Kayla Arceneaux v. Lafayette General Medical Center

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-516

KAYLA ARCENEAUX

VERSUS

LAFAYETTE GENERAL MEDICAL
CENTER, ET AL.

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ON SUPERVISORY WRIT FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 2016-2378
HONORABLE THOMAS R. DUPLANTIER, DISTRICT JUDGE

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PHYLLIS M. KEATY
JUDGE

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Court composed of John D. Saunders, Phyllis M. Keaty, and Candyce G. Perret,
Judges.

WRIT GRANTED; JUDGMENT REVERSED; REMANDED.

Nicholas Gachassin, III
Holly McKay Descant
Gachassin Law Firm
Post Office Box 80369
Lafayette, Louisiana 70598-0369
(337) 235-4576
Counsel for Defendant/Applicant:
Lafayette General Medical Center

Patrick D. Magee
Voorhies & Labbe
Post Office Box 3527
Lafayette, Louisiana 70502-3527
(337) 232-9700
Counsel for Defendant:
Bobby Nevils, M.D.

Harold D. Register, III
Attorney at Law
Post Office Box 80214
Lafayette, Louisiana 70598-0214
(337) 981-6644
Counsel for Plaintiff/Respondent:
Kayla Arceneaux

KEATY, Judge.

In this medical malpractice case, defendant-relator, Lafayette General

Medical Center (LGMC or the hospital), filed a motion for summary judgment

seeking to have the claims against it by plaintiff-respondent, Kayla Arceneaux,

dismissed with prejudice on the basis that she failed to present any evidence to

establish that it breached the applicable standard of care or that any alleged breach

caused her damages. At the conclusion of the hearing on LGMC’s motion, the trial

court granted plaintiff a ninety-day extension to produce an expert and disclose the

expert’s opinion to it and the hospital. A judgment memorializing the trial court’s

ruling was signed on May 15, 2017, and LGMC seeks supervisory writs from that

judgment. For the following reasons, we grant the writ, reverse the trial court’s

judgment, and remand.

STATEMENT OF THE CASE

The plaintiff was admitted into LGMC on January 13, 2014, when she was

approximately thirty to thirty-one weeks pregnant. According to the petition,

plaintiff’s obstetrician/gynecologist, Dr. Bobby Nevils, wanted hourly fetal

monitoring. Over the course of the next few days, the fetal monitor was removed;

however, there is a dispute concerning whether this was done at plaintiff’s request.

By January 15, 2014, fetal heart tones were no longer detected. The next day,

plaintiff delivered a stillborn male with hydrocephalus, commonly known as water

on the brain. Within several days of the delivery, plaintiff began to complain that

she was unable to feel her legs. Two or three times during her care, plaintiff fell to

the floor as she was being assisted out of bed by nurses and/or aides.

On December 30, 2014, plaintiff filed a request for a medical review panel

(MRP), which rendered a unanimous opinion finding that neither LGMC nor

Dr. Nevils failed to meet the applicable standard of care. Plaintiff filed the instant

suit on May 3, 2016. 1 According to plaintiff’s petition, she “suffered a disc

protrusion at L2-L3” and “incurred extensive medical expenses” “[a]s a result of

the negligent care of the nurses and/or hospital personnel.” LGMC answered the

suit, joining therewith an exception of vagueness and ambiguity and a motion to

strike portions of plaintiff’s petition. As evidenced in a Consent Judgment signed

on July 25, 2016, plaintiff agreed to the entry of an order granting LGMC’s

exception and motion. On January 18, 2017, LGMC filed a motion for summary

judgment on the ground that plaintiff had no experts to establish the standard of

care or breach thereof so as to meet her burden of proof. In support of its motion,

LGMC filed the MRP opinion and reasons. 2 Due to the fact that discovery

remained outstanding at the time, plaintiff requested and the trial court signed an

Unopposed Motion to Continue resetting the hearing on LGMC’s motion from

March 6, 2017, to May 1, 2017. As to the merits of LGMC’s motion, Plaintiff

argued that LGMC’s malpractice was so obvious that a layperson could infer

negligence without expert testimony. Four exhibits were attached to plaintiff’s

opposition, consisting of affidavits executed by her and her mother, progress notes

from her stay at LGMC, and two LGMC Patient Safety Reports concerning two

falls that occurred during her hospital stay.

At the May 1, 2017 hearing, the trial court stated:

I’m not even going to recite the facts of this . . . . There’s no doubt in
the world you cannot survive a medical malpractice case without an
1
Dr. Nevils was also named as a defendant. While the complained-of-judgment indicates
that counsel for Dr. Nevils was present at the hearing on LGMC’s motion for summary judgment,
we are unable to determine from LGMC’s writ application the status of plaintiff’s claims against
him.
2
LGMC also attached to its motion copies of its certificate of enrollment in the Louisiana
Patient’s Compensation Fund, plaintiff’s petition, and its answer to the petition.

