that
section 482.12(e) “indicate[s] that the governing body is responsible for
assuring that the contractor furnishes services that permit the hospital
to comply with all applicable conditions of participation and standards
for the contracted services.” Medicare and Medicaid Programs;
Conditions of Participation for Hospitals, 51 Fed. Reg. 22,010-01,
22,015 (June 17, 1986) (to be codified at 42 C.F.R. p. 482). The quality
assurance condition, section 482.21, was revised “to assure that
services provided under contract that relate to patient health and safety
are included for evaluation in the quality assurance plan.” Medicare
and Medicaid Programs; Conditions of Participation for Hospitals, 51
Fed. Reg. at 22,015.

The rule does not create liability for the hospital due to the
negligence of any independent contractor. Instead, the rule and the
discussion and responses to public comments explain that the services
that a contractor furnishes to a hospital will be part of the quality
assurance evaluation for the hospital’s continued participation in the
Medicare program. The rule does not purport to diminish or preempt
state laws dealing with the traditional common law theories of
principal/agent and independent contractors. See La. Pub. Serv.
Comm'n v. F.C.C., 476 U.S. 355, 368, 106 S.Ct. 1890, 90 L.Ed.2d 369
(1986) (“Pre-emption occurs when Congress, in enacting a federal
statute, expresses a clear intent to pre-empt state law... .”).

Mr. Godwin’s call for the imposition of strict liability on TGH

for its hospital employees, agents, or independent contractors finds no

support in the language of the Medicare statute or related regulations.
Id. at 931-32 (alterations in original) (footnote omitted).

Likewise, we find that LGMC’s informed consent rules, adopted in order to
satisfy the CMS’s Conditions for Participation, do not purport to impose state tort
liability on it or diminish or preempt Louisiana state law, which imposes the duty of
obtaining informed consent solely on the physician actually performing the
procedure. La.R.S. 40:1299.40. Nor do we find that LGMC’s marketing campaign
altered this finding. The duty to ensure that Mrs. DeHart was a suitable candidate

for the proposed robotic surgery still rested with Dr. Jones, as acknowledged by the

DeHarts. Accordingly, we find that the DeHarts failed to establish that a genuine

issue of material fact existed with regard to the informed consent issue and affirm
the trial court judgment on this issue.
DISPOSITION

Based on the foregoing reasons, we vacate the trial court judgment granting
partial summary judgment in favor of Lafayette General Medical Center and Amy
Falconer on the issue of excessive bleeding, and render judgment denying Lafayette
General Medical Center and Amy Falconer’s motion for partial summary judgment
on the same issue. We further affirm the trial court judgment granting partial
summary judgment in favor of Lafayette General Medical Center and Amy Falconer
on the issue of informed consent. This matter is remanded to the trial court for
further proceedings in conformity with this opinion. The costs of this appeal are
assessed equally between the parties.

JUDGMENT VACATED IN PART AND RENDERED; AFFIRMED IN
PART; AND REMANDED.