Anna Gorey, Individually and on behalf of the Estate of Theophile Benedict Chustz, Jr. v. Dr. Salman Baghian, Dr. Debbie Dixon, Dr. Lura Wight, Dr. Amy Lobrano, Our Lady of the Lake Regional Medical Center and "ABC Insurance Company" ( 2020 )

NOT DESIGNATED FOR PUBLICATION .
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2019 CA 0588
ANNA GOREY, INDIVIDUALLY AND ON BEHALF OF THE
ESTATE OF THEOPHILE BENEDICT CHUSTZ, JR.
VERSUS
DR. SALMAN BAGHIAN, DR. DEBBIE DIXON, DR. LURA WIGHT,
DR. AMY LOBRANO, OUR LADY OF THE LAKE REGIONAL
MEDICAL CENTER AND ABC INSURANCE COMPANY
DATE OF JUDGMENT.
JAN 0 9 2020
ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT
NUMBER 663339, SECTION 22, PARISH OF EAST BATON ROUGE
STATE OF LOUISIANA
HONORABLE TIMOTHY E. KELLEY, JUDGE
Joshua M. Palmintier Counsel for Plaintiff A
- ppellant
Monica Gant Moton Anna Gorey
Baton Rouge, Louisiana
Douglas K. Williams Counsel for Defendant -Appellee
Kelsey A. Clark Our Lady of the Lake Hospital, Inc.
Baton Rouge, Louisiana
BEFORE: McDONALD, THERIOT, AND CHUTZ, JJ.
Disposition: AFFIRMED. a
CHUTZ, J.
Plaintiff-appellant, Anna Gorey, individually and on behalf of Theophile
Benedict Chustz, Jr. ( the decedent), appeals the trial court' s grant of summary
judgment in favor of defendant -appellee, Our Lady of the Lake Hospital, Inc.
OLOL), and the dismissal with prejudice of her wrongful death and survival
actions against OLOL arising from alleged medical malpractice. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
After the decedent died while in OLOL under the care of doctors, Gorey
filed this lawsuit.' According to the allegations of Gorey' s petition, on October 18,
20145 the decedent was admitted into OLOL for rectal bleeding. On October 21,
2014, a swallow study was performed on the decedent. Based on the results of the
study, the decedent " was placed on a `` pleasure' diet of solid foods such as pudding
and other stickier foods such as grits, which ultimately caused [ his] death." Gorey
averred that the decedent was discharged from OLOL on October 25, 2014, but
was re -admitted the next day because he was still coughing and was experiencing
rectal bleeding. A surgery was performed to stop the bleeding at which time " an
inordinate amount of grits" was found in the decedent' s throat. According to the
petition, subsequently " a broncho -study was performed on [ the decedent], which
showed that his lungs were completely wiped out and that he had been aspirating
since before his discharge." Gorey alleged that the decedent continued to aspirate
until he died five days later.
In her lawsuit against OLOL, Gorey maintained that the proximate cause of
the decedent' s injuries and death was OLOL' s substandard care and conduct in
failing to: ( 1) properly consult with the family prior to prescribing a solid -food
1
Gorey additionally named four physicians who cared for decedent while he was at OLOL. All
the physician defendants were dismissed from this lawsuit by summary judgment, and Gorey has
not appealed any of those dismissals.
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diet; ( 2) monitor decedent as required in light of his symptoms and physical
findings; and ( 3) perform tests and evaluations to properly diagnose and treat him.
She also claimed that OLOL failed to generally meet the standard of care. OLOL
answered the lawsuit, denying Gorey' s allegations.
Thereafter, OLOL filed a motion for summary judgment, contending that
Gorey could not satisfy her burden of proof at trial and seeking dismissal from the
lawsuit. Gorey filed an opposition to the motion for summary judgment, attaching
to it two affidavits that she urged demonstrated outstanding issues of material fact,
which precluded the granting of summary judgment. In response, OLOL filed a
reply memorandum in which it objected to one of the affidavits attached to Gorey' s
summary judgment opposition.
