Full Opinion (html_with_citations)

GENEVA HAWTHORNE                          *        NO. 2022-CA-0362

VERSUS                                    *
                                                   COURT OF APPEAL
TULANE MEDICAL CENTER,                    *
DR. JESSICA DEBORD, DR.                            FOURTH CIRCUIT
ANISH J. PATEL, ET AL.                    *
                                                   STATE OF LOUISIANA
                                     *******



                               APPEAL FROM
               CIVIL DISTRICT COURT, ORLEANS PARISH
                       NO. 2018-05050, DIVISION “C”
                      Honorable Sidney H. Cates, Judge
                                  ******
                          Chief Judge Terri F. Love
                                  ******
(Court composed of Chief Judge Terri F. Love, Judge Dale N. Atkins, Judge Pro
Tempore James F. McKay, III)


Geneva Hawthorne
4808 Louisa Drive
New Orleans, LA 70126

      PRO SE COUNSEL FOR PLAINTIFF/APPELLANT


Kathryn M. Caraway
Ann Marie LeBlanc
Erica L. Andrews
CARAWAY LEBLANC, L.L.C.
3936 Bienville Street
New Orleans, LA 70119

      COUNSEL FOR DEFENDANT/APPELLEE

                                                            AFFIRMED
                                                         DECEMBER 12, 2022
TFL

DNA         This appeal arises from a medical malpractice action brought by Plaintiff,

JFM   Geneva Hawthorne (“Ms. Hawthorne”), involving the death of her deceased son.

      Ms. Hawthorne appeals the trial court’s judgment which granted summary judgment

      in favor of Defendant, Dr. Anish Patel (“Dr. Patel”).

            Dr. Patel supported his motion for summary judgment with the report of the

      Medical Review Panel (“MRP”), which unanimously found that Dr. Patel had not

      breached the appropriate standard of care. Correspondingly, Dr. Patel argued that

      Ms. Hawthorne did not have a medical expert to substantiate her medical malpractice

      allegations against him. The trial court granted Dr. Patel’s motion for summary

      judgment and dismissed Ms. Hawthorne’s action against him.

            Ms. Hawthorne presented no expert witness evidence to show that she could

      satisfy her burden of proof at trial to prevail in her medical malpractice action against

      Dr. Patel. Accordingly, we affirm the trial court’s judgment.

                 FACTUAL BACKGROUND AND PROCEDURAL HISTORY

            Ms. Hawthorne’s son, Tajwayne Hawthorne (“Mr. Hawthorne”), a thirty-

      eight year old male, was admitted to the emergency room of Tulane University


                                                 1
Hospital and Clinic (“TUHC”) on December 16, 2014, with reports of

hypoglycemia. He was discharged on December 18, 2014.                         Mr. Hawthorne’s

diagnoses at discharge included hyperkalemia, hypoglycemia, hypertension, chronic

kidney disease, and congestive heart failure. Mr. Hawthorne died on December 25,

2014.

        Ms. Hawthorne filed a medical malpractice claim with the Louisiana Division

of Administration Patient's Compensation Fund (“PCF”) pursuant to La. R.S.

40:1231.8.1 She contended that her son’s medical providers—Dr. Patel, TUHC, Dr.

Jessica Debord, Dr. Charles Chehardy, Dr. Eric Simon, Dr. Sidney Longwell, and

Dr. Gabriel Fette—collectively failed to treat Mr. Hawthorne properly for his

various diagnoses and prematurely discharged him. Ms. Hawthorne specifically

alleged the following:

               …these doctors saw that my son had one quarter [sic] of
               kidney function [sic] the doctors said He need [sic] dialasis
               [sic] his Blood pressure was 180/1000 on 12-16-14. His
               Hemoglobin of 8.6 91/dl significantly deteriorated Kidney
               function 6.5-mg dl which amounts to about 16% of
               remaining Kidney function dialasis [sic] should have been
               started, Right [sic]. A Rash on his legs + Back the skin was
               falling off the drs [sic] said they didn't know why the fluid
               Had His Body Swollen, one doctor stated about fluid and
               a very enlarged Hart, [sic] why wasn’t thoracentesis
               preform [sic], …
        The MRP met and unanimously found that none of the medical providers

breached the standard of care in their respective treatments of Mr. Hawthorne. In



1 La. R.S. 40:1231.8.A(1)(a) provides, in relevant part, that “[a]ll malpractice claims against

health care providers covered by this Part, other than claims validly agreed for submission to a
lawfully binding arbitration procedure, shall be reviewed by a medical review panel established
as hereinafter provided for in this Section.”




