The opinion
Judgment rendered November 15, 2023.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.
No. 55,081-CW
COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA
*****
FAIZAN FAROOQUI AND Respondents
FARHAT FAROOQUI,
INDIVIDUALLY AND ON
BEHALF OF THE ESTATE OF
AZRA FARHAT (D)
versus
BRFHH SHREVEPORT, LLC, Applicant
BRIJESH M. PATEL, M.D.,
EDWIN W. HERRON, M.D.,
AND THE STATE OF
LOUISIANA
*****
On Application for Writs from the
First Judicial District Court for the
Parish of Caddo, Louisiana
Trial Court No. 600,602-A
Honorable Ramon Lafitte, Judge
*****
JEFF LANDRY Counsel for Defendant
Attorney General Applicant, State of
Louisiana
JABRINA CLAYTON EDWARDS
PHYLLIS E. GLAZER
ELIZABETH P. GROZINGER
Assistant Attorneys General
J. KYLE MCCOTTER Counsel for Respondents
PATRICK R. JACKSON, APLC
By: Ryan O. Goodwin
*****
Before STONE, STEPHENS, and ELLENDER, JJ.
ELLENDER, J., dissents with written reason.
STONE, J.
FACTS AND PROCEDURAL HISTORY
This writ arises from the First Judicial District Court, the Honorable
Ramon Lafitte presiding. Ms. Azra Farhat presented at the hospital
complaining of chest pain; she was admitted to the hospital, and
approximately 6 days later underwent coronary bypass surgery. Her heart
stopped beating and could not be revived, and thus she died. After a medical
review panel (“MRP”) proceeding, Ms. Farhat’s family brought suit
claiming damages for medical malpractice. The defendants filed a motion
for summary judgment (“MSJ”) asserting that the plaintiffs could not
produce prima facie evidence of causation (of a compensable injury). The
trial court denied the MSJ. The defendant sought supervisory writs with this
court, and we granted the writ to docket. The matter is now before this court
for resolution.
The summary judgment evidence around which the dispute centers is
the following deposition testimony of Dr. Tommy Brown:
Q So is it best or is there — a better way to put it is you
believe there’s a possible better outcome but you don’t
know whether there would be a probable better outcome?
A In this patient, yes.1 If you look at the statistics it’s a lot
better to do bypass urgently if you have ongoing angina. On
this specific individual with the description of the arteries
that Dr. Hiller described, I don’t know if it would have
been any better.
Q Now you had hit on earlier just to kind of stick with
the same topic, some of those issues about Plavix and
waiting the five to seven days, which I think is the
American College of Surgeons recommendation as well,
correct?
1
The emphasized language demonstrates that Dr. Brown was specifically
addressing Ms. Farhat’s case, not making a general statement about statistics of similar
cases.
2
A Correct.
Q The American College of Surgeons also talks about not
waiting if surgery is urgent or emergent. You’re saying that
the profile that this patient is presenting with, two instances
on the 17th, presented an urgent or emergent condition?
A An urgent —
Q An urgent condition?
A Right.
Q Okay. And your basis for the two instances reported
overnight being an urgent condition is what?
A Recurrent angina post-MI [i.e., post-myocardial-
infarction], known triple-vessel coronary disease,
normal LV [i.e., left ventricular] pump. That’s a pretty
class Ia indication.
Summary judgment
After an opportunity for adequate discovery, a motion for summary
judgment shall be granted if the motion, memorandum, and supporting
documents show that there is no genuine issue as to material fact and that the
mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3).
A fact is “material” when its existence or nonexistence may be essential to
plaintiff’s cause of action under the applicable theory of recovery.
Peironnet v. Matador Res. Co., 12-2292 (La. 6/28/13), 144 So. 3d 791, 814.
A genuine issue is one regarding which reasonable persons could disagree; if
reasonable persons could reach only one conclusion, there is no need for a
trial on that issue and summary judgment is appropriate. Hines v. Garrett,
04-0806 (La. 6/25/04), 876 So. 2d 764.
Furthermore, “[i]n determining whether an issue is genuine, a court
should not consider the merits, make credibility determinations, evaluate
testimony, or weigh evidence.” Marioneaux v. Marioneaux, 52,212 (La.
