
    Scott Lynn PERKINS v. COASTAL EMERGENCY MEDICAL SERVICES, et al.
    No. 2000-1036.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 7, 2001.
    Writ Granted May 4, 2001.
    Jack W. Caskey, Lake Charles, LA, Counsel for Scott Lynn Perkins.
    Michael Keith Prudhomme, Woodley, Williams, Boudreau Lake Charles, LA, Counsel for Louisiana Patient’s Compensation Fund.
    
      Court composed of Judge YELVERTON, Judge, DECUIR and Judge AMY.
   hYELVERTON, J.

Scott Lynn Perkins, surviving husband of Angela Sigler Perkins, sued Dr. Stephen Ayers and Coastal Emergency Medical Services, Inc., the service provider for the emergency room at the West Calcasieu Cameron Hospital, for medical malpractice. On February 24,1993, his seventeen-year-old wife was brought to the emergency room of West Calcasieu Cameron Hospital with severe abdominal pain. She reported that she had been vomiting and had diarrhea for four days and that she had seen a doctor in DeQuincy two days earlier who told her to get to a hospital if the symptoms persisted. She was seen at the hospital by Dr. Ayers, who diagnosed her with gastritis, gave her a GI cocktail and pain medication, and discharged her. Her condition worsened, and on February 28, 1993, she was admitted to the University Medical Center in Lafayette where she underwent abdominal surgery and ten days later, she died.

The Plaintiff sued for his damages for his wife’s death and asserted a survival action. Mr. Perkins settled with Dr. Ayers and Coastal Medical for the $100,000 statutory limit for their liability under Louisiana Revised Statute 40:1299.41, et seq. The trial court approved the settlement on April 29,1999. The Plaintiff then sued the Louisiana Patient’s Compensation Fund (PCF) for additional damages. After the PCF’s intervention, the Plaintiff filed a motion for summary judgment alleging entitlement to the $500,000 statutory cap for medical malpractice. The trial judge granted the summary judgment for that amount, plus $36,758.59 in medical expenses.

The PCF appeals. We affirm.

Summary judgments are reviewed on appeal de novo. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226. The guidelines for obtaining summary judgment are stated in Louisiana Code Civil | ^Procedure Articles 966 and 967. A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” Article 966(B). Among the guidelines of the article is that “summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action.... The procedure is favored and shall be construed to accomplish these ends.” Article 966(A)(2). The burden of proof remains with the movant. Article 966(C)(2). When a motion for summary judgment is made and supported as provided, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided, must set forth specific facts showing that there is a genuine issue for trial. Article 967. If he does not respond, summary judgment, if appropriate, shall be rendered against him. Article 967.

In a medical malpractice action, the plaintiff has the burden of proving, by a preponderance of the evidence, (1) that the doctor’s treatment fell below the standard of care expected of a physician in his medical speciality, and (2) the existence of a causal relationship between the alleged negligent treatment and the injury sustained. Fusilier v. Dauterive, 2000-151 (La.7/14/00), 764 So.2d 74. Louisiana Revised Statute 40:1299.44(0(5) states that in approving a settlement, the court shall consider the liability of the health care provider as admitted and established when $100,000 has been paid. In a medical malpractice case, summary judgment is an appropriate vehicle both as to findings of liability and damages. Bijou v. Alton Ochsner Medical Found., 95-3074 (La.9/5/96), 679 So.2d 893; Bramlet v. The Louisiana Patient’s Compensation Fund, 98-1728 (La.11/6/98), 722 So.2d 984. Where a medical malpractice victim is clearly entitled to the statutory limit of $500,000, a summary | .-¡judgment will eliminate the need for unnecessary litigation and promote judicial economy. Bijou, 679 So.2d 893.

In the present case, the harm was Mrs. Perkins’ death. The Plaintiffs offerings on motion for summary judgment as to liability were Dr. Ayers’ admission of liability, the medical review panel’s finding that Dr. Ayers’ lack of action likely contributed to the patient’s demise, and lay testimony establishing the progression of events from Dr. Ayers’ discharge of the patient until her death a few days later following intestinal surgery at University Medical Center.

