Date: 12-11-2015

Case Style: Robert L. Royer VS Our Lady of the Lake Hospital, Inc., Our Lady of the Lake Physician Group, LLC, Keith Brian Hodge, M.D., and Louisiana Cardiovascular Specialists, LLC d/b/a Louisiana Cardiology Associates

Case Number: 2015CA0009

Judge: Mitchell R. Theriot

Court: STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT

Plaintiff's Attorney: Allen M. Posey, Jr., Heather M. Royer, Robert L. Royer

Defendant's Attorney: Douglas K. Williams, Druit G. Gremillion, Jr., Ann M. Halphen, Amy C. Lambert, Dr. Keith Brian Hodge, L. Adam Thames, Dr. Lura LaBorde Wight

Description: The instant dispute derives from the plaintiff - appellant, Robert L.
Royer' s, decision to seek heart care treatment at Our Lady of the Lake
Hospital, Inc. ( "OLOL "). On March 16, 2011, Royer began experiencing
symptoms of an apparent heart attack, including chest pain, shortness of
breath, and weakness. Royer first presented with these symptoms to the
office of his primary care physician, Dr. Kurt Graves. Upon Dr. Graves'
advice and encouragement, Royer drove to OLOL' s emergency room
ER ") for further treatment. Royer arrived at OLOL between 1: 30 and
1: 45pm. Two EKG tests were performed upon Royer; the first took place at
2: 09pm, and the second took place at 2:49pm. The EKG tests showed Royer
was suffering from an active atrial fibrillation or arrhythmia, and
demonstrated a progressive abnormality in his condition. OLOL personnel
took chest x -rays of Royer at approximately 3: 30pm. At approximately
4:00pm, Royer was admitted into the treatment area, and, roughly fifteen
minutes later, Royer first received medication for his condition. Thereafter,
at approximately 4:47pm, Royer was admitted into OLOL' s critical care
unit, where he underwent surgery and received other treatment for his heart
condition. On March 18, 2011, Royer was discharged from the hospital.
On March 16, 2012, Royer filed a " Petition for Fraud, Rescission of
Contract, Reimbursement of Medical Expenses, Damages and Attorney Fees
for Fraudulent Advertisements and Other Conduct," against OLOL, Our
Lady of the Lake Physician Group, LLC ( "OLOLPG "), Keith Brian Hodge,
M.D. ( " Dr. Hodge "), Lura LaBorde Wight, M.D. ( " Dr. Wight "), and
Louisiana Cardiovascular Specialists, LLC ( " LCS "). Through amended
petitions filed on January 29, 2013, and November 19, 2013, Royer added
Professional Emergency Physician Associates, LLC ( "PEPA ") and Shammi
R. Kataria, M.D. ( "Dr. Kataria ") as named defendants. Royer voluntarily
dismissed LCS from the suit.' The defendants- appellees in this case on
appeal are OLOL, Dr. Hodge, and Dr. Wight.
Through his original and amended petitions, Royer presented fraud
claims against OLOL, OLOLPG, Dr. Hodge, Dr. Wight, LCS, PEPA, and
Dr. Kataria ( collectively, " defendants "). Royer alleged the defendants
falsely advertised and misrepresented the nature of OLOL' s medical
services. In pertinent part, Royer claimed the defendants worked together as
integral parts of the team that provided services ... [ but that] never came
close to providing the services that were falsely represented...." Royer
averred the defendants' intentional misrepresentation of the type and extent
of medical care provided to persons suffering from heart conditions led him
to believe his complaints would be treated with urgency and influenced his
decision to seek treatment at OLOL. Royer pointed to the following
advertisements and representations as evidence of the defendants' fraud:
Advertisement that OLOL' s staff was " completely committed to
medical excellence[.]"
1 Royer represents that he also voluntarily dismissed OLOLPG from the suit. The record does not appear to contain a motion to dismiss OLOLPG, although Royer did not name OLOLPG as a defendant in either his first or second amended petition for damages.
