Court: Louisiana Court of Appeal; February 11, 2014; Louisiana; State Appellate Court
Janie Lejeune appeals the trial court's summary judgment favoring Dr. Thad Bourque and Louisiana Medical Mutual Insurance Company in her medical malpractice suit concerning the treatment of her late husband, Joseph Lejeune. She alleges that Dr. Bourque failed to meet the standard of care. The defendants submitted an affidavit from a medical review panel indicating that Dr. Bourque's treatment was appropriate and did not breach the standard of care. The trial court determined that Mrs. Lejeune did not provide sufficient expert testimony to counter the medical review panel's opinion and dismissed her claim with prejudice, ordering her to bear the costs.
The facts reveal that after experiencing blood in his urine, Joseph Lejeune was referred to Dr. Bourque, who diagnosed a seven-centimeter kidney mass requiring a radical nephrectomy on September 17, 2008. Post-surgery, Mr. Lejeune was discharged on September 21, 2008, and his follow-up visit on September 25, 2008, showed normalized liver enzymes and a pathology report indicating clear margins of excision. Dr. Bourque noted the high-grade nature of the tumor presented a risk of recurrence, which prompted him to schedule quarterly follow-ups and tests. During a follow-up visit on October 30, 2008, tests showed no signs of cancer recurrence, and Dr. Bourque emphasized the importance of ongoing monitoring. A subsequent appointment was set for January 22, 2009.
On December 8, 2008, Mr. Lejeune visited Dr. Bourque’s satellite office expressing concern about potential cancer recurrence due to swelling. Although Dr. Bourque was not present, Nurse Nancy Major consulted with him and advised Mr. Lejeune to see his family physician, Dr. Mark Dawson. Mr. Lejeune planned to schedule an appointment with Dr. Dawson but there is no documentation confirming he did so. He returned to Dr. Bourque on January 22, 2009, where his weight was stable, and testing revealed normal results, except for slightly lower blood counts and elevated blood sugar and kidney function, which were anticipated due to his age and condition. Dr. Bourque intended to schedule follow-up appointments every three months, but for unclear reasons, an appointment was set for six months later. Mr. Lejeune continued treatment with Dr. Dawson, visiting him three times in June 2009, reporting cough and shortness of breath. Chest x-rays revealed bilateral pneumonia and cardiomegaly, with further imaging on June 30 indicating additional complications. On July 1, Mr. Lejeune’s condition worsened, leading to an emergency room visit and subsequent hospitalization. He was diagnosed with metastatic lung disease due to his prior renal cell carcinoma by oncologist Dr. Joseph E. Brierre, who recommended outpatient chemotherapy. After discharge, Mr. Lejeune was readmitted to Ochsner Baptist Hospital on July 8, where further testing confirmed brain metastasis. He passed away on July 29, 2009.
On July 21, 2009, Dr. Bourque's office called the Lejeunes to remind them of Mr. Lejeune’s appointment on July 23. Mrs. Lejeune expressed dissatisfaction with the service, citing Dr. Bourque's refusal to see Mr. Lejeune a month prior, a claim not reflected in the office's medical records. She informed the office that Mr. Lejeune was receiving cancer treatment at Ochsner Baptist Hospital. Following her husband's death, Mrs. Lejeune filed a claim with the Louisiana Patient’s Compensation Fund, which determined Dr. Bourque met the standard of care. Subsequently, Mrs. Lejeune sued Dr. Bourque and his insurer for wrongful death, loss of chance of survival due to alleged inadequate care, and survival damages for pain and suffering. The Defendants moved for summary judgment, arguing that Mrs. Lejeune lacked competent expert evidence to show a breach of care or causation. A hearing on the motion occurred on December 17, 2012, after discovery, and the court allowed Mrs. Lejeune thirty days to submit a physician's affidavit regarding the breach. At a subsequent hearing on February 19, 2013, the court reviewed her evidence, which included an affidavit and a narrative from an oncologist, not a urologist, and granted the Defendants' summary judgment motion, finding the affidavit insufficient to contest the judgment. Mrs. Lejeune then filed an appeal, claiming that the trial court erred in granting summary judgment. Summary judgments are reviewed de novo, requiring the mover to demonstrate no genuine issue of material fact exists, after which the burden shifts to the non-moving party to provide evidence of such an issue. Failure to do so results in the granting of the motion.
