Opinion
NUMBER 2015 CA 1891
06-03-2016
MICHAEL McGREW v. PAUL J. WAGUESPACK, M.D.
Robert T. Talley Baton Rouge, LA Attorney for Appellant Plaintiff - Michael McGrew Tara S. Bourgeois Garrett S. Callaway Baton Rouge, LA Attorneys for Appellee Defendant - Paul J. Waguespack, M.D.
NOT DESIGNATED FOR PUBLICATION
Appealed from the 19th Judicial District Court In and for the Parish of East Baton Rouge, Louisiana
Trial Court Number 613,682 Honorable Timothy E. Kelley, Judge Robert T. Talley
Baton Rouge, LA Attorney for Appellant
Plaintiff - Michael McGrew Tara S. Bourgeois
Garrett S. Callaway
Baton Rouge, LA Attorneys for Appellee
Defendant - Paul J. Waguespack, M.D. BEFORE: WHIPPLE, C.J., WELCH, AND DRAKE, JJ. WELCH, J.
The plaintiff, Michael McGrew, appeals a trial court judgment granting summary judgment in favor of the defendant, Paul J. Waguespack, M.D., resulting in the dismissal with prejudice all of plaintiff's claims asserted against the defendant. For reasons that follow, we affirm the judgment of the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
The relevant factual and procedural history of this case was set forth by this court in our earlier opinion, McGrew v. Waguespack, 2014-0251 (La. App. 1st Cir. 12/30/14), 168 So.3d 690. For ease of reference and clarity, we shall set forth in detail the relevant factual, procedural, and legal history of this litigation contained in our prior opinion.
Prior Proceedings
On July 11, 2012, the plaintiff filed a malpractice lawsuit against the defendant. The plaintiff's petition alleged that he suffered permanent paralysis to his legs, partial paralysis to his right arm, and related extreme pain and suffering following back surgery performed by the defendant in April of 2010. In the petition, the plaintiff alleged, among various acts of malpractice, the defendant's failure to provide and obtain informed consent from the plaintiff.
On January 31, 2013, the defendant filed a motion for summary judgment, asserting that the plaintiff failed to identify an expert witness who would testify that any action or inaction in his treatment of the plaintiff breached the standard of care. On April 15, 2013, the trial court denied the motion and permitted the plaintiff additional time for discovery.
On July 16, 2013, the defendant filed a second motion for summary judgment, again raising the issue of whether the plaintiff could satisfy his evidentiary burden of proof under La. R.S. 9:2794. Specifically, the defendant challenged the plaintiff's lack of expert medical testimony to prove that the defendant breached the standard of care in his treatment of the plaintiff. The defendant's motion for summary judgment pointed out that the only medical expert identified by the plaintiff in discovery responses had clearly indicated that she had no intention to serve as the plaintiff's expert witness.
In his opposition to the second motion for summary judgment, the plaintiff asked the trial court to deny the motion on several bases, including that there had not been "adequate discovery" as required under La. C.C.P. art. 966(C)(1) , and that fairness dictated that the plaintiff be allowed sufficient time under La. C.C.P. art. 967(C) to raise funds and obtain an expert witness to replace the unwilling expert.
Louisiana Code of Civil Procedure article 966 was amended by 2015 La. Acts, No. 422 § 1, effective January 1, 2016. The substance of La. C.C.P. art. 966(C)(1) is now contained in La. C.C.P. art. 966(A)(3).
On October 30, 2013, the trial court signed a judgment granting the defendant's second motion for summary judgment and dismissing all of the plaintiff's claims with prejudice. The plaintiff appealed. In an opinion rendered on December 30, 2014, this court concluded that because the defendant's second motion for summary judgment did not specifically challenge the plaintiff's ability to establish the elements of an informed consent claim under Louisiana's Uniform Consent Law, the trial court erred in granting summary judgment on all theories of liability asserted by the plaintiff in the petition. McGrew, 168 So.3d at 695. However, this court found that granting of the summary judgment on the issue of medical malpractice was proper on the basis that the plaintiff offered no expert medical evidence setting forth the standard of care. McGrew, 168 So.3d at 696- 697. This court affirmed in part the granting of the defendant's motion for summary judgment to the extent that it dismissed the plaintiff's malpractice claims, but remanded the informed consent claim to the trial court for further proceedings.