A hearing was held at which the trial court concluded that the affidavit of the
medical expert Gorey offered was inadmissible and granted OLOL' s motion for
summary judgment. A judgment in conformity with the trial court' s rulings was
signed, and Gorey appealed, challenging the propriety of the trial court' s grant of
summary judgment.
DISCUSSION
A motion for summary judgment is a procedural device used when there is
no genuine issue of material fact for all or part of the relief prayed for by a litigant.
A summary judgment is reviewed on appeal de novo, with the appellate court
using the same criteria that govern the trial court' s determination of whether
summary judgment is appropriate; i. e., whether there is any genuine issue of
material fact, and whether the movant is entitled to judgment as a matter of law.
Beer Indus. League of Louisiana v. City of New Orleans, 2018- 0280 ( La.
6/ 27/ 18), 251 So. 3d 380, 385- 86.
3
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 that it
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
elements essential to the adverse party' s claim, action, or defense. The burden is on
the adverse party to 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. La. C. C. P. art. 9661)( 1). Because it is the applicable substantive law
that determines materiality, whether a particular fact in dispute is material can only
be seen in light of the substantive law applicable to the case. Pumphrey v. Harris,
2012- 0405 ( La. App. 1st Cir. 11/ 2/ 12), 111 So. 3d 86, 89.
La. R.S. 9: 2794( A) provides that in a medical malpractice action, the
plaintiff has the burden of proving:
1) The degree of knowledge or skill possessed or the degree of
care ordinarily exercised by 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 ... within the
involved medical specialty.
In a medical malpractice action against a physician, the plaintiff must
establish by a preponderance of the evidence the applicable standard of care, a
violation of that standard of care, and a causal connection between the alleged
negligence and the plaintiff' s injuries. Likewise, in a medical malpractice action
against a hospital, the plaintiff must prove that the hospital caused the injury when
it breached its duty. Expert testimony is generally required to establish the
applicable standard of care and whether that standard of care was breached, except
M
where the negligence is so obvious that a lay person can infer negligence without
the guidance of expert testimony. Lee v. Quinn, 2017- 0070 ( La. App. 1st Cir.
9/ 15/ 17), 229 So. 3d 13, 16- 17, writ denied, 2017- 1729 ( La. 12/ 5/ 17), 231 So. 3d
630.
The allegations setting forth OLOL' s purported negligence are not of the
type of negligence which is so egregious that malpractice would be obvious to a
layperson. Thus, expert testimony was necessary for Gorey to prove her claims.
In support of its motion for summary judgment, OLOL offered the affidavit
of the attorney chairman of the medical review panel, to which a copy of the
panel' s unanimous opinion was attached. The panel concluded OLOL did not
deviate from the appropriate standard of care. The panel' s opinion specifically
noted that "[ t]he bronchoscopy findings showed mucus in the [ decedent' s] lungs
and pneumonia." The panel concluded that the bronchoscopy findings were
consistent with hospital acquired pneumonia and not aspiration."
Additionally, in support of its motion for summary judgment, OLOL offered
the affidavits of two defendants, who were treating physicians of the decedent. The
affidavit of Dr. Salman Baghian, a physician who is board- certified in internal
medicine, referenced the bronchoscopy report to note that no aspiration material
had been found in the decedent' s lungs but rather " mucoid plugs in the left and
right main stem bronchus" had been detected. Dr. Baghian opined that the
decedent died as a result of the inevitable complications related to his initial
presenting illnesses. Dr. Debbie Dixon also confirmed that " multiple mucous plugs
involving the left and right mainstem bronchus" were found and the
b] roncoalveolar lavage of the left upper lobe culture returned positive moderate
presumptive Staph aureus ( Methicillin resistant)." She attested that just after the
bronchoscopy, the decedent " met the criteria of sepsis with leukocytosis and
5
tachypnea, with the source being pneumonia, likely [ methicillin resistant
Staphylococcus aureus] pneumonia given the [ bronchoalveolar lavage] culture
results." According to Dr. Dixon, the decedent' s cause of death was " acute
respiratory failure and septic shock due to methicillin resistant [ Staphylococcus]
aureus pneumonia."'
