STEVENS v. CLHG OAKDALE LLC (2025)

Plaintiffs and Defendants filed cross-motions for summary judgment in this medical malpractice case. After a hearing, the trial court rendered judgment in favor of Defendants and against Plaintiffs, dismissing Plaintiffs’ claims with prejudice. Plaintiffs now appeal. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On November 5, 2021, Wanda Stevens went to her local Walmart Pharmacy to receive a COVID-19 booster shot. After feeling soreness in her arm for nearly a month, Ms. Stevens saw Dr. Charles Vidrine at Oakdale Community Hospital as a new patient on November 30, 2021. Due to Ms. Stevens’ history of chronic obstructive pulmonary disease (COPD), Dr. Vidrine ordered a chest x-ray and pulmonary function test. Dr. Vidrine instructed Ms. Stevens to return in one week to discuss the results of the tests.

On December 15, 2021, Ms. Stevens presented to Oakdale Community Hospital to undergo a chest x-ray. The x-ray revealed a mass in the left pulmonary apex. The radiologist who reviewed the x-ray, Dr. Stuart Head, noted that the mass was suspicious for malignancy and recommended a follow-up computerized tomography (CT) scan of Ms. Stevens’ chest. Dr. Vidrine did not order the CT scan, nor did he notify Ms. Stevens of the results of the x-ray. Ms. Stevens did not attend a follow-up appointment.

Nearly a year after her first visit to Dr. Vidrine, on October 10, 2022, Ms. Stevens presented to the emergency room at Oakdale Community Hospital, complaining of worsening shortness of breath. She was discharged with a diagnosis of pneumonia and prescribed antibiotics. After returning to the hospital later the same day, she underwent a chest x-ray and CT scan. The images showed a significant increase in the size of the mass. After multiple biopsies, on November 1, 2022, Ms. Stevens was diagnosed with adenocarcinoma. Ms. Stevens underwent numerous chemotherapy and radiation treatments before she passed away on April 14, 2024.

Before her death, Ms. Stevens filed the present lawsuit against Dr. Vidrine, alleging he was liable for; (1) failing to review Ms. Stevens's x-ray results; (2) failing to schedule a follow-up CT scan; and (3) failing to communicate the results of the x-ray to Ms. Stevens. Ms. Stevens also sued Oakdale Community Hospital for vicarious liability as the employer of Dr. Vidrine.

After her death, her children were substituted as Plaintiffs in the case. They filed a motion for summary judgment, alleging that there were no genuine issues of material fact and requesting the court to rule in their favor. Defendants also filed a motion for summary judgment. Defendants argued that La.R.S. 29:771(B)(2)(c)(i), the Louisiana Health Emergency Powers Act (LHEPA), applied, shielding Defendants from liability. Specifically, Defendants maintained that Plaintiffs could not produce the requisite evidence to prove gross negligence or willful misconduct.

On March 11, 2020, Governor John Bel Edwards invoked the LHEPA, which was an existing law, declaring a public health emergency for the State of Louisiana due to the COVID-19 pandemic. It states: “During a state of public health emergency, no health care provider shall be civilly liable for causing the death of, or injury to, any person or damage to any property except in the event of gross negligence or willful misconduct.” Id. (emphasis added).

After a hearing on both motions, the trial court ruled that Plaintiffs could not sustain their heightened burden of proving gross negligence or willful misconduct as stated in the LHEPA. The trial court specifically found that the affidavits filed by Plaintiffs did not contain underlying facts that would support the conclusions found in the affidavits. Summary judgment was granted in favor of Defendants and against Plaintiffs, dismissing Plaintiffs’ suit with prejudice. Plaintiffs now appeal.

LAW AND DISCUSSION

I. Standard of Review

“The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969. The procedure is favored and shall be construed to accomplish these ends.” La.Code Civ.P. art. 966(A)(2). “[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.Code Civ.P. art. 966(A)(3).

