MARY ANN CHOINA VERSUS ARCHBALD MELCHER, M.D. AND EAST JEFFERSON NEUROLOGICAL ASSOCIATES

Gretna, LA- Medical Malpractice lawyer represented plaintiff with a malpractice suit concerning medical care.

On June 20, 2016, Mary Ann Choina filed a medical malpractice complaint

with the Louisiana Division of Administration, alleging malpractice by Jefferson

Parish Hospital District 2, Parish of Jefferson d/b/a East Jefferson General

Hospital, Dr. Archibald Melcher, and East Jefferson Neurological Associates. In

her complaint, Ms. Choina alleged that on June 24, 2015, while Dr. Melcher was

conducting a nerve conduction examination, she was laying on her back on the

examining table. Dr. Melcher stated that he needed her to turn so that he could

have access to her left leg and instructed her to swing her right leg and foot over.

While following Dr. Melcher's instructions, Mr. Choina's right foot allegedly

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struck a table located near the examining table, causing a dislocation of her right

little toe.

The medical review panel convened and issued its opinion on June 28, 2017,

finding that the evidence presented did not support the conclusion that defendants

failed to meet the applicable standard of care. Specifically, as to the claims against

Dr. Melcher and East Jefferson Neurological Associates, the medical review panel

found: 1) the defendants' equipment and bed setup was within the standard of care;

and 2) after Ms. Choina's toe injury, Dr. Melcher showed extreme diligence and

concern by immediately sending her to see an orthopedic surgeon.

On August 31, 2017, Ms. Choina filed a petition for damages against Dr.

Melcher and East Jefferson Neurological Associates. Therein, she asserted the

same factual allegations that she had asserted in her medical malpractice complaint

filed with the Louisiana Division of Administration. She claimed that the

substandard care rendered by Dr. Melcher and East Jefferson Neurological

Associates included but was not limited to: 1) breaching the standard of care

required of physicians, surgeons, and medical care providers; and 2) failing to

properly diagnose, treat, and instruct Ms. Choina.

On February 25, 2021, Dr. Melcher filed a motion for summary judgment,

alleging that to date, Ms. Choina had failed to identify any experts who will

contradict the opinion of the medical review panel, and thus there is no genuine

issue as to material fact that she will not be able to sustain her burden of proof. In

support of his motion, Dr. Melcher included a copy of the medical review panel

opinion. He also included discovery requests and responses. Therein, Dr. Melcher

requested that Ms. Choina name any expert with whom she had consulted and

provide copies of any expert reports. In her responses, Ms. Choina named as

experts Dr. Melcher and Dr. Melvin Parnell, an orthopedist who treated her. No

report was identified or included with the responses. Dr. Melcher also attached

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responses to requests for admissions where Ms. Choina admitted that she had not

retained an expert to contradict the medical review panel opinion. Additionally,

Dr. Melcher explained that only he and Ms. Choina were in the examination room

at the time of the incident in question. Accordingly, since Ms. Choina died on

May 6, 2020,

1 he asserted that plaintiff will not be able to contradict his defenses.

In her opposition to the motion for summary judgment, substitute plaintiff

Ms. Lucia argued that expert medical testimony is not required in this case. She

alleged that the medical and factual assertions by her mother against Dr. Melcher,

if correct, are sufficient to allow the trier of fact to determine negligence without

testimony from a medical expert. Additionally, she argued that the doctrine of res

ipsa loquitur applied in this case since Dr. Melcher's negligence was the obvious

cause of her mother's injury. She argued that there is no reasonable doubt that the

injury to her mother's little toe was caused by the treatment she received during

Dr. Melcher's examination.

A hearing on the motion for summary judgment was held on April 20,

2021.2

At the conclusion of the hearing, the trial court granted Dr. Melcher's

motion for summary judgment. In its oral reasons for judgment, the trial court

found that an expert was necessary to satisfy the burden of proof regarding the

breach in the standard of care. The trial court further found that the doctrine of res

ipsa loquitur was not applicable because the evidence in the present case does not

eliminate other possible causes of the injury, specifically Ms. Choina's own acts of

negligence. Finally, the trial court stated that even if viewed as a claim of ordinary

negligence, there is nothing in the record to establish genuine issues as to material



1 On March 25, 2021, Lori Choina Lucia, Ms. Choina's daughter, was substituted as

plaintiff in this matter.

2 During the hearing, plaintiff's counsel made an argument that plaintiff's case is not a

medical malpractice case, but rather is a general negligence case. This argument was not raised

prior to the hearing and has not been raised on appeal.

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fact regarding any negligence by Dr. Melcher at this point. On that same day, the

trial court signed a written judgment, granting Dr. Melcher's motion for summary

judgment and dismissing all claims against him with prejudice. This timely appeal

followed.

LAW AND ANALYSIS

A motion for summary judgment is a procedural device used to avoid a fullscale trial when there is no genuine issue as to material fact. Collins v. Home

Depot, U.S.A. Inc., 16-516 (La. App. 5 Cir. 3/15/17), 215 So.3d 918, 920; Bell v.

Parry, 10-369 (La. App. 5 Cir. 11/23/10), 61 So.3d 1, 2. The summary judgment

procedure is favored and is designed to secure the just, speedy, and inexpensive

determination of every action. La. C.C.P. art. 966(A)(2). 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); See also Chauvin v. Shell Oil Co., 16-609 (La.

App. 5 Cir. 10/25/17), 231 So.3d 903, 907, writ denied, 17-1985 (La. 1/29/18), 233

So.3d 607. The mover's burden on the motion for summary judgment, when he

does not bear the burden of proof at trial, requires him "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.” La. C.C.P. art. 966(D)(1). The opposing party's burden

is 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.” Id.

