Donald Colligan v. Maison De Lafayette Nursing Home

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

19-857

DONALD COLLIGAN, ET AL.

VERSUS

MAISON DE LAFAYETTE NURSING HOME
AND KRISTIN TAUZIN, FNP

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20173369, DIVISION B
HONORABLE JULES D. EDWARDS, DISTRICT JUDGE

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CANDYCE G. PERRET
JUDGE

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Court composed of John D. Saunders, Billy Howard Ezell, and Candyce G. Perret,
Judges.

AFFIRMED.

John Paul Charbonnet
The Glenn Armentor Law Corporation
300 Stewart Street
Lafayette, LA 70501
(337) 233-1471
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Donald Colligan
Debra Colligan Lopez
Maxine Colligan Navarre
Dianne Colligan Colomb

Nicholas Gachassin, III
John D. Schoonenberg
Holly McKay Descant
Gachassin Law Firm
Post Office Box 80369
Lafayette, LA 70598-0369
(337) 235-4576
COUNSEL FOR DEFENDANTS/APPELLEES:
Maison De Lafayette Nursing Home
Kristin Tauzin, FNP

PERRET, Judge.

This is a wrongful death and survival claim arising from alleged medical

malpractice during the treatment of Ed Colligan (deceased) by Defendants-

Appellees, Maison de Lafayette Nursing Home (“Maison de Lafayette”) and Kristin

Tauzin, FNP (“NP Tauzin”)(collectively referred to as “Defendants”). Plaintiffs-

Appellants, Mr. Colligan’s children, appeal a summary judgment rendered in

Defendants’ favor, dismissing their claims with prejudice. On appeal, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND:

Plaintiffs allege that Defendants rendered care to Ed Colligan between June 6,

2013, and August 13, 2013. After suffering two strokes in the earlier part of 2013,

and subsequent to treatment for respiratory failure in late May to early June, Mr.

Colligan was re-admitted to Maison de Lafayette on June 6, 2013, at eighty-six years

of age. During his stay, Mr. Colligan developed several pressure and non-pressure

ulcers which were documented and treated by Defendants. However, the non-

pressure ulcer on his right lower leg began to omit an odor. Mr. Colligan was

transported to Lafayette General Medical Center (“Lafayette General”) on August

13, 2013, where he was treated, and his right leg amputated above the knee. Mr.

Colligan was septic and had an acute kidney injury. Mr. Colligan survived

approximately two months after his transfer to Lafayette General. Plaintiffs allege

that he succumbed to a respiratory illness on October 24, 2013.

Plaintiffs unsuccessfully presented their claim against Maison de Lafayette

and NP Tauzin to a Medical Review Panel (“MRP” or “the panel”). After the panel

returned a unanimous opinion finding no breach of the standard of care by

Defendants, Plaintiffs filed the instant suit. Plaintiffs alleged a multitude of facts

and failures regarding Mr. Colligan’s treatment as well as a nonexclusive list of

Defendants’ breaches of standard of care, including:

a. Not recognizing signs and symptoms influencing Ed Colligan’s
skin integrity, wound care, and health status;

b. Not performing thorough and/or accurate physical assessments
of Ed Colligan;

c. Not timely relaying significant changes in Ed Colligan’s
condition to a physician;

d. Not exercising the judgment and/or skill required of a licensed
health care professional of [her/their] education, experience, and
training as the circumstances of Ed Colligan’s condition required.

Defendants moved for summary judgment on October 21, 2018, “based on the

assertion that Plaintiffs had no medical expert testimony to show that Defendants

breached the applicable standard of care or caused the alleged damages.” Colligan

v. Maison de Lafayette Nursing Home, 19-290, p. 1 (La.App. 3 Cir. 5/15/19)

(unpublished opinion). Plaintiffs failed to submit a timely opposition brief. Thus,

the trial court denied Plaintiffs the opportunity to argue at the summary judgment

hearing and only permitted their opposition brief to be proffered. Thereafter, the

trial court granted summary judgment in favor of Defendants in open court, and a

written judgment was signed on December 10, 2018.

