Sharon Schultz v. Janos Guoth, M.D. and Khaled F. Rabie, M.D.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-251

SHARON SCHULTZ, ET AL.

VERSUS

JANOS GUOTH, M.D. AND KHALED F. RABIE, M.D.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 221,066
HONORABLE DONALD T. JOHNSON, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Oswald A. Decuir, Elizabeth A. Pickett, and Shannon J.
Gremillion, Judges.

WRIT DENIED.

Gremillion, J., dissents and assigns written reasons.

Joseph T. Dalrymple
Dalrymple & Ledet
1450 Dorchester Drive
Alexandria, LA 71301
(318) 442-1818
Counsel for Plaintiff-Respondent:
Leanne Brow

Victor Herbert Sooter
Sooter & Associates
P. O. Box 1671
Alexandria, LA 71309
(318) 448-8301
Counsel for Defendant-Applicant:
Khaled F. Rabie, M.D.

PICKETT, Judge.

The defendant, Khaled F. Rabie, M.D., seeks supervisory writs from the

judgment of the trial court which denied his motion for summary judgment.

STATEMENT OF THE CASE

This is a medical malpractice case. Plaintiff Leanne Brow sued Dr. Khaled F.

Rabie and Dr. Janos Guoth for the death of her stillborn child. The fifteen-year-old

Ms. Brow had arrived at Oakdale Community Hospital in premature labor with a

placenta tear. Dr. Guoth transferred her to Rapides Women’s and Children’s

Hospital under the care of Dr. Rabie. Upon her arrival at 6:30 a.m. Dr. Rabie was

notified, and he arrived at 6:55 a.m. After conflicting fetal heart rate reports, Dr.

Rabie performed a C-section at 7:25 a.m. and delivered a stillborn child.

Ms. Brow alleged that Dr. Rabie was negligent in accepting an emergency

referral at 4:50 a.m. and, after being apprised of Ms. Brow’s ruptured membrane,

amniotic fluid, blood, contractions and cervical dilation, failing to arrive earlier to

perform an emergency C-section.

The medical review panel unanimously found in favor of both doctors. Dr.

Guoth has since been dismissed from this suit. In the course of these proceedings, Dr.

Rabie filed a motion for summary judgment alleging that without an expert witness

Ms. Brow would be unable to meet her burden of proof at trial. Following a hearing,

the trial court denied Dr. Rabie’s motion for summary judgment. Dr. Rabie has filed

a supervisory writ application in this court seeking a reversal of the trial court’s

ruling.

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DISCUSSION

Since the denial of a motion for summary judgment is an interlocutory ruling

from which no appeal may be taken, the only practical remedy available to avoid a

possibly useless trial on the merits is to request that the appellate court exercise its

supervisory jurisdiction to review the propriety of this ruling. Louviere v. Byers, 526

So.2d 1253 (La.App. 3 Cir.), writ denied, 528 So.2d 153 (La.1988).

To prevail on a motion for summary judgment, the moving party must show

that there is no genuine issue of material fact, and that he is entitled to a judgment as

a matter of law. La.Code Civ.P. art. 966; see also Babin v. Winn-Dixie, Inc., 00-78

(La. 6/30/00), 764 So.2d 37. Section 3(C) of La.Code Civ.P. art. 966 sets forth the

burden of proof in a summary judgment proceeding:

(1) After adequate discovery or after a case is set for trial, a
motion which shows that there is no genuine issue as to material fact and
that the mover is entitled to judgment as a matter of law shall be granted.

(2) 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.

Appellate courts review summary judgments de novo under the same criteria that

govern the district court's consideration of whether summary judgment is appropriate.

Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342

(La.1991).

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In this case, Ms. Brow bears the burden of proof at trial. Therefore, Dr. Rabie

must show Ms. Brow is unable to produce factual support for any of the essential

elements of her claim. Louisiana Revised Statute 9:2794(A) sets forth the required

proof in a medical malpractice claim:

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.

(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.

Dr. Rabie contends that in order for Ms. Brow to make a prima facie case

against him she will have to prove he deviated below the standard of care and that the

her injuries occurred as a result of that action. Dr. Rabie argues that expert testimony

is necessary to prove a violation of the standard of care in this case. In support of his

motion for summary judgment, Dr. Rabie submitted his favorable medical review

panel opinion as well as the affidavit of one of the panelists who stated that Dr. Rabie

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did not breach the standard of care. The evidence submitted by Dr. Rabie suggested

that Ms. Brow’s child was probably dead at the time Ms. Brow arrived at the hospital.

