FRANK RABORN v. JEFFREY ALBEA SHAWN DUNN THE NEUROMEDICAL CENTER PROFESSIONAL MEDICAL CORPORATION EBI LP AND SYNTHES USA SALES LIMITED LIABILITY COMPANY (2025)

In this medical malpractice case, a neuromedical facility appeals both a judgment rendered against it after a jury trial and another judgment denying its motion notwithstanding the verdict. The jury found no negligence by the neurosurgeon who performed surgery on the plaintiff but found the neuromedical facility itself liable to the plaintiff for general damages. After review, we reverse both judgments and render judgment notwithstanding the verdict in favor of the neuromedical facility.

FACTUAL AND PROCEDURAL BACKGROUND

On June 6, 2006, Dr. Jeffrey R. Albea, a neurosurgeon, performed a single-level L5-S1 spinal fusion surgery on 46-year-old Frank Raborn at The NeuroMedical Center, A Professional Medical Corporation (NMC), in Baton Rouge, Louisiana. The surgery included the installation of an Array spinal system, a spinal fixation device used to stabilize the spine while fusion occurs. Shortly thereafter, Dr. Albea left employment with NMC, and Dr. Paul J. Waguespack, another NMC neurosurgeon, took over Mr. Raborn's postoperative care and treated him regularly for several months. During that time, Dr. Waguespack referred Mr. Raborn to Dr. Shawn G. Dunn, a NMC neurologist, to address Mr. Raborn's persistent post-operative pain. In March 2007, Dr. Dunn performed a discogram on Mr. Raborn to determine the source of his pain. Mr. Raborn alleges the discogram caused a spinal fluid leak, resulting in headaches and other symptoms. Dr. Dunn performed two blood patches to address the spinal fluid leak, after which Mr. Raborn had new complications and worsened pain, resulting in treatment at a local emergency room in early April 2007.

In the meantime, Dr. Waguespack continued to see Mr. Raborn. Among other treatment, Dr. Waguespack monitored Mr. Raborn's recovery via monthly x-rays to assess the status of his L5-S1 fusion. A December 19, 2006 x-ray showed that a right side screw at Mr. Raborn's S-1 vertebra was broken but the radiology report noted “no abnormal movement.” A subsequent January 10, 2007 CT scan showed no “apparent loosening of the hardware.” In March 2007, after Dr. Dunn performed the discogram, Dr. Waguespack determined Mr. Raborn was a candidate for additional surgery and discussed this option with him.

Mr. Raborn chose to get other medical opinions regarding possible additional surgery. He claims that, when he obtained and reviewed his NMC medical records in preparation for getting other medical opinions, he discovered, for the first time, that Dr. Albea had performed a different fusion surgery than what Mr. Raborn had consented to and that he had a broken screw in his spine – and, that “no one” at NMC had disclosed this information to him.

On June 12, 2007, Dr. Jerry Bob Blacklock, a neurosurgeon at the TMH Neurological Institute in Houston, Texas, performed revision surgery on Mr. Raborn, which included removal of the existing hardware and a two-level fusion at L5-S1 and L4-L5. Mr. Raborn continued to have back problems and other complications after his second surgery, some of which he continued to have at the time of trial in November 2023.

Eventually, Mr. Raborn filed a request for a medical review panel under La. R.S. 40:1299.47, alleging malpractice by Drs. Albea and Dunn, NMC Clinic, and NMC Surgical Hospital. Mr. Raborn did not allege malpractice by Dr. Waguespack. On July 21, 2009, the designated medical review panel (MRP) signed a decision finding there was no deviation from the appropriate standard of medical care by any of the named health care providers.

