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Foster v. Patwardhan
Citations: 132 So. 3d 495; 2014 WL 229834; 2014 La. App. LEXIS 146Docket: Nos. 48,575-CA, 48,712-CA
Court: Louisiana Court of Appeal; January 21, 2014; Louisiana; State Appellate Court
Defendants Dr. Ravish Patwardhan, Dr. Patwardhan, and Louisiana Medical Mutual Insurance Company (LAMMICO) appeal partial summary judgments granted in favor of plaintiff Kerry Foster by the First Judicial District Court in Louisiana. The court affirms the judgment regarding liability but reverses the judgment on statutory damages. Foster sought a neurosurgical evaluation from Dr. Patwardhan on August 5, 2008, following unsuccessful lumbar spine surgery by Dr. Jorge Martinez due to a work-related injury in 2005. Foster experienced severe back pain and numbness, leading to Dr. Patwardhan ordering an MRI and a discogram, which indicated the need for surgery. On September 19, 2008, Dr. Patwardhan performed a transforaminal lumbar inter-body infusion (TLIF) at L3-L4; however, post-surgery, Foster reported new right lower extremity pain and weakness. Following the surgery, Dr. Patwardhan conducted several follow-ups and CT scans, believing the hardware placement was correct and noting signs of fusion. Despite this, on June 24, 2009, due to ongoing pain, Foster was referred for further evaluation. Dr. Donald Smith, who examined Foster on July 29, 2009, found inadequate evidence of bone fusion and unsatisfactory hardware condition. Subsequently, on April 6, 2010, Dr. Pierce Nunley performed corrective surgery, finding the hardware improperly affixed. Foster then requested a medical review panel to assess Dr. Patwardhan's alleged malpractice. The panel's unanimous opinion, issued on December 29, 2011, concluded that Dr. Patwardhan did not meet the required standard of care and contributed to Foster's damages, including improper follow-up and inadequate patient candidacy assessment for the surgery. Following this, Foster filed a medical malpractice suit against Dr. Patwardhan and LAMMICO. Foster's petition for damages against Dr. Patwardhan claims a breach of the standard of care, leading to significant personal and professional losses, including debilitating pain, permanent disability, and emotional distress. Foster filed a motion for partial summary judgment on liability, supported by a medical review panel opinion and affidavits indicating Dr. Patwardhan's breach of care. In opposition, Dr. Patwardhan and Dr. Lieberson provided affidavits asserting that the care provided was appropriate and within the standard. The trial court granted Foster's motion, determining that Dr. Patwardhan's and Dr. Lieberson's affidavits did not present sufficient evidence to create a genuine issue of material fact. The court emphasized the panel's findings against Dr. Patwardhan and questioned his capacity to provide a competent affidavit. Dr. Patwardhan appealed this ruling, while Foster subsequently sought partial summary judgment on statutory damages, which was also granted and appealed by Dr. Patwardhan. The appellate court reviews summary judgments de novo, under the same standards as the district court, focusing on the absence of genuine issues of material fact and the mover's entitlement to judgment as a matter of law, as outlined in Louisiana Civil Code Procedure articles 966 and 967. The burden lies with the movant to demonstrate a lack of factual support for the opposing party’s claims. The provision dictates that in a motion for summary judgment, the burden of producing evidence rests initially on the mover, who can fulfill this by submitting affidavits or indicating the lack of factual support for an essential element in the opposing party's case. The opposing party, typically the plaintiff, must then provide evidence demonstrating their ability to meet the burden of persuasion at trial. If the moving party adequately supports their motion, the nonmoving party's failure to show a material factual dispute necessitates granting the motion. To establish a medical malpractice claim, a plaintiff must prove by a preponderance of evidence: 1) the applicable standard of care, 2) the breach of that standard by the defendant, and 3) a causal link between the breach and the injury. Expert testimony is generally required to establish the standard of care and its breach, unless the negligence is evident to a layperson. On appeal, Dr. Patwardhan argues that the trial court erred in granting partial summary judgments on liability and statutory damages, asserting that two expert affidavits indicating he did not breach the standard of care create a genuine issue of material fact. Regarding statutory damages, he disputes the factual determination of whether Foster has a true right foot drop. In response to Foster's motion for partial summary judgment, Dr. Patwardhan, as the nonmover, was required to produce evidence of a material factual dispute. He submitted two expert affidavits, including one from himself and another from Dr. Lieberson, claiming these contradict Foster's motion and establish a factual dispute about his adherence to the standard of care. The court, however, found these affidavits insufficient for