
    Edna SILVAIN and Joseph M. Silvain v. John B. SAER, M.D.
    No. 09-CA-1103.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 2010.
    Rehearing Denied Oct. 29, 2010.
    Richard J. Kanuch, Attorney at Law, New Orleans, LA, for Plaintiffs/Appellants.
    
      Rodney A. Seydel, Hoffman Seydel, LLC, New Orleans, LA, for Defendant/Ap-pellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS, and MARC E. JOHNSON.
   EDWARD A. DUFRESNE, JR., Chief Judge.

12This is an appeal by Edna Silvain and Joseph M. Silvain, plaintiffs-appellants, from a consent judgment in favor of John B. Saer, M.D., dismissing this medical malpractice suit with prejudice. For the following reasons, we affirm that judgment.

There are no factual disputes. In late 2003, while under the care of Dr. Saer, Edna Silvain underwent a procedure involving retinal problems in her left eye. As part of that procedure a retrobulbar anesthesia was injected into the eye. Subsequently, she lost vision in that eye due to ischemic optic neuropathy and this medical malpractice action followed. The basic allegations are that the doctor was negligent in administering the anesthetic, that the injection was causally related to the loss of vision, and that he did not properly inform plaintiff that the procedure could cause blindness.

Prior to suit being filed a medical review panel was convened. That panel concluded that 1) retrobulbar anesthesia is the proper standard of care for the laser ^procedure that was performed; 2) the informed consent included the possibility of loss of vision; 3) there was no evidence that the retrobulbar anesthesia caused is-chemic optic neuropathy; and 4) ischemic neuropathy .is frequently associated with the patient’s medical condition.

Suit was filed on April 26, 2007. On February 11, 2009, defendant filed a motion for summary judgment, arguing that plaintiffs had failed to produce any expert opinion in support of their case, and that this failure was fatal to their claims. On May 18, 2009, a judgment was signed which gave plaintiffs until June 15, 2009, to produce such evidence, and if they did not do so the motion for summary judgment would be granted on ex parte motion of defendant. That judgment also recited that counsel for plaintiffs had approved of this procedure and had signed the judgment agreeing to its form and content. Plaintiffs failed to provide timely any expert opinion in support of their case, and on motion of the defendant summary judgment was entered on July 31, 2009, dismissing the matter with prejudice. This appeal followed.

In Samaha v. Rau, 2007-1726 (La.2/26/08), 977 So.2d 880, the court ruled that expert testimony is required to establish the applicable standard of care in a medical malpractice case, except where the negligence is so obvious that a lay person could find such negligence without the guidance of expert testimony. It also ruled that summary judgment in defendant’s favor is appropriate when the case clearly requires expert testimony, and plaintiff fails to provide it. It noted in this regard that La. C.C.P. Art. 966 C(2) provides that where the non-moving party bears the burden of proof at trial it is sufficient for the moving party to point out the absence of factual support for an essential element of the opposing party’s case and thus that there is no genuine issue of material fact.

[4In the present case, there is no question that the issue of whether the injection of the anesthetic into the eyeball was negligently done is one requiring expert testimony. The question of whether the anesthetic was causally related to the subsequent blindness is also one requiring such evidence. In his motion for summary judgment defendant pointed out to the court that plaintiffs had no expert evidence to establish these facts and therefore there were no genuine issues as to these matters. After the original hearing on the motion the trial judge gave the plaintiffs a month to produce expert evidence. When they failed to meet this deadline, defendant’s motion for summary judgment was granted.

All parties have addressed here the question of whether the May 18, 2009, judgment constituted a consent judgment or bilateral agreement which bound the parties to its terms. In this court’s opinion, those questions are not relevant to the final judgment of July 31, 2009.

The summary judgment procedure provides that such a motion may be urged after adequate discovery, La. C.C.P. Art. 966 C(l). It is apparent that the trial judge decided to grant plaintiffs an additional month to develop their case to such an extent as to defeat defendant’s motion. It is further evident that when they failed to do this, the trial judge was constrained to enter summary judgment in favor of the defendant.

The standard of review of summary judgment is de novo. Samaha v. Rau, supra. As stated above, the facts of this case are such that plaintiffs needed expert evidence to establish both negligence and causation. Defendant pointed out to the court that they had no such evidence, that there was thus no genuine issue of material fact, and that summary judgment was appropriate. After review of the record we agree with this analysis, and hold that summary judgment was properly entered.

|5We finally note that there is an allegation that plaintiff was not properly informed of the possible negative consequences of the procedure. However, before the issue of informed consent can arise, there must be a showing that some aspect of either the procedure or some negligent performance of it was the cause of the injury. Here, the medical review panel concluded that there was no evidence to show that the loss of vision was related to the procedure, and further that this eventuality was rather often associated with plaintiffs underlying medical condition. We also point out that although the report of the medical review panel was not presented in affidavit form, even were that document to be deemed inadmissible for purposes of summary judgment, we would still reach the same result. As stated in Samaha v. Rau, supra, it is not the defendant’s burden to prove that he was not negligent, but rather to point out that plaintiffs did not have evidence to establish an essential element of their case. Here, the plaintiffs had no evidence to establish either negligence or causation, and in this circumstance the issue of informed consent could not arise.

