Opinion
2015 CA 1579
08-05-2016
TERRLYN TROTTER AS SURVIVING PARENT OF BRENTON MIKAL TROTTER v. BATON ROUGE GENERAL MEDICAL CENTER, EFFIE BRANTON-ANDERS, M.D., STATE OF LOUISIANA THROUGH THE BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY THROUGH THE LSU HEALTH CARE SERVICES DIVISION OBO EARL K. LONG HOSPITAL, ROY J. CULOTTA, M.D., JOHN R. GODKE, M.D., STEVEN J. ZUCKERMAN, M.D., THOMAS JEIDER, M.D., CHRISTOPHER THOMAS, M.D., AND DUSTIN VINCENT, M.D.
Terrlyn Trotter Lafayette, Louisiana Plaintiff-Appellant In Proper Person Tara S. Bourgeois Herbert J. Mang, Jr. Carey M. Nichols Nancy B. Roberts Baton Rouge, Louisiana Counsel for Defendant-Appellee Steven J. Zuckerman, M.D. Craig J. Sabottke Michael M. Remson Calli M. Boudreaux Baton Rouge, Louisiana Counsel for Defendant-Appellee Baton Rouge General Medical Center Richard L. Houghton, III Counsel for Defendant-Appellee Richard L. Houghton, III Nicholas Gachassin, Jr. Nicholas Gachassin, III Lafayette, Louisiana Counsel for Defendant-Appellee Effie Branton-Anders, M.D. Jude D. Bourque Baton Rouge, Louisiana Counsel for Defendant-Appellee State of Louisiana, et al.
NOT DESIGNATED FOR PUBLICATION ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT
NUMBER 633096, SECTION 25, PARISH OF EAST BATON ROUGE
STATE OF LOUISIANA HONORABLE WILSON FIELDS, JUDGE Terrlyn Trotter
Lafayette, Louisiana Plaintiff-Appellant
In Proper Person Tara S. Bourgeois
Herbert J. Mang, Jr.
Carey M. Nichols
Nancy B. Roberts
Baton Rouge, Louisiana Counsel for Defendant-Appellee
Steven J. Zuckerman, M.D. Craig J. Sabottke
Michael M. Remson
Calli M. Boudreaux
Baton Rouge, Louisiana Counsel for Defendant-Appellee
Baton Rouge General Medical Center Richard L. Houghton, III Counsel for Defendant-Appellee Richard L. Houghton, III
Nicholas Gachassin, Jr.
Nicholas Gachassin, III
Lafayette, Louisiana Counsel for Defendant-Appellee
Effie Branton-Anders, M.D. Jude D. Bourque
Baton Rouge, Louisiana Counsel for Defendant-Appellee
State of Louisiana, et al. BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ.
Disposition: AFFIRMED.
CHUTZ, J.
In this medical malpractice case, plaintiff-appellant, Terrlyn Trotter, appeals a summary judgment dismissing her claims against defendant-appellee, Effie Branton-Anders, M.D. We affirm.
FACTS AND PROCEDURAL BACKGROUND
On November 5, 2011, Brenton Mikal Trotter, a twenty-one-year-old man who suffered from several chronic health conditions, including autism, hypothyroidism, and growth hormone deficiency, was transported by EMS to the emergency room at the Baton Rouge General Medical Center (BRGMC). He reportedly had suffered a seizure and become unresponsive. Dr. Effie Branton-Anders was the emergency room physician who treated Mr. Trotter upon his arrival at the BRGMC. At that time, Mr. Trotter was noted to be in cardiac arrest and was resuscitated. Mr. Trotter subsequently was admitted to the BRGMC intensive care unit (ICU) in critical condition. After his transfer to the ICU, Mr. Trotter was found to have no pulse and was again resuscitated. On November 7, 2011, Mr. Trotter was declared brain dead, and he subsequently expired.