                                                 2
reviewing the care rendered by Dr. Patel, along with some of the other physicians,

the MRP concluded the following:

            AS TO DR. ERIC SIMON, DR. JESSICA DEBORD, DR.
            ANISH PATEL AND DR. GABRIEL FETTE:

      1.    The patient was not experiencing fluid overload as his
            weight was measured regularly and little change was seen
            during his hospitalization. Input and Output (I/O) readings
            can be inaccurate and regular weight measurements are
            used in lieu of I/Os for fluid management.

      2.    There was no evidence of hypoxemia and no requirements
            for supplemental oxygen during his hospitalization, which
            indicated no pulmonary edema due to volume overload.

      3.    Based upon the records provided, the patient was not in
            need for emergent dialysis during his hospitalization. Dr.
            Simon’s plan to educate the patient on positional dialysis
            was reasonable and appropriate. An appointment was
            scheduled on December 29, 2014, with Dr. Paramesh for
            peritoneal dialysis.

      4.    The patient’s effective kidney was slow, but there were no
            symptoms of uremia, which could warrant immediate
            dialysis. The patient's acidosis was addressed by adding
            bi-carbonate, which would also treat hyperkalemia.

      5.    Based upon a review of the patient’s telemetry strip from
            EMS, there was no electrocardiographic evidence of
            hyperkalemia.

      6.    Discharge was appropriate as the patient’s condition was
            stable. He was discharged with proper medication and the
            patient was capable of normal activities for daily living.
            Discharge with a low dose ACE inhibitor was appropriate.

      Thereafter, Ms. Hawthorne, filed a pro se petition for damages (“Petition”)

naming the aforementioned medical providers as defendants. In the Petition, Ms.

Hawthorne’s fault allegations included the following:

            . . . that Tulane and its physicians deviated from the
            standard of care by failing to dialyze [sic] and for failing
            [sic] treat all medical condition [sic] for Mr. Hawthorne

                                         3
            while he was admitted and treated by Tulane from
            12/16/16 through 12/18/2016, [sic] prematurely
            discharged him and failed to schedule timely follow up
            appointments. Mr. Hawthorne presented to Tulane volume
            overloaded, with CHR and Hyperkalemia. The therapies
            did not Demonstrate [sic] improvement at all to [sic] some
            Instances [sic] or sufficient in others [sic] to safely
            Discharge [sic] Mr. Hawthorne and Discharge Instructions
            were devoid of timely follow up lab [sic] or appointments.
      Subsequent to answering Ms. Hawthorne’s Petition, discovery demands were

propounded to Ms. Hawthorne.       The interrogatories submitted encompassed a

request for Ms. Hawthorne to identify an expert who would testify that the

defendants breached the standard of care. In response, Ms. Hawthorne identified

Dr. Leonardo Seoane, an Ochsner physician.        However, when the defendants

attempted to schedule Dr. Seoane’s deposition, Ochsner’s Legal Affairs Department

advised that Dr. Seoane had never agreed to be Ms. Hawthorne’s expert.

      Thereafter, the defendants filed separate motions for summary judgment, each

relying on the MRP report which absolved them of liability and Ms. Hawthorne’s

failure to retain an expert. The trial court granted the motion for summary judgment

of TUHC on July 18, 2019; granted the summary judgment motion of Drs. Longwell

and Chehardy on March 9, 2020; and granted the summary judgment motion of Drs.

Debord, Simon, and Fete on July 2, 2020.

      The hearing on Dr. Patel’s motion for summary judgment was continued from

October 22, 2021, until February 4, 2022, based on Ms. Hawthorne’s claim that she

was seeking representation. Ms. Hawthorne remained unrepresented at the hearing.

At the hearing, Dr. Patel re-urged that he was entitled to summary judgment relief

based on the MRP’s findings that he did not breach the standard of care and Ms.

