Megan Thomas Individually and as Natural Tutrix of Her Minor Child, Mariah Charles v. Geeta Dalal, M.D.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

20-65

MEGAN THOMAS INDIVIDUALLY AND AS NATURAL
TUTRIX OF HER MINOR CHILD, MARIAH CHARLES

VERSUS

GEETA DALAL, M.D., ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 20186502
HONORABLE EDWARD D. RUBIN, DISTRICT JUDGE

**********

CANDYCE G. PERRET
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Candyce G. Perret and
Jonathan W. Perry, Judges.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

George Davis Ernest, III
Hurlburt, Privat & Monrose
Post Office Drawer 4407
Lafayette, LA 70502
(337) 237-0261
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Megan Thomas
Megan Thomas, Individually and as Natural Tutrix of her Minor Child,
Mariah Charles

James R. Shelton
Durio, McGoffin, Stagg & Ackermann
Post Office Box 51308
Lafayette, LA 70505-1308
(337) 233-0300
COUNSEL FOR DEFENDANTS/APPELLEES:
Geeta Dalal, M.D.
Louisiana Medical Mutual Insurance Company

PERRET, Judge.

Megan Thomas (“Appellant”), mother and duly appointed natural tutrix of

Mariah Charles (“Mariah”), appeals the grant of summary judgment dismissing her

medical malpractice action against Getta Dalal, M.D. (“Dr. Dalal”) and Louisiana

Medical Mutual Insurance Company (collectively referred to as “Appellees”). After

a de novo review of the record, we reverse the grant of summary judgment.

FACTUAL AND PROCEDURAL HISTORY:

Appellant initiated this lawsuit alleging that her daughter received negligent

treatment from Dr. Dalal when she was an infant. Appellant first presented her

claims to a medical review panel (“MRP”); however, the panel found that Dr. Dalal

did not breach the standard of care. Thereafter, Appellant filed a Petition for

Damages in the trial court and asserted the following factual account.

Mariah was born prematurely on October 8, 2014, at Lafayette General

Medical Center (“LGMC”). Several days later, on October 13, 2014, an

echocardiogram was performed and read by Dr. Dalal, which, according to

Appellant’s petition, “revealed a patent foramen ovale (“PFO”) with a small left to

right shunt and patent ductus arteriosus (PDA) with a large left to right shunt.”1

Over the course of the next seven months, Dr. Dalal read approximately

eleven additional echocardiograms that were performed on Mariah: seven at LGMC,

three at Women’s and Children’s Hospital (“WCH”), and one while caring for

Mariah on an outpatient basis. Dr. Dalal continued to note the PDA with a left to

right shunt.

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Dr. Albert M. Gutierrez, Mariah’s later treating physician, explains in his affidavit in the
record that “[a] PDA is an abnormal connection or a ‘hole’ between the aorta and the pulmonary
artery in the heart. It usually closes at birth or within a few days thereafter[.]”

On May 8, 2015, Mariah was admitted to the Pediatric Intensive Care Unit at

WCH due to low oxygen saturation levels. Albert M. Gutierrez, M.D. (“Dr.

Gutierrez”) examined Mariah and ordered an echocardiogram. Dr. Gutierrez

thereafter diagnosed Mariah with pulmonary artery hypertension. Mariah, who was

in pulmonary hypertensive crisis, was immediately taken by helicopter to Children’s

Hospital of New Orleans. On May 13, 2015, Mariah underwent a heart

catheterization procedure to close the PDA.

In her petition, Appellant asserts that Dr. Dalal should have detected Mariah’s

pulmonary artery hypertension and treated the conditions, but that, despite noting

the PDA on the echocardiograms, Dr. Dalal failed to recommend treatment.

Appellant avers that due to Dr. Dalal’s prolonged failure to detect and treat Mariah’s

condition, Mariah suffered numerous serious and permanent injuries, as did

Appellant.