In October 2012, Terrlyn Trotter, Brenton Trotter's mother, filed a medical malpractice claim with the Louisiana Patient's Compensation Fund Oversight Board requesting review by a medical review panel pursuant to La. R.S. 40:1299.41, et seq. Dr. Branton-Anders was one of several health care providers named in Ms. Trotter's complaint. On April 30, 2014, the medical review panel issued a unanimous opinion in favor of the named health care providers, including Dr. Branton-Anders, finding the evidence did not support the conclusion that she failed to meet the applicable standard of care as charged in Ms. Trotter's complaint. Ms. Trotter, in proper person, filed a medical malpractice suit in the 19th Judicial District Court against Dr. Branton-Anders and several other defendants on August 28, 2014. Dr. Branton-Anders filed an answer denying the allegations of Ms. Trotter's petition.
All references to provisions of Title 40 of the Louisiana Revised Statutes are to those provisions as they existed prior to the reorganization of Chapter 5 of Title 40 by House Concurrent Resolution No. 84 of the 2015 Regular Session. See Editors' Notes to La. R.S. 40:1231.1 (formerly La. R.S. 40:1299.41).
The BRGMC and Dr. Steven J. Zuckerman were named as additional defendants. On April 16, 2015, the trial court signed a summary judgment dismissing Ms. Trotter's lawsuit against the BRGMC, with prejudice; that judgment is the subject of the appeal taken to this court by Ms. Trotter in docket number 2015-CA-1577. On April 29, 2015, the trial court signed a summary judgment in favor of Dr. Zuckerman, dismissing Ms. Trotter's claims against him, with prejudice; that judgment is the subject of the appeal taken to this court by Ms. Trotter in docket number 2015-CA-1578.
Also named as defendants in the lawsuit were the State of Louisiana through the Board of Supervisors of Louisiana State University through the LSU Health Care Services Division on behalf of Earl K. Long Hospital, Roy J. Culotta, M.D., John R. Godke, M.D., Dustin Vincent, M.D., Thomas Jeider, M.D., and Christopher Thomas, M.D. (collectively, "the LSU defendants"). The trial court signed a judgment on April 16, 2015, that granted summary judgment dismissing the LSU defendants from Ms. Trotter's lawsuit, with prejudice. That judgment was the subject of the appeal taken to this court by Ms. Trotter in docket number 2015CA1576. That appeal was dismissed by order of this court on December 29, 2015, due to Ms. Trotter's failure to file a brief within thirty days of the mailing of a notice of abandonment.
Thereafter, on February 6, 2015, Dr. Branton-Anders filed a motion for summary judgment. The motion for summary judgment was based on the grounds that because Ms. Trotter had failed to present expert medical evidence to support her claims, she would be unable to sustain her burden of proving Dr. Branton-Anders had breached the applicable standard of care or establishing causation. Two other motions for summary judgment were filed on the same grounds by co-defendants of Dr. Branton-Anders. All three motions for summary judgment were set for hearing on March 30, 2015.
On March 20, 2015, Ms. Trotter filed a motion for continuance, requesting an extension of time to prepare her opposition to the defendants' motions for summary judgment. No order was attached to the motion, and the record contains no ruling. The motion was implicitly denied, however, since the scheduled hearing was held on March 30, 2016. No opposition was filed by Ms. Trotter as of that date. Following the motion hearing, the trial court signed a judgment on May 8, 2015, granting summary judgment in favor of Dr. Branton-Anders and dismissing Ms. Trotter's lawsuit against her with prejudice. Ms. Trotter now appeals the trial court's judgment.
The pleading was captioned "Plaintiff's Request for Extension to File Opposition to Motion for Summary Judgment" rather than "Motion for Continuance." However, a pleading is construed for what it really is, not for what it is erroneously captioned. Bernard v. Hildebrand , 08-0268 (La. App. 1st Cir. 8/6/08), 993 So.2d 678, 684. Ms. Trotter's pleading necessarily constituted a motion for continuance since it requested an extension of time for filing her opposition that was beyond the date of the scheduled hearing.