3
App. 2 Cir. 8/15/18), 254 So. 3d 13, 20-21. The prohibition on making
credibility determinations on summary judgment extends to expert affidavits
admitted without objection. Aziz v. Burnell, 21-187 (La. App. 3 Cir.
11/3/21), 329 So. 3d 963, writ denied, 21-01790 (La. 2/15/22), 332 So. 3d
1177; Thompson v. Center for Pediatric and Adolescent Med., LLC 17-1088
(La. 1 Cir. 3/15/18), 244 So. 3d 441, writ denied, 18-0583 (La. 6/1/18), 243
So. 3d 1062. Finally, the court must draw those reasonable inferences from
the undisputed facts which are most favorable to the party opposing the
motion; likewise, all doubt must be resolved in the opposing party’s favor.
Wyrick v. Golden Nugget Lake Charles, LLC, 20-0665 (La. App. 1 Cir.
12/30/20), 317 So. 3d 708.
La. C.C.P. art. 966(D)(1) allocates the burden of proof on a motion for
summary judgment as follows:
The burden of proof rests with the mover. Nevertheless, if
the mover will not bear the burden of proof at trial on the
issue that is before the court on the motion for summary
judgment, the mover’s burden on the motion does not
require him to negate all essential elements of the adverse
party’s claim, action, or defense, but rather to point out to
the court the absence of factual support for one or more
elements essential to the adverse party’s claim, action, or
defense. The burden is on the adverse party to produce
factual support sufficient to establish the existence of a
genuine issue of material fact or that the mover is not
entitled to judgment as a matter of law.
Only certain types of documents may be offered in support of or in
opposition to the MSJ. La. C.C.P. art. 966(A)(4). Likewise, the court may
consider only those documents filed or referenced in support of or in
opposition to the MSJ. La. C.C.P. art. 966(D)(2).
4
Medical malpractice
La. R.S. 9:2794(A) sets forth the essential elements of a medical malpractice
action; they follow the traditional formulation of negligence – duty, breach,
causation, and injury:
(1) The degree of knowledge or skill possessed or the
degree of care ordinarily exercised by physicians…
licensed to practice in the state of Louisiana and actively
practicing in a similar community or locale and under
similar circumstances…2
(2) That the defendant either lacked this degree of
knowledge or skill or failed to use reasonable care and
diligence, along with his best judgment in the application
of that skill.
(3) That as a proximate result of this lack of knowledge or
skill or the failure to exercise this degree of care the
plaintiff suffered injuries that would not otherwise have
been incurred.
The plaintiff must establish these elements by a preponderance of the
evidence. Id.
The Louisiana courts have deemed any lost chance of a better
outcome a compensable injury in a medical malpractice action. The seminal
case from the Louisiana supreme court is Smith v. State, Dept. of Health and
Hospitals, 95-0038 (La. 6/25/96), 676 So. 2d 543; the opinion explains that
any lost chance is a compensable injury:
The issues in loss of a chance of survival cases are
whether the tort victim lost any chance of survival because
of the defendant’s negligence and the value of that
loss…Allowing recovery for the loss of a chance of
survival is not...a change or a relaxation of the usual
burden of proof by a preponderance of the evidence.
Rather, allowing such recovery is a recognition of the loss
of a chance of survival as a distinct compensable injury
caused by the defendant’s negligence, to be distinguished
2
If the defendant was practicing in a particular medical specialty in providing the
allegedly deficient care, the plaintiff must establish the standard of care peculiar to that
specialty.
5
from the loss of life in wrongful death cases, and there is
no variance from the usual burden in proving that distinct
loss. (Emphasis in original).
Id.
Finally, Smith, supra, retained the requirement that the plaintiff prove
that the patient had some chance—any chance—of survival at the time of
encountering the medical negligence in question:
Thus, in a medical malpractice case seeking damages for
the loss of a less-than-even chance of survival because of
negligent treatment of a pre-existing condition, the
plaintiff must prove by a preponderance of the evidence
that the tort victim had a chance of survival at the time of
the professional negligence and that the tortfeasor’s
action or inaction deprived the victim of all or part of that
chance (Emphasis added).