Appellees answered the petition, admitting that Dr. Dalal treated Mariah at

LGMC as a consultant to Mariah’s neonatologist, acted as a consultant at WCH, and

treated Mariah on an outpatient basis. Appellees admit in their answer that Dr. Dalal

interpreted approximately twelve echocardiograms for Mariah. However, Dr. Dalal

asserts that, while at LGMC, decisions regarding the abnormalities detected by the

echocardiograms were made by the treating neonatologist.

Appellees filed a motion for summary judgment and attached the MRP

Opinion which found no breach in the standard of care. Thus, because Appellant

had not produced expert medical evidence to the contrary, Appellees asserted that

they were entitled to summary judgment. Appellees also attached the Affidavit of

Ryan Jones, M.D., panel member, attesting to the MRP Opinion.

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In opposition, Appellant submitted the Petition for Damages, Answer to

Petition for Damages, Affidavit of Megan Thomas, and an affidavit of Dr. Gutierrez.

Dr. Gutierrez opined that Dr. Dalal did breach the standard of care for a pediatric

cardiologist while treating, or not treating, Mariah’s PDA and that failure caused her

damage. Thus, Appellant argued summary judgment was not proper because the

trial court would need to weigh the evidence or make a credibility determination

between the MRP opinion and Dr. Gutierrez.

Appellees chose not to file an opposition or reply memorandum. However, at

the hearing, Appellees argued that Dr. Gutierrez’s affidavit was inadmissible

because it failed to specifically identify what documents he reviewed in rendering

his opinion. Appellees asserted that, without Dr. Gutierrez’s affidavit, Appellant

failed to create an issue of fact. Appellant argued that any complaint regarding the

affidavit goes to the strength of Dr. Gutierrez’s opinion and would require a

credibility determination, inappropriate on summary judgment. According to the

transcript and minutes, both memorandums and exhibits were offered and introduced

into the record as evidence.

The trial court rendered judgment on September 3, 2019, granting summary

judgment and dismissing all claims against Appellees. This appeal followed. On

appeal, Appellant contends that the trial court erred in granting Appellees’ Motion

for Summary Judgment.

ANALYSIS:

A judgment granting summary judgment is reviewed de novo on appeal

“using the same criteria that govern the trial court’s consideration of whether

summary judgment is appropriate, i.e., whether a genuine issue of material fact exists

and whether the mover is entitled to judgment as a matter of law.” Supreme Servs.

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and Specialty Co., Inc. v. Sonny Greer, Inc., 06-1827, p. 4 (La. 5/22/07), 958 So.2d

634, 638. Regarding the burden of proof, La.Code Civ.P. art. 966(D)(1) provides

that “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 need only point to “the

absence of factual support for one or more elements essential to the adverse party’s

claim[.]” If the moving party provides sufficient evidence to support the motion, the

adverse party must then “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. Thereafter, “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).

Applicable, substantive law determines whether a fact is material on summary

judgment; thus, we must examine the substantive law applicable to medical

malpractice claims. Baez v. Hosp. Serv. Dist. No. 3 of Allen Par., 16-951 (La.App.

3 Cir. 4/5/17), 216 So.3d 98. Louisiana Revised Statutes 9:2794(A) requires that a

claimant in a medical malpractice claim prove “(1) the standard of care applicable

to the defendant; (2) that the defendant breached that standard of care; and (3) that

there was a causal connection between the breach and the resulting injury.” Samaha

v. Rau, 07-1726, p. 5 (La. 2/26/08), 977 So.2d 880, 883-84. In summarizing the

standard of care element, this court has explained:

[T]he standard of care of health care providers “shall be to exercise that
degree of skill ordinarily employed, under similar circumstances, by the
members of his profession in good standing in the same community or
locality, and to use reasonable care and diligence, along with his best
judgment, in the application of his skill.” [La.R.S. 40:1231.1(A)(22)]
“Where the defendant physician practices in a particular specialty and
the alleged acts of medical negligence raise issues peculiar to the

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particular medical specialty involved, the plaintiff has the burden of
proving the degree of care ordinarily practiced by physicians within that
specialty.” Domingue v. La. Guest House, LLC, 17-633, p. 6 (La.App.
3 Cir. 12/6/17), 258 So.3d 3, 6, writ denied, 18-14 (La. 2/23/18), 237
So. 3d 517 (quoting Vanner v. Lakewood Quarters Ret. Cmty., 12-1828,
p. 6 (La.App. 1 Cir. 6/7/13), 120 So.3d 752, 755-56).

