Tina Fontenot v. Golden Age of Welsh, LLC

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

20-85

TINA FONTENOT, ET AL.

VERSUS

GOLDEN AGE OF WELSH, LLC

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APPEAL FROM THE
THIRTY-FIRST JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON DAVIS, DOCKET NO. C-757-18
HONORABLE CRAIG STEVE GUNNELL, DISTRICT JUDGE

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SYLVIA R. COOKS
CHIEF JUDGE
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Court composed of Sylvia R. Cooks, Chief Judge, Elizabeth A. Pickett, John E.
Conery, D. Kent Savoie, and Charlie G. Fitzgerald, Judges.

REVERSED.
Damon L. Beard
Todd A. Townsley
Jordyn A. Goody
The Townsley Law Firm, LLP
3102 Enterprise Blvd.
Lake Charles, LA 70601
(337) 478-1400
ATTORNEYS FOR APPELLANTS/PLAINTIFFS:
Tina Fontenot, individually and on behalf of Louis C. Fontenot, Sr.
Stephen Fontenot, individually and on behalf of Louis C. Fontenot, Sr.
Laurice Fontenot, individually and on behalf of Louis C. Fontenot, Sr.

Brent N. Carriere
Allen & Gooch
P.O. Box 81129
Lafayette, LA 70598-1129
(337) 291-1000
ATTORNEY FOR APPELLEE/DEFENDANT:
Golden Age of Welsh, LLC

COOKS, Chief Judge.

Louis C. Fontenot, Sr. passed away on January 16, 2015, while under the care

of Post Acute Medical Center. Prior to being admitted to that facility Mr. Fontenot

was cared for at Golden Age of Welsh, LLC (Golden Age of Welsh) from August

21, 2014, to November 2, 2014. Following Mr. Fontenot’s death, his children, Tina

Fontenot, Stephen Fontenot, and Laurice Fontenot (collectively referred to herein as

Plaintiffs) filed a complaint with the Louisiana State Department of Health and

Hospitals (DHH) against Golden Age of Welsh for its failure to properly care for

Mr. Fontenot. After completing its investigation, the record indicates DHH issued

a report finding that Golden Age of Welsh failed to notify physician of change in

resident’s condition; failed to provide care in accordance with acceptable standards

of professional practice; failed to provide care in accordance with the plan of care;

failed to prevent pressure ulcers; failed to provide the required Tracheotomy and

Ventilator care; and failed to maintain accurate and complete medical records.

Plaintiffs thereafter filed a complaint with the Louisiana Patient

Compensation Fund on July 30. 2015. On August 27, 2018, the Medical Review

Panel (Panel) rendered a unanimous opinion finding that Golden Age of Welsh

breached the standard of care in multiple ways but also concluded that the conduct

of Golden Age of Welsh was not “a factor of the resultant damages.”

Plaintiffs filed suit on November 16, 2018, individually, and on behalf of their

deceased father, alleging wrongful death and survival damages based on their

assertions of substandard care provided their father while a patient at Golden Age of

Welsh. On October 2, 2019, Golden Age of Welsh filed a motion for summary

judgment “assert[ing] that Plaintiffs are unable to satisfy their burden of proof of

resulting damages[.]” Plaintiffs opposed the motion for summary judgment and

countered Defendant’s motion with the affidavit of its expert witness, Dr. Thomas J.

Zweber, M.D. (Dr. Zweber) supported by various certified medical records and other

documents. The trial court refused to consider Dr. Zweber’s affidavit on the basis

that he was not a Louisiana physician and therefore not qualified to testify in the

matter. Based on that finding, the trial court granted summary judgment in favor of

Golden Age of Welsh. Plaintiffs appeal asserting four assignments of error

maintaining the trial court erred as a matter of law in applying the “locality rule”1 as

the basis to exclude Dr. Zweber’s affidavit. Plaintiffs also assert the trial court erred

in allowing Defendant to assert the “locality rule” which it first raised in its Reply

Memorandum. Further, Plaintiffs maintain the trial court erred in dismissing their

claims of medical malpractice where three Louisiana physicians testified

establishing Defendant’s specific breaches in the standard of care of Mr. Fontenot.