Hawthorne’s lack of a medical expert witness to establish that he had breached the



                                         4
standard of care. Ms. Hawthorne countered that Dr. Seoane had failed to respond to

her subpoena to appear at the hearing and maintained that Dr. Seoane had written a

letter that established that the defendants had not practiced the standard of care in

their treatment of her son. After argument, the trial court granted Dr. Patel’s motion

for summary judgment.

      This appeal followed.

                               STANDARD OF REVIEW

      Established jurisprudence provides that “appellate courts are to review

summary judgments de novo under the same criteria that govern the district court’s

consideration of whether summary judgment is appropriate.” Descant v. Herrera,

03-0953, p. 8 (La. App. 4 Cir. 12/22/04),
890 So. 2d 788, 793
.

      In Varnado v. 201 St. Charles Place, LLC, 22-0038, pp. 7-8 (La. App. 4 Cir.

6/29/22),
344 So. 3d 241
, 248, this Court, citing La. C.C.P. art. 966(A)(2), wrote,

“[t]he summary judgment procedure is designed to secure the just, speedy, and

inexpensive determination of every action,” and the favored procedure “shall be

construed to accomplish these ends.” “After an opportunity for adequate discovery,

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. C.C.P. art. 966(A)(3). La.

C.C.P. art. 966(D)(1) provides:

             The burden of proof rests with the mover. Nevertheless, 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’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 the absence of factual support for one or more


                                          5
               elements essential to the adverse party’s claim, action, or
               defense.

       Once the mover shifts the burden of proof, “an adverse party may not rest on

the mere allegations or denials of his pleading” to satisfy his burden of proof. See

La. C.C.P. art. 967(B).2 Instead, “[t] he adverse party then must ‘produce factual

support sufficient to establish the existence of a genuine issue of material fact or that

the mover is not entitled to judgment as a matter of law.’” Varnado, 22-0038, p. 8,
344 So. 3d 241
, 249. The failure of the non-moving party to produce evidence of a

material factual dispute in a properly supported motion for summary judgment

mandates the granting of the motion. Wright v. La. Power & Light, 06-1181, p. 16

(La. 3/9/07),
951 So. 2d 1058, 1070
.

                    BURDEN OF PROOF/MEDICAL MALPRACTICE

       In accordance with La. R.S. 9:2794(A),3 in order to prevail in a medical

malpractice action against a physician, the plaintiff must prove the following three



2 La. C.C.P. art. 967(B) provides, in pertinent part, that:


       When a motion for summary judgment is made and supported as provided above,
       an adverse party may not rest on the mere allegations or denials of his pleading, but
       his response, by affidavits or as otherwise provided above, must set forth specific
       facts showing that there is a genuine issue for trial. If he does not so respond,
       summary judgment, if appropriate, shall be rendered against him.
3 La. R.S. 9:2794(A) states the following:


   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


                                                  6
elements: (1) the applicable standard of care expected of physicians in the

physician’s medical specialty, (2) a breach of that standard of care, and (3) a causal

connection between the alleged breach and the plaintiff’s resulting injuries. See In

re Med. Rev. Complaint by Downing, 21-0698, p. 9 (La. App. 4 Cir. 5/26/22),
341 So. 3d 863
, 870. As a general rule, given the complex factual and medical issues

involved in a medical malpractice claim, the plaintiff must provide expert testimony

in order to establish the elements required to meet the plaintiff’s burden of proof.

See Jordan v. Cmty. Care Hosp., 19-0039, pp. 12-13 (La. App. 4 Cir. 7/24/19),
276 So.3d 564
, 576. Courts have recognized an exception to this rule in cases of obvious

negligence for those “instances in which the medical and factual issues are such that

a lay jury can perceive negligence in the charged physician’s conduct as well as any

expert can . . . .” Pfiffner v. Correa, 94-0992, 94-0963, 94-0924, p. 9 (La. 10/17/94),
643 So.2d 1228, 1234
.

      The burden of proof requirements between the plaintiff and the defendant in

a medical malpractice motion for summary judgment were further explained in

Jordan, 19-0039, p. 12, 276 So.3d at 576, as follows.

      A defendant-health care provider does not have the burden of
      disproving medical malpractice; rather, a defendant-health care
      provider only must point out that the plaintiff cannot support his claim.
      Once a defendant-health care provider has established an absence of
      factual support for an essential element of the plaintiff’s claim, the


          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.