White v. Rapides Healthcare Sys., LLC, 19-101, pp. 8-9 (La.App. 3 Cir. 12/4/19)

(unpublished opinion)(footnote omitted).

Additionally, to prove the elements of a medical malpractice claim, “[e]xpert

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.” Id

at 7 (quoting Samaha, 977-So.2d at 884). Expert testimony has also generally been

required to prove causation “in cases involving patients with complicated medical

histories or conditions[.]” Id. at p. 13; See also Rogers v. Hilltop Ret. & Rehab. Ctr.,

13-867 (La.App. 3 Cir. 2/12/14), 153 So.3d 1053; Juge v. Springfield Wellness,

L.L.C., 18-736 (La.App. 1 Cir. 2/28/19), 274 So.3d 1, writ denied, 19-513

(La.5/28/19), 273 So.3d 309. After reviewing the record, we find that the facts,

negligent acts, and causation in this case are not “so obvious” as to infer negligence

without the assistance of expert testimony and that Mariah’s medical history is

complicated enough to require expert testimony as to causation.

Appellees, movers on the motion for summary judgment, will not bear the

burden of proving the medical malpractice elements at trial; thus, Appellees only

needed to point to the absence of factual support for one or more of these elements.

See La.Code Civ.P. art. 966(D)(1). To do so, Appellees attached the MRP Opinion

and affidavit of a panel member, which concluded that there was no breach of the

standard of care and no causation. Specifically, the panel opined:

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[Dr. Dalal] did not deviate from the standard of care . . . for the
following reasons: There is a wide range of therapeutic options and
approaches to caring for premature infants with PDA’s. Neither
individual randomize controlled trials nor meda analysis of those trials
have been able to demonstrate long term benefits of these treatments
despite their efficacy in inducing ductal closure. The studies have not
shown that closing PDA’s have decreased the risk of developing
chronic lung disease, bronco pulmonary dysplasia or pulmonary
hypertension in extremely premature infants.
Thus, we find the burden shifted to Appellant to produce factual support sufficient

to overcome summary judgment.

To overcome summary judgment, Appellant provided an opposing expert

opinion via Dr. Gutierrez’s affidavit. Dr. Gutierrez’s affidavit indicated that he is

licensed to practice medicine in Louisiana and is board certified in pediatric

cardiology. Although the affidavit indicates Dr. Gutierrez’s curriculum vitae was

attached as Exhibit A, that exhibit does not appear in the appellate record. In forming

his opinions, Dr. Gutierrez attested that he reviewed excerpts of various medical

records from LGMC, Dr. Dalal, WCH, and Children’s Hospital of New Orleans, as

well as the echocardiograms and the reports interpreting the echocardiograms

included in those records. Furthermore, he has personally treated and continues to

treat Mariah. Dr. Gutierrez opined that Dr. Dalal did breach the standard of care for

a pediatric cardiologist in treating Mariah’s PDA and that failure caused her damage.

Thus, Appellant argues summary judgment was not proper because the trial court

would need to weigh the evidence or make a credibility determination between the

MRP opinion and Dr. Gutierrez’s opinion.

Appellees, however, maintain that Dr. Gutierrez’s affidavit was inadmissible

based on its failure to identify the factual basis for his opinions, and that the trial

court properly evaluated whether the affidavit met evidentiary standards.

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Concluding it did not, Appellees argue that the trial court properly disregarded the

affidavit and granted summary judgment.