With this showing, OLOL established that it had not deviated from the
standard of care so as to have caused the decedent' s death. The burden of proof
then shifted to Gorey to produce factual support sufficient to establish that she
would be able to satisfy her evidentiary burden of proof at trial. See La. C. C. P. art.
966D( 1); Penn v. CarePoint Partners ofLouisiana, L.L. C., 2014- 1621 ( La. App.
1st Cir. 7/ 30/ 15), 181 So. 3d 26, 31.
The admission of expert testimony is governed by La. C. E. art. 702, which
states in relevant part:
A. A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:
1) The expert' s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence or to
determine a fact in issue;
2) The testimony is based on sufficient facts or data;
3) The testimony is the product of reliable principles and methods;
and
4) The expert has reliably applied the principles and methods to the
facts of the case.
2 La. C. C. P. art. 967A requires that "[ s] worn or certified copies of papers or parts thereof
referred to in an affidavit shall be attached thereto or served therewith." Although Drs. Baghian
and Dixon' s references to the bronchoscopy report, which was not attached to their respective
affidavits, do not conform to the requirements of Article 967A, Gorey did not object. If an
expert' s affidavit contains opinions that lack an adequate factual basis, are not sufficiently
reliable, or are otherwise inadmissible under Article 967A, the opposing party must object to the
affidavit. Thompson v. Or. for Pediatric & Adolescent Med, L.L.C., 2017- 1088 ( La. App. 1st
Cir. 3/ 15/ 18), 244 So. 3d 441, 446, writ denied, 2018- 0583 ( La. 6/ 1/ 18), 243 So. 3d 1062; see also
shall consider any documents to which no objection is
La. C. C. P. art. 966D( 2) (" The court ...
made.").Accordingly, the opinions of these affiants are correctly considered in the disposition of
OLOL' s motion for summary judgment.
2
A trial court is accorded broad discretion in determining whether expert
opinion evidence should be held admissible, and its decision will not be overturned
absent an abuse of discretion. Penn, 181 So. 3d at 31.
Gorey offered two affidavits in opposition to OLOL' s motion for summary
judgment. One affidavit was that of Queen Ross, the decedent' s caregiver who was
present with him in his hospital room on October 25, 2014. She attested that she
personally saw a food tray in decedent' s hospital room that contained grits and
fruit. Ross further stated that she asked the nurse if she was aware of the
decedent' s food restrictions, the nurse said that she was not, and the nurse told
Ross that the decedent had eaten grits and fruit. According to Ross, the decedent
had also advised her that he had eaten grits and fruit.
The other affidavit that Gorey offered was that of Dr. Hiren Shah, a licensed
internal medicine physician in the State of Illinois. It was Dr. Shah' s affidavit to
which OLOL objected in its reply memorandum insofar as the causation opinion
which, OLOL urged, was speculative and lacked sufficient evidentiary support.'
Pretermitting a discussion of whether Dr. Shah' s affidavit established the
standard of care applicable to OLOL and its violation by OLOL, we conclude Dr.
Shah' s attestations are insufficient to establish a causal connection between any
alleged negligence by OLOL and decedent' s death. Based on Ross' s affidavit, Dr.
Shah determined that the decedent " was given oral intake including fruit" and that
when the decedent was readmitted on October 25, 2014, " he more likely than not
had aspiration pneumonia as a result of the food that was provided to him the day
prior which led to an aspiration event." Pointing to " the extent of mucus
production and involvement of his left lung field on the chest x-ray as well as
extensive mucus in the bilateral lobes on [ the] bronchoscopy," Dr. Shah opined
3 See La. C. C. P. art. 966D( 2) ( providing that in the context of a summary judgment, "[ a] ny
objection to a document shall be raised in a timely filed opposition or reply memorandum").
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that " more likely than not, this was the result of the progression of the aspiration
pneumonia which began after an aspiration event on 10/ 25/ 2014."
We find Dr. Shah' s statements are opinions unsupported by the facts.