On February 8, 2019, Plaintiffs filed a motion for devolutive
appeal. . . . Ex proprio motu, this court issued a rule ordering Plaintiffs
to show cause why the appeal should not be dismissed [as having been
taken from a judgment lacking proper decretal language]. Plaintiffs did
not respond to the rule.

Id.

Thereafter, this court dismissed the appeal without prejudice and noted that

“Plaintiffs are free to seek a judgment containing the required decretal language.”

Id. at p. 2. The parties then filed a Motion to Amend Phraseology of Judgment on

Motion for Summary Judgment Pursuant to La.C.C.P. Art. 1951 and obtained a

judgment containing decretal language on August 30, 2019. Plaintiffs subsequently

filed the instant appeal. On appeal, Plaintiffs assert three assignments of error:

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1. The Trial Court erred in finding that the burden shifted to
appellants to show there was a genuine issue as to material fact when
considering appellees’ motion for summary judgment.

2. The Trial Court erred in refusing to consider appellants’ written
opposition to appellees’ motion for summary judgment and ordering
the opposition to be proffered as a matter of evidence.

3. The Trial Court erred in granting the appellees’ motion for
summary judgment.

DISCUSSION:

Summary judgments are reviewed de novo on appeal, using the same criteria

as trial courts in determining whether summary judgment is proper; “i.e. whether

there is any genuine issue of material fact, and whether the movant is entitled to

judgment as a matter of law.” Samaha v. Rau, 07-1726, p. 4 (La. 2/26/08), 977 So.2d

880, 882-83.

“A fact is ‘material’ when its existence or nonexistence may be essential to

[the] plaintiff’s cause of action.” Smith v. Our Lady of the Lake Hosp., Inc., 93-2512,

p. 27 (La. 7/5/94), 639 So.2d 730, 751. “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., 11-2566, p. 8 (La. 7/2/12), 94 So.3d

750, 755. Summary judgment “shall be granted if the motion, memorandum, and

supporting documents show that there is no genuine issue as to material fact and that

the mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(A)(3).

In their first assignment of error, Plaintiffs argue that the trial court erred in

finding that the burden shifted from Defendants to Plaintiffs to show there was a

genuine issue as to material fact. This court recently reiterated the mover’s burden

of proof on summary judgment in Landry v. Usie, 19-40, pp. 4-5 (La.App. 3 Cir.

12/30/19), 286 So.3d 571, 575-76, writ denied, 20-182 (La. 3/16/20), -- So.3d --:

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Even in the absence of a formal opposition, the
moving party must show that it is entitled to summary
judgment. If a plaintiff whose opponent fails to file an
answer must prove the basic elements of his case before
he can be awarded a judgment by default, then it is
reasonable to require that an unopposed motion for
summary judgment must be at least adequate and correct
on its face....

....

The review of a motion for summary judgment
entails a two step analysis. First, the moving party has the
initial burden to affirmatively prove the absence of a
genuine issue of material fact and that he is entitled to
judgment as a matter of law. Any doubt must be resolved
against summary judgment and in favor of a trial on the
merits. Industrial Sand and Abrasives, Inc. v. Louisville
and Nashville Railroad Company, 427 So.2d 1152
(L[a].1983); Morcos v. EMS, Inc., 570 So.2d 69 (La.App.
4 Cir. 1990).

Secondly, if the moving party provides sufficient
evidence to support the motion, the burden shifts to the
opposing party to produce evidence proving that genuine
issues of material fact are still present. Cooper v. Ceco,
558 So.2d 1355 (La.App. 4 Cir. 1990).

Poydras Square Assocs. v. Suzette’s Artique, Inc., 614 So.2d 131, 132,
(La.App. 4 Cir.1993)(quoting White v. Mossy Oldsmobile, Inc., 606
So.2d 33, 34 (La.App. 4 Cir. 1992)).