The offerings included depositions of family and friends who attended the deceased constantly during her last illness. Mrs. Perkins suffered terribly before she died. The offerings included the deposition of her husband explaining his loss, the deposition of an economist concluding that the economic impact of her death was $584,329, and the joint motion for approval of the malpractice settlement which contained Dr. Ayers’ admission of liability. The medical review panel reported:

Based on the patient’s four day history of the present illness specifically nausea and vomiting which was unrelieved by previous measures taken by the patient’s family physician, Dr. Ayers should have worked her up further. A minimum of electrolytes and abdominal x-rays, and possibly IV rehydration was indicated. Although there are complicating factors, ultimately Dr. Ayers lack of action likely contributed to the patient’s demise.

Mr. Perkins was devoted to his wife, they were a loving couple, and his great loss was established. The victim went through a slow and agonizing death. Her head and body swelled beyond recognition. She vomited what witnesses believed were the contents of her own bowels. When she was conscious, she asked if she was going to die.

In Graham v. Willis-Knighton Medical Center, 97-188, p. 15 (La.9/9/97), 699 So.2d 365, 372, the supreme court was concerned with the extent of plaintiffs burden of proving causation after an admission of liability is triggered by a $100,000 settlement. The court stated:

[T]he legislative intent of “liability” in Section 1299.44C(5) was that the payment of $100,000 in settlement establishes proof of liability for the malpractice and for damages of at least $100,000 resulting from the malpractice, which is a very significant benefit to the medical malpractice victim. However, at the trial against the Fund, the plaintiff has the burden of proving that the admitted malpractice caused damages in excess of $100,000.

The settlement with Dr. Ayers relieved Mr. Perkins of the obligation of proving (1) the standard of care and (2) a breach by the healthcare provider. McPherson v. Lake Area Medical Center, 99-977 (La. App. 3 Cir. 12/29/99), 755 So.2d 972, appeal after remand 99-1876 (La.App. 3 Cir. 5/24/00), 767 So.2d 102, unit denied, 2000-1928 (La.9/29/00), 770 So.2d 353. Mrs. Perkins lost her life as a result of Dr. Ayers’ substandard care. Liability for her death was admitted in Dr. Ayers’ settlement. The only issue left was how much, if any, did her husband’s and her estate’s damages exceed $100,000 on account of Dr. Ayers’ admitted malpractice. We find on the basis of the summary judgment evidence evaluated de novo that the fault of the healthcare provider caused damages far in excess of $500,000. Mr. Perkins met his burden of proof and was entitled to judgment unless the adverse party showed that there was a genuine issue of material fact left for trial.

In opposition to the motion for summary judgment, the PCF offered the October 1999 affidavit of Dr. Ayers. In this remarkable affidavit, Dr. Ayers recanted his April 1999 admission of liability, and concluded that the patient died because of complications of abdominal surgery at University Medical Center, and not because of any fault or substandard care on his part.

| ¡¿The PCF’s appeal argues that this affidavit raises genuine issues of material fact regarding causation of damages in excess of $100,000. It argues that the affidavit alleged specific facts showing that there were genuine issues for trial. In the affidavit Dr. Ayers gave his opinion regarding the cause of Mrs. Perkins’ death. Underscoring that opinion, he injected a factual defense to his own liability, stating that after he saw her, she was discharged home with instructions to return in 24 hours if her symptoms returned, and that she did not return as instructed. Presumably interpreting the University Medical Center’s records, Dr. Ayers’ affidavit attributed Angela Perkins’ death to “known and recognized complications from abdominal surgery,” and denied that the abdominal surgery was necessitated by any fault or substandard care on his part. Although he never blamed anyone else, in his affidavit Dr. Ayers declared that even if he was guilty of any fault or substandard care, it was not the cause of the patient’s death.