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Advertisement that OLOL had earned the " highest level recognition
for performance excellence[.]"
Advertisement that OLOL' s ER was " the largest and most modern in
Baton Rouge[.]"
Advertisement that OLOL had earned " Chest Pain Accreditation,
Cycle III, which is the highest cycle awarded."
Representation that a person should obtain immediate treatment for chest pain because every " minute" is critical for treatment of a heart
attack.
Royer claimed the defendants' intentional and fraudulent conduct
entitled him to rescind any medical service contracts entered, and entitled
him to an award for past and future medical expenses, general damages,
permanent heart damage, and /or the lost chance of preventing permanent
heart damage he would have enjoyed had he been treated in accordance with
the defendants' purportedly false advertisements and representations.
In addition to the fraud claims before us on appeal, Royer also
presented medical malpractice claims against the defendants. Royer claimed
that, during the events in question, Dr. Hodge was employed as OLOL' s
triage physician and Dr. Wight was employed as OLOL' s ER physician on
duty. Royer claimed Dr. Hodge improperly failed to respond to his
complaints of chest pain and failed to note these complaints in his medical
charts. Royer alleged Dr. Wight was negligent because she was " responsible
for the examination, evaluation and treatment, or lack thereof, that was
provided by every other person in the [ ER]." Furthermore, Royer alleged
that OLOL' s cardiologist, Dr. Carl Luikart, an individual not named as a
defendant in this suit, negligently caused his artery to be dissected, torn, or
ripped open during a balloon angioplasty operation intended to open a
blockage in his right coronary artery. Royer finally alleged that, in February
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of 2012, Dr. Luikart intentionally misdiagnosed his ongoing chest pain in an
attempt to justify prior negligence.
On May 1, 2012, Dr. Hodge and Dr. Wight responded to Royer's suit
by jointly filing a dilatory exception of prematurity. Dr. Hodge and Dr.
Wight averred Royer' s medical malpractice claims had to proceed in
accordance with the provisions of the Louisiana Medical Malpractice Act
LMMA "), La. R.S. 40: 1299.41, et seq. Dr. Hodge and Dr. Wight stated
that, at all pertinent times, they were " qualified health care provider[ s]," and
argued Royer' s claims against them were thus premature prior to completion
of the medical review panel process.
Dr. Hodge' s and Dr. Wight' s dilatory exception of prematurity was
set for hearing before the trial court on September 24, 2012. Prior to the
hearing, Royer, Dr. Hodge, and Dr. Wight collectively reached an agreement
regarding judgment on Dr. Hodge' s and Dr. Wight' s dilatory exception of
prematurity. On September 26, 2012, the trial court signed a consent
judgment on the exception of prematurity, thereby dismissing Royer' s
medical malpractice claims against Dr. Hodge and Dr. Wight as premature
prior to a review by a medical review panel, but maintaining Royer' s fraud
claims against Dr. Hodge and Dr. Wight in the trial court for further
proceedings.
On April 16, 2013, on substantially the same grounds as stated by Dr.
Hodge and Dr. Wight in support of their dilatory exception of prematurity,
OLOL and OLOLPG jointly filed their own dilatory exception of
Z The LMMA requires a claimant submit a medical malpractice complaint to a medical review panel and prohibits the filing of a civil suit until the panel renders its expert opinion. See La. R.S. 40: 1299.47. Any suit for medical malpractice subject to the LMMA filed in district court prior to presentation of the claim to the medical review panel is subject to the dilatory exception ofprematurity, because the cause ofaction is not yet ripe for judicial determination. Delcambre v. Blood Systems, Inc., 04 -0561 ( La. 1/ 19/ 05), 893 So.2d 23, 27.
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prematurity. Royer reached an agreement with OLOL and OLOLPG
regarding judgment on their exception, and, on June 11, 2013, the trial court
signed a consent judgment in accordance with the parties' agreement. The
June 11, 2013 consent judgment dismissed Royer' s medical malpractice
claims against OLOL and OLOLPG, but maintained Royer' s fraud claims
against OLOL and OLOLPG for further proceedings.