In the current case, Defendants moved for summary judgment. As the movers,

Defendants have the initial burden of proving their entitlement to summary judgment

as a matter of law:

The burden of proof rests with the mover. Nevertheless, if the
mover will not bear the burden of proof at trial on the issue that is before
the court on the motion for summary judgment, the mover’s burden on
the motion does not require him to negate all essential elements of the
adverse party’s claim, action, or defense, but rather to point out to the
court the absence of factual support for one or more elements essential
to the adverse party’s claim, action, or defense. The burden is on 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.

La.Code Civ.P. art. 966(D)(1).

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Therefore, as in Landry, this court must “first determine whether the

Defendants satisfied their initial burden of establishing their entitlement to summary

judgment dismissal, regardless of Plaintiffs’ failure to submit a [timely] opposition[.]”

Id. at 576. “If Defendants failed to satisfy their initial burden, then the burden never

shifted to Plaintiffs to produce evidence in opposition to Defendants’ motion, and

Plaintiffs’ failure to submit any such evidence is irrelevant to the analysis.” Id.

To summarize the elements set forth in La.R.S. 9:2794, a plaintiff in a medical

malpractice action must prove by a preponderance of the evidence “(1) the standard

of care applicable to the physician; (2) a violation of that standard of care by the

physician; and (3) a causal connection between the physician’s alleged negligence

and the claimed injuries.” Vanner v. Lakewood Quarters Retirement Cmty., 12-1828,

p. 6 (La.App. 1 Cir. 6/7/13), 120 So.3d 752, 755.

“Expert testimony is generally required to establish the applicable standard of

care and whether or not that standard was breached, except where the negligence is

so obvious that a lay person can infer negligence without the guidance of expert

testimony.” Samaha v. Rau, 07-1726, pp. 5-6 (La. 2/26/08), 977 So.2d 880, 884.

Defendants sought summary judgment to dismiss Plaintiffs’ claims alleging

that Plaintiffs had no expert opinion regarding the standard of care and causation,

elements of a medical malpractice claim under La.R.S. 9:2794. In support of their

motion, Defendants submitted the MRP opinion with the affidavit of a panel member

certifying the opinion, affidavits from three panel members correcting the MRP

opinion, pleadings, Mr. Colligan’s death certificate, and Mr. Colligan’s medical

records from Lafayette General, Dr. Gary Guidry, Dr. Charles Louis, Maison de

Lafayette, and Regional Medical Center. Not all of the exhibits have been

designated for inclusion in the appellate record. What is included in the appellate

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record are the panel affidavits and MRP opinion as well as medical record excerpts

from Lafayette General and Maison de Lafayette.

Mr. Colligan’s medical records show that after requiring a transfer to

Lafayette General on May 27, 2013, for respiratory failure, Mr. Colligan returned to

Maison de Lafayette on June 6, 2013. Prior to his return to Maison de Lafayette, his

medical records note that a “bilateral lower extremity venous non-invasive vascular

assessment revealed positive acute DVT [Deep Vein Thrombosis] in the right

proximal femoral to distal posterior tibial and peroneal veins.”

Maison de Lafayette’s records include a Non-Pressure Ulcer Assessment,

which reported weekly updates on Mr. Colligan’s right calf, documented as an

arterial ulcer. From June 7, 2013, to August 7, 2013, the ulcer’s measurement

decreased, and no drainage was noted. However, beginning July 7, 2013, slough

and erythema were noted. The records also contain a Non-Pressure Ulcer

Assessment for Mr. Colligan’s right ankle, also documented as an arterial ulcer.

From July 10, 2013, through July 31, 2013, the measurements of the ankle ulcer

were roughly unchanged, and slough noted. No drainage was documented. On

August 7, 2013, the assessment notes an increase in the ankle ulcer along with

drainage. Also included in the appellate record is one page by NP Tauzin

documenting Mr. Colligan’s condition on August 12, 2013. Her notes state, “Wound

to R outer leg + lateral ankle[.]” She notes increased “slough + necrotic area +

development of foul odor over the weekend.”