On October 19, 2009, Mr. Raborn filed this civil suit against Dr. Albea; Dr. Dunn; NMC; EBI, LP (EBI), the Array device manufacturer; and, Synthes USA Sales, LLC (Synthes), the manufacturer/seller of a bone putty used during the June 6, 2006 surgery. Mr. Raborn did not name Dr. Waguespack as a defendant nor specifically allege negligence by Dr. Waguespack. In due course, the trial court dismissed Mr. Raborn's claims against Dr. Dunn, NMC Hospital, EBI, and Synthes.¹ As to NMC, in First and Second Superseding Petitions, Mr. Raborn alleged NMC failed to tender medical records in a timely manner, failed to provide “adequate care coordination,” improper installation of the EBI Array device, failed to recognize and treat his post-surgery complications caused by Dr. Albea's malpractice, and failed to diagnose and treat his post-fusion spinal instability, his cauda equina syndrome, and his arachnoiditis.² In its answer, NMC alleged it was a qualified health care provider within the meaning of the Louisiana Medical Malpractice Act (LMMA), La. R.S. 40:1231.1, et seq., and entitled to its limitations on monetary recovery.

On November 13 through 17, 2023, a jury trial was held to decide Mr. Raborn's claims against Dr. Albea and NMC (the defendants). At the close of Mr. Raborn's case in chief, the defendants moved for a directed verdict as to the claims against NMC, contending Mr. Raborn had not alleged NMC was vicariously liable for Dr. Albea's negligence nor had he presented evidence to support a claim for NMC's separate negligence. The trial court denied the defendants’ motion and the defense then presented its case in chief.

At the end of the trial, the jury rendered a 12-0 verdict in favor of Dr. Albea, finding he was not negligent in his treatment of Mr. Raborn. Conversely, the jury rendered a 12-0 verdict against NMC, finding NMC was negligent in its treatment of Mr. Raborn. By a 9-3 verdict, the jury awarded Mr. Raborn damages for past mental anguish against NMC in the amount of $472,916.67. On December 18, 2023, the trial court signed a judgment memorializing the jury's verdict. NMC filed a motion for judgment notwithstanding the verdict (JNOV) or, in the alternative, motion for new trial, contending the jury's verdict against it was legally insupportable and manifestly erroneous. Mr. Raborn opposed the motion, and, after a contradictory hearing, the trial court denied it. On March 25, 2024, the trial court signed a judgment memorializing its denial of the JNOV and motion for new trial.

NMC appealed the December 18, 2023 and March 25, 2024 judgments. Because the jury's damage award exceeded NMC's monetary liability under the LMMA, the Louisiana Patient's Compensation Fund and the Louisiana Patient's Compensation Oversight Board (collectively, PCF), as statutory intervenors, also appealed. See La. R.S. 40:1231.2(B)(3)(a); LeCompte v. Continental Casualty Co., 2016-1359 (La. App. 1 Cir. 7/12/17), 224 So.3d 1005, 1011, writ denied, 2017-1525 (La. 12/15/17), 231 So.3d 635.³

ASSIGNMENTS OF ERROR

On appeal, NMC asserts the following assignments of error:

1. The jury's award for past mental anguish damages only against NMC was contrary to Louisiana law.

2. The jury verdict against NMC on the issues of liability and causation was legally insupportable and manifestly erroneous.

3. The trial court manifestly erred in denying the defendants’ motion for directed verdict and judgment notwithstanding the verdict.

4. The trial court abused its discretion in denying the defendants’ motion for new trial.

5. The trial court abused its discretion in failing to grant NMC's request for remittitur to decrease the excessive past mental anguish damages award.

On appeal, the PCF asserts the following assignments of error:

1. The jury erred in awarding damages to Mr. Raborn in the absence of expert testimony against NMC, especially in light of a finding that Dr. Albea was not negligent in his treatment of Mr. Raborn.

2. The jury erred in awarding past mental anguish damages in the absence of any finding of physical pain and suffering.

3. The trial court erred in denying NMC's motion for directed verdict, because Mr. Raborn failed to present requisite evidence in his case in chief to prove a deviation from the standard of care.