On November 27, 2012, Dr. Hodge and Dr. Wight jointly submitted a
motion for summary judgment, seeking dismissal of Royer' s remaining
fraud claims against them. Dr. Hodge and Dr. Wight argued they were
entitled to judgment as a matter of law because they were not employees,
agents, or representatives of OLOL during the events in question. In support
of their motion for summary judgment, Dr. Hodge and Dr. Wight filed
affidavits to establish they were independent contractors associated with
PEPA who had no control, responsibility, or involvement in the composing
or transmitting the representations or advertisements made by OLOL
regarding its medical services.
During the course of discovery and pendency of pre -trial motions,
prior to judgment on Dr. Hodge' s and Dr. Wight' s motion for summary
judgment, Royer, Dr. Hodge, Dr. Wight, PEPA, and OLOL submitted a joint
motion for a stipulated protective order to the trial court. The parties stated
the protective order was necessary to protect the confidentiality of certain
documents and information produced during discovery. On March 11, 2013,
the trial court signed the protective order and ordered it to remain in effect
beyond the final conclusion of litigation between the parties to the
agreement. In pertinent part, the protective order provided:
IT IS ORDERED THAT all written policies, protocols,
procedures, charts, contracts, agreements, records, and
documents of any kind produced by Dr. Wight, Dr. Hodge,
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PEPA], and /or [ OLOL], as well as a.11 policies of insurance and /or declaration pages providing insurance coverage to PEPA] and [ OLOL] shall be subject to a [ p]ootective [ o] rder and shall be disclosed only to the following:
1. Parties to this action, counsel of record for such
parties, including their associates, clerks, secretarial, and
stenographic personnel;
6. The [ trial court], in camera, for the consideration,
trial, or hearing of any motion, whether in support or opposition thereof, and the [ trial court] shall at that time determine whether
the documents or records shall continue to be governed by this
protective order] .
Following entry of the protective order, Royer filed motions to
compel discovery of contracts and documents regarding the relationship
between OLOL, Dr. Hodge, Dr. Wight, and PEPA. Specifically, Royer
sought to compel discovery of documents and contracts entered into by these
parties on August 1, 2005; July 14, 2006; August 1, 2007; and October 12,
2009. Royer argued the requested documents would prove Dr. Hodge and
Dr. Wight were not independent contractors, had knowledge about OLOL' s
advertisements and representations, and were therefore not entitled to
summary judgment. Additionally, on April 18, 2013, Royer filed a motion
to vacate the protective order in its entirety, reasoning it was improperly
being used to circumvent discovery.
On April 29, 2013, the trial court heard arguments on Dr. Hodge' s and
Dr. Wight' s motion for summary judgment, and, on June 17, 2013, the trial
court heard arguments on Royer' s motions to compel discovery and vacate
the protective order. At the hearing on Royer' s motions to compel discovery
and vacate the protective order, the trial court denied Royer' s motion to
vacate the protective order in open court. Thereafter, on September 12,
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2013, the trial court issued and signed summary judgment in favor of Dr.
Hodge and Dr. Wight and dismissed Royer' s claims against them, with
prejudice. The trial court' s September 12, 2013 judgment also denied
Royer' s outstanding motion to compel discovery as moot. The trial court
reasoned the uncontroverted evidence on record demonstrated that Dr.
Hodge and Dr. Wight were independent contractors who could not be found
liable for OLOL' s advertisements and representations. Royer responsively
filed motions for new trial on the granting of Dr. Hodge' s and Dr. Wight' s
motion for summary judgment and on the denial of his motions to compel
discovery and vacate the protective order.