In O'Neal v. Foremost Ins. Co., 24-212, p. 4 (La.App. 3 Cir. 6/25/25), 416 So.3d 809, 813, this court explained:

[T]he burden of producing evidence at the motion hearing is “on the mover, who can ordinarily meet that burden by submitting affidavits or by pointing out the lack of factual support for an essential element in the opponent's case.” Schultz v. Guoth, 10-343, p. 6 (La. 1/19/11), 57 So.3d 1002, 1006. Procedurally, therefore, the court's first task is to determine whether the moving party's motion, memorandum, affidavits, and supporting documents “are sufficient to resolve all material factual issues.” Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 28 (La. 7/5/94), 639 So.2d 730, 752. “To satisfy this burden, the mover must meet a strict standard of showing that it is quite clear as to what is the truth and that there has been excluded any real doubt as to the existence of a genuine issue of material fact.” Indus. Sand & Abrasives, Inc. v. Louisville & Nashville R.R. Co., 427 So.2d 1152, 1154 (La.1983).

The appellate standard of review on a motion for a summary judgment is de novo. 23rd Psalm Trucking, L.L.C. v. Madison Par. Police Jury, 24-808 (La. 6/27/25), 413 So.3d 370. “[A]n adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial.” La.Code Civ.P. art. 967(B).

II. Did the trial court use an incorrect burden?

Plaintiffs complain that the trial court used the definition for an intentional tort rather than the definition for gross negligence when determining whether summary judgment was appropriate. Plaintiffs allege that this was reversible error.

Typically, plaintiffs in a medical malpractice case must prove their claims under a general negligence standard. See La.R.S. 9:2794(A). See also Hebert v. La. Med. Mut. Ins. Co., 22-316 (La.App. 3 Cir. 10/26/22), 353 So.3d 846. As stated previously, under the LHEPA, to be civilly liable in a medical malpractice case, plaintiffs must prove that the healthcare provider acted with gross negligence or willful misconduct.

Plaintiffs contend that the trial court misinterpreted Hebert, 353 So.3d 846. In Hebert, plaintiff failed to submit her claims to a medical review panel prior to filing suit. The petition included claims for intentional tort, gross negligence, and/or willful misconduct. Because the incident occurred in October 2020, the LHEPA applied. The appellate court affirmed the trial court's judgment, finding that the plaintiff's claims require submission to a medical review panel and sustaining defendants’ exception of prematurity.

While discussing the applicable law, the court in Hebert analyzed the gross negligence and willful misconduct claims in one section of the opinion and intentional tort in another. In the Judgment on Motion for Summary Judgment in the present case, the trial court stated (alteration in original):

The Court in Hebert v. Louisiana Medical Mut. Ins. Co., 22-316, pp. 14–15 (La. App. 3 Cir. 10/26/22), 353 So.3d 846, 853, discussed the necessity of factual support for allegations of gross negligence/willful misconduct in a medical malpractice claim:

Plaintiff's petition does not allege specific facts to demonstrate that the defendant health care providers consciously desired the physical result of their acts or knew that the result was substantially certain to follow from their conduct. That deficiency of fact pleading, in turn, likewise distances Plaintiff's claims from the definition of intentional tort provided by the supreme court in Bazley [v. Tortorich, 397 So.2d 475 (La. 1981)].

This is the language in the judgment with which Plaintiffs find fault. Plaintiffs assert that this rises to the level of reversible error.

In Rabalais v. Nash, 06-999 (La. 3/9/07), 952 So.2d 653, the Louisiana Supreme Court discussed the definition of gross negligence. It explained:

The failure of “due care” is synonymous with ordinary negligence. “Reckless disregard,” however, connotes conduct more severe than negligent behavior. “Reckless disregard” is, in effect, “gross negligence.” Louisiana courts have frequently addressed the concept of gross negligence. Gross negligence has been defined as the “want of even slight care and diligence” and the “want of that diligence which even careless men are accustomed to exercise.” Ambrose v. New Orleans Police Department Ambulance Service, 93–3099, 93–3110 and 93–3112(La. 7/5/94),639 So.2d 216; State v. Vinzant, 200 La. 301, 7 So.2d 917 (La.1942). Gross negligence has also been termed the “entire absence of care” and the “utter disregard of the of prudence, amounting to complete neglect of the rights of others.” Hendry Corp. v. Aircraft Rescue Vessels, 113 F.Supp. 198 (E.D.La.1953) (applying Louisiana law). Additionally, gross negligence has been described as an “extreme departure from ordinary care or the want of even scant care.” W. Page Keeton, et. al., Prosser & Keeton on the Law of Torts, § 34, at 211 (5th ed. 1984); 65 C.J.S. Negligence, § 8(4)(a), at 539–40 (1966 & Supp. 1993). “There is often no clear distinction between such [willful, wanton, or reckless] conduct and ‘gros negligence’, and the two have tended to merge and take on the same meaning.” Falkowski v. Maurus, 637 So.2d 522 (La.App. 1st Cir.), writ denied, 629 So.2d 1176 (La.1993) (quoting Prosser & Keeton, supra, at 214). Gross negligence, therefore, has a well-defined legal meaning distinctly separate, and different, from ordinary negligence.