LAW AND ANALYSIS
On appeal, Ms. Trotter asserts the trial court erred in granting summary judgment in favor of Dr. Branton-Anders since there was a material issue of fact as to whether or not Dr. Branton-Anders' "treatment of the decedent was at all times appropriate." In brief, Ms. Trotter avers that, after Mr. Trotter was stable for an hour, his condition abruptly declined and he suffered cardiac arrest only minutes after Dr. Branton-Anders ordered and/or allowed the administration of a drug to Mr. Trotter that belonged to the class of penicillins. According to Ms. Trotter, she previously advised hospital personnel that Mr. Trotter was allergic to penicillin. In her petition, she raised numerous other allegation of inappropriate and/or negligent acts by Dr. Branton-Andes in the treatment of Mr. Trotter, including failing to formulate a differential diagnoses list, ignoring Mr. Trotter's prior diagnoses, failing to administer or order the administration of an opioid or benzodiazepine antagonist, failing to order variety medical tests and screenings delineated by Ms. Trotter, ordering and/or allowing the administration of inappropriate medications, including penicillin, and failing to order the transfer of Mr. Trotter to a more appropriate facility.
Ms. Trotter filed an identical brief in each of the three appeals pending before this court. Thus, she raised the same assignments of error in each of these appeals, regardless of whether those assignments were pertinent to the judgment under review in that particular appeal. Several of Ms. Trotter's assignments relate specifically to only one or more of the named defendants and will be pretermitted in each appeal in which they are not relevant.
Additionally, we note the assignments of error that relate to the LSU defendants will not be considered by this court in the present appeal or any of the abovereferenced appeals since we dismissed the appeal seeking review of the summary judgment rendered in favor of the LSU defendants, and Ms. Trotter did not request a rehearing or seek a writ of certiorari to the Louisiana Supreme Court. Accordingly, the summary judgment rendered in favor of the LSU defendants is now final and definitive. See La. C.C.P. art. 2166(A).
Ms. Trotter contends her familiarity with her son's medical requirements makes her "fully capable of meeting her burden of proof at trial" even in the absence of a medical expert. She further maintains that expert testimony is not required in this case because a layperson could infer negligence from the facts. Specifically, she contends a layman could conclude from a preponderance of the evidence that it was a breach of the applicable standard of care for a patient to be given a medication he had declined. She additionally alleges it was obvious negligence for a patient to be held against his clearly stated will by a physician, which appears to be a reference to Dr. Branton-Anders' failure to transfer Mr. Trotter to another facility as Ms. Trotter allegedly requested.
A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, 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(B)(2). On appeal, appellate courts review the granting or denial of a motion for summary judgment de novo under the same criteria governing the trial court's consideration of whether summary judgment is appropriate. Schultz v. Guoth , 10-0343 (La. 1/19/11), 57 So.3d 1002, 1005.
All references made to La. C.C.P. art. 966 are made to the version of that article in effect prior to its amendment by 2015 La. Acts, No. 422, § 1, eff. 1/1/16.
On a motion for summary judgment, the burden of proof is on the mover. La. C.C.P. art. 966(C)(2). However, if the mover will not bear the burden of proof at trial, the mover's burden does not require that all essential elements of the adverse party's claim be negated. Instead, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment as a matter of law. La. C.C.P. art. 966(C)(2); Schultz , 57 So.3d at 1007. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Cason v. Saniford , 13-1825 (La. App. 1st Cir. 6/6/14), 148 So.3d 8, 11, writ denied, 14-1431 (La. 10/24/14), 151 So.3d 602.
A plaintiff in a medical malpractice action is required to establish: (1) the standard of care applicable to the doctor; (2) a violation by the doctor of that standard of care; and (3) a causal connection between the doctor's alleged negligence and the plaintiff's injuries. La. R.S. 9:2794(A); Pfiffner v. Correa , 94-0924 (La. 10/17/94), 643 So.2d 1228, 1233; Schultz , 57 So.3d at 1006. The standard of care is generally that degree of knowledge or skill possessed or the degree of care ordinarily exercised by doctors licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances. La. R.S. 9:2794(A)(1); Lugenbuhl v. Dowling , 96-1575 (La. 10/10/97), 701 So.2d 447, 456.