Affidavits submitted in support of or in opposition to summary judgment are

governed by La.Code Civ.P. art. 967(A), providing:

[A]ffidavits shall be made on personal knowledge, shall set forth such
facts as would be admissible in evidence, and shall show affirmatively
that the affiant is competent to testify to the matters stated therein. The
supporting and opposing affidavits of experts may set forth such
experts’ opinions on the facts as would be admissible in evidence under
Louisiana Code of Evidence Article 702, and shall show affirmatively
that the affiant is competent to testify to the matters stated therein.
Sworn or certified copies of all papers or parts thereof referred to in an
affidavit shall be attached thereto or served therewith. The court may
permit affidavits to be supplemented or opposed by depositions,
answers to interrogatories, or by further affidavits.

However, our jurisprudence has stated in the case of experts that “the inadequacy of

an affidavit is a ‘formal defect,’ which is waived by the opponent unless he timely

objects to the affidavit.” Thompson v. Ctr. for Pediatric and Adolescent Med.,

L.L.C., 17-1088, p. 6 (La.App. 1 Cir. 3/15/18), 244 So.3d 441, 446, writ denied, 18-

583 (La. 6/1/18), 243 So.3d 1062. Pursuant to La.Code Civ.P. art. 966(D)(2), “if an

expert’s affidavit contains opinions that lack an adequate factual basis, are not

sufficiently reliable, or are otherwise inadmissible under [La.Code Evid.] Article

702 and [La.Code Civ.P. art.] 967A, the opposing party must object to the affidavit.”

Thompson, 244 So.3d at 446. “[T]he reasoning or methodology underlying an

expert’s opinion are relevant only to determine whether the opinions are admissible

under [La.Code Civ.P.] Articles 967A and [La.Code Evid.] Article 702.” Id. at 447.

If the opposing party fails to object, the trial court must consider the expert’s

opinions. Id. “At that point, in determining whether the evidence creates a genuine

issue of material fact, the trial court cannot make credibility determinations, evaluate

testimony, or otherwise weigh the evidence. The trial court must assume all affiants

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are credible.” Bass v. Disa Glob. Sols., Inc., 19-1145, p. 10 (La.App. 1 Cir. 6/12/20),

-- So.3d --.

As Appellant correctly notes, Appellees failed to properly object to Dr.

Gutierrez’s affidavit in a reply brief, as required by La.Code Civ.P. art. 966(D)(2).

Thus, the affidavit must be accepted by the court. See La.Code Civ.P. art. 966(D)(2);

Mariakis v. North Oaks Health Sys., 18-165 (La.App. 1 Cir. 9/21/18), 258 So.3d 88.

However, a court may consider an affidavit to which no objection is made and

yet conclude that the affidavit is insufficient to defeat summary judgment. See

Simon v. Allen Oaks, L.L.C, 20-5 (La.App. 3 Cir. 6/10/20), 298 So.3d 881; Kinch v.

Our Lady of Lourdes Reg’l Med. Ctr., 15-603 (La.App. 3 Cir. 12/9/15), 181 So.3d

900. Under a de novo review, we consider whether Dr. Gutierrez’s affidavit is

sufficient to defeat summary judgment.

This court has previously stated that “[m]ere 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.” Kinch, 181 So.3d at 905. In Kinch, this court determined

that the plaintiff’s expert affidavit and report were insufficient to defeat summary

judgment in a medical malpractice action brought against an emergency room

physician. Mr. Kinch presented with several symptoms to the emergency room

wherein he was prescribed medications, such as pain killers, but no antibiotics, and

discharged. Mr. Kinch returned with worsened symptoms which necessitated an

eleven-day hospital stay and several surgeries. Mr. Kinch filed a medical

malpractice action alleging that the first emergency room physician failed to

diagnose him and that the delay in proper treatment caused him injury. After the

defendants filed a motion for summary judgment, Mr. Kinch retained an expert and

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submitted an unsigned report in opposition, which was objected to as to form by the

defendants. At the hearing, the trial court admitted the report after Mr. Kinch also

submitted the expert’s affidavit, attesting to the expert’s certifications and that the

report was her expert opinion.