Louisiana's Uniform Consent Law, providing that the only theory on which recovery may be obtained against a physician for failing to disclose risks in a surgical procedure is that of negligence, was previously found in La. R.S. 40:1299.40(E); however, that provision was repealed by 2012 La. Acts, No. 759, § 3, and the substance of that provision currently appears in La. R.S. 40:1299.39.5(D). See Snider v. Louisiana Medical Mutual Insurance Company, 2013-0579 (La. 12/10/13), 130 So.3d 922, 929, but was redesignated by House Concurrent Resolution No. 84 of the 2015 Regular Session to La. R.S. 40:1157.1(D).
Proceedings on Remand and the Present Appeal
On June 11, 2015, the defendant filed a third motion for summary judgment seeking dismissal of the plaintiff's remaining claim regarding lack of informed consent. Similar to his previous motion for summary judgment, the defendant asserted that the plaintiff lacked expert testimony necessary to meet his burden of proof, and that the expert witness identified by the plaintiff in discovery responses, Dr. Nick Hatzis, had indicated that he was unwilling to serve as the plaintiff's expert. In support of his motion for summary judgment, the defendant attached the following evidence: (1) interrogatories propounded by the defendant on March 4, 2015, seeking information regarding any expert or experts who may testify at the trial on the issue of the defendant's failure to obtain informed consent, as well as the identity of any evidence to be introduced at trial; (2) the plaintiff's answers to interrogatories identifying Dr. Hatzis as an expert witness; (3) a letter, dated April 29, 2015, from counsel for the defendant to Dr. Hatzis regarding availability for a deposition; (4) the affidavit of Dr. Hatzis, (5) and the affidavit of Dr. Hatzis's employee, Donna Hebert.
Louisiana Code of Civil Procedure article 966 was amended by 2015 La. Acts, No. 422, § 1, effective January 1, 2016. Section 2 of the 2015 La. Acts, No. 422, provides that: "[t]he provisions of this Act shall not apply to any motion for summary judgment pending adjudication or appeal on the effective date of this Act." Here, the pendency of the instant appeal on the effective date of 2015 La. Acts, No. 422 results in the application of the prior version of La C.C.P. art. 966 to the instant matter.
In the affidavits, Dr. Hatzis and/or his employee, Ms. Hebert, made the following attestations: On April 30, 2015, Dr. Hatzis received a letter seeking his availability to appear for a deposition to testify as an expert on behalf of Mr. McGrew. Dr. Hatzis instructed Ms. Hebert to contact Ms. Callaway, counsel for the defendant, and inform her that Dr. Hatzis had never been contacted by Mr. Talley, counsel for the plaintiff, regarding this matter. Further, Ms. Hebert was instructed to inform Ms. Calloway that Dr. Hatzis had never agreed to and was not willing to serve as an expert witness on behalf of the plaintiff.
The plaintiff filed a timely opposition memorandum and attached supplemental and amending answers to interrogatories, identifying a new expert, Richard J. Sanders, M.D., a family medical provider. The discovery responses stated that Dr. Sanders would testify regarding the defendant's failure to provide and obtain informed consent from the plaintiff prior to surgery. The plaintiff did not attach an expert affidavit or deposition transcript to his opposition. According to the plaintiff, providing the identity of his expert was sufficient to render the defendant's motion for summary judgment moot.
The defendant filed a reply memorandum countering that the plaintiff's mere naming of an expert, without an affidavit or deposition of the expert witness, was insufficient to defeat motion for summary judgement. Alternatively, the defendant averred that Dr. Sanders, as a family medical practitioner, was not qualified to testify regarding the issue of the defendant's failure to obtain informed consent from the plaintiff.
A hearing on the third motion for summary judgment was held on August 24, 2015. In open court, counsel for the plaintiff orally moved to strike the defendant's reply memorandum under La. C.C.P. art. 966(F)(1), asserting that the reply memorandum raised two issues not previously raised in the original motion for summary judgment: (1) Dr. Sanders's qualification to testify as an expert on the issue of informed consent; and (2) the assertion that merely providing the name of an expert, without an affidavit, was insufficient to defeat a motion for summary judgment herein.
At the hearing, counsel for the plaintiff also produced the affidavit of Dr. Sanders, which was executed on July 24, 2015, one month before the hearing. The plaintiff also raised an oral motion to continue the hearing as an alternative to his motion to strike the defendant's reply memorandum. The plaintiff's request for a continuance also rested on his assertion that the scope of the defendant's original motion for summary judgment was directed only at the plaintiff's failure to identify an expert, and asserted that a continuance was necessary for him to address the new issues that were raised in the defendant's reply memorandum. Counsel for the defendant objected to the introduction of Dr. Sanders's affidavit on the basis that the plaintiff had failed to timely serve it on the court and the defendant eight days prior to the hearing as required under La. C.C.P. art. 966(B)(1).
