As we have discussed previously on this blog, summary judgment is a procedural device for expediently resolving a case without a full trial where there is “no genuine issue of material fact.” Johnson v. Evan Hall Sugar Co-op, Inc., 836 So.2d 484, 486. (La. App. 1st Cir. 2002). It is well settled in Louisiana that summary judgment is appropriate if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact” and that party requesting judgment is entitled to it as a matter of law. See La. Code Civ. P. Art. 966(B). A trial court’s analysis of whether summary judgment is proper can involve the review of a considerable volume of documents which may contain conflicting information. The First Circuit Court of Appeals recently ruled on a summary judgment motion in a medical malpractice case that turned on the trial court’s treatment of the defendant doctor’s deposition and subsequent affidavit.
On June 9, 2007, Percy Bethley, 80, was admitted to Baton Rouge General Medical Center Mid-City (“BRGMC”) with breathing difficulties. He had a five-year history of serious heart and lung disease. Bethley underwent various treatments in the hospital and received a pulmonary consultation by Dr. Reza Sheybani. After examining Bethley, Dr. Sheybani decided to replace the Bethley’s tracheostomy tube. A respiratory therapist, Cecilia Eason, was brought in to perform the replacement. Eason had great difficulty with the procedure and, sadly, as a result of a series of further complications, Bethley expired.
Following Bethley’s death, his widow and children (the plaintiffs) filed a medical malpractice complaint with the Louisiana Patients’ Compensation Fund. The panel found that the evidence supported the possibility that Dr. Sheybani failed to meet the applicable standard of care and that his conduct had been a factor in Bethley’s death. The plaintiffs then filed suit against BRGMC and Dr. Sheybani, alleging that Dr. Sheybani and the hospital employees who treated Bethley negligently contributed to his death. BRGMC answered and filed a motion for summary judgment. Dr. Sheybani responded with a pleading that opposed summary judgment and which included a personal affidavit that contained his own expert medical testimony. This testimony was offered to prove that genuine issues of material fact existed in the case: Dr. Sheybani alleged that Eason, a BRGMC employee, had been negligent in her treatment of Bethley. BRGMC then filed a motion to strike the affidavit of Dr. Sheybani, which the trial court granted after a hearing. The trial court also granted BRGMC’s motion for summary judgment, and dismissed with prejudice the plaintiffs’ claims against BRGMC. Dr. Sheybani filed a motion for devolutive appeal.
On appeal, BRGMC argued that the trial court’s granting of its motion for summary judgment was proper because “the affidavit of Dr. Sheybani was self-serving and drafted in an attempt to create a false issue of material fact sufficient to defeat summary judgment.” BRGMC relied upon Douglas v. Hillhaven Rest Home, Inc., 709 So.2d (La. App. 1st Cir. 1998), for the point that a party’s affidavit which contradicts his prior deposition testimony is not sufficient to create an issue of fact which precludes summary judgment. BRGMC also relied on Wheelock v. Winn-Dixie Louisiana, Inc., 822 So.2d 94 (La. App. 1st Cir. 2002), as authority for the position that “where there are unexplained inconsistencies between deposition testimony and a subsequent affidavit, the affidavit is not sufficient to create a genuine issue of material fact … in order to defeat a motion for summary judgment.”
In response, Dr. Sheybani justified his affidavit by citing La. Code Civ. P. Art. 967. This article establishes that, as the adverse party to a motion for summary judgment, he cannot “rest on mere allegations or denials,” but “must respond by affidavit to provide evidence of a material dispute that precludes the granting of summary judgment.” Given the trial court’s failure to assign specific reasons for its ruling, Dr. Sheybani urged the court to presume that the trial court’s striking of the affidavit resulted merely “from arguments put forth at the hearing by BRGMC.” Furthermore, Dr. Sheybani asserted that the statements in his affidavit did not contradict his earlier deposition testimony, but rather “merely clarified or supplemented [his] previous deposition testimony,” which, according to Terrebonne v. Floyd, 767 So.2d 754 (La. App. 1st Cir. 2000), would require the trial court to consider the affidavit when determining genuine issues of material fact.
After reviewing the record, the court sided with Dr. Sheybani. It concluded, “since the statements made by Dr. Sheybani in his subsequent affidavit merely clarified and were not inconsistent with testimony given … in his earlier deposition, we conclude the affidavit and the attached exhibits were admissible.” Dr. Sheybani’s affidavit “should have been considered by the trial court in evaluating BRGMC’s motion for summary judgment… [W]e conclude that there are genuine issues of material fact regarding whether BRGMC and/or its employees failed to meet the applicable standard of care with respect to their treatment of Mr. Bethley.” The court reversed the trial court’s granting of BRGMC’s motion to strike Dr. Sheybani’s affidavit and remanded the case for further proceedings as to Dr. Sheybani’s meeting the standard of care in treating Bethley.
This case further demonstrates the complex nature of tort litigation, especially when multiple parties may have been negligent and at fault for harm to the plaintiff. Dr. Sheybani sought to defeat BRGMC’s motion for summary judgment in the interest of his own defense; by pointing to the negligence of the respiratory therapist, he could potentially reduce or even eliminate his own blame. This path would have been foreclosed if BRGMC had been dismissed from the action at summary judgment.