The report stated that the expert reviewed Mr. Kinch’s medical records and

noted specific symptoms Mr. Kinch suffered that were undocumented, quoting parts

of the records. The report stated, “An emergency medicine physician has a duty to

medically screen and treat (as necessary) a patient’s complaints.” Id. at 905. The

report then concluded that Mr. Kinch’s presenting symptoms were “likely” early

manifestations of the problems for which Mr. Kinch was later treated. The expert

further opined that, more likely than not, the delay in treatment increased his

morbidity. Finally, the report concluded, “The failure of the emergency room

physician to treat the patient’s infection with antibiotics was a breach in the standard

of care . . . . The breach certainly did cause increased morbidity, although the extent

of which it contributed to this is indeterminate.” Id.

Though admitting both the report and affidavit, the trial court concluded Mr.

Kinch did not submit sufficient evidence to carry his burden of proof and granted

summary judgment to the defendants. On appeal, this court affirmed after

determining that the expert’s report and affidavit were conclusory and speculative,

and, therefore, “insufficient to serve as evidence.” Id. at 905 (quoting Tillman v.

Eldridge, 44,460, p. 15 (La.App. 2 Cir. 7/15/09), 17 So.3d 69, 79). For instance,

this court stated that the report offered “no objective basis” for the expert’s opinion

that the failure to prescribe antibiotics increased Mr. Kinch’s morbidity. However,

other factors also contributed to this court’s finding that the report was insufficient

to defeat summary judgment, such as ambiguities within the expert’s report and,

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importantly, its failure to address causation, an essential element to the plaintiff’s

claim.2

In Simon, 298 So.3d 881, this court, relying on Kinch, also concluded that an

expert affidavit was insufficient to defeat summary judgment. In this nursing home

malpractice action, the plaintiff submitted an expert affidavit in opposition to a

motion for summary judgment. The affidavit attached the expert’s Curriculum Vitae

and attested that she was provided records related to the plaintiff. Without supplying

any other facts or opinions, the expert then simply opined, “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[.]” Id. at p.

884. In a timely filed reply memorandum, the defendant objected to the affidavit as

conclusory and failing to meet the requirements set forth in La.Code Civ.P. art. 967.

Upon review, this court concluded that the affidavit was “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 standard of care, or how any such breach caused any

alleged injury to Mr. Simon.” Id. at p. 887.

In contrast, the first circuit in Thompson, 244 So.3d 441, also a medical

malpractice action, found that an admitted expert affidavit defeated summary

judgment despite the defendant’s claims that it was insufficient. Although the

defendant objected to the admissibility of the expert’s affidavit in a reply

memorandum, including that it failed to satisfy the requirements found in La.Code

2
The Kinch court stated, “Dr. Stinson’s affidavit is conclusory in that it merely states that
Dr. Godeaux breached the standard of care and fails to specifically address causation.” Kinch, 181
So.3d at 905. Further, the court concluded, “Given these ambiguities, we find that Dr. Stinson’s
expert report is insufficient to defeat summary judgment.” Id. at 906.

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Civ.P. art. 967 and La.Code Evid. art. 702, he had no objection to the admissibility

of the affidavit at the hearing, “except to the . . . sufficiency of the affidavit.” Id. at

447. The trial court concluded that the challenge was to the merits of the summary

judgment motion. Ultimately, the trial court found that the affidavit was sufficient

to defeat summary judgment.

The Thompson court also distinguished Kinch: “Kinch and Albers [v. Vina

Family Medicine Clinic, 12-1484 (La.App. 4 Cir. 5/22/13), 116 So.3d 940] are also

factually distinguishable. Unlike Dr. Chabon’s affidavit, the experts’ affidavits in

those cases did not address an essential element of the plaintiff’s burden of

proof.” Id. at 448 (emphasis added). The first circuit further explained:

While Dr. Chabon’s affidavit does not specifically state the standard
of care, he did attest that the medical care provided by the defendants
to Jessica fell below the standard of care. Construing all reasonable
inferences from this evidence in favor of the Thompsons, one can
reasonably infer that Dr. Chabon is familiar with the applicable
standard of care, and Gaudin breached that standard.