A fact is considered 'material' if its existence or absence is crucial to a plaintiff's cause of action based on the relevant legal theory. Material facts can influence the success of a case or determine its outcome. In evaluating materiality, one must reference the substantive law applicable to the case. In medical malpractice cases, a plaintiff must demonstrate the standard of care expected from the physician, any breach of that standard, and a causal link between that breach and the injuries sustained, as outlined in Louisiana law. Expert testimony is typically necessary unless the negligence is apparent enough for a layperson to discern without such guidance.
Specifically, Louisiana Revised Statutes 9:2794(A) mandates that the plaintiff prove the physician's level of knowledge or skill, any deviation from this standard, and that such deviation directly caused the plaintiff's injuries. Evidence needed includes establishing the standard of care, a breach of that standard, and a causal relationship between the breach and the injury. In support of a motion for summary judgment, Dr. Bourque submitted a unanimous opinion from a Medical Review Panel (MRP), which is relevant in assessing the motion. Previous case law affirms that the plaintiff must establish the defendant's conduct as below the standard of care, and the MRP's opinion can help demonstrate a lack of factual support for the plaintiff's claims.
The Medical Review Panel unanimously concluded that Dr. Thad Bourque adhered to the standard of care expected of healthcare providers in his specialty, asserting that his medical care was appropriate and met acceptable standards. In opposition to the motion for summary judgment, Mrs. Lejeune presented an affidavit from Dr. Mohamed B. Elmongy, a hematologist and oncologist, who provided his opinions on the care given to Mr. Lejeune, both prior to and after Dr. Elmongy treated him. The affidavit included an unsigned and undated narrative report, which was unauthenticated and referenced clinical practice guidelines for oncology, not urology. This narrative suggested that Mr. Lejeune, having a high-grade tumor, could have been referred to an oncologist for potential clinical trial options for his condition.
The Louisiana Code of Civil Procedure Article 967 outlines that affidavits opposing a motion for summary judgment must be based on personal knowledge and contain admissible facts, affirming the affiant's competence to testify. The article also emphasizes that if a motion is adequately supported, the opposing party must provide specific facts demonstrating a genuine issue for trial, or risk summary judgment being granted against them. Mrs. Lejeune contends that the trial court improperly dismissed her expert's testimony solely on the basis of specialty, arguing that the relevant standard of care should be the focus, irrespective of the expert's specific medical field. Citing relevant case law, she asserts that a specialist’s knowledge is what qualifies them to testify regarding the applicable standard of care, not strictly their specialty or subspecialty.
The trial court did not dismiss Dr. Elmongy’s affidavit based solely on his oncology specialty, suggesting that specialists in urology and oncology can discuss similar care for cancer patients. However, the court deemed Dr. Elmongy’s opinion insufficient to counter the motion for summary judgment, stating he did not provide a definitive opinion on the standard of care or a breach thereof. The court expressed concern over Dr. Elmongy’s use of "could have" in his affidavit regarding the referral of Mr. Lejeune to an oncologist, which was viewed as speculative rather than conclusive.
Furthermore, the court found that the narrative accompanying the affidavit did not meet the requirements of Louisiana Code of Civil Procedure Article 967, as it was not a sworn or certified document. The narrative's assertion that Dr. Bourque could have referred Mr. Lejeune for evaluation and possible clinical trials was inadequate to establish a breach of care or a causal link to the patient’s death. The trial court concluded that the plaintiff failed to adequately challenge the findings of the Medical Review Panel (MRP) and affirmed the summary judgment in favor of Dr. Bourque and Louisiana Medical Mutual Insurance Company, with costs assessed to Janie Lejeune. Acknowledgment of a Comprehensive Metabolic Panel (CMP) and Complete Blood Count (CBC) tests was included but not directly relevant to the judgment.
