Shirley Guillory v. Opelousas General Hospital Authority

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

24-571

SHIRLEY GUILLORY, ET AL

VERSUS

OPELOUSAS GENERAL HOSPITAL
AUTHORITY, ET AL

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 21-C-1822-D
HONORABLE D. JASON MECHE, DISTRICT JUDGE

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GARY J. ORTEGO
JUDGE

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Court composed of Sharon Darville Wilson, Gary J. Ortego, and Clayton Davis,
Judges.

REVERSED AND REMANDED.

D. Grant Castillo
Todd A. Townsley
The Townsley Law Firm
3102 Enterprise Blvd.
Lake Charles, LA 70601
(337) 478-1400
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Shirley Guillory
Rhonda Guillory
Christy Nicole Jackson
Alisha Monique Guillory
Kevin Guillory

Michael W. Adley
Judice & Adley, APLC
P. O. Drawer 51769
Lafayette, LA 70505-1769
(337) 235-2405
COUNSEL FOR DEFENDANTS/APPELLEES:
LAMMICO
George R. Williams, M.D.

Alan K. Breaud
Timothy W. Basden
Breaud & Meyers
P. O. Box 51365
Lafayette, LA 70505
(337) 266-2200
COUNSEL FOR DEFENDANTS/APPELLEES:
LAMMICO
Aaron J. Blanchard, P.A.

Deborah Deo Gracias Trahan
Tonya K. Gallaspy
Schroeder & Trahan
One Galleria Boulevard, Suite 700
Metairie, LA 70001
(800) 452-2120
COUNSEL FOR DEFENDANTS/APPELLEES:
Kalyan Kumar Veerina, M.D.
Cardiovascular Institute of the South

ORTEGO, Judge.

In this civil case, plaintiffs, the wife and children of a patient allegedly a

victim of medical malpractice, filed their petition for damages against multiple

defendants for the alleged medical malpractice. After settling with the defendant

hospital, and specifically reserving their rights against the remaining defendants,

the remaining defendants filed their motion(s) for summary judgment asserting the

affirmative defense that the settlement amount received by plaintiffs was in an

amount in excess of the medical malpractice cap pursuant to La.R.S.

40:1231.2(B)(1). As such, they asserted that plaintiffs’ claims against them should

be dismissed with prejudice.

At the hearing, the trial court excluded plaintiffs’ evidence offered relevant

to whether the settlement funds in question were for general damages or for past or

future medical expenses only. After taking the matter under advisement, the trial

court found that defendants had carried their initial burden to prove application of

the $500,000.00 cap on general damages under the Louisiana Medical Malpractice

Act by their mere production and presentation of settlement documents indicating

that plaintiffs received in excess of $4,000,000.00 in the settlement. The trial court

found that the burden was then shifted to plaintiffs, who failed to carry their burden

to show a genuine issue of material fact that the settlement proceeds were only for

past or future medical expenses and not general damages. Thus, given the

plaintiffs’ alleged failure to carry the shifted burden, the trial court granted the

defendants’ motions for summary judgment. Plaintiffs appeal.

FACTS

Hubert Guillory (“Guillory”) suffered from severe back pain accompanied

by radiating nerve symptoms in his arms and legs. On January 26, 2016, Guillory

underwent an extensive surgical procedure that involved multi-level cervical
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decompressions, fusions, and partial facetectomies. The surgical procedure was

performed by Dr. George Williams (“Dr. Williams”) at Opelousas General

Hospital (“OGH”).

Following the surgery, Dr. Williams traveled out of the country. Guillory

remained hospitalized at OGH and was followed post-operatively by Dr. Williams’

physician assistant, Aaron Blanchard (“PA Blanchard”).

On January 28, 2016, Guillory began exhibiting complications, and his

condition deteriorated rapidly. Cardiologist, Dr. Kalyan Veerina (“Dr. Veerina”),

performed a pulmonary angiogram that confirmed the existence of a pulmonary

embolus, and Dr. Veerina treated the pulmonary embolus with medication.

Guillory’s condition continued to deteriorate, and he began bleeding from

the surgery sites. The following day, Guillory’s condition stabilized, and he was

able to follow a few oral commands. However, due to continuing complications

and the increasing pressure around Guillory’s spine, he was rendered a

quadriplegic. A subsequent surgery on January 31, 2016, failed to remedy

Guillory’s condition related to the pressure on his spine. Guillory died on

November 10, 2017.

On May 17, 2021, Guillory’s wife, Shirley Guillory, and his children,

Rhonda Guillory, Christy Nicole Jackson, Alisha Monique Guillory, and Kevin

Guillory, (“Plaintiffs”) filed a petition for damages in St. Landry Parish. Named

original defendants were OGH, Dr. Williams, PA Blanchard, Dr. Veerina,

Cardiovascular Institute of the South, and LAMMICO, the insurer of Dr. Wiliams

and PA Blanchard.