On January 17, 2014, OLOL individually filed a motion for summary
judgment. OLOL argued that there was no genuine issue of material fact as
to Royer' s fraud claims and that it was entitled to judgment as a matter of
law. OLOL asserted Royer could not present evidence sufficient to bear his
burden of proving he relied upon its representations and advertisements in
deciding to seek treatment at OLOL. Additionally, OLOL averred that, even
if Royer could demonstrate he relied upon its representations and
advertisements, he could not prove OLOL' s representations and
advertisements misrepresented, suppressed, or omitted truthful information.
On August 5, 2014, following arguments on OLOL' s motion for
summary judgment, the trial court issued and signed summary judgment in
favor of OLOL. The trial court found there were no genuine issues of
material fact with regard to Royer' s fraud claims against OLOL and
dismissed Royer' s remaining claims against OLOL, with prejudice. In
written reasons for judgment, the trial court explained incontrovertible
evidence on record proved Royer presented to OLOL following the advice
and encouragement of his primary care physician, because OLOL was the
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closest hospital to his location. Moreover, the tirial court explained there was
no evidence any ofthe advertisements at issue were untrue and noted OLOL
did not make any " guarantees or offers" to Royer. The trial court' s August
5, 2014 judgment also denied Royer' s motions for new trial. On October 1,
2014, Royer filed a " Petition for Devolutive Appeal" seeking appeal from
the trial court' s September 12, 2013 and August 5, 2014 judgments.
ASSIGNMENTS OF ERROR
Royer raises six assignments of error on appeal:
1. On August 27, 2013, the trial court erred in: (a) failing to compel Drs. Hodge and Wight and PEPA to produce requested documents and
answer interrogatories that were necessary to assess their status, actions, and responsibility as emergency physicians at OLOL; and (b) prematurely ruling on the motion for summary judgment in favor of Drs. Hodge and Wight.
2. On September 12, 2013, the trial court erred in granting summary
judgment in favor of Drs. Hodge and Wight.
3. On June 26, 2014, the trial court erred in denying the motions for new trial on the motion for summary judgment rendered in favor of Drs. Hodge and Wight, on the motion to compel discovery, and on the
motion to vacate the protective order.
4. On June 26, 2014, the trial court erred in failing to compel OLOL, PEPA, and Drs. Hodge and Wight to produce documents, requested
on December 14, 2012, and answer the interrogatories propounded on May 27, 2013, as requested in the motion for new trial, motion to compel discovery, and supplemental and amended motion to compel discovery, filed on April 23, 2014, before prematurely denying the motion for new trial and prematurely granting summary judgment in
favor of OLOL.
5. On July 31, 2014, the trial court erred in rendering summary judgment in favor of OLOL.
6. On June 17, 2013; June 26, 2014; and July 31, 2014, the trial court erred in denying the motion to vacate the protective order.
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STANDARD OF REVIEW
Summary judgment is subject to de novo review on appeal, using the
same standards applicable to the trial court' s determination of the issues.
The summary judgment procedure is expressly favored in the law and is
designed to secure the just, speedy, and inexpensive determination of non-
domestic civil actions. La. C. C.P. art. 966(A)(2). Its purpose is to pierce the
pleadings and to assess the proof in order to see whether there is a genuine
need for trial. Summary judgment is appropriate if the pleadings,
depositions, answers to interrogatories, admissions, and affidavits in the
record 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(B)( 2);
Louisiana Hospital Ass' n v. State, 13 -0579 (La. App. 1 Cir. 12/30/ 14), 168
So. 3d 676, 684 -85, writ denied, 15 -0215 ( La. 511115), 169 So.3d 372
citations omitted).