Appellate courts review a judgment granting or denying a motion for

summary judgment de novo. Thus, appellate courts ask the same questions the trial

court does in determining whether summary judgment is appropriate: whether

there is any genuine issue as to material fact, and whether the mover is entitled to

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judgment as a matter of law. Dorsey v. Purvis Contracting Grp., LLC, 17-369 (La.

App. 5 Cir. 12/27/17), 236 So.3d 737, 741, writ denied, 18-0199 (La. 3/23/18), 239

So.3d 296.

In a medical malpractice action, a plaintiff must prove by a preponderance of

the evidence: (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. La. R.S. 9:2794. Expert

testimony is generally required to establish the applicable standard of care and

whether or not that standard was breached, except where the negligence is so

obvious that a lay person can infer negligence without the guidance of expert

testimony. Samaha v. Rau, 07-1726 (La. 2/26/08), 977 So.2d 880, 884; Pfiffner v.

Correa, 94-0924 (La. 10/17/94), 643 So.2d 1228.

In Pfiffner, the court held:

... [E]xpert testimony is not always necessary in order for a plaintiff

to meet his burden of proof in establishing a medical malpractice

claim. Though in most cases, because of the complex medical and

factual issues involved, a plaintiff will likely fail to sustain his burden

of proving his claim under [La.] R.S. 9:2794's requirements without

medical experts, there are instances in which the medical and factual

issues are such that a lay jury can perceive negligence in the charged

physician's conduct as well as any expert can, or in which the

defendant/physician testifies as to the standard of care, and there is

objective evidence, including the testimony of the defendant/physician

which demonstrates a breach thereof. Even so, the plaintiff must also

demonstrate by a preponderance of the evidence a causal nexus

between the defendant's fault and the injury alleged.

Id. at 1234.

There, the court provided examples of acts of obvious negligence in a medical

malpractice action that would not require the plaintiff to present expert testimony,

such as "where the physician does an obviously careless act, such as fracturing a

leg during examination, amputating the wrong arm, dropping a knife, scalpel, or

acid on a patient or leaving a sponge in a patient's body.” Id at 1233-34.

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On appeal, plaintiff does not dispute that she has not named a medical

expert, but argues that the trial court erred in granting the motion for summary

judgment because the trier of fact does not need expert medical testimony to

perceive Dr. Melcher's alleged negligence. She argues that the facts of the present

case constitute the exception described in Pfiffner, supra. She claims that the

allegations made in the medical malpractice complaint, the petition for damages,

and the answers to interrogatories, if proven, are sufficient to allow the trier of fact

to determine if Dr. Melcher's actions constituted negligence without the testimony

of an expert medical witness.

Upon de novo review, we find that this case is not a case of obvious

negligence such that no expert testimony is needed for plaintiff to prove the

elements of her malpractice claim. In her petition, plaintiff claims that Ms.

Choina's injuries were a result of Dr. Melcher's failure to properly diagnose, treat,

and instruct her. We find that it is necessary for plaintiff to present factual support

through expert testimony to establish the standard of care and prove that Dr.

Melcher breached the standard of care while conducting the nerve conduction

examination of Ms. Choina. Specifically, expert testimony is needed to determine

the procedure for conducting a nerve conduction examination, what equipment is

used during the test, and how it is properly set up.

Plaintiff also argues that the doctrine of res ipsa loquitur applies in the

present case; therefore, no expert testimony is needed. She claims that Dr.

Melcher's negligence is the obvious cause of her injury.

Res ipsa loquitur is a rule of circumstantial evidence which allows an

inference of negligence on the part of the defendant if the facts indicate the

defendant's negligence, more probably than not, caused the injury. Linnear v.

CenterPoint Energy Entex/Reliant Energy, 06-3030 (La. 9/5/07), 966 So.2d 36, 45.

It applies in cases involving circumstantial evidence, rather than direct evidence,

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provided that the plaintiff establishes the following foundation of facts: (1) the

injury is of the kind which does not ordinarily occur in the absence of negligence;

(2) the evidence sufficiently eliminates other possible causes of the injury, such as

the plaintiff's own responsibility or the responsibility of others; and (3) the alleged

negligence of the defendant must fall within the scope of his duty to the plaintiff,

which will often be the case if the defendant had exclusive control of the thing or

situation that caused the injury to the plaintiff. Id.

The doctrine of res ipsa loquitur is not a substitute for factual evidence; it is

applied after the factual evidence has been submitted, and then only if there is

sufficient circumstantial evidence to suggest that the only reasonable cause of the

plaintiff's injury, in the context of a medical malpractice action, is the defendant's

breach of the standard of care. Salvador v. Main St. Family Pharmacy, L.L.C., 17-

1757 (La. App. 1 Cir. 6/4/18), 251 So.3d 1107, 1113.

Upon de novo review, we find that the doctrine of res ipsa loquitur is not

applicable in the present case. We find, as the trial court stated in its oral reasons

for judgment, that the evidence presented fails to eliminate other possible causes of

Ms. Choina's injury, including her own actions.

Accordingly, we find that Dr. Melcher properly pointed out an absence of

support for plaintiff's medical malpractice claims. Thereafter, we find that

plaintiff failed to produce evidence sufficient to establish that she will be able to

satisfy her evidentiary burden of proof at trial. Thus, Dr. Melcher is entitled to

judgment as a matter of law.

For the foregoing reasons, we affirm the trial court’s judgment granting Dr.

Melcher’s motion for summary judgment and dismissing plaintiff’s claims against

him.