The trial court first rejected the defendant's challenge to the qualifications of Dr. Sanders as inappropriate in the context of summary judgment. Second, the trial court found the affidavit of Dr. Sanders inadmissible on the basis that it was not timely filed in accordance with La. C.C.P. art. 966(B)(1). Third, finding that the plaintiff was required to come forward with an expert affidavit to defeat the defendant's motion for summary judgment, and had failed to timely do so, the trial court granted the defendant's motion. Finally, the trial court denied the plaintiff's oral motion to strike the defendant's reply memorandum, and the plaintiff's oral motion to continue. The trial court's findings were set forth in a judgment signed September 10, 2015.
We note that neither party has challenged or briefed the trial court's decision to decline ruling on the qualifications of Dr. Sanders on appeal; therefore, we do not consider this portion of the trial court's ruling herein. See La. C.C.P. art. 2133; Uniform Rules, Courts of Appeal, Rule 2-12.4(B)(4).
The plaintiff timely sought a motion for new trial, which was summarily denied by the trial court in a judgment signed October 5, 2015. The plaintiff filed the instant devolutive appeal.
ASSIGNMENTS OF ERROR
First, the plaintiff asserts that the trial court erred in granting the defendant's motion for summary judgment. Second, the plaintiff asserts that the trial court erred in denying his motion to strike the defendant's reply memorandum, which improperly went beyond the scope of the defendant's original motion for summary judgment and improperly raised new grounds for summary judgment under La. C.C.P. art. 966(F)(1). Third, the plaintiff contends that based on the "unique circumstances" presented in this case, the trial court should have continued the August 24, 2015 hearing, or fashioned an order "as is just" pursuant to La. C.C.P. art. 967(C). Finally, citing this court's decision, Peters v. Hortman, 2003-2597 (La. App. 1st Cir. 10/29/04), 897 So.2d 131, writ denied, 2004-2923 (La. 2/4/05), 893 So.2d 885, the plaintiff asserts that the trial court erred in refusing to grant the plaintiff's motion for new trial in light of the affidavit presented at the hearing.
Although the denials of the plaintiff's motion to strike, motion to continue and motion for new trial on the motion to strike are interlocutory, nonappealable judgments under La. C.C.P. arts. 1841 and 2083, when an appeal is taken from a final judgment, the appellant is entitled to seek review of all adverse interlocutory judgments prejudicial to him in addition to the review of the final judgment. See Landry v. Leonard J. Chabert Medical Center, 2002-1559 (La. App. 1st Cir. 5/14/03), 858 So.2d 454, 461 n.4, writs denied, 2003-1748, 2003-1752 (La. 10/17/03), 855 So.2d 761. Thus, in this case, we can consider the correctness of those interlocutory judgments in conjunction with the appeal of the judgment granting the defendant's motion for summary judgment, which is a final and appealable judgment. See Rao v. Rao, 2005-0059 (La. App. 1st Cir. 11/4/05), 927 So.2d 356, 360, writ denied, 2005-2453 (La. 3/24/06), 925 So.2d 1232; Ballard v. Waitz, 2006-0307 (La. App. 1st Cir. 12/28/06), 951 So.2d 335, 338, writ denied, 2007-0846 (La. 6/15/07), 958 So.2d 1193; People of Living God v. Chantilly Corporation, 251 La. 943, 947-948, 207 So.2d 752, 753 (1968).
STANDARDS OF REVIEW
Summary judgments are reviewed on appeal de novo using the same criteria as the trial court in determining whether summary judgment is appropriate. Jones v. Estate of Santiago, 2003-1424 (La. 4/14/04), 870 So.2d 1002, 1006. Appellate courts review the trial court's exclusion of an opposition or affidavit to a motion for summary judgment for abuse of discretion as long as there is no prejudice to the other party. See Buggage v. Volks Constructors, 2006-0175 (La. 5/5/06), 928 So.2d 536 (per curiam); James Construction Group, L.L.C. v. State ex rel. Department of Transportation & Development, 2007-0225 (La. App. 1st Cir. 11/2/07), 977 So.2d 989, 999-1000. Likewise, the denial of a motion for continuance will not be disturbed absent a showing of an abuse of discretion by the trial court. Newsome v. Homer Memorial Medical Center, 2010-0564 (La. 4/9/10), 32 So.3d 800, 802.
