Amos P. Simon v. Allen Oaks, LLC D/B/A Allen Oaks Nursing Home

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 20-5

AMOS P. SIMON, ET AL.

VERSUS

ALLEN OAKS, LLC D/B/A ALLEN OAKS NURSING HOME

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APPEAL FROM THE
THIRTY-THIRD JUDICIAL DISTRICT COURT
PARISH OF ALLEN, NO. C-2018515
HONORABLE ERROL DAVID DESHOTELS, JR., DISTRICT JUDGE

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D, KENT SAVOIE
JUDGE

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Court composed of, Judges Sylvia R. Cooks, D. Kent Savoie, and Candace G.
Perret.

AFFIRMED.

Rene’ Joseph Pfefferle
Watson, Blanche, Wilson & Posner
P. O. Box 2995
Baton Rouge, LA 70821-2995
(225) 387-5511
COUNSEL FOR DEFENDANT/APPELLEE:
Allen Oaks, LLC d/b/a Allen OaksNursing & Rehab Center

Jacob B. Fusilier
Fusilier & Associates, LLC
P.O. Box 528
Ville Platte, LA 70586
(337) 363-6661
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Tony Simon
Charles Simon
The Estate of Amos Simon
Jackie Simon
Amos P. Simon

Savoie, Judge.

In this medical malpractice case, Plaintiffs, the Simons, appeal a summary

judgment rendered in favor of a nursing home, Allen Oaks, and dismissing

Plaintiffs’ claims against it. Specifically, the trial court found that the affidavit of

Plaintiffs’ expert submitted in opposition to Allen Oaks’s motion was “woefully

inadequate” to create any genuine issues of material fact as it was merely

conclusory. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On December 11, 2018, Plaintiffs, Amos Simon (Mr. Simon), Charles

Simon, Jackie Simon, and Tony Simon, filed a petition against Allen Oaks.

Therein, they alleged that Mr. Simon suffered from bed sores, his son had made a

complaint to the Allen Oaks staff regarding Mr. Simon’s bed sores, the staff failed

to improve the care provided to Mr. Simon, the sores became infected, and

eventually Mr. Simon’s lower leg and foot had to be amputated. Plaintiffs’ petition

further alleges that Allen Oaks was negligent in allowing Mr. Simon’s bed sores to

go untreated, failing to properly treat the bed sores, failing to properly deliver elder

care treatment, failing to properly supervise and train employees, and failing to

monitor Mr. Simon’s medical condition.

Plaintiffs amended their petition on January 15, 2019, to add the Estate of

Amos Simon as a party to assert a survival action on behalf of Mr. Simon for pain

and suffering prior to his death. Mr. Simon had previously passed away in

December 2015.

Defendant Allen Oaks answered the petition on May 6, 2019, wherein it

noted that a medical review panel had considered the matter pursuant to La.R.S.

40:1231.1 and had rendered a unanimous opinion on October 2, 2018, finding that

Allen Oaks had not breached any standard of care.

Allen Oaks then filed a Motion for Summary Judgment on August 5, 2019,

arguing that summary judgment dismissal was appropriate because Plaintiffs did

not have any expert medical opinion that supported a finding of breach of the

standard of care or that there was a causal connection between the alleged breach

of care and Mr. Simon’s alleged injuries and damages.

In support of its motion, Allen Oaks submitted the medical review panel’s

opinion dated October 8, 2018, along with an affidavit of Dr. Michael Burnell, who

participated in the medical review panel and authenticated the opinion. The

medical review panel’s opinion states as follows:

On February 19, 2013, the patient herein, Amos Simon, a
seventy-nine (79) year old male, was admitted to the facilities of
defendant, Allen Oaks Nursing & Rehabilitation Center. The patient
was suffering from dementia, as well as diabetes and osteoarthritis.
On admission, a care plan was developed which included physical,
occupational, and speech therapy. Over two (2) years later, on July 22,
2015, the patient was noted to have a State II decubitus ulcer on his
buttocks. Family and the physician were notified, and orders were
issued for wound care. Almost a month later, on August 20, 2015, the
patient was discharged from defendant’s facility and transferred to the
facilities of St. Francis Nursing and Rehabilitation Center. The
patient did not return to defendant’s facility, expiring on December 27,
2015.