The affidavit summarized: “Here, the patient died as a result of complications from abdominal surgery.... The abdominal surgery was not necessitated by any fault or substandard care on the part of Affiant.” In effect, Dr. Ayers’ affidavit denied that he was liable for even the first $100,000.

The PCF cannot create an issue of material fact by introducing the affidavit of the malpracticing physician recanting his admission of liability and substituting for that admission a scenario removing any causative relationship between his fault and the harm suffered.

Because the Mover’s offerings in support of summary judgment met the proof requirements that the admitted malpractice caused damages in excess of $500,000, and because the PCF’s response fails to show there exists a genuine issue for trial, the summary judgment is affirmed at appellant’s costs.

AFFIRMED.

AMY, J., dissents and assigns reasons.

_JjAMY, J.,

dissenting.

I respectfully dissent from the majority opinion as I conclude that the plaintiff failed to satisfy the burden required to prevail on the Motion for Summary Judgment. I first note that the plaintiff essentially argues that, because Dr. Ayers tendered $100,000 in settlement, liability is established for the entirety of the damages demonstrated. The PCF argues that Dr. Ayers’ settlement establishes liability for the first $100,000 of damages and that the plaintiff is relieved of proving that there was a breach of the standard of care. However, it contends that the plaintiff is still required to prove causation for damages in excess of $100,000.

In Graham v. Willis-Knighton Medical Center, 97-0188 (La.9/9/97), 699 So.2d 365, the Louisiana Supreme Court was faced with a malpractice action in which the defendant physician tendered the $100,000 statutory responsibility prior to trial. The Court addressed the issue of which party bears the burden of proof following such a settlement, stating:

We now conclude that the legislative intent of “liability” in Section 1299.44C(5) was that the payment of $100,000 in settlement establishes proof of liability for the malpractice and for damages of at least $100,000 resulting from the malpractice, which is a very significant benefit to the medical malpractice victim. However, at trial against the Fund, the plaintiff has the burden of proving that the admitted malpractice caused damages in excess of $100,000.

Id. at p. 15; 372 (emphasis added). Thus, the supreme court has instructed that the $100,000 settlement establishes liability and damages up to $100,000. Causation, 12however, remains at issue for damages exceeding the settlement figure.

The plaintiff attempted to meet his burden as the movant by introducing the opinion of the Medical Review Panel, his own affidavit regarding the couple’s relationship and the medical expenses incurred for his wife’s treatment, the deposition and report from an economist who offered his opinion regarding economic losses due to Mrs. Perkins’ death, and deposition testimony of family members and friends. While this testimony provided general, chronological descriptions of the events at issue, the evidence is most useful for the quantum of damages aspect of the case, rather than the causation of those damages. After review, I conclude that this evidence is insufficient to satisfy the plaintiffs burden for summary judgment purposes. Important in this conclusion is the opinion of the Medical Review Panel, which provides:

The evidence supports the conclusion that the defendant, Dr. Stephen Ayers, failed to comply with the appropriate standard of care as charged in the complaint, and the conduct complained of was a factor of resultant damages.
Based on the patient’s four day history of the present illness specifically nausea and vomiting which was unrelieved by previous measures taken by the patient’s family physician, Dr. Ayers should have worked her up further. A minimum of electrolytes and abdominal x-rays, and possibly IV rehydration teas indicated. Although there are complicating factors, ultimately Dr. Ayers lack of action likely contributed to the patient’s demise.
There is a material issue of fact, not requiring expert medical opinion, bearing on liability for consideration by the court concerning Coastal Emergency Medical Services.
As to the relationship between Coastal Emergency Medical Services and Dr. Ayers, we feel that since no evidence was presented as to the medical culpability of Coastal, any subsequent decision about liability concerns legal and not medical issues.

As explained above, La.R.S. 40:1299.44(0(5) provides that, in assessing damages to be paid from the fund, “the court shall consider the liability of the health | scare provider as admitted and established where the insurer has paid one hundred thousand dollars.” While this provision may make summary judgment possible for the awarding of damages in some medical malpractice cases, see Bijou v. Alton Ochsner Med. Found., 95-3074 (La.9/5/96), 679 So.2d 893, I conclude this is not such a case, given the scant evidence presented.