JUDGMENT NOTWITHSTANDING THE VERDICT

A JNOV is a procedural device authorized by La. C.C.P. art. 1811, whereby a trial court may correct an erroneous jury verdict by modifying the jury's finding of fault or damages, or both. Bourg v. Cajun Cutters, Inc., 2014-0210 (La. App. 1 Cir. 5/7/15), 174 So.3d 56, 61, writs denied, 2015-1306, 2015-1253 (La. 4/4/16), 190 So.3d 1201, 1205. According to the Louisiana Supreme Court, the trial court uses the following criteria to decide a JNOV:

[A] JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the trial court believes that reasonable persons could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable persons could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. The motion should be denied if there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions. In making this determination, the trial court should not evaluate the credibility of the witnesses, and all reasonable inferences or factual questions should be resolved in favor of the non-moving party. This rigorous standard is based upon the principle that “[w]hen there is a jury, the jury is the trier of fact.”

Bourg, 174 So.3d at 61, quoting Joseph v. Broussard Rice Mill, Inc., 2000-0628 (La. 10/30/00), 772 So.2d 94, 99.

On appellate review, this Court employs a two-part test to determine whether a trial court properly ruled on a motion for JNOV. Adams v. Parish of East Baton Rouge, 2000-0424 (La. App. 1 Cir. 11/14/01), 804 So.2d 679, 687, writ denied, 2002-0448 (La. 4/19/02), 813 So.2d 1090. First, we apply the same criteria the trial court used in deciding whether or not to grant the motion. That is, whether the evidence points so strongly in favor of one party that the court believes that reasonable jurors could not arrive at a contrary verdict. Id. Second, if we determine the trial court correctly applied these criteria to the jury verdict, then we review the trial court's decision for manifest error. Id.

Therefore, our initial inquiry in this case is: was there evidence opposed to NMC's motion of such quality and weight that reasonable jurors might reach different conclusions as to NMC's negligence? If so, then the trial court correctly denied the JNOV. If, however, evidence pointed so strongly in favor of NMC that a reasonable juror could not have found NMC negligent, then the trial court erred in denying the JNOV.

A medical malpractice plaintiff must establish the health care provider's standard of care, the health care provider's breach of that standard of care, and a causal connection between the breach and the plaintiff's injuries. See La. R.S. 9:2794(A); Raborn v. Albea, 2016-1468 (La. App. 1 Cir. 5/11/17), 221 So.3d 104, 114; Guardia v. Lakeview Regional Medical Center, 2008-1369 (La. App. 1 Cir. 5/8/09), 13 So.3d 625, 628. Hospitals are bound to exercise the requisite amount of care toward a patient that the particular patient's condition may require. Glasscock v. Board of Sup'rs of Louisiana State University, 49,855 (La. App. 2 Cir. 8/19/15), 174 So.3d 757, 762, writ denied, 2015-1628 (La. 10/30/15), 179 So.3d 618. A determination of whether a hospital has breached the duties owed to a patient depends on the facts and circumstances of each particular case. Id. Given the complex factual and medical issues presented in a medical malpractice case, expert testimony is generally required to establish the applicable standard of care and whether or not that standard has been breached, except where the negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony. Raborn, 221 So.3d at 114; Guardia, 13 So.3d at 628; also see Pfiffner v. Correa, 94-0924 (La. 10/17/94), 643 So.2d 1228, 1234.

At trial, Mr. Raborn first had to establish the standard of care owed to him by NMC and a breach of that standard of care. In his petitions, he alleged NMC failed to provide “adequate care coordination” and failed to recognize that his post-surgery complications were caused by Dr. Albea's various acts of negligence.⁴ In his appellate brief, Mr. Raborn asserts that the applicable standard of care owed by NMC “required that a competent neurosurgeon take over his care.” He contends that Dr. Waguespack took over his case, but Dr. Waguespack was not adequately informed and did not provide Mr. Raborn with information about his case. Mr. Raborn claims he was not told that: Dr. Albea performed a different fusion surgery than the surgery to which Mr. Raborn consented; a screw on the Array device installed in his back had broken; problems he began to have in December 2006 might have been related to the “failure of the appliance”; his spine was unstable; and that Dr. Waguespack questioned the success of the fusion.⁵

