Opinion
CIVIL ACTION NO: 02-3717, SECTION: "R"
November 13, 2003
ORDER AND REASONS
Before the Court is the motion for summary judgment of defendant United States of America, Department: of Veterans Affairs. For the following reasons, the Court grants-the defendant's motion for summary judgment.
I. Background
On October 24, 1996, Herman Bustamente underwent heart surgery at the Veteran's Administration Hospital in New Orleans, Louisiana. During that surgery, the plaintiff received a blood transfusion. Plaintiff contends that after his release from the hospital, he suffered from painful rashes throughout his body, especially in the groin area. Plaintiff avers that he was eventually diagnosed as infected with the herpes simplex virus. Plaintiff asserts that he was not infected with the herpes virus before his surgery on October 24, 1996. Medical records indicate, however, that Bustamente suffered from a penile rash before his surgery. ( See Def.'s Mot. for Summ. J., Ex. C, Medical Records dated October 23, 1996.) In his complaint, Bustamente alleges that the blood transfused to him during his surgery was infected with the herpes virus. Bustamente's medical records also indicate though that some, if not all, of the blood transfused to him was his own blood that he had previously donated for the procedure. ( See id., Ex. B, Autologous Blood Record.)
The plaintiff filed an administrative claim with the Department of Veterans Affairs. On June 28, 2002, the Department of Veterans Affairs sent Bustamente a letter that denied his claim and indicated that the plaintiff could file suit in accordance with the Federal Tort Claims Act. On December 17, 2002, the plaintiff filed this suit against the United States. Defendant now moves for summary judgment.
II. Discussion
A. Summary Judgment Standard
Summary judgment is appropriate when there are no genuine issues as to any material facts, and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The court must be satisfied "that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in her favor." Lavespere v. Niagara Mach. Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990) ( citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). The moving party bears the burden of establishing that there are no genuine issues of material fact.
If the dispositive issue is one for which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 325; see also Lavespere, 910 F.2d at 178. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts that establish a genuine issue exists for trial. See Celotex, 477 U.S. at 324; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1996).
The Fifth Circuit has "arguably articulated an even more lenient standard for summary judgment in certain nonjury cases." Phillips Oil Co. v. OKC Corp., 812 F.2d 265, 273 n. 15 (5th Cir. 1987); see also Chinchilla v. United States, 1999 WL 993640, at *2 (E.D.La.). In Nunez v. Superior Oil Co., the Fifth Circuit explained:
There is no litmus test that infallibly distinguishes those issues that are `factual' from those that are `legal' or `mixed.' . . . [A]s we approach the point where facts and the application of legal rule to them blend, appraising evidentiary facts in terms of their legal consequences and `applying' law to fact become inseparable processes.572 F.2d 1119, 1123 (5th Cir. 1978). Therefore, in a nonjury case the court is encouraged to draw inferences, even when they appear to be factual, if a "trial on the merits would reveal no additional data." Id. at 1124.
B. Applicable Law
Plaintiff brought this suit under the Federal Tort Claims Act ("FTCA"). See 28 U.S.C. § 2671, et seq. The FTCA provides that the United States can be "liable . . . in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 2674. To determine the liability of a private person, "we are to look to the law of the state `where the act or omission occurred.'" Crider v. United States, 885 F.2d 294, 296 (5th Cir. 1989) (quoting 28 U.S.C. § 1364 (b)); see also Bryan v. Stevens, 169 F. Supp.2d 676, 683 (S.D.Tex. 2001). Plaintiff alleges that he received contaminated blood at the Veteran's Administration Hospital in New Orleans, Louisiana. Accordingly, Louisiana law governs this action. Under Louisiana law, a blood transfusion is a medical service. See LA. REV. STAT. § 9:2797. The Court therefore considers Bustamente's claim to be a medical malpractice claim.
C. Louisiana Medical Malpractice Law
In Louisiana, the general rules of negligence apply to a medical malpractice action against a hospital. See Boutte v. Jefferson Parish Hosp. Serv. Dist. No. I, 807 So.2d 895, 898, 01-918 (La.App. 5 Cir. 1/15/02) (citing Smith v. State through Dept. of Health and Human Resources, 523 So.2d 815, 819 (La. 1988)); see also Odom v. State through Dept. of Health and Hospitals, 733 So.2d 91, 96 (La.App. 3 Cir. 3/24/99). "A plaintiff must show a standard of care, a breach of that standard, an injury and a causal relationship between the injury and the breach of that duty." Boutte, 807 So.2d at 898. As noted by the court in Sumter v. West Jefferson Medical Center, 845 So.2d 1179, 02-1103 (La. App,. 5 Cir. 4/29/03), "[p]laintiffs in a medical malpractice suit have the burden of showing that the hospital personnel negligently departed from the recognized standard of care afforded by hospitals in the area for the particular malady involved." See Id. at 1181. Similarly, Louisiana Revised Statute 9:2794(A) delineates a plaintiff's burden in medical malpractice claims against physicians: the plaintiff must establish by a preponderance of the evidence (1) the standard of care relevant to the named physician, (2) that the physician violated that standard of care, and (3) that the physician's alleged negligence proximately caused the plaintiff's injuries. See LA. REV. STAT. § 9:2794(A); Pfiffner v. Correra, 643 So.2d 1228, 1233, 94-0992 (La. 10/17/94).