Plaintiffs also assert they have presented genuine issues of material fact precluding

summary judgment. For the following reasons we reverse the trial court 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. 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

1

A. In a malpractice action based on the negligence of a physician licensed under R.S. 37:1261 et
seq., a dentist licensed under R.S. 37:751 et seq., an optometrist licensed under R.S. 37:1041 et seq.,
or a chiropractic physician licensed under R.S. 37:2801 et seq., the plaintiff shall have the burden
of proving:

(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by
physicians, dentists, optometrists, or chiropractic physicians licensed to practice in the state
of Louisiana and actively practicing in a similar community or locale and under similar
circumstances; and where the defendant practices in a particular specialty and where the
alleged acts of medical negligence raise issues peculiar to the particular medical specialty
involved, then the plaintiff has the burden of proving the degree of care ordinarily
practiced by physicians, dentists, optometrists, or chiropractic physicians within the
involved medical specialty.

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

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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).

Thomas v. Dalal, 20-65, pp. 4-5 (La.App. 3 Cir. 10/28/20), 306 So.3d 507, 510–11.

In support of its motion for summary judgment Defendant introduced the

opinion of the Medical Review Panel. The three members of the Panel each reached

the same conclusions which are set forth in their “Opinion and Reasons.” The

document states:

It is the opinion of the Medical Review Panel that the evidence
submitted does support the conclusion that the defendant, Golden Age
of Welsh, LLC, failed to comply with the appropriate standard of care
as charged in the complaint for the following reasons:

There was no documentation that they followed their care plan
insofar as weekly skin evaluations. There was a (sic) issue of fact as to
the documentation of the size, number and description of the wounds
between the records of Lake Charles Memorial Hospital, Jennings
American Legion Hospital and Golden Age of Welsh. There was no
deviation from the standard of care insofar as the ventilator issues and
respiratory status. In regard to the events of November 2, 2014, there
appears to be a breach when Golden Age of Welsh delayed transfer to
the Emergency Room when Mr. Fontenot was experiencing some
respiratory distress.

It is the opinion of the Medical Review Panel that the evidence
does not support the conclusion that the conduct of defendant, Golden
Age of Welsh, LLC, complained of was a factor of the resultant
damages for the following reasons:

The wounds were probably not preventable due to his multiple
problems, including diabetes, vascular disease and generalized debility.
In the hospital evaluation of November 3, 2014, his attending physician
documented that the plaintiff was “not as sick as he has been in the
past” and “way more alert,” so there was no loss of executive function
and no apparent sequels. The care Mr. Fontenot received at Golden
Age did not hasten his death.

In opposition to the motion for summary judgment Plaintiffs submitted the

affidavit of their expert, Dr. Zweber, who is board certified in Physical Medicine,

Rehabilitation, and Electrodiagnostic Medicine. He has served as the Medical

Director of two regional acute rehabilitation centers, one in California and one in

3

Vermont. Dr. Zweber’s credentials were not called into question. Dr. Zweber agrees

with certain of the Panel’s findings of malpractice but disagrees with its conclusion

that Golden Age of Welsh’s malpractice did not cause and/or hasten Mr. Fontenot’s

demise. He also disagreed with the Panel’s finding that there was no “deviation from

the standard of care insofar as the ventilator issues and respiratory status” was

concerned. Dr. Zweber attested that his opinions were arrived at after examining

Mr. Fontenot’s certified medical records including the records of Acadian

Ambulance, Golden Age of Welsh, Jennings American Legion Hospital, Lake

Charles Memorial Hospital, Post Acute Medical, and LaSalle Hospital. He also

relied on a DHH Nursing Home Survey Report, Golden Age of Welsh’s Nursing

Services Policy and Procedure for Long Term Care, Golden Age of Welsh’s Job

Descriptions, the Panel Opinion, and the Discovery Responses with attachments

provided by Golden Age of Welsh. We find Dr. Zweber’s expert opinion creates

genuine issues of material facts which cannot be resolved on summary judgment.