                                              7
       plaintiff must come forth with evidence to preclude summary judgment.
       See La. C.C.P. art. 967(B).


       We now apply these precepts in our review of Ms. Hawthorne’s assignments

of error.

                         ASSIGNMENTS OF ERROR

       Ms. Hawthorne’s assignments of error essentially contend that the trial court

erred in granting Dr. Patel’s motion for summary judgment because (1) she did not

receive a subpoena to appear at trial, and (2) the trial court impeded her ability to

offer expert testimony in that it failed to order Dr. Seoane to comply with her

subpoena and did not consider or admit into evidence Dr. Seoane’s August 28, 2017

e-mail letter which purportedly stated that the standard of care was not practiced in

the treatment of Mr. Hawthorne.4

       Assignment of Error No. 1: Ms. Hawthorne’s Trial Subpoena

       This error infers that summary judgment relief should have been denied

because Ms. Hawthorne was not served with a subpoena providing notice of Dr.

Patel’s motion for summary judgment hearing. However, close scrutiny of the

record shows that Ms. Hawthorne never complained at the hearing that Dr. Patel

failed to serve her with notice of his summary judgment hearing date; instead, she

complained that she was not subpoenaed to appear at the hearings involving the other

defendants who had been granted summary judgment, resulting in the dismissal of

her action against those parties. The record reflects the following colloquy:




4 Dr. Seoane’s letter was addressed to David A. Abramson, affiliated with the firm of Lewis,

Kullman, Sterbcow & Abramson. The exact relationship between Ms. Hawthorne and Mr.
Abramson is unknown.


                                             8
      MS. HAWTHORNE:

      Okay. As for as the other doctors being dismissed, I moved. I did not
      get their subpoena, so therefore, I wasn’t aware that I was supposed to
      be in court. I didn’t get the subpoena, so I don’t feel that they should
      have been dismissed without my knowledge.


      Accordingly, based on the foregoing, any claim by Ms. Hawthorne that the

trial court erred because she was not properly served with notice of the hearing date

of Dr. Patel’s motion for summary judgment amounts to an error raised for the first

time on appeal. Our jurisprudence provides that as a general rule, appellate courts

will not consider issues raised for the first time on appeal that were not pleaded in

the trial court or were not addressed by the trial court. Geiger v. State, ex rel. Dept.

of Health and Hosp., 01-2206, p. 11 (La. 4/12/02),
815 So.2d 80, 86
. Hence, as Ms.

Hawthorne failed to plead or object to service at trial as it pertains to Dr. Patel’s

summary judgment hearing, this error is not properly before this Court for review.

Assignment of Error Number Two: Expert Witness

      Dr. Patel, as the mover, satisfied his initial burden of proof with the MRP

report and the affidavits from the MRP members. Our jurisprudence is well settled

that a defendant-health care provider can use the medical review panel’s favorable

opinion to support a summary judgment motion. See Samaha v. Rau, 07-1726, pp.

17-18 (La. 2/26/08),
977 So.2d 880, 891
.       Therefore, inasmuch as this matter was

not a case of obvious negligence and Dr. Patel had properly supported his motion

for summary judgment with the MRP report, the impetus for Ms. Hawthorne to

produce expert testimony became especially “apt.”        Jordan, 19-0039, p. 13, 276

So.3d at 577.




                                           9
      Ms. Hawthorne iterates that she attempted to meet her requirement to produce

expert testimony when she issued a subpoena to compel the appearance of Dr.

Seoane, the physician, she had identified as her expert in her discovery responses.

She maintains that Dr. Seoane disregarded the subpoena and the trial court

improperly did not compel his appearance. Ms. Hawthorne represents that Dr.

Seoane’s e-mail letter indicated deviations from the standard of care by the

defendants. As a result, Ms. Hawthorne argues that she would have been able to

meet her burden of proof had Dr. Seoane been compelled to appear at the hearing

and his e-mail letter admitted into evidence. We disagree.

      Ms. Hawthorne’s argument that Dr. Seoane should have been compelled to

appear at the hearing suggests that the hearing should have been continued. “For

good cause shown, the court may order a continuance of the hearing.” La. C.C.P.

art. 966(C)(2). Here, the record establishes that Ms. Hawthorne never formally

retained Dr. Seoane as an expert witness. Moreover, by the time of the hearing,

more than four years had lapsed since the time Dr. Seoane wrote his letter. Thus,

Ms. Hawthorne had more than adequate time to retain Dr. Seoane as an expert,

schedule his deposition, or request an affidavit. Ms. Hawthorne did not demonstrate

good cause for the trial court to continue the hearing in order to compel Dr. Seoane’s

appearance. Therefore, this argument is without merit.