APPLICABLE LAW AND DISCUSSION
Motion for Summary Judgment on Issue of Informed Consent & Expert Testimony Requirement
Summary judgment is proper only if the pleadings, depositions, answers to interrogatories, and admissions, together with any affidavits, if any, admitted for purposes of the motion for summary judgment, show there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B)(2). Whether a particular fact in dispute is material for purposes of summary judgment can be seen only in light of the substantive law applicable to the case. Gaspard v. Graves, 2005-1042 (La. App. 1st Cir. 3/29/06), 934 So.2d 158, 160, writs denied, 2006-0882, 2006-0958 (La. 6/16/06), 929 So.2d 1286, 1289.
Louisiana jurisprudence requires that a plaintiff in an action based on a failure to obtain informed consent prove the following four elements in order to prevail: (1) a material risk existed that was unknown to the patient; (2) the physician failed to disclose the risk; (3) the disclosure of the risk would have led a reasonable patient in the patient's position to reject the medical procedure or choose another course of treatment; and (4) the patient suffered injury. Snider v. Louisiana Medical Mutual Insurance Company, 2013-0579 (La. 12/10/13), 130 So.3d 922, 929-930, citing Brandt v. Engle, 2000-3416 (La. 6/29/01), 791 So.2d 614, 619 n.1.
The determination of materiality in the context of informed consent is a two-step process. Hondroulis v. Schuhmacher, 553 So.2d 398, 412 (La. 1988), on rehearing. In Hondroulis, the court explained the role of an expert witness in making this determination as follows:
The first step is to define the existence and nature of the risk and the likelihood of its occurrence. "Some" expert testimony is necessary to establish this aspect of materiality because only a physician or other qualified expert is capable of judging what risk exists and the likelihood of occurrence. The second prong of the materiality test is for the trier of fact to decide whether the probability of that type harm is a risk which a reasonable patient would consider in deciding on treatment. The focus is on whether a reasonable person in the patient's position probably would attach significance to the specific risk. This determination of materiality does not require expert testimony.Id. (Emphasis added.); see also Brandt, 791 So.2d at 619.
Based on the above quoted jurisprudence, we find that the plaintiff was required to produce "[s]ome expert testimony" in opposition to the motion for summary judgment to address the issue of what risk existed in the plaintiff's case and the likelihood of its occurrence. As set forth below, we further find that the trial court correctly found that the plaintiff had failed to timely produce the required expert testimony; therefore, granting of summary judgment was proper.
Motion to Strike
Louisiana Code of Civil Procedure article 966(F)(1) provides that 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." The plaintiff maintains that the trial court erred in denying his motion to strike the defendant's reply memorandum, because its assertion that the plaintiff was required to produce expert testimony went beyond the "exclusive allegations" of the defendant's original motion for summary judgment. The plaintiff contends that the original motion for summary judgment asserted only that plaintiff had not identified an expert to testify on the issue of informed consent.
We find no merit in the plaintiff's position. As noted above, the supreme court's holding in Hondroulis makes clear that some expert testimony is necessary for a plaintiff to define the existence, nature, likelihood of the material risk. Hondroulis, 553 So.2d at 412. Further, under La. C.C.P. art. 966(C)(2), once the defendant established that the plaintiff had no expert testimony to support his claim, the burden shifted to the plaintiff to produce factual support sufficient to establish that he would be able to meet his burden of proof at trial, which in this instance required that the plaintiff come forward with expert testimony. See also Samaha v. Rau, 2007-1726 (La. 2/26/08), 977 So. 2d 880, 883.
Moreover, despite the plaintiff's assertions, the defendant's original motion for summary judgment did assert that the plaintiff herein was required to come forward with some expert testimony to support his claim that the defendant failed to provide and obtain informed consent. The defendant's argument in his reply memorandum did not constitute the introduction of a new substantive issue, but was merely a repeat of the defendant's original argument that expert testimony is required to defeat summary judgment in this context.
Based on the above, we find no error in the trial court's denial of the plaintiff's motion to strike the defendant's reply memorandum.
Motion to Continue
The plaintiff alternatively argues that the trial court erred in refusing to grant a continuance or to otherwise fashion an order "as is just" pursuant to La. C.C.P. art. 967(C). As noted above, the plaintiff's request for a continuance also rests on his assertion that the scope of the defendant's original motion for summary judgment was directed only at the plaintiff's failure to identify an expert. The plaintiff asserts that he was entitled to a continuance to allow him to address the issues that were newly raised in the defendant's reply memorandum. The granting of a continuance would have the additional effect of allowing the plaintiff to timely file Dr. Sanders's affidavit.