If a party submits expert opinion evidence in opposition to a
motion for summary judgment that would be admissible under
Daubert–Foret 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 court
should deny the motion. Independent Fire Insurance Company, 755
So.2d at 236. Dr. Chabon’s affidavit was admitted into evidence.
Having reviewed that affidavit, we find it sufficient to allow a
reasonable juror to conclude that Gaudin breached the applicable
standard of care, and that Jessica sustained damages therefrom. The
evidence thus creates a genuine issue of material fact precluding
summary judgment.

Id. at 449 (footnote omitted).

The current case is also distinguishable from Kinch and Simon. In this case,

Dr. Gutierrez’s affidavit does not contain ambiguities or fail to address essential

elements of Plaintiff’s claim, as in Kinch. Furthermore, it is not completely devoid

of specific underlying facts that support his opinion, as in Simon. Dr. Gutierrez’s

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affidavit was not objected to prior to the summary judgment hearing and was

admitted into evidence. Dr. Gutierrez, relying on the excerpts of medical records

provided to him and his personal knowledge of Mariah’s medical issues, noted the

following facts in his affidavit:

5. Dr. Dalal treated Mariah Charles for approximately 7
months following her premature birth. During that time she performed
numerous transthoracic echocardiograms. An echocardiogram uses
sound waves to produce images of the heart.

6. Dr. Dalal repeatedly reported a patent ductus arteriosus
(PDA) in Mariah Charles’ heart. A PDA is an abnormal connection or
a “hole” between the aorta and the pulmonary artery in the heart. It
usually closes at birth or within a few days thereafter but in Mariah
Charles’ case it did not close.

....

8. I was asked by the patient’s mother to examine Mariah
Charles. I did so on May 8, 2015. I measured the pulmonary artery
pressure; immediately diagnosed pulmonary artery hypertension; and
determined that Mariah Charles was in hypertensive crisis. She was
immediately transferred to Children’s Hospital of New Orleans via
helicopter. Physicians at that hospital closed the PDA via cardiac
catheterization.
Based on these facts and his review of Mariah’s records, Dr. Gutierrez opined:

7. Dr. Dalal should have calculated the pressures in the heart
and the vessels connected to it from the results of the echocardiograms.
She failed to diagnosis [sic] pulmonary artery hypertension in Mariah
Charles and failed to provide any treatment of the PDA other than take
a wait and see approach.
....
9. In my opinion, Dr. Dalal’s care and treatment of Mariah
Charles was below the standard of care for pediatric cardiologists. The
standard of care is that a premature baby should not be exposed to high
pulmonary artery pressures for an extended period of time. It is also
my opinion that Dr. Dalal’s failure to properly treatment [sic] Mariah
Charles’ PDA more probably than not caused her damage including
damage to her lungs and heart. It is also my opinion that Mariah
Charles was more probably than not deprived of the chance of a better
outcome.

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Dr. Gutierrez states the applicable standard of care for pediatric cardiologists

and concludes that Dr. Dalal breached that standard by failing to calculate Mariah’s

heart and vessel pressures, failing to diagnose pulmonary artery hypertension, and

failing to provide any treatment of her PDA, which Children’s Hospital of New

Orleans later closed via a cardiac catheterization. He then opines that these failures

more probably than not caused her damages, including damage to her lungs and

heart.

After a de novo review of the record, we find that Dr. Gutierrez’s affidavit

was “sufficient to allow a reasonable juror to conclude that [the defendant] breached

the applicable standard of care, and that [the plaintiff] sustained damages

therefrom.” Thompson, 244 So.3d at 449. Thus, summary judgment was not proper.

DECREE:

The September 3, 2019 Judgment granting summary judgment is reversed.

All costs of this appeal are assigned to Appellees/Defendants, Geeta Dalal, M.D.,

and Louisiana Medical Mutual Insurance Company.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

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