Dr. Zweber set forth at length the standards of care to be followed by Golden

Age of Welsh in caring for Mr. Fontenot given his medical conditions and

observable difficulties when he was under their care. He set forth Mr. Fontenot’s

“known risk factors” when he was admitted to Golden Age of Welsh. He opines

that “[t]he MDS assessments, E-tars, departmental skin notes, skin inspection

reports, wound assessments, and plan of care for the prevention of pressure ulcers

[were] substandard.” He further states “Medical records show Mr. Fontenot

developed multiple avoidable pressure ulcers; multiple healthcare acquired

resistant respiratory bacteria; protein malnourishment, CHF, and acute renal failure

on October 7, 2014” (emphasis added). He explained that the certified medical

records he examined showed the following:

Medical records show Mr. Fontenot was transferred to the emergency
department at Jennings American Legion Hospital. It was determined
that he was now in acute renal failure . . . He was anemic,

4

malnourished, and now had 3 different healthcare acquired resistant
bacteria in his sputum, that were later identified as Pseudomonas
aeruginosa, Providencia stuartili, and MRSA. Mr. Fontenot was
stabilized and then transferred later that evening to the ICU at Lake
Charles Memorial Hospital.

Dr. Zweber then states that when Mr. Fontenot was discharged to Golden Age

of Welsh on October 15, 2014, “Golden Age’s nursing staff failed to implement a

plan of care to manage and treat Mr. Fontenot’s existing pressure ulcers and prevent

further development and/or progression of existing pressure ulcers” (emphasis

added). He points out that seven days later, on October 22, 2014, Mr. Fontenot was

again transferred to Lake Charles Memorial Hospital “with a new pressure ulcer to

his sacrum and multiple worsening pressure ulcers to his left foot, including a 3cm

x 3cm stage III with black eschar.” Mr. Fontenot spent another week in the hospital

and was returned to Golden Age of Welsh on October 29, 2014. By November 2,

2014, Mr. Fontenot was experiencing “acute respiratory distress.” Dr. Zweber states

that the medical records show “Golden Age’s staff did not properly monitor Mr.

Fontenot’s respiratory status, properly adjust his ventilator settings, and timely

notify his physician, or send him to the emergency department for evaluation and

treatment” (emphasis added). He further opines that:

A reasonable Plan of Care was not implemented and the
physician’s orders for the prevention of pressure ulcers were not
followed. This lead (sic) to the rapid progression of multiple areas of
pressure related skin breakdown by October 7, 2014. These ulcers were
not Mr. Fontenot’s fault and certainly were not unavoidable.

Dr. Zweber concludes “[w]ithin a high degree of medical certainty” that

(emphasis added):

Mr. Fontenot’s care at Golden Age of Welsh was below the
expected standard of care. Failing to provide the necessary treatment
plan for Mr. Fontenot caused multiple pressure ulcers, acute respiratory
failure, acute renal failure, systemic sepsis, unnecessary pain, and rapid
deterioration in his already fragile health condition.

In summary, Dr. Zweber opines:

5

Within high medical probability the negligent care that
prevented Mr. Fontenot from achieving a better outcome was a major
contributing factor to his worsening health condition which hastened
his deterioration and contributed to his death.

Defendant’s objection to this expert’s testimony was based on its

interpretation of the Louisiana locality rule embodied in La.R.S. 9:2794(A)(1).

Nevertheless, in its Motion for Summary Judgement, Golden Age of Welsh

repeatedly referred to the specialized nature of the care given to this patient. He was

transferred to that facility from another nursing home because his condition required

specialized care. Indeed, as Dr. Zweber also noted, this case involves national

standards for nursing homes engaging in the kind of specialized care needed for Mr.

Fontenot’s condition. Defendant asserts on summary judgment that Golden Age of

Welsh offers specialized care to Louisiana citizens and the region beyond, and that

it fully complies with national medicare requirements. These allegations were not

disputed. Under the provisions of La.R.S. 9:2794(A)(1)(emphasis added), the

standard of care is determined according to “the involved medical specialty” and is

not limited by the locality rule as provided in the first part of paragraph (A)(1).

A. In a malpractice action based on the negligence of a physician
licensed under R.S. 37:1261 et seq., a dentist licensed under R.S.
37:751 et seq., an optometrist licensed under R.S. 37:1041 et seq.,
or a chiropractic physician licensed under R.S. 37:2801 et seq., the
plaintiff shall have the burden of proving:

(1) The degree of knowledge or skill possessed or the degree of care
ordinarily exercised by physicians, dentists, optometrists, or
chiropractic physicians licensed to practice in the state of Louisiana
and actively practicing in a similar community or locale and under
similar circumstances; and where the defendant practices in a
particular specialty and where the alleged acts of medical
negligence raise issues peculiar to the particular medical specialty
involved, then the plaintiff has the burden of proving the degree of
care ordinarily practiced by physicians, dentists, optometrists, or
chiropractic physicians within the involved medical specialty.