      As to the admissibility of Dr. Seoane’s letter, we initially note that Ms.

Hawthorne did not file an opposition memorandum. “Any opposition to the motion

and all documents in support of the [motion] shall be filed and served in accordance

with Article 1313 not less than fifteen days prior to the hearing.” La. C.C.P. art.

966(B)(2). The Louisiana Supreme Court has ruled that the trial court does not abuse


                                         10
its discretion in refusing to consider a late-filed opposition to the motion for

summary judgment. See Buggage v. Volks Constructors, 06-0175 (La. 5/5/06),
928 So.2d 536
 (finding that “[t]he time limitation[s] established by La. C.C.P. art. 966(B)

for the serving of affidavits in an opposition to a motion for summary judgment is

mandatory” and that “affidavits not timely filed can be ruled inadmissible and

properly excluded by the trial court.”).

       Additionally, La. C.C.P. art. 966(A)(4) clarifies that “[t]he only documents

that may be filed in support of or in opposition to the motion [for summary judgment]

are pleadings, memoranda, affidavits, depositions, answers to interrogatories,

certified medical records, written stipulations, and admissions.” In the present

matter, Dr. Seoane’s letter did not constitute sworn testimony in the form of an

affidavit or deposition testimony. Therefore, in consideration that Ms. Hawthorne

did not timely file an opposition and did not properly oppose the summary judgment

motion with an affidavit or other sworn testimony as provided for in La. C.C.P. art.

966(A)(4), Dr. Seoane’s letter was properly excluded and not considered by the trial

court. 5

       Notwithstanding, had the letter been admitted into evidence, it still was

insufficient to defeat Dr. Patel’s motion for summary judgment. As established by

La. R.S. 9:2794(A), the plaintiff’s burden of proof in a malpractice action is to not

only identify the standard of care, but to also establish that the breach of the standard

of care resulted in the plaintiff’s injuries. In Simon v. Allen Oaks, LLC, 20-0005, p.1

(La. App. 3 Cir. 6/10/20),
298 So.3d 881
,882-83, the family of a nursing home



5 A review of the record also shows that Ms. Hawthorne did not offer Dr. Seoane’s letter into

evidence.


                                               11
resident filed a malpractice action against the nursing home alleging that the resident

died from bed sores, infections, and amputation caused by the nursing home’s

negligence. Plaintiff’s expert asserted that “the facility[’s] staff failed to treat Mr.

Simon within the proper standards of care and that this failure was the proximate

cause of Mr. Simon’s injuries.” Id., 20-005, p. 4, 298 So.3d at 884. The appellate

court affirmed the trial court’s grant of summary judgment in favor of the nursing

home, finding that the expert’s opinion was speculative, conclusory, and devoid of

any underlying and supporting facts regarding the standard of care that was allegedly

breached. Id., 20-005, p. 10, 298 So.3d at 887.

       Likewise, in the present matter, even if Dr. Seoane’s letter had satisfied the

requirements to be admitted into evidence, its finding that the “standard of care was

not practiced” did not identify the standard of care required by Dr. Patel or show that

the breach caused Mr. Hawthorne’s damages. Thus, Ms. Hawthorne offered no

evidence to meet the required elements to satisfy her burden of proof at trial so as to

defeat Dr. Patel’s motion for summary judgment. 6

                                              DECREE

       Ms. Hawthorne did not retain an expert to support her claims of medical

malpractice against Dr. Patel. Accordingly, Ms. Hawthorne failed to meet her

burden of proof to show that any breach of the standard of care by Dr. Patel caused

her son’s injuries and resulting death. Based on the foregoing, the judgment of the

trial court is affirmed.



6 We also note that Dr. Seoane’s letter identified himself as Associate Professor, Head of School,

University of Queensland Ochsner Medical School; however, it did not specify his qualifications
to render an opinion on any breach of the standard of care of Dr. Patel or the other named
defendants.


                                               12
     AFFIRMED




13