Generally, expert testimony is required to establish the applicable standard of care and whether that standard was breached, except where the negligence is so obvious that a layperson can infer negligence without the guidance of expert testimony. Samaha v. Rau , 07-1726 (La. 2/26/08), 977 So.2d 880, 884; Pfiffner , 643 So.2d at 1233. Examples of the type of cases in which layman can infer negligence without expert medical testimony include a physician fracturing a patient's leg during examination, amputating the wrong limb, dropping a knife or scalpel on a patient, or leaving a sponge in a patient's body. See Samaha , 977 So.2d at 884; Pfiffner , 643 So.2d at 1233. Additionally, expert medical evidence typically also is required to establish a causal connection between the breach of the standard of care and the patient's injury. See Pfiffner , 643 So.2d at 1233-34; Schultz , 57 So.3d at 1009. The requirement of producing expert medical testimony is particularly apt when the defendant has supported his motion for summary judgment with expert opinion evidence that the treatment at issue met the applicable standard of care. See Fagan v. LeBlanc , 04-2743 (La. App. 1st Cir. 2/10/06), 928 So.2d 571, 575-76.
In this case, Dr. Branton-Anders' motion for summary judgment was based on the lack of any expert medical testimony to support Ms. Trotter's allegations that Dr. Branton-Anders breached the applicable standard of care or to establish a causal connection between the alleged breach and any injury to Mr. Trotter. Even though Dr. Branton-Anders would not bear the burden of proof at trial, in support of her motion for summary judgment, she offered the opinion of the medical review panel that was rendered in her favor. In its unanimous opinion, the medical review panel concluded the evidence did not support a breach of the applicable standard of care by Dr. Branton-Anders, stating:
A medical review panel opinion is admissible expert medical evidence that may be used to support or oppose any subsequent medical malpractice suit. La. R.S. 40:12319(H); Samaha , 977 So.2d at 890. --------
The patient presented to the ER after apparently having suffered a seizure while in the bath tub and likely aspirated, which worsened his condition. After reading [Ms. Trotter's] submission, it should be noted that the panel members all agree that this ER doctor [Dr. Branton-Anders] and all of the doctors acted with due diligence in their care of this critically ill patient and their care demonstrated competence throughout this case.
Ms. Trotter argues a medical expert was unnecessary in this case because of Dr. Branton-Anders' allegedly obvious negligence. We disagree, concluding this case is not one where layman can infer either negligence or causation without the assistance of expert testimony. Upon his arrival at the ER, Mr. Trotter was in cardiac arrest and had to be resuscitated. He subsequently was transferred to the ICU in critical condition. As a result of his multiple, pre-existing medical conditions, Mr. Trotter's case was complicated. For each decision that Dr. Branton-Anders made regarding his treatment, she had to take into consideration a myriad of factors. Under the circumstances, whether or not Dr. Branton-Anders breached the applicable standard of care and whether that alleged breach caused or contributed to Mr. Trotter's death or the loss of a chance of survival turns on complex medical issues. These issues include determinations regarding whether Dr. Branton-Anders properly diagnosed Mr. Trotter's condition, whether the medications she ordered or allowed to be administered to him were appropriate under the circumstances, and whether she failed to order or administer appropriate medical tests or screenings. It is clearly beyond the ability of laymen to make such determinations without the assistance of expert medical testimony. See Schultz , 57 So.3d at 1008-09.