More recently, however, lost chance of a better outcome (distinct from
lost chance of survival) became a compensable injury in the Louisiana
jurisprudence. Thus, the Louisiana Supreme Court in Burchfield v. Wright,
17-1488 (La. 6/27/18), 275 So. 3d 855, 863, explained:
The loss of a chance of a better outcome is a theory of
recovery recognized in…[Louisiana jurisprudence]. It is
not a separate cause of action distinct from a statutory
malpractice claim…[A] plaintiff may carry his burden of
proof by showing that the defendant’s negligence was a
substantial factor in depriving the patient of some chance
of life, recovery, or, as in the instant case, a better
outcome…Consequently, the plaintiff does not have to
shoulder the burden of proving the patient would have
survived if properly treated; he need only demonstrate the
decedent had a chance of survival or recovery that was
denied him as a result of the defendant’s negligence.
(Emphasis added).
Accordingly, in this case, the dispositive issue is whether a reasonable
juror could conclude that Dr. Brown’s aforementioned testimony established
(by a preponderance of the evidence) that the delay in performing surgery
caused Ms. Farhat to lose any chance of a better outcome. At the beginning
6
of the deposition excerpt quoted above, Dr. Brown testified affirmatively to
the existence of a chance of a better outcome, i.e., a “possible better
outcome.” His subsequent admission that he could not say it was a probable
better outcome does not contradict his prior affirmation of a chance—any
chance—of a better outcome. Reading the deposition in its entirety reveals
that Dr. Brown did not elsewhere contradict or undermine his affirmation of
a lost chance of a better outcome.3
Dr. Brown’s testimony also indicates that the recommendation of the
American College of Surgeons for Ms. Farhat’s situation, regardless of the
Plavix in her system, would have been to perform surgery without delay–
because she presented two conditions which made the need for surgery
urgent, namely:
Recurrent angina post-MI [i.e., post-myocardial-
infarction], known triple-vessel coronary disease,
normal LV [i.e., left ventricular] pump. That’s a pretty
class Ia indication.
The MSJ does not deny that there was a delay, nor that the delay was a breach
of the standard of care. Dr. Brown’s testimony provides evidence sufficient
for a reasonable juror to conclude that the delay cost Ms. Farhat some chance
of an outcome better than death while in the surgery.
The defense’s main argument amounts to conflation of the cause of
action for lost chance with that of wrongful death. This fallacy is encapsulated
on page 8 of the defense brief to this court, wherein the defense cites the
3
Furthermore, the defense has not cited any other deposition testimony as
undermining Dr. Brown’s affirmation of a “possible better outcome,” i.e., a lost chance of a
better outcome. Likewise, the dissent claims that “the entirety of Dr. Brown’s opinion
makes it abundantly clear that he did not believe that an earlier bypass would have made
any difference,” but does not cite any particular testimony as contradicting Dr. Brown’s
affirmation of a lost chance. If the defense or dissent could find such testimony in Dr.
Brown’s deposition, then, presumably, they would cite such testimony; their failure to do
so further confirms our reading of the deposition.
7
following testimony as a refusal to testify affirmatively as to Ms. Farhat’s lost
chance:
Q Do you have an opinion more probably than not as to
whether Ms. Farhat would have survived this surgery had it
been performed two to three days earlier? (Emphasis
added).
A I don’t know.
Had Dr. Brown stated that Ms. Farhat “would have survived” but for the
delay, he would have provided evidence of wrongful death, which is
unnecessary for establishing lost chance.4 A plaintiff claiming that medical
malpractice caused the loss of a chance of a better outcome need not prove
that the malpractice caused the patient’s death.
CONCLUSION
This writ application is DENIED and the judgment of the trial court
denying the defense’s MSJ is AFFIRMED. The State of Louisiana is
taxed with the full cost of this appeal, which totals $178.
4
Similarly, Dr. Brown was asked, “can you say in any sort of medical probability
that Ms. Farhat’s outcome could have been better had she received surgery sooner than
she did?” However, he did not answer the question asked. He stated: “I can’t say that,
because…I don’t know that it would have been any different.” The distinction between
would and could is critical. In effect, Dr. Brown was asked whether the delay caused Ms.