Notably absent from the record is any evidence of distress having been suffered by
the decedent subsequent to any oral intake, including grits and fruit, that he
ostensibly ingested on October 25, 2014 prior to his discharge that same day.
Although Gorey pled that the decedent experienced an aspiration event, she failed
to offer any evidence of acute distress suffered by the decedent which caused him
to seek readmission into the hospital on October 26, 2014. Additionally, in his
affidavit, Dr. Shah relied on the mucus production in the bronchoscopy to conclude
more likely than not ... was the result of aspiration pneumonia," without
identifying any aspiration materials to support his medical conclusion or
explaining what symptomology correlated with the diagnosis.
Given Dr. Shah' s failure to provide a scientific foundation for his opinion,
4
the trial court did not abuse its discretion in finding his affidavit inadmissible.
Because we find that the trial court did not abuse its discretion in excluding Dr.
Shah' s affidavit from evidence, and Gorey produced no other evidence to establish
a violation by OLOL of the standard of care that caused the decedent' s death, we
likewise find she failed to establish that she will be able to satisfy her evidentiary
4 OLOL objected to Dr. Shah' s affidavit on the basis that it enlarged the pleadings. In her
petition, Gorey alleged that the decedent " was placed on a `` pleasure' diet of solid foods such as
pudding and other stickier foods such as grits, which ultimately caused [ his] death." Based on
Ross' s attestations, Dr. Shah opined that "[ w]hen the caregiver informed [ the] nursing staff that
providing solid and non -pureed foods] was against the dietary recommendations..., her
information was not taken into consideration and the standard of care was breached by providing
solid and non -puree foods." OLOL suggests that Gorey never mentioned ingestion of fruit as a
cause of death; and that a consideration of whether OLOL violated an order restricting the
decedent' s dietary restrictions is an enlargement of Gorey' s allegation that the dietary restrictions
order was the cause of the decedent' s death. Moreover, OLOL urges that it was not reasonably
notified of the additional claims by the allegations of the petition. Because the record is devoid
of medical evidence to support a finding that any act or omission by OLOL was the cause -in -fact
of the decedent' s death, we find it unnecessary to consider whether the affidavits attached to
Gorey' s opposition memorandum constitute an enlargement of the pleadings which would
alternatively warrant the exclusion of Dr. Shah' s affidavit and pretermit such a discussion.
burden of proof at trial. Accordingly, the trial court correctly granted summary
judgment in favor of OLOL.
DECREE
For these reasons, the trial court' s judgment is affirmed. Appeal costs are
assessed against plaintiff-appellant, Anna Gorey, individually and on behalf of
Theophile Benedict Chustz, Jr.
AFFIRMED.
w
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2019 CA 0588
ANNA GOREY, INDIVIDUALLY AND ON BEHALF OF
THE ESTATE OF THEOPHILE BENEDICT CHUSTZ, ) R.
VERSUS
DR. SALMAN BAGHIAN, DR. DEBBIE DIXON, DR. LURA WIGHT, DR. AMY
LOBRANO, OUR LADY OF THE LAKE REGIONAL MEDICAL CENTER
AND ABC INSURANCE COMPANY
McDONALD, 7., concurring.
I agree with the affirmance of the judgment in this case but write separately to
set forth a slightly different view of the admissibility of certain summary judgment
evidence.
OLOL filed the affidavits of Drs. Baghian and Dixon in support of its motion for
summary judgment. Both affidavits reference an unattached bronchoscopy report, in
violation of La. C. C. P. art. 967A. Gorey did not object to the admissibility of the
affidavits on this basis; thus, the trial court was required to consider the affidavits. See
La. C. C. P. art. 966D( 2). Upon this consideration, the trial court apparently found no
impediment to the admissibility of the affidavits referencing the unattached
bronchoscopy report and afforded the affidavits appropriate evidentiary weight. As the
majority points out, the trial court did not err in doing so. For a recent discussion of a
similar issue by another panel of this court, see Pottinger v. Price, 19- 0183 ( La. App. 1
Cir. 10/ 23/ 19), So. 3d , 2019 WL 5485215 * 2- 3.