Intricate Rules of Procedure Come to Light in Malpractice Suit

Medical treatment is always a sensitive legal issue. In one instance, a patient, Ms. Finley, received an improper diagnosing from her local ER. The trial court granted Ms. Finley’s motion for summary judgment against an Emergency Room (ER) doctor for breaching the standard of care by misdiagnosing her during examination. The Court of Appeals reversed and remanded the case because summary judgment cannot be based on a factual finding. The plaintiff appealed the trial court’s failure to grant a motion to strike the defendant’s opposition to the motion for summary judgment, but was unsuccessful because the trial court has discretion concerning service of process.

Ms. Finley was accepted as a patient at the Christus St. Frances Cabrini Hospital ER of Rapides Parish on August 30, 2002. Although a medical review panel opinioned that Dr. Ugokwe did not breach the standard of care and took all reasonable steps in an attempted diagnosis of a difficult to determine health circumstance, Ms. Finley filed suit on May 11, 2005.

The plaintiff’s motion for summary judgment was based on depositions from the defendant’s expert witness that allegedly agreed with the plaintiff’s expert, proving the applicable standard of care and its breach. Dr. Ugokwe filed his objection and the opposition was left in the mail slot of the Plaintiff’s counsel’s building. The Plaintiff received the opposition and filed a motion to strike.

The basis for this motion relies upon the Louisiana Code of Civil Procedure, specifically the requirement that a motion for summary judgment be rendered at least ten days prior to trial. In the instant case it was rendered eight days prior to scheduled trial. Although that is reversible error, the Court “will not address an error not raised in brief.” It is necessary to file motions at appropriate times, and had the defendants raised this issue, the summary judgment would have been reversed by the third page of the opinion. Thus, it is absolutely necessary that injured persons seek competent counsel fully aware of civil procedure to ensure success. However, this particular appeal merited more discussion since the defense counsel did not raise the issue.

Proper service is controlled by two standards in the Louisiana Code. Motions that set a matter for hearing are held to a higher standard than memorandums in opposition to such motions. Article 1313(A)(2) allows service by “delivering a copy thereof to the counsel of record,” but it does not specify proper delivery. i.e. certified mail. The trial court denied the Plaintiff’s motion to strike for improper service because the judge saw no prejudice (Ms. Finley’s attorney received the memorandum the following day). The Court of Appeal found that holding to properly within the trial court’s scope of discretion.

The standard of review for summary judgment is not abuse of discretion, but is de novo, and the trial court is afforded much less liberal deference. The purpose of summary judgment is to avoid a trial when there is no issue of material fact — securing a just, speedy, cost efficient resolution. The Third Circuit held in Hypolite v. Columbia Dauterive Hosp., that the question of whether a physician’s conduct fell below the applicable standard of care is a factual determination. By definition, factual findings cannot be determined by summary judgment and for this reason, the Court of Appeal reversed the trial court’s grant of summary judgment. The case was remanded for trial on the merits.

This case is illustrative of several issues concerning civil procedure. First, it is important to file motions in a timely manner. A plaintiff’s attorney who files a motion for summary judgment so close to the scheduled trial risks the reversible error of the trial court granting the motion within ten days of trial. Secondly, service of process is essential, but the trial court can allow for service that does not clearly prejudice either party, because one of the fundamental purposes of procedural rules is to prevent prejudice. Lastly, summary judgment is exclusively allowed when judgment is entitled as a matter of law. There must be no issue of fact, and the review is de novo. De novo review allows the Court of Appeal to apply the same standard as the trial court. Therefore, to successfully win on summary judgment it is often necessary to convince the courts of such entitlement at both the trial and appellate levels. Medical malpractice cases are especially fact specific, and whether a physician’s conduct fell below the standard of care is an issue of fact. Thus, it is rare that extensive litigation will not be required in proving such a breach.

If you have been misdiagnosed or victim of medical malpractice, do not waste any more valuable time without qualified legal representation.

Contact the Berniard Law Firm to secure the expert representation necessary to attain deserved compensation.

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