William Mathews, Husband and Widower of Decedent, Geranda Mathews v. Louisiana State University Health Systems

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-1009

WILLIAM MATHEWS, HUSBAND AND
WIDOWER OF DECEDENT, GERANDA
MATHEWS

VERSUS

LOUISIANA STATE UNIVERSITY
HEALTH SYSTEMS, ET AL.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2015-0041-B
HONORABLE CLAYTON DAVIS, DISTRICT JUDGE

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JAMES T. GENOVESE

JUDGE

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Court composed of Sylvia R. Cooks, Jimmie C. Peters, and James T. Genovese,
Judges.

MOTION TO DISMISS APPEAL DENIED.

Hon. James David Caldwell
Attorney General
Post Office Box 94005
Baton Rouge, LA 70804-9005
(225) 326-6200
COUNSEL FOR DEFENDANT/APPELLANT:
Louisiana State University Health Systems
d/b/a W.O. Moss Regional Medical Center

Lewis Olivier Lauve, Jr.
Special Assistant Attorney General
Bussey & Lauve, LLC
Post Office Drawer 8778
Alexandria, LA 71306
(318) 449-1937
COUNSEL FOR DEFENDANTS/APPELLANTS:
Louisiana State University HealthSystems
d/b/a W. O. Moss Regional Medical Center

Sera Hearn Russell, III
Attorney at Law
Post Office Box 53866
Lafayette, LA 70505-3866
(337) 237-7171
COUNSEL FOR PLAINTIFF/APPELLEE:
William Mathews

GENOVESE, Judge.

Plaintiff-Appellee, William Matthews, moves to dismiss the unlodged

appeal of the Defendant-Appellant, Louisiana State University Health Systems

d/b/a W.O. Moss Regional Medical Center. For the following reasons, we deny

the motion to dismiss the appeal.

This case involves a medical malpractice action filed by Plaintiff on behalf

of his late wife, Geranda Matthews. On July 13, 2009, Mrs. Matthews presented to

Defendant hospital with complaints of pain from a condition that turned out to be

lung cancer. Allegedly, two physicians at Defendant’s hospital failed to properly

diagnose and treat the condition through April 15, 2010. It is also alleged that the

failure to properly diagnose and treat Mrs. Matthews resulted in the cancer

attaching to her spinal cord causing excruciating pain. Mrs. Matthews became

paralyzed and eventually died. When the claim was submitted to a medical review

panel, the panel unanimously found that the doctors involved had breached the

standard of care. Thereafter, Plaintiff filed the instant medical malpractice lawsuit.

Also, Plaintiff filed a motion for summary judgment on the issues of liability,

causation, and damages. Defendant opposed the motion for summary judgment as

it pertains to the issues of causation and damages. Specifically, Defendant asserted

there is a genuine issue of material fact as to the extent that a pre-existing condition

may have contributed to Mrs. Matthews’ damages. Following a hearing, the trial

court granted summary judgment on the issues of liability and causation of

damages, but reserved the issue of quantum of damages for a later motion for

summary judgment or trial. A judgment to that effect was signed on June 19, 2015.

Previously, Defendant sought review of the June 19, 2015 judgment in a writ

application, which was filed under this court’s docket number 15-726. This court

court found that the June 19, 2015 judgment is an appealable judgment under

La.Code Civ.P. art. 1915(A)(5). This court found that Defendant’s notice of intent

to seek supervisory writs would have been timely filed as a motion for appeal.

Therefore, since the appeal delays had subsequently run, this court ordered that the

notice of intent be considered as a timely motion for appeal and remanded the case

for Defendant to comply with the other requirements for taking an appeal.

At this time, Plaintiff has filed a motion to dismiss an unlodged appeal.

However, after Plaintiff’s motion to dismiss was filed, the appeal record was

lodged in this court under docket number 15-1019. Since the appeal has been

lodged, we will consider Plaintiff’s motion as simply a motion to dismiss an appeal,

rather than a motion to dismiss an unlodged appeal. Plaintiff moves to have the

appeal dismissed on the ground that Defendant failed to submit any evidence in

opposition to Plaintiff’s motion for summary judgment.

Defendant filed an opposition to Plaintiff’s motion to dismiss the appeal.

Defendant asserts that Plaintiff’s motion to dismiss actually addresses the merits of

the appeal. Defendant contends that although Plaintiff submitted the opinion of the

medical review panel as well as the affidavit of Dr. Andrew Harwood in support of

his motion for summary judgment, Dr. Harwood’s affidavit and the opinion of the

medical review panel fell short of stating that the alleged breach was the sole cause

of the damage to Plaintiff’s late wife. Also, Defendant contends that it is

uncontested that Mrs. Matthews already had cancer at the time when she first went

to Defendant hospital for treatment. As such, Defendant maintains that there is a

genuine issue of material fact as to whether the pre-existing cancer caused or

contributed to the Plaintiff’s damages. Defendant contends that Plaintiff bears the

burden of proof whether at the summary judgment stage or at trial. Also,

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Defendant asserts that no countervailing affidavit is necessary to point out

Plaintiff’s inability to prove that the alleged breach of conduct was the sole cause

of the damages sustained by Mrs. Matthews.

We find that Defendant is correct in its assertion that Plaintiff’s motion to

dismiss the appeal for failure to submit countervailing evidence goes to the merits

of the appeal and should be addressed when we review the appeal on the merits.

Therefore, we hereby deny Plaintiff’s motion to dismiss the appeal.

MOTION TO DISMISS APPEAL DENIED.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION.
Rule 2-16.3 Uniform Rules, Court of Appeal.

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