Similarly, the determination as to whether or not to transfer Mr. Trotter to another facility as requested by Ms. Trotter cannot be separated from the other complex medical decisions Dr. Branton-Anders made based on Mr. Trotter's critical condition. See Coleman v. Deno , 01-1517 (La. 1/25/02). 813 So.2d 303, 317. Only physicians can issue transfer and acceptance orders, and negligence regarding transfer decisions cannot likely be established without expert medical testimony. See LaCoste v. Pendleton Methodist Hospital , L.L.C., 07-0008 (La. 9/5/07), 966 So.2d 519, 531 (JKnoll dissenting); Coleman , 813 So.2d at 316.
Further, even assuming arguendo that Ms. Trotter could establish a breach of the applicable standard of care by the administration of a declared allergen to Mr. Trotter, as well as other acts of alleged negligence, expert medical testimony would still be required to establish that the administration of the alleged allergen and/or other alleged acts of negligence caused the alleged injuries to Mr. Trotter. See Pfiffner , 643 So.2d at 1234; Jackson v. Suazo-Vasquez , 12-1377 (La. App. 1st Cir. 4/26/13), 116 So.3d 773, 776. Normally, in cases such as the present one involving patients with complicated medical histories and complex medical conditions, causation is simply beyond the province of lay persons to assess without the assistance of expert medical testimony. See Pfiffner , 643 So.2d at 1234; Jackson , 116 So.3d at 776.
Accordingly, we reject Ms. Trotter's arguments that no expert medical testimony was necessary in this case and that she will be able to sustain her burden of proof at trial because she was "very well familiarized" with her son's medical requirements. Since Dr. Branton-Anders will not bear the burden of proof at trial, once she pointed out the absence of expert medical testimony to establish the essential elements of a breach of the applicable standard of care and causation, the burden of proof shifted. At that point, Ms. Trotter was required to produce expert medical testimony sufficient to establish that she will be able to satisfy her evidentiary burden of proof at trial to establish both a breach of the applicable standard of care and causation. La. C.C.P. art. 966(C)(2); Schultz , 57 So.3d at 1009-10.
Ms. Trotter did not meet this burden. She presented no expert medical testimony to support her claim that Dr. Branton-Anders breached the applicable standard of care or to establish a causal connection between the alleged breach and any injury to Mr. Trotter. Ms. Trotter failed to establish the existence of any genuine issue of material fact with respect to whether Dr. Branton-Anders breached the applicable standard of care in her treatment of Mr. Trotter or as to causation. See La. C.C.P. art. 966(C)(2); Schultz , 57 So.3d at 1009-10; Cherry v. Herques , 623 So.2d 131, 134 (La. App. 1st Cir. 1993). Accordingly, the trial court properly granted summary judgment dismissing Ms. Trotter's lawsuit against Dr. Branton-Anders.
We also find no merit in Ms. Trotter's contention that the trial court erred in refusing to admit into evidence the position paper Dr. Branton-Anders submitted to the medical review panel. She contends Dr. Braton-Anders' position paper contradicts Dr. Branton-Anders' claim that she rendered appropriate care to Mr. Trotter and establishes that she deviated from the applicable standard of care, although Ms. Trotter does not specify in what manner it does so.
Generally, a trial court is afforded great discretion concerning the admission of evidence, and its decision to admit or exclude evidence may not be reversed on appeal in the absence of an abuse of that discretion. Medine v. Roniger , 03-3436 (La. 7/2/04), 879 So.2d 706, 711. The trial court excluded Dr. Branton-Anders' position paper because it had been altered by the addition of handwritten notations. However, we are unable to review the alterations because Ms. Trotter failed to proffer the excluded position paper. It is incumbent upon a party who contends evidence was improperly excluded to make a proffer thereof, and if he fails to do so, he cannot contend such exclusion was erroneous. Goza v. Parish of West Baton Rouge , 08-0086 (La. App. 1st Cir. 5/5/09), 21 So.3d 320, 331, writ denied, 09-2146 (La. 12/11/09), 23 So.3d 919. Under the circumstances, we find no abuse of the trial court's great discretion in its decision to exclude Dr. Branton-Anders' position paper.