DISCUSSION
As an initial matter, we must determine whether this appeal has been
properly taken from a final, appealable judgment. In brief, Royer contends
that this court has no jurisdiction to address the merits of this case on
appeal.' Royer contends his medical malpractice claims against Dr. Hodge,
Dr. Wight, and OLOL, which are presently pending before a medical review
panel in accordance with the provisions of the LMMA, are " inextricably
intertwined with the fraud claims(s) pending herein." He argues his medical
malpractice claims arise out of the same transaction or occurrence at issue in
3 Royer requests this court exercise its discretion to convert this appeal to an application for supervisory writs and render a decision necessary to correct the trial court' s errors. Under certain circumstances, Louisiana appellate courts have converted appeals of interlocutoryjudgments into applications for supervisory writs. See Delahoussaye v. Tulane University Hospital & Clinic, 12 -0906 ( La. App. 4 Cir. 2/20/ 13), 155 So.3d 560, 562. " However, we do so only when the motion for appeal has been filed within the thirty -day time period allowed for the filing of an application for supervisory writs under Rule 4 -3 of the Uniform Rules, Courts of Appeal." Delahoussaye, 155 So.3d at 563.
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his fraud claims and will ultirn.a €eiy proceed in this civil action. He therefore
asserts that the trial court' s September 12, 2013 and August 5, 2014
judgments constitute non - appealable partial summary judgments controlled
by La. C.C.P. art. 1915(B). We disagree.
Louisiana Code of Civil Procedure art. 1915 authorizes appellate
courts to entertain appeals from partial final judgments. In pertinent part,
La. C. C.P. art. 1915 states:
A. A final judgment may be rendered and signed by the court, even though it may not grant the successful party or parties all ofthe reliefprayed for, or may not adjudicate all ofthe issues in
the case, when the court:
1) Dismisses the suit as to less than all of the parties,
defendants, third party plaintiffs, third party defendants, or
intervenors.
3) Grants a motion for summary judgment, as provided by Articles 966 through 969, but not including a summary
judgment granted pursuant to Article 966(E).
B. ( 1) When a court renders a partial judgment or partial
summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories
against a party, whether in an original demand, reconventional demand, cross - claim, third -party claim, or intervention, the judgment shall not constitute a final judgment unless it is
designated as a final judgment by the court after an express determination that there is no just reason for delay.
2) In the absence of such a determination and designation, any such order or decision shall not constitute a final judgment for
the purpose of an immediate appeal and may be revised at any time prior to rendition of the judgment adjudicating all the
claims and the rights and liabilities of all the parties.
In this case, the trial court' s September 12, 2013 judgment, granting
summary judgment in favor of Dr. Hodge and Dr. Wight, and the trial
court' s August 5, 2014 judgment, granting summary judgment in favor of
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OLOL, both constitute imrneuiately app- ;,ta'U ;e partial final judgments
controlled by La. C. C.P. art. 1915( A). The trial court' s rulings on the
motions for summary judgment did not dismiss Royer' s claims against all
named defendants; namely, Royer' s claims against PEPA and Dr. Kataria
remain pending before the trial court. Nevertheless, the trial court' s rulings
on the motions for summary judgment entirely dismissed Royer' s pending
civil claims against Dr. Hodge, Dr. Wight, and OLOL, the sole defendants
before us on appeal. Although Royer' s medical malpractice claims against
Dr. Hodge, Dr. Wight, and OLOL arise from the same transaction or
occurrence at issue in his fraud claims, Royer' s medical malpractice claims
against these parties are not presently proceeding in the instant civil action.
Therefore, the trial court' s September 12, 2013 and August 5, 2014
judgment constitute partial final judgments under La. C.C.P. art. 1915( A). It
is beyond dispute that Royer timely took devolutive appeal therefrom. 4,5
4 A litigant may take a devolutive appeal from a final judgment within sixty days of the expiration of the delay for applying for a new trial or judgment notwithstanding the verdict, if no application for such has been timely filed. La. C. C.P. art. 2087(A)( 1). If a timely application for new trial or judgment notwithstanding the verdict has been filed, a litigant may take a devolutive appeal within sixty days of "[t]he date of the mailing of notice of the court' s refusal to grant a timely application for a new trial or judgment notwithstanding the verdict...." La. C. C. P. art. 2087(A)(2). Here, the trial court rendered summary judgment in favor of OLOL and denied Royer' s motion for new trial on the granting of the motion for summary judgment in favor of Dr. Hodge and Dr. Wight on August 5, 2014. Notice of this judgment was mailed on August 13, 2014, and Royer filed a motion for appeal on October 1, 2014.