Claimants herein contend that defendant . . . breached the
applicable standard of care in the following respects: allowing the
patient’s bed sores to go untreated; failing to properly treat the
patient’s bed sores; failing to properly deliver elder care treatment;
failing to properly supervise its employees; failing to properly train its
employees; and failing to monitor the patient’s medical condition.

After a careful review of all evidence submitted for our review,
we find that the actions of the defendant herein . . . did not constitute a
breach of the standard of care. The panel finds that it was the
patient’s preexisting co-morbidities, including chronic peripheral
vascular disease, which were responsible for the development of the
pressure sores. Nursing home personnel properly assessed the patient,

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including attempting to adjust his nutrition and food intake, with
limited success. Defendant’s personnel timely identified the skin
breakdown, notified the treating physician and family member, and
initiated appropriate skin breakdown protocol in accord with
physician orders. There is no evidence that the defendant’s employees
were improperly trained or supervised, nor do the records reflect that
the patient was not monitored in a timely and appropriate manner.
Given the patient’s condition and decline, it was unlikely that any
steps taken by any health care provider could have totally prevented
the development of decubiti. The remaining allegations of breach by
the claimants as against this defendant are not supported by the
evidence, and in all respects, the care rendered by the nursing home
personnel to the patient was appropriate.

In addition, Allen Oaks submitted in support of its Motion for Summary

Judgment Plaintiffs’ discovery responses dated July 17, 2019, which stated that

Plaintiffs were not in possession of any supporting medical reports or expert

opinions.

On October 7, 2019, Plaintiffs submitted an opposition to Allen Oaks’

motion, and attached to its opposition a one-page affidavit of “Luanne Trahant –

MSN, APRN, FNP-BC.” The affidavit, which is dated October 2, 2019, states as

follows:

1) I, Luanne Trahant, have been retained as an expert in
nursing/patient care in a nursing home setting in this captioned
matter;

2) Attached is my Curriculum Vitae and I have been accepted as an
expert in a Court of Law in Louisiana before;

3) I have been given copies of records, photographs and reports from
the department of health and hospitals related to Mr. Simon;

4) My preliminary opinion is that the facility staff failed to treat Mr.
Simon within the proper standards of care and that this failure was
the proximate cause of Mr. Simon’s injuries;

5) I have not completed my final report as of yet;

6) I have not, nor will I render any opinion as to the physician’s
actions in this matter.

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Allen Oaks filed a reply memorandum wherein it objected to Ms. Trahant’s

affidavit. It argued that the affidavit was merely conclusory and failed to meet the

requirements of La.Code Civ.P. art. 967. It also argued that expert testimony is

generally required to satisfy a medical malpractice plaintiff’s burden of proving the

applicable standard of care, the defendant’s breach of that standard, and a causal

connection between the breach and plaintiff’s injuries. It further argued that

affidavits that are devoid of underlying facts supporting a conclusion of an ultimate

fact are not sufficient to defeat a summary judgment and that Ms. Trahant’s

affidavit fails to set forth any specific facts supporting her one sentence opinion.

A hearing on Allen Oaks’s motion was held October 16, 2019. Thereafter,

the trial court rendered a judgment on October 28, 2019, granting Allen Oaks’s

motion and dismissing Plaintiffs’ claims. In its oral reasons for ruling, the trial

court stated that Ms. Trahant’s affidavit was “woefully inadequate,” “strictly

conclusionary [sic],” and did “not state any facts or reasons why [Ms. Trahant]

disagrees with the Medical Review Panel concerning any of the negligence”

alleged by Plaintiffs.

Plaintiffs appeal. In their sole assignment of error, they assert that “[t]he

[t]rial [c]ourt committed manifest error by granting Defendant’s Motion for

Judgment against the Plaintiffs-Appellants.”