2

expert. Either you get an expert or I dismiss the case. I’m not even
going to talk about it. You can’t have a claimant say this happened to
me, it’s negligence. That doesn’t work in medical malpractice. So
I’ve got nothing else to say.

....

It’s causation that you’re having a problem with . . . . It’s not
whether the baby didn’t survive. It’s causation. You have to bring
the cause to the facts.

....

You say it was because the fetal heart monitor wasn’t attached, but
nobody else said that. I don’t know that. That’s you and your client.
You’re not an expert. You can’t tell me, or the trier of the fact, that.
....

The whole point is, you have to have an expert that says the
bulge results from a fall, as opposed to being scoliosis, as opposed to
being spondylolisthesis, as opposed to being something that’s []
hereditary. You say there was no results prior to that. So you need an
expert to say that when someone falls to a floor from a three-foot
point of view or whatever, that that could cause someone to have a
bulging disc. That’s what the requirements of the medical malpractice
are. I didn’t make those.

Rather than ruling on the motion for summary judgment, however, the trial court

gave plaintiff ninety days to retain an expert, warning that her case against LGMC

would be dismissed should she fail to do so. LGMC seeks review of the trial

court’s judgment which granted plaintiff an extension that she did not request.

LGMC asks this court to reverse the trial court judgment and render a decision

granting summary judgment in its favor.

SUPERVISORY RELIEF

“The proper procedural vehicle to contest an interlocutory judgment that

does not cause irreparable harm is an application for supervisory writs. See La.

C.C.P. arts. 2087 and 2201.” Brown v. Sanders, 06-1171, p. 2 (La.App. 1 Cir.

3/23/07), 960 So.2d 931, 933. But see La.Code Civ.P. art. 2083, comment (b),

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which provides, in pertinent part, that “[i]rreparable injury continues to be an

important (but not exclusive) ingredient in an application for supervisory writs.”

“A court of appeal has plenary power to exercise supervisory jurisdiction

over district courts and may do so at any time, according to the discretion of the

court.” Herlitz Const. Co., Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d

878, 878 (La.1981) (per curiam). “This general policy, however, should not be

applied mechanically.” Id. Thus, when the trial court’s ruling:

is arguably incorrect, when a reversal will terminate the litigation, and
when there is no dispute of fact to be resolved, judicial efficiency and
fundamental fairness to the litigants dictates that the merits of the
application for supervisory writs should be decided in an attempt to
avoid the waste of time and expense of a possibly useless future trial
on the merits.
Id. Because reversal of the trial court’s ruling could result in dismissal of

plaintiff’s claims against it, we grant LGMC’s request for supervisory writs.

DISCUSSION

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) the defendant breached that standard of care, and (3) a causal

connection between the breach and the resulting injury. See La.R.S. 9:2794(A).

Generally, expert testimony is required to establish the applicable standard of care

and breach thereof, except where the malpractice is so obvious that a layperson can

infer negligence without the guidance of expert testimony, such as where a

physician amputates the wrong arm or leaves a sponge inside a patient’s body.

Pfiffner v. Correa, 94-924, 94-963, 94-992 (La. 10/17/94), 643 So.2d 1228.

Pursuant to La.Code Civ.P. art. 966(A)(1), a defendant may move for

summary judgment “at any time.” Where the defendant will not bear the burden of

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proof at trial, it need only “point out to the court the absence of factual support for

one or more elements essential to the adverse party’s claim” to meet its burden of

proof on the motion. La.Code Civ.P. art. 966(D)(1). “Once the motion for

summary judgment has been properly supported by the moving party, the failure of

the non-moving party to produce evidence of a material factual dispute mandates

the granting of the motion.” Samaha v. Rau, 07-1726, p. 5 (La. 2/26/08), 977

So.2d 880, 883 (citing Wright v. La. Power & Light, 06-1181, p. 16 (La. 3/9/07),

951 So.2d 1058, 1070).

The courts of this state have routinely held that a motion for summary

judgment is an appropriate procedural vehicle to dismiss a defendant in a medical

malpractice suit where a plaintiff fails to meet her burden of proof. See, e.g.,

Shultz v. Guoth, 10,343 (La. 1/19/11), 57 So.3d 1002 (reversing trial and appellate

rulings that defendant was not entitled to summary judgment where plaintiff failed

to present evidence that defendants breached the standard of care or caused her

injury); Samaha, 977 So.2d 880; Orea v. Brannan, 30,628 (La.App. 2 Cir.

6/24/98), 715 So.2d 108 (affirming summary judgment where plaintiffs had

opportunity to file affidavits or other evidence establishing a genuine issue of

material fact concerning defendants’ breach of the applicable standard of care, but

failed to do so).