We first note that, generally, the above assertions appear to point to a failure of communication or “adequate care coordination” by Dr. Waguespack, not NMC; and, as noted, Mr. Raburn did not seek MRP review of treatment by nor file suit against Dr. Waguespack. Thus, any purported negligence by Dr. Waguespack, or vicarious liability attributable to NMC for Dr. Waguespack's purported negligence, is not at issue in this appeal. However, to the extent Mr. Raborn's above assertions can be interpreted as assertions of negligence against NMC directly and separate from Dr. Waguespack's actions, these assertions do not describe negligence that is so obvious that a lay person could infer negligence without the guidance of expert testimony. See Guardia, 13 So.3d at 628. The “requisite amount of care” NMC owed to Mr. Raborn post-operatively would require expert testimony regarding the details of Mr. Raborn's post-operative condition and the standard of care owed by a neuromedical facility to a patient recovering from spinal fusion surgery. Such is beyond the province of a layperson to assess. See Ladart v. Harahan Living Center, Inc., 13-923 (La. App. 5 Cir. 5/14/14), 142 So.3d 103, 108, writ denied, 2014-1147 (La. 9/19/14), 149 So.3d 243. Thus, we now review the expert testimony presented at trial on this issue.

In its expert opinion, which was introduced at trial, the MRP found no negligence by NMC.⁶ Specifically, the MRP found:

It is the opinion of this medical review panel that there was no deviation from the appropriate standard of medical care by Dr. Shawn Dunn, Dr. Jeffery Albea, The NeuroMedical Center Clinic or by The NeuroMedical Center Surgical Hospital. The panel feels the consent and the initial surgery were appropriate. Transition of care was provided for to Dr. Waguespack. The discogram had a known complication that was addressed and the procedure led to meaningful surgery. The panel feels the care rendered by The NeuroMedical Center Surgical Hospital and The NeuroMedical Center Clinic was appropriate. (Emphasis added.)

In his case in chief, Mr. Raborn presented expert opinions from Dr. Robert Hudgins, a neurosurgeon; Dr. Kenneth Gaddis, Mr. Raborn's treating neurologist from 2010 through 2020; Aaron Wolfsen, Ph.D., a life care planner; and, Jamie Williams, Ph.D., a biomedical engineer. Dr. Hudgins’ testimony primarily focused on a review of the surgery Dr. Albea performed on Mr. Raborn; he did not discuss nor give an opinion regarding the standard of care applicable to NMC nor NMC's care of Mr. Raborn. Dr. Gaddis’ testimony generally focused on the medical conditions for which he treated Mr. Raborn after his two surgeries in June 2006 and June 2007. His testimony likewise included no discussion or expert medical opinion regarding the standard of care applicable to NMC nor NMC's care of Mr. Raborn. Dr. Wolfsen was accepted at trial as an expert in life care planning. He discussed a report he prepared regarding the cost of Mr. Raborn's future medical care throughout his life expectancy. Dr. Wolfsen specifically testified that he was giving no opinions regarding the medical care rendered to Mr. Raborn. Dr. Williams was accepted at trial as an expert in biomedical engineering, bioengineering, and spine biomechanics. Her testimony focused on the Array spinal system Dr. Albea used during Mr. Raborn's surgery. Dr. Williams specifically stated that she was not a medical doctor and was not giving “standard of care opinion” testimony as to whether “Dr. Albea or any health care provider at [NMC] was negligent or breached the applicable standard of care in their treatment of Mr. Raborn.” Thus, our review of the record shows that Mr. Raborn presented no expert testimony regarding his claims against NMC.