5 We note that Royer is also entitled to review of the trial court' s rulings on his motions to compel discovery and vacate the protective order. It is well - settled under Louisiana law that trial court rulings concerning discovery matters are non - appealable interlocutory judgments under La. C.C.P. art. 1841. See e. &., Devers v. Southern University, 97 -0259 La. App. 1 Cir. 4/8/ 98), 712 So.2d 199, 209; Dubois v. Diamond M Co., 500 So.2d 919, 920 ( La. App. 3 Cir. 1987). However, when a litigant takes an unrestricted appeal from a final judgment, he is entitled to seek review of all adverse interlocutory judgments. See Landry v. Leonard J. Chabert Medical Center, 02 -1559 ( La. App. 1 Cir. 5/ 14/ 03), 858 So.2d 454, 461 n.4, writs denied, 03 -1752, 03 -1748 ( La. 10/ 17/ 03), 855 So.2d 761. Of course, the instant appeal is limited to review of the trial court' s rulings on the motions for summary judgment in favor of Dr. Hodge and Dr. Wight and OLOL; nevertheless, because the issues involved in the trial court' s ruling on the motion for summary judgment in favor of Dr. Hodge and Dr. Wight are substantially similar to those involved in Royer' s motions to compel discovery and vacate the protective order, it is appropriate to review the trial court' s interlocutory judgments in this appeal. See Dean v. Griffin Crane & Steel, Inc., 05 -1226 ( La. App. 1 Cir. 5/ 5/ 06), 935 So. 2d 186, 189, n.3, writ denied, 06 -1334 ( La. 9/22/06), 937 So.2d 387.
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Louisiana Civil Code ao. 1953 defines ` mud as " a misrepresentation
or a suppression of the truth made with the intention either to obtain an
unjust advantage for one party or to cause a loss or inconvenience to the
other." Fraud may result from silence or inaction. There are three essential
elements in an action for fraud against a party to a contract: 1) a
misrepresentation, suppression, or omission of true information; 2) the intent
to obtain an unjust advantage or to cause damage or inconvenience to
another; and 3) the error induced by a fraudulent act must relate to a
circumstance substantially influencing the victim' s consent to the contract.
Fraudulent intent, i.e., the intent to deceive, is a necessary and inherent
element of fraud. Fraud cannot be predicated upon mistake or negligence,
no matter how gross. Charming Charlie, Inc. v. Perkins Rowe
Associates, LLC, 11 -2254 (La. App. 1 Cir. 7/ 10/ 12), 97 So.3d 595, 599.
Louisiana Code of Civil Procedure art. 966( C)( 2) provides that in a
motion for summary judgment, the burden of proof remains with the
movant. However, if the movant will not bear the burden of proof at trial on
the matter that is before the court on the motion for summary judgment, the
movant' s burden on the motion does not require him to negate all essential
elements ofthe adverse party' s claim, but rather to point out to the court that
there is an absence of factual support for one or more elements essential to
the adverse party' s claim. Thereafter, if the adverse party fails to produce
factual support sufficient to establish that he will be able to satisfy his
evidentiary burden ofproof at trial, there is no genuine issue ofmaterial fact.
La. C.C.P. art. 966(C)( 2).
Based upon our de novo review ofthe entire record, we first find that
the trial court did not err by granting summary judgment in favor of Dr.
Hodge and Dr. Wight. In support of their motion for summary judgment, Dr.
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Hodge and Dr. Wight tiled afiivavits esi' birsaing that they were, at all ll
pertinent times, independent contractors associated with PEPA and
contracted out to OLOL in order to provide emergency medical services to
OLOL patients. The affidavits further demonstrated that Dr. Hodge and Dr.