“For good cause shown, the court may order a continuance of the hearing

[on the motion for summary judgment].” La.Code Civ.P. art. 966(C)(2). “The trial

court may take into consideration such factors as diligence, good faith, reasonable

grounds, fairness to both parties and the need for the orderly administration of

justice.” Rogers v. Hilltop Ret. & Rehab. Ctr., 13-867, p, 4 (La.App. 3 Cir.

2/12/14), 153 So.3d 1053, 1058.

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[I]t is within the trial court’s discretion to issue summary judgment
where discovery is not completed. Peterson v. City of Tallulah,
43,197 (La.App. 2 Cir. 4/23/08), 981 So.2d 192. However, the parties
must be given “a fair opportunity to present their claims and, unless a
plaintiff shows probable injustice, a suit should not be
delayed pending discovery when it appears at an early stage that
there is no genuine issue of material fact.” Id. at 195.
Id. at 1058 (emphasis added). In that vein, the supreme court noted well over a

century ago, in State v. Posey, 17 La.Ann. 252, 253 (La.1865), that “it is not in the

discretion of the court to grant a continuance of a case, except [when] a party

applies for it, and alleges sufficient cause to justify the same.” To the present date,

the notion espoused in Posey remains good law. “The trial court’s decision

whether to grant or deny a continuance is reviewed for abuse of discretion.”

Rogers, 153 So.3d at 1058.

Citing La.Code Civ.P. art. 966(F), LGMC argues that the trial court abused

its discretion in allowing plaintiff an extension of time to obtain an expert because

no such request was before the court.3 LGMC asserts that, in the absence of such a

request, there can be no good cause for granting a continuance in this matter.

Accordingly, LGMC submits that the trial court should have ruled on the merits of

its motion based on the documents in the record at the time. LGMC points out that

when its motion came for hearing, plaintiff had over two years since its alleged

malpractice to produce an expert, and its motion had already been continued once

to allow the completion of discovery. Moreover, LGMC argues that plaintiff had

the option to obtain an expert or request more time to do so. Instead, plaintiff

chose to submit self-serving affidavits in support of her argument that LGMC’s

negligence was so obvious that she did not need an expert to prevail on her claims

3
Louisiana Code of Civil Procedure Article 966(F) provides: “A summary judgment may
be rendered or affirmed only as to those issues set forth in the motion under consideration by the
court at that time.”

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against it, an argument that the trial court clearly rejected as shown in the remarks

that it made at the May 1, 2017 hearing.

LGMC directs this court’s attention to three per curiam decisions rendered

by the Louisiana Supreme Court involving motions for summary judgment in

medical malpractice cases where the plaintiffs attempted to present expert opinions

after expiration of the deadlines found in La.Code Civ.P. art. 966(B). In Newsome

v. Homer Memorial Medical Center, 10-564 (La. 4/9/10), 32 So.3d 800, the trial

court granted the plaintiff’s motion to continue a hearing on the defendants’

motion for summary judgment to allow it to consider an expert’s affidavit that

plaintiff filed after the deadline contained in La.Code Civ.P. art. 966(B) had

passed. When plaintiff filed the motion to continue a mere seven days before the

scheduled hearing, it had been five years since the alleged malpractice occurred,

nine months since the MRP had rendered a unanimous decision in favor of the

defendants, and the defendants had already postponed the hearing once before

upon the plaintiff’s agreement that the matter would not be continued again. Given

the circumstances, the supreme court found that the trial court abused its discretion

in granting the continuance. As a result, it reversed and remanded the matter to the

trial court ordering it “to conduct a hearing on defendants’ motion for summary

judgment based on the pleadings, depositions, answers to interrogatories, and

admissions on file on [the date of the scheduled hearing], together with any

affidavits served at least eight days prior to that date.” 4 Newsome, 32 So.3d at

802-03.

4
At the time, La.Code Civ.P. art. 966(B) required that opposing affidavits be served at
least eight days prior to the hearing; however, the article now requires that such documents be
served not less than fifteen days prior to the hearing.

7

In Guillory v. Chapman, 10-1370 (La. 9/24/10), 44 So.3d 272, the supreme

court reversed this court’s ruling and reinstated the trial court’s grant of summary

judgment in favor of the defendants upon its finding of no abuse of discretion in

trial court’s exclusion of a late-filed expert affidavit pursuant to its decision “to

follow the mandatory language of La.Code Civ.P. art. 966(B)(2).” Id. In doing so,

the supreme court noted that “the case was six years old[,] and the plaintiff was

aware of the expert for years.” Id.

