Court: Louisiana Court of Appeal; October 23, 2002; Louisiana; State Appellate Court
Terri Lynn Savage appealed a summary judgment that dismissed her dental malpractice claim against Dr. John McConnell and his insurer, Medical Protective Company. The case arose from a root canal performed by Dr. McConnell in May 1998, after which Savage did not express any complaints until over a year later, when she alleged negligence regarding pain and billing issues. A medical review panel unanimously found that Dr. McConnell met the standard of care and that his actions were not a factor in Savage's claimed damages. In May 2001, Savage filed a petition alleging negligence, claiming Dr. McConnell failed to notice a broken file left in her jaw and did not follow up on her pain. The defendants moved for summary judgment, supported by the MRP's findings and affidavits from Dr. McConnell and his assistant, stating that file breakage during root canal procedures is not a breach of standard care. Savage, representing herself after her attorney withdrew, did not provide any expert evidence to dispute the motion. The court ruled that Savage had sufficient time to hire new counsel and had failed to present admissible evidence, leading to the affirmation of the summary judgment in favor of the defendants.
Ms. Savage's appeal addressed the summary judgment procedure, which aims for a just, speedy, and inexpensive resolution of legal actions, as outlined in La. C.C.P. art. 966 A(2). A motion for summary judgment is granted when there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law, per La. C.C.P. art. 966 B, C(1). Appellate review of such judgments occurs de novo. When a motion is properly supported, the opposing party must produce specific facts via affidavits or other evidence to show a genuine issue for trial; failure to do so results in judgment against them (La. C.C.P. art. 967). The burden on the moving party, if they do not bear the burden of proof at trial, is to demonstrate an absence of factual support for the opposing party's claims (La. C.C.P. art. 966 C(2)).
In medical malpractice cases, plaintiffs must establish the standard of care, breach, and causation (La. R.S. 9:2794 A). A favorable affidavit from the treating physician can demonstrate a lack of factual support for the plaintiff's claims (Hinson v. Glen Oak Retirement Home). In this case, Dr. McConnell's motion for summary judgment was supported appropriately, shifting the burden to Ms. Savage, who failed to provide evidence to create a genuine issue of material fact. Ms. Savage claimed to have an affidavit from Dr. Neer but did not file it, leaving no evidence for consideration. Simply referencing an expert does not counter a supported motion for summary judgment. Expert testimony is typically required in medical malpractice cases, and this case was no exception.
The summary judgment was affirmed, with costs assessed to Ms. Savage.