For the foregoing reasons the summary judgment in favor of the defendant is hereby affirmed.

AFFIRMED.

JOHNSON, J., Concurs With Written Reasons.

JOHNSON, J.,

Concurs With Reasons.

hi respectfully concur with the result reached by the majority, but not for the reasons stated in their opinion. In particular, I disagree with the majority’s characterization of the judgment on appeal as one granting a motion for summary judgment and the applicability of the law pertaining to summary judgments as being decisive of the issues raised on appeal.

I find the judgment on appeal to be one granting defendant’s ex parte motion to dismiss based on a consent judgment, not the granting of a motion for summary judgment. The only issues appellants raise on appeal relate to the validity and enforceability of the consent judgment, issues the majority somehow find to be irrelevant. I write separately to address the issues raised by appellants.

The consent judgment at issue arose out of the filing of a motion for summary judgment by defendant. There was never a hearing on the motion for summary judgment because prior to the hearing, counsel for both parties entered into a consent judgment wherein they agreed that if plaintiffs did not obtain an expert witness by a certain date, defendant would be entitled to have the matter dismissed with prejudice on ex parte motion. When plaintiffs failed to obtain an expert witness, the trial court granted defendant’s ex parte motion to dismiss. The trial court did not grant a summary judgment.

|20n appeal, appellants argue that the consent judgment was unenforceable because it was not signed by the parties. They maintain the trial court erred in allowing the consent judgment to be signed by their attorney without any showing the attorney had express authority to sign the consent judgment on their behalf. Thus, the issues presented pertain to the validity of the consent judgment and not the propriety of the dismissal based on summary judgment law.

A consent judgment is essentially a bilateral contract which is voluntarily signed by the parties and accepted by the court. It has binding force from the voluntary acquiescence of the parties, not from the court’s adjudication. DiLeo v. Hansen, 09-974, *3 (La.App. 5 Cir. 6/29/10), 45 So.3d 1120. A valid consent judgment must be either reduced into writing or recited in open court and capable of being transcribed from the record of the proceeding. La. C.C. art. 3072.

When an agreement is reduced to writing, it must be signed by the parties or their agents. Sullivan v. Sullivan, 95-2122, p. 4 (La.4/8/96), 671 So.2d 315, 317. The First Circuit observed, “[i]f it were necessary for the party to sign the writing that serves as proof of the agreement, often there would be no basis for enforcement, because generally the attorneys rather than the parties negotiate and contract ... agreements.” Dozier v. Rhodus, 08-1813, p. 10 (La.App. 1 Cir. 5/5/09), 17 So.3d 402, 408, writ denied, 09-1647 (La.10/30/09), 21 So.3d 294.

In Dozier, one of the defendants contested the granting of a motion to enforce settlement in a property partition lawsuit. On appeal, the defendant argued that the trial court erred in finding a compromise because his attorney had never been given express, written consent to bind him to a settlement. The court noted that there is no requirement in the law or jurisprudence that lathe express consent necessary to authorize an attorney to enter into a compromise be written. Dozier, 08-1813 at 10, 17 So.3d at 408. The defendant also argued the trial court erred in relying on his attorney’s “apparent authority” to enter into a settlement agreement. Acknowledging that the attorney could not enter into a binding contract without the defendant’s consent, the court found it was clear the defendant was acting through an attorney throughout the entire matter and, thus, his attorney had authority to enter into an agreement. Id. at 10-11, 17 So.3d at 409.

Also, in Daffin v. McCool, 09-785 (La.App. 1 Cir. 12/23/09), 30 So.3d 120, the First Circuit was faced with the issue of whether a stipulation signed by the parties’ attorneys, but not by the parties themselves, is a consent judgment. The court concluded that the defendant’s attorney was acting as the defendant’s agent and representative when the attorney entered into a compromise in a community property partition matter. Id. at 4, 30 So.3d at 123. The court noted that although there was nothing in the record that indicated the defendant specifically authorized his attorney to enter into the stipulation at issue, it was undisputed that the defendant was represented by counsel during the proceedings and at the time the judgment was submitted. The court further determined that because the defendant’s attorney was acting as the defendant’s agent, the defendant acquiesced in the stipulation. As such, the court concluded the defendant could not seek an appeal of the consent judgment in which he acquiesced.

The present case is similar to both Dozier and Baffin. Prior to proceeding to a hearing on defendant’s motion for summary judgment, the parties’ attorneys entered into a consent judgment. The judgment was signed by the attorneys for the parties and the trial court. There is nothing in the record indicating that plaintiffs specifically authorized their attorney to |4enter into the consent judgment at issue. However, the record shows plaintiffs were represented by counsel from the inception of the lawsuit through the time the judgment was submitted. Thus, plaintiffs’ attorney was clearly acting as them agent in submitting the consent judgment.

I find the May 18, 2009 consent judgment was valid despite the fact it was not signed by the parties and, thus, the trial court did not err in dismissing plaintiffs’ lawsuit for plaintiffs’ failure to comply with the consent judgment. For these reasons, I concur with the majority’s decision affirming the trial court’s August 5, 2009 judgment dismissing appellants’ case with prejudice for non-compliance with the May 18, 2008 consent judgment.  