ANALYSIS

As this court stated in Baez v. Hospital Service District No. 3 of Allen Parish,

16-951, pp. 4-6 (La.App. 3 Cir. 4/5/17), 216 So.3d 98, 102-03:

Summary judgment procedure is favored and “is designed to
secure the just, speedy, and inexpensive determination of every
action .... and shall be construed to accomplish these ends.” La.Code
Civ.P. art 966(A)(2). In reviewing the trial court’s decision on a
motion for summary judgment, this court applies a de novo standard

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of review. Jackson v. City of New Orleans, 12-2742, 12-2743 (La.
1/28/14), 144 So.3d 876, cert. denied, –– U.S. ––, 135 S.Ct. 197
(2014).

The burden of proof is on the mover unless the mover will not
bear the burden of proof at trial, in which case the mover is not
required to negate all essential elements of the adverse party’s claim,
but only to point out to the court the absence of factual support for one
or more of the elements necessary to the adverse party’s claim.
La.Code Civ.P. art. 966(D)(1). “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.” Id.

“After an opportunity for adequate discovery, a motion for
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).

A fact is material if it potentially ensures or
precludes recovery, affects a litigant’s ultimate success,
or determines the outcome of the legal dispute. 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.

Jackson, 144 So.3d at 882.

The applicable substantive law determines materiality, so we
must examine the substantive law applicable to medical malpractice
cases to determine whether a particular fact is in dispute. Id.

The requirements of establishing malpractice based on the
negligence of a physician are found in La.R.S. 9:2794(A), which
requires that a plaintiff establish: (1) the standard of care applicable to
the doctor; (2) a violation by the doctor of that standard of care; and (3)
a causal connection between the doctor’s alleged negligence and the
plaintiff’s injuries. The standard of care is generally that degree of
knowledge or skill possessed or the degree of care ordinarily
exercised by doctors licensed to practice in the state of Louisiana and
actively practicing in a similar community or locale and under similar
circumstances. La.R.S. 9:2794(A)(1). “However, emergency room
physicians are held to the standard of care of specialists in emergency
care.” Wright v. HCA Health Servs. of Louisiana, 38,427, p. 7
(La.App. 2 Cir. 6/23/04), 877 So.2d 211, 215.

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“The plaintiff in a medical malpractice suit against a hospital
has a burden of showing that the hospital personnel negligently
departed from the recognized standard of care afforded by hospitals in
the area for the particular malady involved.” Jones v. Rapides Gen.
Hosp., 598 So.2d 619, 621-22 (La.App. 3 Cir. 1992); Miller v. Tulane
Univ. Hosp., 09-1740 (La.App. 4 Cir. 5/12/10), 38 So.3d 1142.

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. Pfiffner v. Correa,
94-992 (La. 10/17/94), 643 So.2d 1228; Miller, 38 So.3d 1142.

On appeal, Plaintiffs argue that an expert’s opinion testimony presented in

the form of an affidavit may be considered in opposition to a motion for summary

judgment. Therefore, according to Plaintiffs, Ms. Trahant’s opinion set forth in her

affidavit requires the court to weigh her opinion with that of the medical review

panel’s, thereby making summary judgment inappropriate. Allen Oaks, however,

argues that because Ms. Trahant’s affidavit is devoid of any specific underlying

facts that support her one-sentence opinion, it is not sufficient to defeat its motion

for summary judgment.

We first note that Allen Oaks, as the defendant-mover in this case,

sufficiently satisfied its burden of establishing an absence of factual support for

one or more of the elements necessary to Plaintiffs’ medical malpractice claim.

The medical review panel’s thorough opinion and supporting affidavit sets forth

specific facts upon which the panel concluded that the evidence did not support a

finding that Allen Oaks failed to comply with the appropriate standard of care as

alleged in Plaintiffs’ petition. In addition, Allen Oaks’ pointed out the lack of

factual support in the record establishing that any breach in the standard of care

caused any alleged injuries to Mr. Simon. Plaintiffs’ discovery responses suggest

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they were not in possession of any medical records or expert opinions that support

their claim.