Maison de Lafayette’s Treatment Record for Mr. Colligan charted pressure

ulcers to his coccyx, right buttock, right leg, and right ankle on August 1, 2013. The

“pressure ulcer” at Mr. Colligan’s right “lower leg” and right ankle were also charted

on August 12, 2013. Additionally, the Weekly Body Audit consistently noted a

pressure ulcer on Mr. Colligan’s buttock and coccyx, and a pressure ulcer on the
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right calf and ankle. The only deviation from this charting is on June 29, 2013,

where a nurse noted a pressure ulcer to the right front calf, a non-pressure ulcer on

the front right ankle, and a non-pressure ulcer on the right back calf.

Once transferred to Lafayette General on August 13, 2013, Mr. Colligan

required an above knee amputation. The pathology report states: “There is a large

necrotic ulcer overlying the lateral distal leg measuring up to 9 cm. There is an

ulcerated necrotic ulcer overlying the lateral ankle measuring up to 4 cm. Both show

wet gangrene bases.” Lafayette General records noted, “Sepsis: secondary to gas

gangrene @ rt lateral malleoli[.]” As to the history of the illness, the records state:

He developed a pressure sore on the lateral malleolus right ankle some
time ago. The family reported foul smelling discharge on 08/09/13, and
requested nursing home to send him to the hospital sometime over the
weekend, which the nursing home did not do. The patient was sent to
the hospital today when he had fever of 101.

The MRP reviewed the position paper, family affidavits, and photographs

submitted by Plaintiffs, as well as Mr. Colligan’s medical records submitted by

Defendants. After reviewing the evidence, the MRP first opined that “the evidence

does not support the conclusion that the defendant, Maison de Lafayette Nursing

Home, failed to meet the applicable standard of care as alleged.” The MRP reasoned

that “[w]hile Mr. Colligan did suffer with pressure ulcers, he healed well from the

pressure ulcers. The care administered by Maison de Lafayette’s employees for the

pressure ulcers was timely and appropriate and properly documented.” The panel

opined that the “venous stasis blister[1] on the right calf (not a pressure ulcer) was

the problem that developed into the one of most concern.” Further, the venous stasis

ulcer “was complicated by Mr. Colligan’s peripheral vascular disease, the DVT he

had suffered, and chronic venous stasis.” The panel continued, “The actions of both

1
The subsequent affidavits of the panel members correct the classification of the lateral
right calf non-pressure ulcer. The members attest that the opinion mistakenly classified the non-
pressure ulcer as venous stasis blister and ulcer rather than an arterial blister and ulcer.
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nurse Tara Nico and nurse practitioner Kristin Tauzin in the documentation and

notes, and in the administration of care, were acceptable and within the standard of

care.” “The fact that the patient’s amputation ultimately did not heal supports that

[sic] panel’s opinion that the patient’s anterior lateral right thigh ulcer and its

progression was complicated by his peripheral vascular disease and chronic venous

stasis and his DVT.” Specifically, the panel found that the “records indicate that the

nurse practitioner was involved in the patient’s care, and that plans were being made

on handling the patient, and that they were aware of the evolving problem and

reacting appropriately to developments.” The panel opined that issues surrounding

the documentation and monitoring of Mr. Colligan’s pressure ulcers were not the

real problem, which was the venous stasis ulcer (later corrected to be an arterial

ulcer). Ultimately, the panel opined that the “judgment to transfer the patient August

13, 2013 did not cause a delay in the diagnosis or treatment or cause the patient to

die and lose a chance of surviving, or cause a progression of the patient’s condition.”

The subsequent correcting affidavits not only clarified that the right calf non-

pressure ulcer was actually an arterial blister and ulcer, but also reinforced the

panel’s opinion that there was no breach in the standard of care by Defendants. The

affidavits further explain:

4. Arterial ulcers are generally associated with peripheral artery
disease/peripheral vascular disease.

5. Based upon the medical records reviewed, Ed Colligan (D) had
a history of bilateral lower extremity deep venous thrombosis.

6. A history of bilateral and/or more than one deep venous
thrombosis increases the odds of the patient developing a lower
extremity venous ulcer.

7. Appropriate wound care treatment to Ed Colligan’s ulcers
located on the lateral right lower extremity and lateral right ankle would
be the same or similar regardless if the blisters/ulcers was [sic]
classified as venous or arterial.