In its written reasons for denying summary judgment, the trial court stated that

Ms. Brow did not need expert testimony in order to defeat the Dr. Rabie’s summary

judgment. The trial court cited the case of Pfiffner v. Correa, 94-992, 84-924, 94-963

(La. 10/17/94), 643 So.2d 1228, for the holding that expert testimony is not always

required in a medical malpractice case. In that case, the supreme court noted that in

most cases the plaintiff will fail to prove his claim without expert testimony if there

are complex medical issues involved. Pfiffner died after a late diagnosis and

treatment of a severe brain injury. The supreme court found that plaintiff did not

meet her burden of proving, either through her own experts or the testimony of the

defendants or defense experts, that the doctors breached the standard of care with the

lack of expeditious treatment and that this breach caused Pfiffner’s death or loss of

chance of survival. The supreme court reversed the lower courts’ decision because

there was no proof that Pfiffner would have fared any better had he received earlier

treatment because his brain injury was inoperable. The Pfiffner court stated:

The jurisprudence has also recognized that there are situations in
which expert testimony is not necessary. Expert testimony is not
required where the physician does an obviously careless act, such as
fracturing a leg during examination, amputating the wrong arm,
dropping a knife, scalpel, or acid on a patient, or leaving a sponge in a
patient's body, from which a lay person can infer negligence. See
Hastings v. Baton Rouge Gen. Hosp., 498 So.2d 713, 719 (La.1986).
Failure to attend a patient when the circumstances demonstrate the
serious consequences of this failure, and failure of an on-call physician
to respond to an emergency when he knows or should know that his
presence is necessary are also examples of obvious negligence which
require no expert testimony to demonstrate the physician’s fault. See id.

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at 719-20. Likewise, where the defendant/physician testifies as to the
standard of care and his breach thereof, see, e.g., Riser v. American
Medical Int'l Inc., 620 So.2d 372, 377 (La.Ct.App. 5th Cir.1993), or the
alleged negligence consists of violating a statute and/or the hospital’s
bylaws, see, e.g., Hastings, 498 So.2d at 722 (violation of LSA-R.S.
40:2113.4 which imposes duty on a hospital to make emergency services
available to all persons in the community without regard to income or
insurance protection and hospital bylaws establishing duties for on-call
physicians), expert testimony is also unnecessary to establish a
malpractice claim.

Id. at 1233-34.

Dr. Rabie does not attempt to distinguish the Pfiffner case, but instead claims

that of the ninety-three times Pfiffner was cited in later jurisprudence, none of those

cases involved an obstetrical case. Dr. Rabie cites McCann v. ABC Ins. Co., 93-1789

(La.App. 4 Cir. 7/14/94), 640 So.2d 865, for authority for its position that expert

testimony is necessary in order to show the delay in performing a C-section caused

the death of the infant. In that case, the plaintiffs alleged that after attempting a

forceps delivery, the doctor failed to timely perform the C-section and that he failed

to monitor the plaintiff and the unborn infant. During the delivery, the infant suffered

a severe hypoxic event which caused its brain to be deprived of oxygen, resulting in

the infant’s later death. The cause of the event was not known. The plaintiffs did not

present expert testimony to show that the doctor’s actions caused the hypoxic event.

Next, the court looked at whether the doctor’s lack of monitoring the baby’s heart rate

could be negligent. The court found that the evidence showed that it was the duty of

the nurse to check the heartbeat and no evidence was submitted to show otherwise.

Ultimately, the fourth circuit found that the trial court correctly granted the directed

verdict in favor of the doctor.

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In the instant case, the trial court found that there are genuine issues of material

fact as to whether Dr. Rabie arrived timely at the hospital to respond to the

emergency, whether he waited too long to perform the C-section, and whether his

delay caused the death of the unborn child. The trial court found that Ms. Brow did

not need an expert witness to defeat Dr. Rabie’s motion for summary judgment. The

court stated that the jury could reasonably infer negligence in the doctor’s conduct

from the medical and factual issues. However, Dr. Rabie claims that a layman cannot

infer negligence from the facts of this case and cannot determine if the child would

have survived delivery if he had acted sooner.

The hearing on the motion for summary judgment was not recorded, and we are

unable to determine what evidence, if any, was submitted by Ms. Brow. However,

it is possible that Ms. Brow will rely on the testimony of the defendant doctors

themselves as to the standard of care and on Dr. Rabie’s testimony regarding his

alleged breach of that standard of care. In addition, as noted in Pfiffner, 643 So.2d

1228, the facts of this case could demonstrate that Dr. Rabie’s failure to respond

timely to the patient’s emergency is an example of obvious negligence that requires

no expert testimony to show his fault.

After reviewing the evidence in this case and hearing arguments of counsel, the

trial court determined that the jury could infer negligence from the facts of the case.

The Louisiana Supreme Court noted in Pfiffner that a physician’s delay in responding

to an emergency is an example of obvious negligence that would require no expert

testimony. In addition, it is possible that Dr. Rabie’s testimony in his deposition

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could provide Ms. Brow with proof of a breach of the standard of care. Based on the

information provided to this court, we deny Dr. Rabie’s writ application, finding that

there are genuine issues of material fact that warrant trial on the merits. We find that

pursuant to the Pfiffner case, expert testimony is not required in order for Ms. Brow

to prove her malpractice claim.

WRIT DENIED.

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09-251

LEANNE BROW INDIVIDUALLY AND ON BEHALF OF HER UNBORN

CHILD, DESTINY RICHMOND

VERSUS

JANOS GUOTH, M.D. AND KHALED F. RABIE, M.D.

GREMILLION, Judge, dissenting.

The trial court erred in denying Relator’s motion for summary judgment.

Given the complex medical issues involved in this case, without expert testimony the

Plaintiff will be unable to sustain her burden of proving at trial that the Relator’s

conduct constituted a breach in the applicable standard of care and that this breach

resulted in the damages sustained.

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