In their case in chief, the defendants introduced the expert testimony of three neurosurgeons: Dr. Albea, Dr. Donald Dietze, and Dr. Alan Appley, one of the MRP members. Dr. Albea testified that he saw Mr. Raborn each of the three days he remained in the hospital post-operatively and that he was ready for discharge on the third day. Dr. Albea also testified that Dr. Waguespack was a competent neurosurgeon capable of assuming Mr. Raborn's care and that there was no lapse in Mr. Raborn's care when he (Dr. Albea) left NMC, because Dr. Waguespack first saw Mr. Raborn ten days after the June 6, 2006 surgery, which was the same day Dr. Albea would have seen him post-operatively in his office. Dr. Donald Dietze, accepted as an expert neurosurgeon, also testified at trial that NMC's treatment of Mr. Raborn before, during, and after the June 6, 2006 surgery was within the applicable standard of care. Dr. Dietze, who reviewed Mr. Raborn's medical records, noted that Dr. Albea encountered no complications during the June 6th surgery and, as such, agreed that post-operative care by a knowledgeable, trained, and experienced neurosurgeon would have been “routine.” He also agreed there was no lapse in treatment between the surgery and Mr. Raborn's first appointment with Dr. Waguespack. Dr. Appley, who sat on the MRP and who the trial court accepted as an expert in neurosurgery, testified regarding the MRP's opinion and explained in detail the medical reasons why the MRP found no negligence by Dr. Albea. The only testimony by Dr. Appley regarding NMC's actions was elicited from defense counsel. That is, when twice asked if, after review of Mr. Raborn's medical records, he stood by the opinion of the MRP that Dr. Albea and NMC's care of Mr. Raborn was appropriate and within the standard of care, Dr. Appley twice answered affirmatively.

Our review of all trial testimony and other evidence introduced reveals that the focus of the trial was on Dr. Albea's alleged “failed” spinal fusion surgery and whether the continued medical issues Mr. Raborn experienced after that surgery were causally related to Dr. Albea's negligence. Notably, the experts presented by both Mr. Raborn and the defendants only tangentially addressed any conduct by NMC during Mr. Raborn's care. And, after review of that expert evidence, and following the standard of review by which we are bound herein, we conclude that the trial court erred in denying the JNOV in favor on NMC. The defendants presented expert opinion evidence amply demonstrating the standard of care applicable to NMC in its care of Mr. Raborn and that NMC did not breach that standard of care. In opposition, Mr. Raborn failed to present any expert opinion evidence from which reasonable jurors might have reached different conclusions regarding NMC's negligence. And, even assuming, arguendo, that Mr. Raborn had established NMC's standard of care and breach thereof without expert testimony, he likewise presented no expert testimony to establish causation. See Jordan v. Community Care Hospital, 2019-0039 (La. App. 4 Cir. 7/24/19), 276 So.3d 564, 580.

The evidence points so strongly in NMC's favor that we find reasonable jurors could not have arrived at a contrary verdict – that is, without supporting expert testimony, reasonable jurors could not have found that NMC failed to exercise the requisite amount of care toward Mr. Raborn that his post-operative condition required. See Glasscock, 174 So.3d at 762. Nor could they have found that NMC's negligence caused Mr. Raborn to experience past mental anguish. Thus, the trial court erred in denying the JNOV.⁷ Id. Also see Pennington v. Ochsner Clinic Foundation, 2017-0647 (La. App. 4 Cir. 4/25/18), 245 So.3d 58, 67, writs denied, 2018-1034, 2018-1020 (La. 10/8/18), 253 So.3d 791, 801 (reversing directed verdicts in favor of treating physicians but affirming directed verdict in favor of skilled nursing unit medical director because record was devoid of any evidence regarding his standard of care or breach thereof).

Accordingly, because Mr. Raborn failed to establish, by expert evidence, NMC's standard of care, breach of the standard of care, and causation, we reverse the denial of the JNOV, grant the JNOV in NMC's favor, and reverse the judgment awarding Mr. Raborn $472,916.67 in past mental anguish damages. Finding merit in NMC's third assignment of error, and in the PCF's third assignment of error, we pretermit discussion of the remaining assignments of error.

CONCLUSION

For reasons stated herein, we reverse the March 25, 2024 judgment denying the motion for judgment notwithstanding the verdict filed by The Neuromedical Center, APMC; render judgment granting the judgment notwithstanding the verdict filed by The Neuromedical Center, APMC; and, reverse the December 18, 2023 judgment awarding damages of $472,916.67, together with legal interest from June 5, 2007 and costs, to Frank Raborn and against The Neuromedical Center, APMC. Costs of the appeal are assessed to Frank Raborn.