Wight had no control, responsibility, or involvement in making any of the
representations or advertisements exercised by OLOL or its affiliates. Dr.
Hodge and Dr. Wight thereby pointed out that there was an absence of
factual support for the first element of any action for fraud; that is, Dr.
Hodge and Dr. Wight pointed out that Royer could not establish their
involvement in any purported misrepresentation, suppression, or omission of
true information.
In rendering summary judgment in favor of Dr. Hodge and Dr. Wight,
the trial court emphasized that " the allegations made in the plaintiff's
petition do not include actions that could be attributed to [Dr. Hodge and Dr.
Wight]." Furthermore, the trial court stated, "[ a] s independent contractors,
Dr. Hodge and Dr. Wight] would not be liable to the plaintiff for any claims
he made in the petition." A thorough review of the record reveals that
Royer' s original petition only alleged the false advertisements and
misrepresentations at issue had been made by " OLOL" or by " OLOL,
through its officers, agents, or employees." In response to the motion for
summary judgment, Royer did amend his petition to more broadly allege
that the false advertisements and misrepresentations at issue had been made
by " OLOL and PEPA" or by " OLOL, through its officers, agents,
employees, affiliates, associates, staff and /or members." However, it
remains that Royer presented no evidence sufficient to establish that he
could meet his burden of proving at trial that Dr. Hodge and Dr. Wight had
any control, responsibility, or involvement in composing or transmitting the
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allegedly false advertisements Thus, we find no legal
error in the trial court' s granting of summary judgment in favor of Dr.
Hodge and Dr. Wight. Relatedly, we conclude that the trial court did not err
by finding that the granting ofthe summary judgment in favor ofDr. Hodge
and Dr. Wight rendered Royer' s motions to compel discovery and vacate the
protective order moot. Therefore, Royer' s first, second, third, fourth, and
sixth assignments of error do not merit relief.
Next, we hold the trial court did not err by granting summary
judgment in favor of the principal entity, OLOL. First, the evidence on
record supports the trial court' s conclusion that OLOL' s advertisements and
representations did not substantially influence Royer' s decision to seek
treatment at OLOL, nor did they substantially influence Royer' s consent to
medical service contracts. While Royer testified in his deposition that he
was generally aware of OLOL' s advertisements regarding its heart care
services, Royer admitted that he only sought treatment at OLOL after first
visiting Dr. Graves, his primary care physician, and upon Dr. Graves' advice
and encouragement, because OLOL was the closest hospital to his location.
Additionally, the evidence on record supports the trial court' s conclusion
that OLOL' s advertisements did not constitute a misrepresentation,
suppression, or omission of the truth.
On appeal, Royer argues: " A comparison of the advertisements with
the medical records and affidavit testimony ... show[ s] that the
representations in the advertisements were not consistent with the treatment
Royer] received at the OLOL ER[.]" He contends this proves OLOL' s
fraudulent intent to obtain an unjust advantage. However, the cited
advertisements largely describe either uncontested objective facts or
subjective impressions about the hospital and its staff. We specifically note
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that none of the cited advertisements are ctcxica strably false. For example,
there is nothing in the record to counter OLOL' s representation that it earned
recognition for performance excellence, that 4 earned accreditation for chest
pain response, that it had the largest and most modern ER in Baton Rouge,
or that its staff was dedicated to medical excellence. While Royer is free to
argue that the medical treatment he received fell below the applicable
standard of care, and /or to argue that OLOL failed to comply with its own
guidelines for heart attack treatment, such claims properly sound in medical
malpractice, not fraud, as fraudulent intent " cannot be predicated upon
mistake or negligence[.]"

Outcome: For the foregoing reasons, the trial court' s September 12, 2013 and
August 5, 2014 judgments are affirmed. All costs of this appeal are assessed
against the plaintiff - appellant, Robert L. Royer.

Plaintiff's Experts:

Defendant's Experts:

Comments: