The opinion
CYNTHIA GUEVARA, ET AL * NO. 2024-C-0211
VERSUS *
COURT OF APPEAL
HOSPITAL SERVICE *
DISTRICT OF THE PARISH FOURTH CIRCUIT
OF ST. BERNARD, STATE OF *
LOUISIANA A/K/A ST. STATE OF LOUISIANA
BERNARD PARISH HOSPITAL * * * * * * *
SERVICE DISTRICT D/B/A ST.
BERNARD PARISH
HOSPITAL, AND DR. RYAN
TRUXILLO
APPLICATION FOR WRITS DIRECTED TO
ST. BERNARD 34TH JUDICIAL DISTRICT COURT
NO. 16-0710, DIVISION “C”
Honorable Kim C. Jones, Judge Presiding
******
Judge Nakisha Ervin-Knott
******
(Court composed of Chief Judge Terri F. Love, Judge Dale N. Atkins, Judge
Nakisha Ervin-Knott)
Richard H. Barker
601 Poydras Street, Suite 2345
New Orleans, Louisiana 70130
COUNSEL FOR RESPONDENT/PLAINTIFF
Kathryn M. Caraway
Ann Marie LeBlanc
Erica L. Andrews
CARAWAY LEBLANC, L.L.C.
3936 Bienville Street
New Orleans, Louisiana 70119
-AND-
Elizabeth Lisa Borne Knott
TABARY & BORNE LLC
3 Courthouse Square
Chalmette, Louisiana 70043
COUNSEL FOR RELATORS/DEFENDANTS
WRIT GRANTED; JUDGMENT REVERSED AND RENDERED
May 30, 2024
Relator, Dr. Ryan Truxillo (“Dr. Truxillo”) seeks review of the trial court’s
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TFLD March 11, 2024 judgment denying his motion for summary judgment. For the
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following reasons, we grant Dr. Truxillo’s writ application; reverse the trial court’s
March 11, 2024 judgment denying his motion for summary judgment; grant Dr.
Truxillo’s motion for summary judgment against Plaintiffs; and dismiss Plaintiffs’
case with prejudice.
FACTUAL AND PROCEDURAL HISTORY
In January 2015, Darlene Cole Martello (“Ms. Martello”) was admitted into
St. Bernard Parish Hospital (“Hospital”) after a fall at her home. Ms. Martello was
diagnosed with a hairline fracture of her shoulder and pneumonia. While
hospitalized, she was taken off of her prescribed blood thinner medication, Warfarin,
in order to better treat her condition. Upon discharge, Ms. Martello followed up with
Dr. Truxillo where he discontinued her use of Warfarin altogether. Shortly
thereafter, Ms. Mantello developed a deep vein thrombosis, which lead to a fatal
pulmonary embolism.
On January 27, 2016, Cynthia M. Guevara, Danny Martello, and Samuel
Martello Jr. (collectively “Plaintiffs”) individually and o/b/o the Estate of Darlene
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Cole Martello, filed a medical malpractice complaint with the Patient's
Compensation Fund ("PCF") against Dr. Truxillo and the Hospital alleging the
failure of the Hospital and Dr. Truxillo to properly monitor Ms. Martello’s blood
once she stopped taking Warfarin and/or to restart the blood thinners was the cause
of her death and such failure was below the standard of care. Nearly three years after
filing the PCF complaint, the medical review panel unanimously concluded the
evidence did not support the conclusion that Dr. Truxillo and the Hospital “failed to
meet the applicable standard of care as charged in the complaint.” Specific to Dr.
Truxillo, the panel concluded “[a]t the time of discharge there was no indication that
the patient should have been on anti-coagulation therapy,” and “[i]t was clearly
documented by Dr. Truxillo that the patient was at a high risk for falls and therefore
not a candidate for anti-coagulation.”
Subsequently, on February 21, 2019, Plaintiffs filed a post-medical review
panel petition for damages asserting the same claims contained in the PCF complaint
against Dr. Truxillo and the Hospital. Over four years later, Dr. Truxillo filed a
motion for summary judgment contending that Plaintiffs did not have a medical
expert to opine on any of their alleged breaches in the standard of care or causation.
In opposition to the motion for summary judgment, Plaintiffs attached the affidavit
of Dr. Gregory Herman (“Dr. Herman”) who stated, in part, “It is my opinion that
there is no breach in the standard of care [to discontinue Warfarin] that was provided
to this patient. The care was good.” However, Dr. Herman contemplated whether
Ms. Martello provided informed consent to stop the Warfarin. Stemming from this
possible lack of informed consent claim, Dr. Herman further opined on a potential
loss chance of survival claim – “If the patient had been informed as to all options
and risks and benefits of each, and she opted to take the warfarin after
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hospitalization, it is reasonable to opine that her chance of dying from a blood clot
in the lungs secondary to a blood clot in the legs would have been lower on the day
of her death.” Noticeably missing from Dr. Herman’s affidavit was information
about his educational background, skill, training, or expertise.
The hearing on Dr. Truxillo’s motion for summary judgment occurred on
February 22, 2024, and less than a month later, on March 11, 2024, the trial court
issued a judgment and reasons for judgment denying the motion. In the trial court’s
judgment, it stated:
Plaintiffs submitted the affidavit of their expert, Dr. Gregory Herman
who opined “there existed a breach in the doctor-patient relationship
and informed consent to treat or not to treat did not occur.” Dr.
Herman’s affidavit creates genuine questions of material fact which
preclude the granting of summary judgment.
Within the thirty-day prescribed period, Dr. Truxillo filed a notice of intention to file
supervisory writ of certiorari that was signed by the trial court on the day of filing.
Dr. Truxillo now seeks supervisory review of the trial court’s denial of his summary
judgment motion.
DISCUSSION
The appellate court reviews a ruling on a motion for summary judgment under
a de novo standard, giving no deference to the ruling or reasons of the trial court.
Precept Credit Opportunities Fund, L.P. v. Elmore, 2021-0502, p. 3 (La. App. 4 Cir.
4/20/22), 338 So.3d 87, 89-90 (citations omitted). The trial court must grant a motion
for summary judgment if, after the parties had an “opportunity for adequate
discovery,” the mover proves that there are no genuine issues of material fact to be
resolved. La. C.C.P. art. 966(A)(3). If the mover meets his burden, then the burden
shifts to the non-moving party to bring forth evidence showing that a genuine issue
of material fact remains. La. C.C.P. art. 966(D)(1); Babin v. Winn- Dixie Louisiana,
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Inc., 2000-0078, p. 4 (La. 6/30/00), 764 So.2d 37, 39-40. If the non-moving party
fails to produce evidence of such, the court is required to grant summary judgment.
E.g. Babin, 2000-0078, p. 4, 764 So.2d at 40; Jones v. Boot Bar & Grill, 2022-0154,
p. 13 (La. App. 4 Cir. 10/05/22), 350 So.3d 968, 979.
Although Dr. Truxillo asserts multiple assignments of error, the dispositive
issue is whether the trial court erred in denying his motion for summary judgment.1
Dr. Truxillo filed a motion for summary judgment asserting Plaintiffs failed to
produce appropriate expert opinion evidence establishing the applicable standard of
care, his breach of that standard of care, or that any alleged breached on his part
proximately caused damages – Ms. Martello’s death. In support of his motion for
summary judgment, Dr. Truxillo attaches the medical review panel’s opinion where
the panel unanimously determined “[t]he evidence does not support the conclusion
that the defendants [inclusive of Dr. Truxillo] failed to meet the applicable standard
of care as charged in the complaint.”2 In opposition to Dr. Truxillo’s motion,
Plaintiffs attach the affidavit of their expert, Dr. Herman, who opined:
It is my opinion that there is no breach in the standard of care that was
provided to this patient. The care was good. The only thing missing was
the opportunity, twice, for the patient to be presented with all the
current information with which to advocate for herself on her care
options. If it's true that the doctor said "she does not need it" without
1 Specifically, Dr. Truxillo asserts three assignments of error:
1. The trial court erred in finding that Plaintiffs could raise an alleged “informed
consent” claim for the first time nine years after the care in question, when an informed
consent claim prescribes in one year.
2. The trial court erred in relying on Dr. Gregory Herman’s affidavit when Plaintiffs
failed to properly provide evidence he was qualified by education, experience,
competence, or training to provide expert support in this case.
3. The trial court erred by disregarding law that requires an expert in an informed
consent matter to testify as to the risk of the medical care and the likelihood such a risk
would occur, as required by the Supreme Court case, Hondroulis v. Schumacher, 553
So.2d 398, 412 (La. 1988), and its progeny.
2 “In a medical malpractice case, the medical review panel's opinion is admissible as expert evidence
on a motion for summary judgment.” Williams v. Mem’l Med. Ctr., 2003-1806, p. 15 (La. App. 4 Cir.
3/17/04), 870 So.2d 1044, 1053 (citation omitted).
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further discussion, then no shared decision process occurred, there
existed a breach in the doctor-patient relationship and informed consent
to treat or not treat did not occur.
According to the complaint, the cause of death was blood clot in lungs
due to blood clot in legs. Since we do not know, based on records
presented, if there was a blood clot in her legs at discharge we can't
know if that could or would have been considered in the decision. There
is no way to know with medical certainty when the clot in the legs
formed. If the patient had been informed as to all options and risks and
benefits of each, and she opted to take the warfarin after hospitalization,
it is reasonable to opine that her chance of dying from a blood clot in
the lungs secondary to a blood clot in the legs would have been lower
on the day of her death. There is no way to know with medical certainty
how long this statistical benefit to the patient would have lasted beyond
that date.
Based on Dr. Herman’s affidavit, Plaintiffs maintain they provided expert
opinion evidence establishing Dr. Truxillo’s breach of the standard of care regarding
informed consent and lost chance of survival. Notably, Dr. Herman’s affidavit does
not provide any information to demonstrate he meets the criteria set forth in La. R.S.