Farhat to lose any chance of a better outcome, but he did not answer that question at this
point. Instead, he declined to say that the delay caused her death.
8
ELLENDER, J., dissenting.
I respectfully dissent, as I believe there are no genuine issues of
material fact present in this case and the defendant is entitled to summary
judgment as a matter of law. The majority has quoted excerpts from
Burchfield v. Wright, 17-1488 (La. 6/27/18), 275 So. 3d 855, a case which
discusses the concept of lost chance of survival and lost chance of a better
outcome. However, other portions of that opinion stress that allowing
recovery for the loss of a chance of survival “is not * * * a change or a
relaxation of the usual burden of proof by a preponderance of the evidence.
* * * [T]he plaintiff must prove by a preponderance of the evidence that the
tort victim had a chance of survival at the time of the professional
negligence and that the tortfeasor’s action or inaction deprived the victim of
all or part of that chance[.]” Id. at 11, 275 So. 3d at 863, quoting Smith v.
State, 95-0038 (La. 6/25/96), at 6, 676 So. 2d 543, at 547. Considering that
loss of a chance of a better outcome is “not a separate cause of action
distinct from a statutory malpractice claim,” Burchfield, supra, at 10-11, 275
So. 3d at 863, but only a separate theory of recovery, it still must meet the
standard of a preponderance of the evidence.
Expert testimony is generally required to establish the applicable
standard of care and whether that standard was breached, except in cases of
very obvious negligence; this is especially true in the context of summary
judgment, when the mover has supported its motion with expert medical
opinion that the healthcare providers met the standard of care. Nelson v.
Shelat, 54,099 (La. App. 2 Cir. 8/18/21), 325 So. 3d 1170, writ denied, 21-
01354 (La. 11/17/21), 327 So. 3d 997, and citations therein.
1
Bearing in mind the normal burden of proof, I find the summary
judgment evidence too equivocal and weak to create a genuine issue that the
plaintiff will be able to prove, by the required preponderance, a lost chance
of a better outcome.
Meeting that burden hinges entirely on one passage from the
deposition of Dr. Tommy Brown, who served on the MRP. This is his
testimony:
Q. So is it best or is there – a better way to put it is you
believe there’s a possible better outcome but you don’t know whether
there would be a probable better outcome?
A. In this patient, yes. If you look at the statistics it’s a lot
better to do bypass urgently if you have ongoing angina. On this
specific individual with the description of the arteries that Dr. Hiller
described, I don’t know if it would have been any better.
The best that can be said of this poorly worded question and
ambivalent answer is that, statistically, performing the bypass sooner would
create a possible better outcome, but in this specific individual, he simply
could not say. Unlike the majority opinion, I cannot agree that this is a
sufficient statement to meet the burden of proof outlined in Burchfield or
even to create a genuine issue that the plaintiff could do so at trial.
And this was an isolated passage from the long deposition. Ms.
Farhat had presented to University Health with chest pains and was
diagnosed with having had a heart attack. After admission, on Monday,
doctors determined she needed coronary artery bypass grafting, but this had
to be delayed until Friday to allow her blood thinner, Plavix, to clear her
system. Even though she had five documented episodes of chest pain during
that week, the procedure was not done any earlier; it was put off until
Friday. While he concedes the standard of care would be to perform the
2
bypass sooner, the entirety of Dr. Brown’s opinion makes it abundantly clear
that he did not believe an earlier bypass would have made any difference.
Instead, he felt her underlying coronary disease was unfortunately so
advanced that Ms. Farhat’s heart would not survive the demands of surgery.
The overwhelming thrust of Dr. Brown’s deposition has not entered into the
majority’s analysis.
While any chance of a better outcome is compensable, such a chance
still must be proved by a preponderance of the evidence. This minuscule
fragment of Dr. Brown’s deposition simply does not create a genuine issue
as to whether any chance of a better outcome existed, or that University
Health’s conduct deprived her of that chance.
For these reasons, I respectfully dissent.
3