In Ardoin v. Hartford Acc. & Indem. Co., 360 So.2d 1331, 1335 (La.1978)

(emphasis added) the Louisiana Supreme Court explained:

6

In contrast with the standard of conduct and burden of proof affecting
practitioners not engaged in a specialty, the statute further provides that
where the defendant practices in a particular specialty and where the
alleged acts of medical negligence raise issues peculiar to the particular
medical specialty involved, then the plaintiff “has the burden of proving
the degree of care ordinarily practiced by physicians or dentists within
the involved medical specialty.” Thus, the legislature has provided
guidance in applying the Civil Code’s general principle of fault to the
acts of a particular medical specialist by directing that they be measured
by the degree of care ordinarily practiced by others involved in the same
specialty. Unlike the statute’s standard of care for practitioners not
engaged in a specialty, the specialist’s duty is not governed by the
professional standard within a particular locality or community.

We find the trial court legally erred in applying the “locality rule” to exclude

Dr. Zweber’s affidavit. As the Defendant maintained in support of its motion for

summary judgment, this was specialized care. Thus, the locality rule has no

application here and Plaintiffs’ expert should not have been rejected on that basis.

We also find there is yet a stronger basis on which to reverse the trial court.

The only issue raised in Defendant’s motion for summary judgment was the issue of

causation. Defendant emphatically set forth the sole basis for its motion for

summary judgment stating: “Specifically, and as explained in greater detail in the

accompanying Memorandum in Support, Defendant asserts that Plaintiffs are unable

to satisfy their burden of proof of resulting damages.”

The dissenting judge in this case, like Defendant, asserts that “the same

knowledge needed to determine standard of care is also needed to determine

causation. As such, it is inconceivable that an expert who is not competent to testify

to standard of care, the first prong of the medical malpractice burden of proof, would

be considered competent to testify to the third prong—causation.” Judge Savoie

maintains that La.R.S. 9:2794(A)(3), which sets forth causation, is covered by the

provisions of (A)(1) governing proof of the standard of care. This interpretation is

at odds with the settled jurisprudence. Paragraph (A)(1) provides for circumstances

in which either the locality rule or the medical specialty rule applies. Louisiana

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Revised Statutes 9:2794(A)(3) provides the third element of proof in a medical

malpractice action, causation:

That as a proximate result of this lack of knowledge or skill or the
failure to exercise this degree of care the plaintiff suffered injuries that
would not otherwise have been incurred.

Louisiana jurisprudence holds that “causation is not explicitly included among

those elements listed in La.R.S. 9:2794 for which proof must be made through expert

medical testimony[.]” Bozarth v. State LSU Med. Ctr./Chabert Med. Ctr., 09-1393

p. 12 (La.App. 1 Cir. 2/12/10), 35 So.3d 316, 325.

In Samaha v. Rau, 2007–1726 (La.2/26/08), 977 So.2d 880, the
supreme court explained at length the burden of proof and standard of
review in medical malpractice cases:

To establish a claim for medical malpractice, a
plaintiff must prove, by a preponderance of the evidence:
(1) the standard of care applicable to the defendant; (2) that
the defendant breached that standard of care; and (3) that
there was a causal connection between the breach and the
resulting injury. La. R.S. 9:2794. 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.

Although causation is not explicitly included among those
elements for which proof must be made through expert medical
testimony, typically expert testimony is required to prove causation
when the resolution of that issue is not a matter of common knowledge.

Tillman v. Eldridge, 44,460 p. 12 (La.App. 2 Cir. 7/15/09), 17 So.3d 69, 77

(emphasis added).