JUDGMENT DENYING MARCH 25, 2024 JUDGMENT NOTWITHSTANDING VERDICT REVERSED; JUDGMENT GRANTING JUDGMENT NOTWITHSTANDING VERDICT AND REVERSING DECEMBER 18, 2023 JUDGMENT RENDERED HEREIN.

FOOTNOTES

1.   This Court affirmed a summary judgment dismissing Dr. Dunn, finding Mr. Raborn failed to produce expert evidence that Dr. Dunn deviated from the applicable standard of care in treating Mr. Raborn. Raborn v. Albea, 2016-1468 (La. App. 1 Cir. 5/11/17), 221 So.3d 104, 115-16.

2.   In his First Superseding Petition, Mr. Raborn also added the Louisiana Patients Compensation Fund and then Louisiana Attorney General James D. “Buddy” Caldwell as defendants and challenged the constitutionality of the Louisiana Medical Malpractice Act. Apparently, the trial court dismissed the constitutional claims in a judgment signed November 2, 2015, and Mr. Raborn did not appeal that judgment. In his Second Superseding Petition (improperly captioned Third Superseding Petition), Mr. Raborn added a products liability claim against Medtronic Inc., the maker of a product called Bone Morphogenic Protein that was used by Dr. Blacklock in the June 12, 2007 revision surgery. In Raborn v. Albea, 2013-0633 (La. App. 1 Cir. 4/16/14), 144 So.3d 1066, writ denied, 2014-1239 (La. 9/26/14), 149 So.3d 264, this Court affirmed the dismissal of Mr. Raborn's claims against Medtronic, Inc. on the grounds of prescription.

3.   After NMC appealed, it challenged the trial court's April 8, 2024 order setting the amount of the suspensive appeal bond. After this Court denied relief under our docket number 2024 CW 0370, the Louisiana Supreme Court granted NMC's writ application under its docket number 2024-CC-00712 and remanded the case to the trial court for reconsideration of its April 8, 2024 order. On March 7, 2025, the trial court signed an order amending the amount of the suspensive appeal bond. On April 25, 2025, the trial court signed an order supplementing the appellate record with the March 7, 2025 order.

4.   As earlier set forth, Mr. Raborn also alleged NMC failed to timely tender medical records, improperly installed the EBI Array device, and failed to diagnose and treat his post-fusion spinal instability, cauda equina syndrome, and arachnoiditis. The jury was presented no evidence regarding NMC's tender of medical records to Mr. Raborn. The remaining allegations focus on conduct of Dr. Albea and Dr. Dunn, for which NMC would only be vicariously liable. However, Mr. Raborn did not allege vicarious liability in this suit. Furthermore, the jury found no negligence by Dr. Albea, and Dr. Dunn has been dismissed from the suit on summary judgment. See footnote two.

5.   The record contains somewhat conflicting evidence regarding when Mr. Raborn learned about the broken screw. Despite his assertions on appeal, Mr. Raborn testified at trial that Dr. Waguespack advised him that additional surgery was needed to, among other things, “take the broken hardware out.” In his deposition, an excerpt of which was read to the jury during the defense's case, Dr. Waguespack was not questioned about whether he told Mr. Raborn about the broken screw. He did admit his documentation of the broken screw in Mr. Raborn's chart was “a little vague” but noted the most notable finding from the December 19, 2006 x-ray was that there was no abnormal spinal movement. In any event, the date Mr. Raborn learned about the broken screw and from whom he learned such is not dispositive herein.

6.   Under La. R.S. 40:1299.47(H) (now La. R.S. 40:1231.8(H)), the MRP's expert opinion shall be admissible in an action against a health care provider, but such expert opinion shall not be conclusive.

7.   Generally, the standard for granting or denying a JNOV is the same as that for a directed verdict – whether reasonable jurors could differ. See Frank L. Maraist and Harry T. Lemmon, 1 La. Civ. Law Treatise, Civil Procedure, § 13.4 (1999); Serpas v. Tulane University Hospital and Clinic, 2013-1590 (La. App. 4 Cir. 5/14/14), 161 So.3d 726, 737.

GREENE, J.