Louisiana Code of Civil Procedure article 967(C) provides:
If it appears from the affidavits of a party opposing the motion that for reasons stated he cannot present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
A continuance may be granted in any case if there is a good ground therefor. La. C.C.P. art. 1601. Louisiana Code of Civil Procedure article 966(B)(1) provides that unless the trial court grants the adverse party additional time, a party opposing a motion for summary judgment shall serve opposing affidavits and any memorandum in support pursuant to La. C.C.P. art. 1313, and within the time limits set forth in the Uniform Rules of Louisiana District Courts, Rule 9.9. [Emphasis added.] Rule 9.9(c) provides in pertinent part:
A party who opposes an exception or motion shall concurrently furnish the trial judge and serve on all other parties an opposition memorandum at least eight calendar days before the scheduled hearing.
The time limitation established by La. C.C.P. art. 966(B)(1) for the serving of affidavits in opposition to a motion for summary judgment is mandatory; affidavits not timely filed can be ruled inadmissible and properly excluded by the trial court. Buggage, 928 So.2d at 536; see also Guillory v. Chapman, 2010-1370 (La. 9/24/10), 44 So.3d 272.
Here, the plaintiff did not furnish the trial court and/or the defendant with a copy of Dr. Sanders's affidavit, which was executed a month prior to the hearing, until the hearing on the motion for summary judgment. The affidavit of Dr. Sanders was indisputably filed late under the requirements of La. C.C.P. art. 966(B)(1) and Rule 9.9(c). As noted above, we find no merit in the plaintiff's contention that he was not required to file Dr. Sanders's affidavit in opposition due to the scope of the defendant's original motion for summary judgment. Given the facts and circumstances of this case, sufficient evidence existed for the trial court to find that the plaintiff had failed to present "good cause" to justify his failure to timely file the expert witness affidavit prior to the hearing within the time limits found in La. C.C.P. art. 966(B) or Rule 9.9(b). See La. C.C.P. art. 1601; Newsome, 32 So.3d at 802; see also Sims v. Hawkins-Sheppard, 2011-0678 (La. 7/1/11), 65 So.3d 154, 156-157.
Further, our review of the record indicates that the plaintiff has been pursuing his cause of action for more than three and one-half years. This plaintiff's previous failure to provide expert testimony in the form of an affidavit or deposition on the issue of breach of standard of care has already been the subject of a previous appeal before this court. Therefore, we find no abuse of discretion by the trial court in excluding Dr. Sanders's affidavit or denying the plaintiff's request for a continuance of the hearing.
In the absence of expert testimony in this case to support the plaintiff's claim that the defendant failed to provide and obtain appropriate informed consent, we find the plaintiff failed to present factual support sufficient to establish that he would be able to satisfy his evidentiary burden of proof at trial. Summary judgment dismissing the plaintiff's claim was proper.
Motion for New Trial
Finally, regarding the plaintiff's assertion that the trial court erred in denying his motion for new trial, we have already discussed why the trial court properly granted summary judgment, as well as refused to admit the untimely affidavit of Dr. Sanders, and the same reasoning applies to the trial court's refusal to grant the plaintiff's motion for new trial. There are no facts in this case which justify this court finding an abuse of the trial court's discretion; therefore, we conclude the trial court did not abuse its discretion in denying the motion for new trial.
The plaintiff avers that the trial court erred in denying his motion for new trial under the holding of Peters v. Hortman, 893 So.2d at 135-136. However, the Peters decision was issued prior to our supreme court's decisions in Buggage and Guillory, which expressly hold that affidavits not timely filed under the mandatory provisions of La. C.C.P. art. 966(B) can be ruled inadmissible and properly excluded by the trial court. The courts of this state are bound by the rulings of our supreme court. --------
CONCLUSION
For the above reasons, we affirm the September 10, 2015 judgment granting the defendant's motion for summary judgment resulting in the dismissal with prejudice of all claims asserted by the plaintiff, Michael McGrew, against the defendant, Paul J. Waguespack, M.D. We also affirm the October 5, 2015 judgment denying the plaintiff's motion for new trial. We further affirm the portion of the September 10, 2015 judgment wherein the trial court denied the plaintiff's motion to strike and motion to continue. All costs of this appeal are assessed to the plaintiff/appellant, Michael McGrew.
AFFIRMED.