Because of the complexity of most medical malpractice cases, the Louisiana Supreme Court has held that the absence of expert testimony regarding the proper standard of care generally precludes the imposition of liability. See Pfiffner, 643 So.2d at 1233; see also Lewis v. Tulane Univ. Hosp. Clinic, 855 So.2d 383, 386-87, 2003-0184 (La.App. 4 Cir. 8/27/03) ("With few exceptions . . . a plaintiff will likely fail to sustain his or her burden of proving his or her claim under La. R.S. 9:2794 without medical experts"); Satterwhite v. Reilly, 817 So.2d 407, 413, 35,926 (La.App. 2 Cir. 5/8/02). Further, Louisiana case law indicates that expert testimony on the medical standard of care for blood screening is necessary in a case involving an allegedly contaminated blood transfusion. See Boutte, 807 So.2d at 899-900.
Louisiana jurisprudence recognizes a few exceptions to the expert testimony requirement. These exceptions include (1) when the defendant/physician testifies as to the standard of care and his breach, (2) when the medical evidence is such that a lay jury can perceive negligence as well as any expert, and (3) when the alleged negligence consists of violating a statute and/or the hospital's bylaws. See Pfiffner, 643 So.2d at 1234. Elaborating on the second category, the Louisiana Supreme Court stated: "[e]xpert 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." Id. at 1233 (citing Hastings v. Baton Rouge Gen. Hosp., 498 So.2d 713, 719 (La. 1986)); see also Williams v. Metro Home Health Care Agency, Inc., 817 So.2d 1224, 1228, 2002-0534 (La.App. 4 Cir. 5/8/02) (quoting Pfiffner, 643 So.2d at 1233). Louisiana courts have held that these exceptions are limited, "and an expert witness is generally necessary as a matter of law to prove a medical malpractice claim." Williams, 817 So.2d at 1228; see also Lewis, 855 So.2d at 386-87; Jeffery v. Bickham, 795 So.2d 443, 446, 34,946 (La.App. 2 Cir. 8/22/01).
In its motion for summary judgment, the defendant contends that the plaintiff has failed to provide any expert opinions supporting his claim, and the plaintiff does not dispute this contention. The Court finds that plaintiff's claim does not qualify as an exception to the general rule that requires expert testimony regarding the standard of care. Here, the defendant has not provided evidence regarding the standard of care. In addition, plaintiff's claim is not the type of claim in which a lay person can infer negligence. Defendant's negligence is not obvious. A lay person would clearly require expert testimony to determine the proper standard of care for screening blood for the herpes virus. Further, the plaintiff has not alleged nor provided any evidence to support an allegation that the hospital violated a statute or bylaw.
Plaintiff argues that, in spite of the absence of expert testimony on point, the Court can find the defendant liable under the theory of res ipsa loquitur. Plaintiff argues that he has been faithful to his wife of 38 years, and she is not infected with herpes. The plaintiff argues that the Court can therefore infer that he must have contracted herpes as a result of the blood transfusion he received in connection with his surgery. If applicable, the res ipsa loquitur theory permits the Court to infer negligence on the part of the defendant from the circumstances surrounding the injury. See Cangelosi v. Our Lady of the Lake Regional Medical Center, 564 So.2d 654, 665 (La. 1989). Res ipsa loquitur applies when Ml) the accident would not normally occur in the absence of negligence, (2) there is an absence of direct evidence to explain the activities leading to the injury, and (3) the accident or injury was caused by an agency on [sic] instrumentality within the actual or constructive control of the defendant.'" Dean v. Ochsner Medical Foundation Hospital and Clinic, Inc., 749 So.2d 36, 39, 99-466 (La.App. 5 Cir. 11/10/99); see also Sumter, 845 So.2d at 1183. Stated another way, res ipsa loquitur applies when circumstances suggest that the defendant's negligence is the most plausible explanation for the injury. See Williams, 817 So.2d at 1229 (citing Dean, 749 So.2d at 39-40). As a result, plaintiff must show that the injury would not usually occur in the absence of negligence. See id. Here, plaintiff fails to show that the defendant's negligence is the most plausible explanation for his infection. First, plaintiff's medical records indicate that some, if not all, of the blood he received during the surgery was his own blood. ( See Def.'s Mot. for Summ. J., Ex. B, Autologous Blood Record.) Second, evidence indicates that he suffered from a penile rash before the surgery and blood transfusion. ( See id., Ex. C, Medical Records dated October 23, 1996.) Third, the plaintiff fails to offer any evidence that herpes can be contracted through a blood transfusion. Defendant, on the other hand, submits a letter from Dr. Edward Pitard, in which Dr. Pitard states that he saw Bustamente and that "[i]t would be almost impossible for herpes of the genitalia to be contracted via a blood transfusion." ( Id., Ex. G, Pitard Letter dated October 17, 2001.) Dr. Pitard goes on to state, "[h]owever this doesn't mean he didn't contract this via direct contact; e.g. toilet seat, infected health care worker." ( Id.) As a result, the Court finds that plaintiff fails to show that the defendant's negligence is the most plausible explanation for his injury. The Court concludes, therefore, that the doctrine of res ipsa loquitur does not apply to these facts, and the plaintiff cannot rely on the inference of negligence to support his claim.
As a result, the Court concludes that the plaintiff has failed to meet his burden, and defendant is entitled to summary judgment.
III. Conclusion
For the foregoing reasons, the Court grants the defendant's motion for summary judgment.