The locality rule articulated in La.R.S. 9:2794(A)(1) has no application to an

expert witness testifying as to causation. The determinations of the appropriate

standard of care and whether that standard was breached are entirely separate

elements in a medical malpractice action from the element of causation. There is

strong evidence submitted in this case that Golden Age of Welsh breached the

standard of care in its handling of the late Mr. Fontenot. As we have already noted,

the Medical Review Panel found it breached the standard of care. Their testimony

8

was put forward at the motion for summary judgment by Defendant. They were all

local physicians whose testimony is admissible under the provisions of La.R.S.

40:1231.8(H). Thus, even if the locality rule applied here in determining the standard

of care, the statutory requirement is met, i.e., local doctors testified to a breach of

the local standard of care.

For the reasons stated, we reverse the trial court’s ruling granting summary

judgment and remand the matter for further proceedings. All costs of this appeal are

assessed against Defendant.

REVERSED.

9

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

20-85

TINA FONTENOT, ET AL.

VERSUS

GOLDEN AGE OF WELSH, LLC

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SAVOIE, J. dissents and assigns written reasons.

I respectfully disagree with the majority opinion. Golden Age of Welsh

objected to the filing of Dr. Zweber’s affidavit by the Plaintiffs, in accordance with

La.Code. Civ.P. art. 966(D)(2). The trial court granted the objection, leaving

Plaintiffs without evidence to support their claims on summary judgment.

Consequently, the trial court granted Golden Age of Welsh’s motion for summary

judgment and dismissed Plaintiffs’ claims. The exclusion of an affidavit in a motion

for summary judgment proceeding is reviewed for abuse of discretion. See

Gutierrez v. Baldridge, 10-1528 (La.App. 3 Cir. 5/11/11), 65 So.3d 251.

The trial court granted Golden Age of Welsh’s objection to Dr. Zweber’s

affidavit based on the “locality rule.” As applied to the present case, the “locality

rule” requires that while “[n]urses who perform medical services are subject to the

same standards of care and liability as are physicians[,] [t]he nurse’s duty is to

exercise the degree of skill ordinarily employed, under similar circumstances, by

members of the nursing or health care profession in good standing in the same

community or locality, and to use reasonable care and diligence, along with his or

her best judgment, in the application of his or her skill to the case.” Benefield v.

Sibley, 43,317, p.6 (La.App. 2 Cir. 7/9/08), 988 So.2d 279, 286, writs denied, 08-

2162, 08-2210, 08-2247 (La. 11/21/08), 996 So.2d 1108.

Plaintiffs argue that the locality rule does not apply in this case because the

issue is not Golden Age of Welsh’s standard of care but rather causation of Mr.

Fontenot’s injuries. Plaintiffs argue that the “locality rule” does not apply to

causation, and the majority agrees. Louisiana Revised Statutes 9:2794(A) states that

the burden of proof in a medical malpractice action is on the plaintiff to prove:

(1) The degree of knowledge or skill possessed or the degree of
care ordinarily exercised by physicians, dentists, optometrists, or
chiropractic physicians licensed to practice in the state of Louisiana and
actively practicing in a similar community or locale and under similar
circumstances; and where the defendant practices in a particular
specialty and where the alleged acts of medical negligence raise issues
peculiar to the particular medical specialty involved, then the plaintiff
has the burden of proving the degree of care ordinarily practiced by
physicians, dentists, optometrists, or chiropractic physicians within the
involved medical specialty.

(2) That the defendant either lacked this degree of knowledge or
skill or failed to use reasonable care and diligence, along with his best
judgment in the application of that skill.

(3) That as a proximate result of this lack of knowledge or skill
or the failure to exercise this degree of care the plaintiff suffered
injuries that would not otherwise have been incurred.

Causation is codified in the third provision, which specifically states that “this

lack of knowledge or skill or the failure to exercise this degree of care the plaintiff

suffered injuries that would not otherwise have been incurred.” Id. (emphasis

added). It is clear that the same knowledge needed to determine standard care is also

needed to determine causation. As such, it is inconceivable that an expert who is

not competent to testify to standard of care, the first prong of the medical malpractice

burden of proof, would be considered competent to testify to the third prong –

causation. This is especially true in light of the wording used in the statute.

Therefore, I would find that the trial court did not abuse its discretion in

excluding the affidavit of Dr. Zweber at the hearing on the motion for summary

judgment. It follows that due to a lack of Plaintiffs’ evidence, the trial court did not

err in granting Golden Age of Welsh’s motion for summary judgment.