summary judgment. The trial court ruled that Dr. Patwardhan did not possess the necessary qualifications under La. R.S. 9:2794(D) to serve as an expert witness regarding the neurosurgical procedures in question. The trial court's determination of expert witness competence is subject to great discretion and will not be overturned unless there is an abuse of that discretion, as established in legal precedents. To qualify as an expert witness in a medical malpractice claim under Louisiana law, a physician must meet several criteria: they must be actively practicing medicine or practicing at the time the claim arose; possess knowledge of accepted medical care standards relevant to the claim; have appropriate training or experience to provide expert opinions on those standards; and hold a valid medical license from Louisiana or another U.S. jurisdiction, or be a graduate of an accredited medical school. The court evaluates the qualifications based on whether the witness is board certified, has substantial relevant training or experience, and is currently practicing in the relevant medical field. In this case, the trial court determined that Dr. Patwardhan did not meet these requirements, finding he lacked the necessary knowledge and qualifications to provide expert testimony regarding the neurosurgical procedures at issue. Key factors included his lack of board certification, insufficient training or experience, and his non-active status in neurosurgery, as supported by public records. Furthermore, the State Board of Medical Examiners had deemed him incompetent to practice neurosurgery, reinforcing the trial court's decision. The trial court also rejected Dr. Lieberson's expert affidavit, deeming it conclusory and lacking specific facts necessary to meet the standards for supporting affidavits under Louisiana Code of Civil Procedure articles. These articles stipulate that affidavits must be based on personal knowledge, contain admissible evidence to demonstrate the affiant's competence, and provide specific facts to show a genuine issue for trial when responding to a motion for summary judgment. The court found no error in its determinations regarding the qualifications of both Dr. Patwardhan and Dr. Lieberson. Summary judgment may be rendered against a party if they fail to respond appropriately. Dr. Lieberson's affidavit, which asserts that he reviewed Foster's medical records and concluded that Dr. Patwardhan's surgical and follow-up care was appropriate, lacks sufficient detail. It does not provide factual background, the applicable standard of care, or reasoning for his conclusions, rendering it inadequate as summary judgment evidence under La. C.C.P. art. 967. Additionally, Dr. Patwardhan attempted to submit an unsworn and unverified expert report from Dr. Lieberson, which was initially disallowed by the trial court but mistakenly admitted later. Upon rehearing, the court struck the report from the record, recognizing it did not meet the necessary evidentiary standards for summary judgment. Dr. Patwardhan argued that the trial court erred in granting summary judgment on the issue of statutory damages, claiming genuine issues of material fact regarding Foster's injury status, specifically concerning the existence of a right foot drop. This argument holds merit, as damages in such cases are fact-dependent. Nonetheless, summary judgment is permissible if the record demonstrates no genuine issue of material fact. Under La. R.S. 40:1299.42(B), Dr. Patwardhan's personal liability for damages is capped at $100,000. The trial court ultimately ruled that the evidence supported a finding that Foster's injury reached this cap, resulting in a summary judgment in Foster's favor. To obtain summary judgment, Foster needed to demonstrate that no factual disputes existed regarding damages exceeding the $100,000 statutory limit. It was established that his economic damages did not meet this threshold, necessitating proof of a right foot drop. Foster provided an affidavit detailing pain and numbness in his right foot post-surgery and claimed that his foot slaps the ground when walking, indicative of a right foot drop. He included a physician report from Dr. David Adams, who, while not explicitly stating it, indicated Foster likely has a right foot drop but also noted some ambiguity regarding this diagnosis. Dr. Patwardhan opposed the motion, providing an affidavit and reports from Dr. Nunley and other specialists. He asserted that Foster had no right foot drop when he last treated him and that he observed Foster exercising without assistance. Dr. Nunley’s follow-up report indicated full strength in Foster's right lower extremity. The court identified a factual dispute regarding Foster's condition, concluding that summary judgment on statutory damages was inappropriate, as this matter should be resolved by a factfinder. The trial court's partial summary judgment on liability was upheld, while the judgment on statutory damages was reversed due to the existence of genuine factual issues. Costs of the appeal were equally assigned to the parties. The decision was affirmed in part and reversed in part, with Chief Justice Brown dissenting with written reasons.