On June 21, 2017, PA Blanchard and LAMMICO filed an answer that

included, inter alia, an affirmative defense regarding application of the

$500,000.00 limitation pursuant to La.R.S. 40:1231.2(B)(1).
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On April 5, 2023, a judgment of partial dismissal was filed by Plaintiffs,

OGH, and the Louisiana Patient’s Compensation Fund Oversight Board (PCF).

The judgment averred that the claims between Plaintiffs, OGH, and the PCF had

been settled and compromised with Plaintiffs specifically reserving their rights

against the remaining defendants.

PA Blanchard and LAMMICO propounded a request for production of

documents to Plaintiffs seeking a copy of their settlement agreement with OGH

and the PCF. After Plaintiffs’ refusal to provide the document, the trial court

granted a motion to compel the production of the settlement agreement. Plaintiffs

then produced the settlement documents.

On May 14, 2024, PA Blanchard and LAMMICO filed a motion for

summary judgment. The basis for the motion was that the settlement agreement

showed that Plaintiffs were paid $4,410,000.00 by OGH and the PCF. Of that

amount, $48,761.41 was paid to the Louisiana Department of Health and $183,

823.57 was paid to Medicare, with the remainder of $4,177,415.02 being paid to

Plaintiffs.

On May 17, 2024, Dr. Veerina, and the Cardiovascular Institute of the South

filed a similar motion for summary judgment. Thereafter, Dr. Williams and

LAMMICO, as his insurer, also filed a motion for summary judgment on the same

basis.

On July 11, 2024, Plaintiffs filed an opposition to each motion for summary

judgment. Relevant to these proceedings, attached to the opposition was Exhibit 3,

Plaintiffs’ answers to interrogatories. On July 24, 2024, PA Blanchard and

LAMMICO filed a reply memorandum that contained an objection to the

admissibility of Plaintiffs’ Exhibit 3 due to the answers being signed without

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Plaintiffs being under oath or accompanied by an affidavit executed before a

notary public attesting to their content.

The motions for summary judgment came up for hearing on July 29, 2024.

The trial court sustained the Defendants’ objection to admission of Plaintiffs’

Exhibit 3. Thereafter, the trial court took the matter under advisement.

On September 5, 2024, the trial court issued judgment granting the

Defendants’ motions pursuant to its finding that the burden shifted to Plaintiffs to

prove how much of the settlement with other defendants was for past and future

medical bills only. The court dismissed the remaining defendants, PA Blanchard,

Dr. Williams, the Cardiovascular Institute of the South, and LAMMICO

(hereinafter “Defendants”), with prejudice.

Plaintiffs appeal. They raise five assignments of error.

ASSIGNMENTS OF ERROR

1. The trial court erred in granting Defendants’ Motions for
Summary Judgment and in finding that the Medical Malpractice Act’s
statutory cap on damages precluded plaintiffs from proceeding against
the non-settling defendants after plaintiffs settled with a qualified
defendant and the Patients’ Compensation Fund.

2. The trial court erred in holding that Plaintiffs-Appellants bear
the burden of proof at trial as to whether Plaintiffs have exhausted the
amount of damages recoverable under the Louisiana Medical
Malpractice Act.

3. The trial court erred in holding that the Defendants established
prima facie proof of their affirmative defense that the Plaintiffs-
Appellants have recovered funds in excess of the statutory cap on
damage[s] provided in the Louisiana Medical Malpractice Act.

4. The trial court erred in ignoring Plaintiff’s memoranda and
holding that the Defendants shifted the burden of proof to Plaintiffs to
produce evidence on how much of the settlement money was for
medical care and related benefits only, therefore creating a genuine
issue of material fact to whether the recovery exceeded the statutory
cap on damages established in the Medical Malpractice Act.

5. The trial court erred in assessing court costs against the
Plaintiffs.
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STANDARD OF REVIEW

Summary judgments are reviewed de novo using the same criteria as that of

the trial court in adjudicating the appropriateness of the summary judgment.

Samaha v. Rau, 07-1726 (La. 2/26/08), 977 So.2d 880. Summary judgments are

granted “if the pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, show that there is no genuine issue as to

material fact, and that mover is entitled to judgment as a matter of law.” La.Code

Civ.P.art. 966(B).

The burden of proof remains with the movant. However, if the movant
will not bear the burden of proof at trial on the matter that is before
the court on the motion for summary judgment, the movant’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 that there is an absence of factual support for one or more
elements essential to the adverse party’s claim, action, or defense.
Thereafter, if the adverse party fails to produce factual support
sufficient to establish that he will be able to satisfy his evidentiary
burden of proof at trial, there is no genuine issue of material fact.

La.Code Civ.P.art. 966 C (2).