Additionally, Ms. Trotter contends the trial court erred in allowing counsel for BRGMC, the LSU defendants, and Dr. Branton-Anders to argue against her collectively at the joint hearing held on their respective motions for summary judgment. She complains it was not apparent to her how much time she had to address the issues pertinent to each individual defendant. Initially, we note there is no indication Ms. Trotter raised any objection to the joint hearing. Further, a trial judge has great discretion in the manner in which proceedings are conducted before his court. La. C.C.P. art. 1631; Pino v. Gauthier , 633 So.2d 638, 648 (La. App. 1st Cir. 1993), writs denied, 94-0243, 94-0260 (La. 3/18/94), 634 So.2d 858-59. It is only upon a showing of a gross abuse of discretion that appellate courts have intervened. Pino , 633 So.2d at 648. Based on our review of the record, we find no abuse of discretion in this case, especially since no objection was raised to the joint hearing.
Lastly, we find no merit in Ms. Trotter's complaint that the trial court erred in denying her motion to continue the March 30, 2015 motion hearing. Ms. Trotter filed her motion for continuance on March 20, 2015, requesting an extension of at least twenty days in order for her to prepare her opposition by compiling evidence to establish the existence of material issues of fact. She asserted that "the compilation process given the number of defendants is voluminous."
A trial court may grant a continuance on peremptory or discretionary grounds. La. C.C.P. arts. 1601 & 1602. When peremptory grounds exist, a trial court must grant a continuance. There are only two such grounds: (1) a movant, despite due diligence, has been unable to obtain material evidence, and (2) a material witness is absent "without the contrivance of the party applying for the continuance." La. C.C.P. art. 1602; Armand v. Delgado , 99-2274 (La. App. 1st Cir. 11/3/00), 770 So.2d 896, 898. The movant bears the burden of proving that peremptory grounds for a continuance exist. Armand , 770 So.2d at 898. In this case, Ms. Trotter did not alleged any peremptory grounds for a continuance.
Additionally, La. C.C.P. art. 1601 provides for a continuance "if there is good ground therefor." The trial court must consider the particular facts of a case when deciding whether to grant or deny a continuance. The trial court should consider the diligence and good faith of the movant and other reasonable grounds. Armand , 770 So.2d at 898. Moreover, the trial court has great discretion in granting or denying a continuance under La. C.C.P. art. 1601, and its ruling should not be disturbed on appeal in the absence of a clear abuse of discretion. Armand , 770 So.2d at 898.
At the time that Dr. Branton-Anders filed her motion for summary judgment in February 2015, over three years had elapsed since Mr. Trotter's death in November 2011, over two years had elapsed since Ms. Trotter filed her request that a medical review panel review her claim against Dr. Branton-Anders, and more than ten months had elapsed since the opinion of the medical review panel favorable to Dr. Branton-Anders was rendered in April 2014. Therefore, Ms. Trotter had sufficient time to familiarize herself with the issues involved in this matter and to collect documents and records needed for her opposition. The trial court obviously concluded Ms. Trotter had not stated good grounds for a continuance. Based on the record, we find no abuse of discretion in the trial court's denial of Ms. Trotter's motion for continuance.
CONCLUSION
For the reasons assigned, the judgment of the trial court granting Dr. Branton-Anders' motion for summary judgment and dismissing Ms. Trotter's lawsuit as to her is affirmed. Despite Ms. Trotter's pauper status, the costs of this appeal are assessed to her as the unsuccessful party. See La. C.C.P. arts. 2164 & 5188; Lake Villas No. II Homeowners' Association , Inc. v. LaMartina , 15-0244 (La. App. 1st Cir. 12/23/15) (unpublished), writ denied, 16-0149 (La. 3/14/16), 189 So.3d 1070; State in Interest of EG , 95-0018 (La. App. 1st Cir. 6/23/95), 657 So.2d 1094, 1098, writ denied, 95-1865 (La. 9/1/95), 658 So.2d 1263.
AFFIRMED.