In its opinion dated March 14, 2018, the State of Louisiana Court of Appeal, Third Circuit (“Louisiana Appellate Court”) affirmed summary judgment in favor of the Louisiana medical malpractice defendant orthopedic surgeon and affirmed dismissal of the Louisiana medical malpractice plaintiff’s claims, holding that the defendant established through the medical review panel opinion that he did not breach the standard of care owed to the plaintiff, and that the plaintiff failed to produce any expert testimony as to the standard of care the defendant owed him post-operatively and that the defendant breached that standard of care.
The Underlying Facts
On July 1, 2013, the 18-year-old plaintiff had non-emergency, elective outpatient right shoulder arthroscopy with SLAP and Bankart repair for painful rotator cuff syndrome that were performed by the defendant orthopedic surgeon.
Before the surgical procedure, the plaintiff received an interscalene nerve block as well as other medications. During the procedure, the plaintiff received additional medications. Following the successful surgery, the plaintiff was administered more medications.
After the plaintiff’s airway was removed and he was noted to be alert, oriented, and able to sit up and stand without dizziness or significant change in vital signs, the plaintiff was discharged to home in the care of his parents. The plaintiff was instructed to use an EB ice machine as needed, an arm sling, and place no weight on the right arm. The plaintiff was given a prescription for Hydrocodone at the doctor’s office before surgery and this medication was to be used at home for pain. The notes indicate that the plaintiff and family were unsure of the dose, but the prescription was at home once needed.
Later that evening, the plaintiff was found unconscious and an ambulance was called to transport him to the hospital. The ambulance records indicate that the plaintiff’s mother had given him one Oxycodone. Narcan was administered by the ambulance crew but was not effective. He was intubated through his nose and was transferred to the emergency room. The plaintiff fell into a coma for five days after his release and he lost the use of his left side.
A Louisiana medical review panel opinion rendered on May 26, 2016 found that all parties involved met the standard of care.
The plaintiff subsequently filed his Louisiana medical malpractice lawsuit against the defendant orthopedic surgeon as well as the anesthesiologist, the hospital, and others, alleging that the surgery and postsurgical care required extensive anesthesia and heavy narcotic medication, that he was released too early following his surgery, and that he went into a coma for five days causing a brain injury.
The defendant orthopedic surgeon filed a motion for summary judgment, which the trial court granted and dismissed all of the plaintiff’s medical malpractice claims against the defendant orthopedic surgeon. The plaintiff appealed.
Louisiana Appellate Court Decision
The plaintiff opposed the defendant orthopedic surgeon’s motion for summary judgment with the affidavit of an anesthesiologist and pain management physician, who opined that “[t]he patient was not monitored long enough prior to discharge from the Recovery Room at Lafayette Surgery Center.” The defendant orthopedic surgeon argued that the plaintiff’s anesthesiology expert was not qualified to render an opinion on whether or not the defendant breached the standard of care of an orthopedic surgeon in his treatment of the plaintiff, and further argued that the plaintiff did not offer any expert testimony that the defendant orthopedic surgeon’s alleged breach caused or contributed to any injury damages sustained by the plaintiff.
The Louisiana Appellate Court stated that the alleged malpractice did not involve any issue peculiar to orthopedic surgery. Rather, the plaintiff argues that the malpractice occurred in his post-operative care and release. Therefore, the Louisiana Appellate Court agreed with the plaintiff that an expert in orthopedic surgery was not required. However, even if the plaintiff’s anesthesiologist expert was qualified to offer an opinion as to whether the defendant orthopedic surgeon breached the standard of care regarding the plaintiff’s post-operative care, the Louisiana Appellate Court held that the plaintiff’s expert’s affidavit is insufficient to establish that the defendant orthopedic surgeon breached the standard of care: the expert’s affidavit never states what standard of care was owed to the plaintiff by the defendant orthopedic surgeon or that he breached any standard of care at all in his care of the plaintiff (the affidavit never mentions the defendant orthopedic surgeon). The Louisiana Appellate Court stated that affidavits that are conclusory with no supporting underlying facts are legally insufficient to defeat a motion for summary judgment.
The Louisiana Appellate Court held that the defendant orthopedic surgeon “established through the medical review panel opinion that he did not breach the standard of care owed to [the plaintiff]. [The plaintiff] failed to produce any expert testimony as to the standard of care [the defendant orthopedic surgeon] owed him post-operatively and that [he] breached that standard of care.”
Source Thomas v. Drew, CA 17-818.
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