ASSIGNMENTS OF ERROR NUMBERS ONE THROUGH FIVE

Plaintiffs’ five assignments of error are essentially five arguments

contending that the trial court erroneously granted Defendants’ motions for

summary judgment. As such, we address whether the trial court was correct in

granting Defendants’ motions under one heading.

We first review Plaintiffs’ fourth assignment of error, wherein Plaintiffs

argue that the trial court erred in finding the Defendants had carried their initial

burden of proof, and provided sufficient proof as to their affirmative defense claim

to prove application of the medical malpractice general damages cap under La.R.S.

40:1231.2(B)(1), and, thus, the burden of proof was erroneously shifted to

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Plaintiffs to produce evidence on how much of the settlement money was for

medical care and related benefits only.

Pursuant to La.Code Civ.P.art. 966(B), the Defendants bore the burden of

proof on these motions. Thus, the trial court erroneously shifted that burden to

Plaintiffs after Defendants merely produced the settlement documents showing that

Plaintiffs had received a settlement of $4,410,000.00, an amount in excess of the

$500,000.00 cap for general damages, exclusive of future medical care and related

benefits under La.R.S. 40:1231.2(B)(1). In reviewing this matter de novo, we find

this was in error, and as such the trial court erroneously granted Defendants’

motions.

Louisiana Revised Statutes 40:1231.2(B)(1) states, “[t]he total amount

recoverable for all malpractice claims for injuries to or death of a patient, exclusive

of future medical care and related benefits as provided in La.R.S.

40:1231.2(B)(1), shall not exceed five hundred thousand dollars plus interest and

cost.” (Emphasis added)

Louisiana Code of Civil Procedure Article 966(B) provides that the burden

of proof shifts from the movant when the movant “will not bear the burden of

proof at trial on the matter.” Here, the application of the statutory general damages

cap is an affirmative defense asserted by Defendants. Parties who assert

affirmative defenses must carry the burden to prove that affirmative defense.

Carmouche v. National Union Fire Insurance Company of Pittsburgh, PA, 23-367

(La.App. 3 Cir. 2/7/24), 380 So.3d 214. Therefore, in this action, under the proper

application of La.Code Civ.P.art. 966(B), Defendants, as movants, have the burden

to prove application of the damages cap, exclusive of future medical care and

related benefits, under La.R.S. 40:1231.2(B)(1).

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Here, while the settlement proceeds without question exceed the statutory

cap of $500,000, the record shows that the Defendants failed to produce any

evidence as to what amount, if any, of the settlement proceeds were for damages,

exclusive of future medical care and related benefits, as required pursuant to their

affirmative defense claims. In other words, the plain language of this statute shows

that the Defendants’ burden of proof is not merely that the amount of Plaintiffs’

settlement was in excess of $500,000, as is clearly the case, but additionally as to

what amount, if any, of the settlement proceeds were for damages, exclusive of

future medical care and related benefits. Therefore, we find that the Defendants

have failed to carry their initial burden of proof as required pursuant by La.Code

Civ.P.art. 966. Thus, the trial court erred in erroneously/improperly shifting the

burden of proof to the Plaintiffs to produce evidence on how much of the

settlement money was for future medical care and related benefits only.

Given the above, and after a thorough review of the record, we find that a

genuine issue of material fact remains in this case as to whether Plaintiffs’

settlement exceeded the statutory cap on general damages, exclusive of future

medical care and related benefits, established by the Medical Malpractice Act

under La.R.S. 40:1231.2(B)(1). Thus, the jurisprudence is clear that, because such

an issue of material fact remains, summary judgment is inappropriate.

We find that the trial court erred in granting Defendants’ motions. This

finding pretermits the remaining issues raised by Plaintiffs.

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DECREE

Plaintiffs, Shirley Guillory, Rhonda Guillory, Christy Nicole Jackson, Alisha

Monique Guillory, and Kevin Guillory, assign five errors asserting that the trial

court erroneously granted Defendants’ respective motions for summary judgment.

We find the trial court improperly shifted the burden of proof to Plaintiffs when

Defendants failed to carry their burden, as to their affirmative defense, to prove the

statutory medical malpractice general damages cap under La.R.S. 40:1231.2(B)(1)

as to Plaintiffs’ settlement.

Accordingly, we reverse the trial court’s judgment granting Defendants’

respective motions for summary judgment dismissing the claims of Plaintiffs,

Shirley Guillory, Rhonda Guillory, Christy Nicole Jackson, Alisha Monique

Guillory, and Kevin Guillory against the remaining defendants, physician assistant

Aaron Blanchard, Dr. George Williams, Dr. Kalyan Veerina, the Cardiovascular

Institute of the South, and LAMMICO, and remand this matter for further

proceedings consistent with this opinion. Costs of these proceedings are assessed

equally to physician assistant Aaron Blanchard, Dr. George Williams, Dr. Kalyan

Veerina, the Cardiovascular Institute of the South, and LAMMICO.

REVERSED AND REMANDED.

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