9:2794(D)(1),3 and Plaintiffs failed to attach his curriculum vitae to their
3 Specific to medical malpractice actions, La. R.S. 9:2794(D)(1) sets forth the qualifications an
expert must possess in order to qualify to testify about a physician’s care:
In a medical malpractice action against a physician, licensed to practice medicine by
the Louisiana State Board of Medical Examiners under R.S. 37:1261 et seq., for injury
to or death of a patient, a person may qualify as an expert witness on the issue of
whether the physician departed from accepted standards of medical care only if the
person is a physician who meets all of the following criteria:
(a) He is practicing medicine at the time such testimony is given or was practicing
medicine at the time the claim arose.
(b) He has knowledge of accepted standards of medical care for the diagnosis, care, or
treatment of the illness, injury, or condition involved in the claim.
(c) He is qualified on the basis of training or experience to offer an expert opinion
regarding those accepted standards of care.
(d) He is licensed to practice medicine by the Louisiana State Board of Medical
Examiners under R.S. 37:1261 et seq., is licensed to practice medicine by any other
jurisdiction in the United States, or is a graduate of a medical school accredited by the
American Medical Association's Liaison Committee on Medical Education or the
American Osteopathic Association.
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opposition.4 Further damaging to Plaintiffs’ opposition is the fact that Dr. Herman’s
affidavit opines on alleged breaches of the standard of care - informed consent and
lost chance of survival - that were not contained in Plaintiffs’ PCF complaint and
had not been submitted to the medical review panel as required by the
Louisiana Medical Malpractice Act.5 Moreover, any potential informed consent or
lost chance of survival claims are now prescribed.
“The peremptory exception may be pleaded at any stage of the proceeding in
the trial court prior to a submission of the case for a decision . . .
.” La. C.C.P. art. 928(B). In reply to Plaintiffs’ opposition, Dr. Truxillo contends
any claims that have not been raised during the medical review panel stage and
included in the petition for damages are now prescribed. In accordance with La. R.S.
9:5628,6 informed consent and lost chance of survival claims must be brought within
one year of the healthcare at issue. The healthcare at issued occurred in January
2015, while Ms. Martello was hospitalized. Nine years later, through their purported
expert – Dr. Herman – Plaintiffs raise these claims for the first time in order to defeat
Dr. Truxillo’s motion for summary judgment. In Louisiana, there is no “relation
4 Louisiana Code of Civil Procedure Article 966(D)(2) states, in pertinent part, “The court shall
consider only those documents filed or referenced in support of or in opposition to the motion for
summary judgment . . . .”
5 Louisiana Revised Statutes 40:1231.8(A)(1)(a) states, in part, “All malpractice claims against health
care providers covered by this Part . . . shall be reviewed by a medical review panel . . . .”
6 Louisiana Revised Statutes 9:56289(A) states:
No action for damages for injury or death against any physician, chiropractor, nurse,
licensed midwife practitioner, dentist, psychologist, optometrist, hospital or nursing
home duly licensed under the laws of this state, or community blood center or tissue
bank as defined in R.S. 40:1231.1(A), whether based upon tort, or breach of contract,
or otherwise, arising out of patient care shall be brought unless filed within one year
from the date of the alleged act, omission, or neglect, or within one year from the date
of discovery of the alleged act, omission, or neglect; however, even as to claims filed
within one year from the date of such discovery, in all events such claims shall be filed
at the latest within a period of three years from the date of the alleged act, omission, or
neglect.
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back” for medical malpractice claims. See Warren v. Louisiana Med. Mut. Ins. Co.,
2007-0492 (La. 12/2/08), 21 So.3d 186, 207 (on rehearing) (“Because medical
malpractice actions are governed by the specific provisions of the Act regarding
prescription and suspension of prescription . . . we find that any general codal article
which conflicts with these provisions may not be applied to such actions in the
absence of specific legislative authorization in the Act. The Act has no rules allowing
relation back of pleadings for medical malpractice claims”) (internal citation
omitted). Plaintiffs never raised informed consent or loss chance of survival claims
during the medical review panel stage, nor in their petition for damages. Therefore,
it is now too late to raise these claims, several years after the healthcare at issue. As
Plaintiff’s purported expert, Dr. Herman, allegedly establishes a breach in the
standard of care only as it relates to the prescribed claims of informed consent and
loss chance of survival – and fails to establish any breaches in the standard of care
for the claims that were included in the PCF complaint and petition for damages –
the trial court erred in denying Dr. Truxillo’s motion for summary judgment.
DECREE
Based on the foregoing reasons, we grant Dr. Truxillo’s writ application;
reverse the trial court’s March 11, 2024 judgment denying his motion for summary
judgment; grant Dr. Truxillo’s motion for summary judgment against Plaintiffs; and
dismiss Plaintiffs’ case with prejudice.
WRIT GRANTED; JUDGMENT REVERSED AND RENDERED
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