Court: Louisiana Court of Appeal; December 29, 2014; Louisiana; State Appellate Court
Michael McGrew appeals a summary judgment favoring Dr. Paul J. Waguespack, which dismissed McGrew's medical malpractice claim with prejudice. McGrew's lawsuit, filed on July 11, 2012, alleges negligence related to back surgery performed in April 2010, including failure to adequately diagnose, treat, and follow his condition; improper medical history evaluation; and inadequate informed consent. He claims these actions resulted in severe injuries, including permanent paralysis and extreme pain.
Dr. Waguespack filed a summary judgment motion on January 31, 2013, arguing McGrew did not provide expert testimony to establish a breach of the standard of care. Although the trial court initially denied this motion, Waguespack filed a second motion on July 16, 2013, reiterating the lack of expert testimony. Attached to this motion were court minutes from the first motion, a letter regarding deposition scheduling, and affidavits from Dr. Sandra Weitz and her employee, Michelle Hoppe.
The affidavits revealed that Dr. Weitz had been identified as an expert witness for McGrew but subsequently stated she would not serve in that capacity. Waguespack contended that without expert testimony, McGrew could not prove his claim, asserting that there was no genuine issue of material fact, thus warranting summary judgment. The court affirmed in part, reversed in part, and remanded the case for further proceedings.
Dr. Waguespack filed a motion to supplement his motion for summary judgment by attaching a June 5, 2013 letter regarding Dr. Weitz's deposition, clarifying that a May 23, 2013 letter was mistakenly attached previously. The trial court approved this supplementation. In response, Mr. McGrew sought to deny the summary judgment based on three arguments: inadequate discovery per C.C.P. art. 966C(1), the need for additional time under La. C.C.P. art. 967C to secure a replacement expert, and the claim that Dr. Waguespack's delayed discovery response waived his right to seek summary judgment. Mr. McGrew contended that the late delivery of his medical records on September 11, 2013 hindered his ability to hire an expert. He provided evidence including a request for production of documents, a letter confirming the delivery of medical records, and his affidavit.
In his affidavit, Mr. McGrew detailed his medical history, including a thoracic laminectomy performed by Dr. Waguespack on April 5, 2010, which resulted in severe pain and paralysis due to complications from the procedure. He stated that Dr. Weitz had informed him of errors during surgery and had initially planned to serve as his expert witness. Mr. McGrew claimed that Dr. Waguespack's inadequate response to discovery requests prior to the summary judgment motion impeded his ability to present necessary facts. Additionally, he expressed challenges in securing a new expert due to financial constraints and the need for a comprehensive review of his medical records. Mr. McGrew requested that the court deny the summary judgment to allow him time to obtain expert testimony.
Mr. McGrew argued that no depositions or discovery had occurred, asserting that 'adequate discovery' under La. C.C.P. art. 966C(1) was not yet completed. He filed an affidavit per La. C.C.P. art. 967C, requesting the court to deny the motion for summary judgment. A hearing took place on October 15, 2013, where Mr. McGrew's attorney emphasized Dr. Weitz as the medical expert and intended to subpoena her, despite the court noting her refusal to serve in that capacity. The trial court denied a further discovery extension, having previously granted one, and awarded summary judgment to Dr. Waguespack due to Mr. McGrew's lack of medical evidence to support his malpractice claim. On October 30, 2013, the court signed a judgment dismissing Mr. McGrew’s claims with prejudice.
For summary judgment, appellate courts review evidence de novo, ensuring no genuine issue of material fact exists (La. C.C.P. art. 966B(2)). Mr. McGrew's petition alleged malpractice by Dr. Waguespack, including failure to diagnose, improper surgery, and negligent removal of a spinal stimulator and blood clots. To succeed, Mr. McGrew must establish the standard of care, its violation, and causation, per La. R.S. 9:2794. He also claimed a failure to obtain informed consent, requiring proof of an undisclosed material risk, the failure to disclose that risk, that a reasonable patient would have rejected the treatment if informed, and that he suffered injury (Snider v. Louisiana Medical Mutual Insurance, 2013-0579). The summary judgment motion primarily questioned Mr. McGrew's ability to prove a breach of the standard of care without expert testimony, while it did not challenge his informed consent claim. Louisiana law distinguishes between claims under La. R.S. 9:2794 and the Uniform Consent Law, creating two statutory duties and two causes of action against physicians.
In Lieux v. Mitchell, the Louisiana Supreme Court recognized that surgical malpractice claims and informed consent claims are separate causes of action. The court noted that negligence in medical malpractice can arise from both lack of skill and failure to obtain informed consent. In this case, the trial court erroneously granted Dr. Waguespack's motion for summary judgment without addressing Mr. McGrew's informed consent claim.
The court emphasized that expert testimony is generally required to establish the standard of care in malpractice cases unless the negligence is so apparent that a layperson can recognize it without expert input. Mr. McGrew alleged negligence related to a thoracic laminectomy procedure but failed to demonstrate that the negligence was obvious or egregious enough to forego expert testimony. Furthermore, Mr. McGrew's identified potential expert witness was unavailable, and he did not provide evidence of the standard of care or its breach by Dr. Waguespack. Once Dr. Waguespack raised the issue of the lack of expert testimony, the burden shifted to Mr. McGrew to show he could meet this evidentiary requirement at trial, which he failed to do. Under Louisiana law, if a party cannot present necessary facts to oppose a motion for summary judgment, the court may refuse the motion, allow continuance for further evidence, or take other appropriate action.
Mr. McGrew submitted an affidavit to the court requesting a delay in the summary judgment proceedings to allow time to secure an expert witness, as Dr. Weitz had declined to assist him. He explained that obtaining a complete set of medical records, which consisted of thousands of pages, was necessary for retaining an expert, and he also needed to pay a retainer; however, he faced financial hardship. The court noted that there is no absolute right to postpone a summary judgment motion until discovery is complete. Under Louisiana law, a trial court has the discretion to grant continuances for necessary discovery, but the trial court had previously denied a similar motion from Dr. Waguespack to allow for additional discovery. The lawsuit had been pending for fifteen months by the time the summary judgment motion was considered, and over three years had passed since the alleged malpractice incident, yet Mr. McGrew had not obtained expert testimony. Consequently, the trial court’s refusal to grant additional time for Mr. McGrew to secure an expert was upheld, affirming the summary judgment on the malpractice claim under La. R.S. 9:2794. However, the judgment regarding the informed consent claim was reversed, and the case was remanded for further proceedings. Costs related to the appeal were equally divided between the parties. Additionally, Mr. McGrew's request for a medical review panel was dismissed due to the failure to appoint an attorney chairman within the required timeframe. Dr. Waguespack sought to strike portions of Mr. McGrew’s affidavit as hearsay, and legislative changes affecting informed consent laws were noted.