The plaintiff has presented virtually no evidence regarding the factual background of the case, limiting the court’s contextual view and making it impossible to determine whether or to what extent Dr. Ayers’ fault was the source of all damages in excess of $100,000. The only evidence regarding the medical situation in this case is the opinion of the Medical Review Panel in which the Panel concluded that Dr. Ayers breached the standard of care, a breach it concluded likely contributed to Mrs. Perkins’ death. What the opinion does not establish, nor does any other evidence presented, is whether Dr. Ayers’ malpractice alone caused all of the damages claimed, damages in excess of $100,000. In light of the apportionment of fault requirement of La.Civ.Code art. 2323, it seems to me that evidence of the defendant’s sole fault, or portion of fault as the case may be, is crucial in the determination as to whether summary judgment is appropriate. For instance, in Bramlet v. Louisiana Patient’s Compensation Fund, 98-1728 (La.11/6/98), 722 So.2d 984, 984-85, the supreme court issued a per curiam opinion reinstating the trial court’s determination that the damages aspect of a medical malpractice case was appropriate for summary judgment in the presence of 100% of the fault:

The application is granted. The court of appeal erred in interpreting the decision of this court in Graham v. Willis-Knighton Medical Center, 97-0188 (La.9/9/9), 699 So.2d 865, to prohibit a summary judgment when the health care provider has paid $100,000 in settlement of the claim and when there is no factual dispute that the settling health care provider was one hundred percent at fault or that the fault of the health provider “caused damages far in excess of \ $500,000” as observed by the court of appeal.
Accordingly, the judgment of the court of appeal is set aside, and the judgment of the trial court is reinstated.

(Emphasis added.) If evidence of total fault renders a case appropriate for summary judgment, certainly the moving party must bear the burden of demonstrating the defendant’s full responsibility for the damages sought.

Although the trial court’s written reasons for ruling indicate it found Dr. Ayers to be “solely 100% responsible for the damages incurred by the plaintiff,” I do not conclude that the record supports such a finding. Importantly, the plaintiff failed to present any evidence regarding the cause of Mrs. Perkins’ death, only that Dr. Ayers’ negligence likely contributed. Rather, the plaintiffs evidence is specifically targeted toward the issue of damages. While the defendant’s negligence may have been responsible for the entirety of the damages presented, the plaintiffs only evidence presented as to causation seemingly signals the possibility of other causes and leaves genuine issues of material fact, i.e., causation of damages in excess of $100,000, unresolved.

In my opinion, this case is unlike that before the Louisiana Supreme Court in Bijou, 95-8074, 679 So.2d 893, wherein the Court observed that the admission of liability due to payment of the health care provider’s $100,000 can render the damages aspect of medical malpractice cases suitable for summary judgment. While the negligence of Dr. Ayers is not in question, the extent of that liability, insofar as it may exceed $100,000, is in question. The plaintiffs submission, as discussed above, contains the Medical Review Panel opinion which does not exclude the possibility that there may have been other causes of Mrs. Perkins’ death as well and suggests that there may have been other causes. Again, damages must be apportioned ^between all parties at fault pursuant to La.Civ.Code art. 2323. When faced with the possibility that there may have been other causative factors, as here, it is impossible to apportion this defendant’s responsibility for the claimed damages without having an understanding of the context in which the damages were incurred. Although the parties may believe, based on full knowledge of the case, that there were no other causes but the fault of the defendant, I cannot reach that conclusion on the evidence presented in this record. In Bijou, the supreme court does not indicate that there may have been multiple causes for the injury/damages at issue there. Thus, while entry of summary judgment as to damages was found to be appropriate in Bijou, I do not find that the plaintiffs submission now before us permits a similar result in this case.

Accordingly, I conclude that the motion for summary judgment was erroneously granted. I respectfully dissent.  