Injured Ouachita Patient Fails to Meet Burden of Proof in Medical Malpractice Action

When treatment provided by a health care professional falls below the accepted standard of practice in the medical community and causes injury or death to a patient, it is said that medical negligence or medical malpractice has occurred. To establish a claim for medical malpractice, a plaintiff must prove: (1) the standard of care applicable to the defendant; (2) that the defendant breached that standard of care; and (3) that there was a causal connection between the breach and the resulting injury. These three elements must be proven by a preponderance of the evidence, which is the requirement that more than fifty percent of the evidence be in the plaintiff’s favor.

Nearly a month after surgery, it was discovered that John Roberts had been suffering from a staph infection after having a vasectomy performed by, urologist, Dr. Don Marx. On November 17, 2010, Mr. Roberts filed a lawsuit against Dr. Marx seeking damages for allegedly failing to provide appropriate medical care and treatment and diagnosis of the surgery’s complications. In addition to those allegations, Mr. Roberts’ complains that Dr. Marx failed to inform him that just days before performing Mr. Roberts’ vasectomy procedure, the doctor himself had undergone eye surgery after losing part of his vision in his right eye.

After the filing of the initial complaint, Dr. Marx moved for judgement as a matter of law and argued that Mr. Roberts would be unable to adequately prove his case at trial due to the lack of expert testimony to establish a breach of duty by the Dr. Marx.  Accordingly, the trial court agreed with Dr. Marx determined that no genuine issue of material fact existed and granted summary judgment against Mr. Roberts.

On appeal, Mr. Roberts argued that the court committed errors in the following ways: (1) in finding that he did not carry his burden of proof that Dr. Marx failed to obtain his informed consent prior to surgery and (2) in determining that the lack of expert testimony defeated his claims.

When a party is unsatisfied with a summary judgment determination by the court, she may submit to the court an appeal. That appeal will be reviewed de novo by the appellate court, and the question of whether to grant judgement as a matter of law will be governed by the same standards used by the trial court.

To be successful in moving for summary judgement the moving party, most often the defendant, must show that the other party will be unable to prove the facts on which their case rests at trial.  Then the other party, most often the plaintiff, must rebut the accusation by showing that they in fact will be able to prove their case at trial. To this end both parties can deliver affidavits to the court and the moving party can submit discovery requests as evidence that they will have the ability to prove their case at trial. Once the motion for summary judgment has been properly supported by the moving party, the failure of the nonmoving party to produce evidence of a material factual dispute mandates the granting of the motion.

In a medical malpractice action the general rule is that expert testimony is necessary to explain the standard of care owed by the medical professionals so that the jury can determine whether that standard was violated. But there is an exception when the breach of the duty owed is obvious enough that an average juror could understand without the need for an expert to give their opinion. Further, pursuant to Louisiana’s informed consent law, La. R.S 40:1299.40, a patient must give written consent to a procedure only after being informed of any known and material risks. According to Louisiana case law, “[a] risk is material when a reasonable person would be likely to attach significant to the risk or cluster of risks in deciding whether or not to forgo the proposed therapy.

According to the Second Circuit Court of Appeal, Mr. Roberts: (1) failed to show that Dr. Marx’s return to practice, after undergoing eye surgery, caused any problems or created a material risk to his patients’ care; (2) did not raise a material issue of fact that Dr. Marx’s treatment fell below the standard of care; and (3) was unable to provide the expert testimony necessary to dispute Dr. Marz’s ability to return to practice.

Because summary judgment motions are so common, it is essential to have legal representation that is familiar with both the procedural matters and the arguments that must be made to survive these motions. In this instance, because the claimant did not provide evidence to show he could prove his case sufficiently at trial, the court found that there was no genuine dispute in this case that would preclude summary judgment and dismissed his claims. With so much on the line, it is important for your attorney to present compelling and well-developed arguments in your favor.

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