Given the lack of factual support in the record to support one or more

elements of Plaintiffs’ claim, the burden then shifted to Plaintiffs to produce

“factual support sufficient to establish the existence of a genuine issue of material

fact or that the mover is not entitled judgment as a matter of law.” La.Code Civ.P.

art. 966(D)(1) (emphasis added). Plaintiffs submitted only the affidavit of Ms.

Trahant in opposition to Allen Oaks’ motion.

In Kinch v. Our Lady of Lourdes Regional Medical Center, 15-603 (La.App.

3 Cir. 12/9/15), 181 So.3d 900, this court concluded that an expert medical

provider’s conclusory affidavit submitted in a medical malpractice case was

insufficient to defeat summary judgment. The plaintiff in Kinch alleged that the

emergency department physician’s failure to diagnose and treat an infection

resulted in damages. The defendants moved for summary judgment arguing that

the plaintiff did not have sufficient expert testimony to establish that defendants

breached their standard of care and caused injury to the plaintiff. The plaintiff then

retained an expert medical provider prior to the summary judgment hearing, and

the expert submitted an affidavit and report opining that the lack of care rendered

to plaintiff was a breach in the standard of care and that the breach caused

increased morbidity. This court concluded that the expert’s affidavit and report

were:

insufficient to produce factual support to establish that [the plaintiff]
will be able to satisfy his evidentiary burden of proof at trial. [The
expert’s] affidavit is conclusory in that it merely states that [the
defendant] breached the standard of care and fails to specifically
address causation. See Tillman v. Eldridge, 44,460, p. 15 (La.App. 2
Cir. 7/15/09), 17 So.3d 69, 79 (“[An] affidavit that is merely
conclusory is insufficient to serve as evidence; affidavits that are

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devoid of specific underlying facts to support a conclusion of ultimate
‘fact’ are not considered legally sufficient to defeat summary
judgment.”)

....

Further, we find that [the expert’s] report is speculative such
that it is insufficient to satisfy [the plaintiff’s] burden of proof. See
Foster v. Patwardhan, 48,575, 48,712 (La.App. 2 Cir. 1/22/14), 132
So.3d 495, writ denied, 14-614 (La. 4/25/14), 138 So.3d 1233. Mere
speculation will not defeat a motion for summary judgment, and
conclusory allegations, improbable inferences, and unsupported
speculation are insufficient to support a finding that a genuine issue of
material fact exists. Scott v. City of Shreveport, 49,944 (La.App. 2 Cir.
6/24/15), 169 So.3d 770. . . . Finally, [the expert] asserts that [the
defendant’s] failure to prescribe antibiotics “certainly did cause
increased morbidity, although the extent of which it contributed to this
is indeterminate.” We observe that [the expert] offers no objective
basis for this opinion[.]

Kinch, 181 So.3d at 905-06.

Similarly, in Baez, 216 So.3d 98, the defendants filed a motion for summary

judgment seeking dismissal of the plaintiff’s medical malpractice claim filed on

behalf of Mr. Baez, who was deceased. In opposition, the plaintiff submitted the

affidavit of an expert medical provider. This court concluded the affidavit was

insufficient to defeat summary judgment because “[w]hile [the expert] alleges that

[the defendants] violated the standard of care in treating Mr. Baez, she never

specifically relates how these violations caused Mr. Baez’s death.” Id. at 104.

We agree with the trial court in the instant case that Ms. Trahant’s affidavit

was “woefully insufficient” to defeat summary judgment. It is speculative and

conclusory, and it is devoid of any underlying and supporting facts regarding a

standard of care that was allegedly breached, actions or inactions on the part of

Allen Oaks that were in breach of any such standard of care, or how any such

breach caused any alleged injury to Mr. Simon. Therefore, we find no error in the

trial court’s summary judgment dismissal of Plaintiffs’ case.

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DECREE

For the reasons stated above, we affirm the trial court’s ruling granting Allen

Oaks’ Motion for Summary Judgment and dismissal of Plaintiffs’ claims. Costs of

this appeal are assessed to Plaintiffs.

AFFIRMED.

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