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....

8. The gangrenous tissue identified on Ed Colligan’s right lower
extremity was secondary to his peripheral artery disease/peripheral
vascular disease.

9. The pathology report of Ed Colligan’s amputated right lower
extremity mentions “occlusive atherosclerosis of the popliteal artery”
and “occlusive atherosclerotic arteriopathy,” both of which are
associated with peripheral artery disease/peripheral vascular disease.”

Plaintiffs argue that the panel opinion is unreliable and is not supported by the

medical records. Louisiana Revised Statutes 40:1231.9(H) states that a medical

review panel opinion “shall be admissible as evidence in any action subsequently

brought by the claimant in a court of law, but such expert opinion shall not be

conclusive[.]” Further, the supreme court has noted that “as with any expert

testimony or evidence, the medical review panel opinion is subject to review and

contestation by an opposing viewpoint.” McGlothlin v. Christus St. Patrick Hosp.,

10-2775, p. 9 (La. 7/1/11), 1227.

A similar argument was made in Schultz v. Guoth, 10-343 (La. 1/19/11), 57

So.3d 1002, involving the untimely death of a fetus during labor. In that case, the

plaintiff did not oppose summary judgment with expert evidence, but instead pointed

to “inherent contradiction[s]” between “the panel’s finding that ordering a C-section

earlier in the crisis would not have been appropriate when it also found that ordering

a C-section at 7:14 a.m. was appropriate.” Id. at 1008. Additionally, the plaintiff

argued that while the panel did not believe the baby was alive at the time of arrival

to the hospital, the medical records included heart beats measured after arrival. Thus,

the plaintiff concluded that the panel’s opinion was unreliable. The supreme court

noted, “Although the plaintiff argues the panel members ignored the medical

evidence, the medical review panel opinion specifically stated that the evidence did

not support the conclusion that Dr. Rabie failed to meet the applicable standard of

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care.” Id. at 1009. Furthermore, the supreme court stated, “In ruling on a motion

for summary judgment, we are not free to simply disregard the movant’s unopposed

expert medical evidence.” Id.

As this case involves a patient with a complex medical history and the

negligence is not “so obvious that a lay person can infer negligence without the

guidance of expert testimony[,]” Plaintiffs would need to prove the standard of care

via a medical expert. Samaha, 977 So.2d at 884. As in Schultz, after reviewing the

exhibits submitted by the parties, including all medical records, the panel

unanimously found that the evidence did not support the conclusion that Defendants

failed to meet the applicable standard of care. Plaintiffs did not present any medical

expert to counter the MRP opinion and we are “not free to simply disregard the

movant’s unopposed expert medical evidence.” Id. Defendants affirmatively

proved the absence of factual support for an essential element to Plaintiffs’ claim

and the burden shifted to Plaintiffs to prove the existence of genuine issues of

material fact in order to defeat summary judgment. However, Plaintiffs presented

no expert to oppose Defendants’ reliable expert medical evidence. Summary

judgment was proper.

On appeal, Plaintiffs also assert that the trial court erred in refusing to consider

their untimely written opposition and erred in only permitting the opposition to be

proffered. The determination of whether the trial court abused its discretion in

having the opposition proffered is of no importance to the outcome of this case.

Even if Plaintiffs’ opposition was considered, no additional evidence was provided.

Plaintiffs’ opposition merely asserts that the panel opinion and affidavits are

inconsistent with the medical records and, thus, unreliable. As we have previously

reviewed Defendants’ evidence and found the burden switched to Plaintiffs to

produce factual support sufficient to establish genuine issues of material fact, the
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failure of Plaintiffs to submit additional evidence to create a genuine issue of

material fact is detrimental to their claim.

CONCLUSION:

For the foregoing reasons, the judgment of the trial court granting summary

judgment to Maison de Lafayette and Kristin Tauzin, FNP, is affirmed. All costs of

this appeal are assessed to Plaintiffs-Appellants.

AFFIRMED.

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

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