More recently, in Sims v. Hawkins-Sheppard, 11-678 (La. 7/1/11), 65 So.3d

154, the trial court granted summary judgment in favor of the defendants. The

hearing on the defendants’ motion had previously been continued for two months

at plaintiff’s counsel’s request. Prior to the date of the reset hearing, plaintiff’s

counsel opposed the motion, attaching an unsigned affidavit from a doctor. At the

hearing, after her counsel failed to produce a signed affidavit, the plaintiff told the

trial court of her desire to fire her attorney and secure new representation. On

appeal, the second circuit reversed, finding that:

[T]he trial court abused its discretion under La. C.C.P. art. 966(B) and
the interpreting case law. The court of appeal found the trial court
should have allowed the plaintiff a reasonable amount of time to find
new counsel and secure the signature of a medical expert on an
opposing affidavit rather than cutting off the plaintiff at the summary
judgment phase. The court of appeal found the plaintiff had been
misled and deceived by her former counsel.
Id. at 156. The supreme court reversed and remanded upon its finding that the

defendants had proved “their entitlement to summary judgment” and that the

plaintiff, who herself had “[a]pparently . . . known of th[e] doctor’s willingness to

serve as an expert witness for some time,” had not shown “‘good cause’ under La.

C.C.P. art. 966(B) why she should have been given additional time to file an

opposing affidavit.” Id. at 156-57.

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LGMC filed this writ application on June 2, 2017. In plaintiff’s June 29,

2017 response to the writ, she continues to maintain her position that no expert

testimony is necessary to prevail on her claims against LGMC.

According to the transcript of the May 1, 2017 hearing, before entertaining

any arguments from the parties, the trial court announced, “[t]here’s no doubt in

the world [plaintiff] cannot survive a medical malpractice case without an expert.

Either you get an expert or I dismiss the case.” Thus, although the trial court did

not expressly state it found that LGMC proved its entitlement to summary

judgment, the above statement reveals the trial court’s implicit finding that LGMC

established plaintiff could not satisfy her burden of proof at trial, particularly on

the issue of causation, without medical testimony. Under La.Code Civ.P. art.

966(D)(1), the burden should have then shifted to plaintiff to rebut LGMC’s expert

evidence that it did not breach the standard of care. Plaintiff did not produce any

expert evidence, choosing instead to rely solely on her own affidavit and her

mother’s affidavit. At that point, LGMC was arguably entitled to summary

judgment in its favor as a matter of law under La.Code Civ.P. art. 966(A)(2).

Instead of ruling on LGMC’s motion, however, the trial court continued the

summary judgment hearing on its own motion, apparently finding that good cause

existed to extend to plaintiff an additional opportunity to find an expert to support

her claims.

The trial court’s ruling effectively pits two of the summary judgment

provisions against each other: the mandatory requirement in La.Code Civ.P. art.

966(A)(3) (emphasis added) that “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

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matter of law” versus the discretionary authority in Subsection C(2) (emphasis

added), which provides that “the court may order a continuance of the hearing.”

Moreover, as the hospital pointed out, a trial court can render summary judgment

only as to the issues presented in the motion then being considered. See La.Code

Civ.P. art. 966(F). Here, the trial court rendered judgment, although notably not

summary judgment, on an issue not before the court, i.e., a request for an extension

of time. Plaintiff rested her opposition to LGMC’s motion for summary judgment

on the obvious negligence exception to the general evidentiary rule requiring

expert testimony in medical malpractice cases. She did not seek a continuance of

the hearing for the purpose of obtaining an expert.

“A trial judge has wide discretion in the control of his docket, in case

management and in determining whether a motion for continuance should be

granted.” Jackson v. Royal Ins. Co., 97-723, p. 3 (La.App. 3 Cir. 12/17/97), 704

So.2d 424, 426. On the other hand, the summary judgment procedure “is favored

and shall be construed to accomplish” the ends for which it was enacted, i.e., “to

secure the just, speedy, and inexpensive determination of every action.” La.Code

Civ.P. art. 966(A)(2). Undeniably, this writ presents a close call between the vast

discretion granted to a trial court to manage its docket and the speedy resolution

that the summary judgment procedure was enacted to ensure. Nevertheless, in

light of the trial court’s rejection of the plaintiff’s argument that LGMC’s

negligence was so obvious that she did not need to present expert testimony to

prevail against it coupled with the fact that plaintiff did not request a continuance

or show that she would suffer “probable injustice” should the matter “not be

delayed,” we conclude that the trial court abused its discretion in granting plaintiff

an additional ninety days to retain an expert. Rogers, 153 So.3d at 1058.

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DECREE

For the foregoing reasons, the May 15, 2017 judgment is reversed and this

matter is remanded to the trial court for a hearing on LGMC’s motion for summary

judgment based on the “pleadings, memoranda, affidavits, depositions, answers to

interrogatories, certified medical records, written stipulations, and admissions”

filed in support of or in opposition to the motion as of May 1, 2017.

WRIT GRANTED; JUDGMENT REVERSED; REMANDED.

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