Id. at 658 (alteration in original).

Recently, the supreme court revisited the issue, stating: “Only the most egregious conduct ․ that exhibits an active desire to cause harm, or a callous indifference to the risk of potential harm from flagrantly bad conduct, will rise to the level of willful misconduct.” McQuirter v. State through La. Dep't. of Pub. Safety and Corrs. Elayn Hunt Corr. Ctr., 20-1192, p. 2 (La. 1/12/21), 308 So.3d 285, 285–86.

Defendants maintain that the trial court was talking about the importance of evidentiary support needed to overcome the motion as the next line in the judgment states: “The Court finds the expert affidavits presented by the plaintiff's [sic] are speculative, conclusory and devoid of any underlying and supporting facts to prove the defendants[’] conduct was grossly negligent or amounted to willful misconduct.” Further, Defendants note that the judgment does not specifically address whether it adopted a particular definition of gross negligence in its ruling.

It is unclear whether the trial court adopted the definition of intentional tort or gross negligence when it ruled on the motions for summary judgment. However, we find it to be irrelevant. The standard of review in this case is de novo. “A de novo review or an appeal de novo is an appeal in which the appellate court uses the trial court's record, but reviews the evidence and law without deference to the trial court's rulings.” Lopinto v. Expedia, Inc. (WA), 21-132, p. 8 (La.App. 5 Cir. 12/23/21), 335 So.3d 432, 439. Accordingly, we will conduct our own review of this case.

Defendants argue in their motion for summary judgment that Plaintiffs cannot meet their heightened burden of proof under La.R.S. 29:771 because they have not provided any evidence of gross negligence or willful misconduct. Specifically, Defendants assert that the affidavits submitted by Plaintiffs in support of their claims lack the required facts and are insufficient to support the claims in their petition.

Plaintiffs rely heavily on Aldridge v. Greenbriar Hospital, L.L.C., 23-526 (La.App. 1 Cir. 3/13/24), 385 So.3d 712, writs denied, 24-480 (La. 9/17/24), 392 So.3d 633, writs denied, 24-484 (La. 9/17/24), 392 So.3d 634, writs denied, 24-492 (La. 9/17/24), 392 So.3d 635. The plaintiff filed suit against the defendants, alleging that they improperly involuntarily committed her as a result of a protective order. The doctor filed a motion for summary judgment, arguing that the plaintiff could not meet her burden of gross negligence found in Louisiana's Behavioral Health Law, La.R.S. 28:1-28:237.

At issue in Aldridge was the admissibility of two affidavits, one of which was from the plaintiff's expert doctor. The trial court ruled that it was inadmissible. On appeal, the plaintiff argued that the expert identified the medical records he reviewed and that the expert set forth the applicable standard of care and the facts supporting his expert opinion that the defendants committed willful or wanton negligence or gross misconduct.

The appellate court found that the doctor “opined that defendants committed gross negligence, specifically itemized how the standard of care was breached as to each defendant, and applied the relevant facts in support of his findings[.]” Aldridge, 385 So.3d at 723. In ruling that the affidavit was admissible, the appellate court stated that the expert doctor's “affidavit clearly states that the opinions were rendered therein after reviewing the applicable law and applying the standards set forth in the American Psychiatric Association Practice Guidelines for the Psychiatric Evaluation of Adults.” Id. at 724. After determining the affidavit was admissible, the appellate court concluded that the plaintiff met her heightened burden without any discussion.

Defendants contend that this case is similar to Zibilich v. Shingledecker, 24-443 (La.App. 5 Cir. 1/29/25), 405 So.3d 1125. In Zibilich, the plaintiff filed a medical malpractice action arising from the doctor's failure to treat osteomyelitis in plaintiff's foot following a bunion surgery performed on July 24, 2020, when the LHEPA was in effect. The defendant doctor filed a motion for summary judgment, alleging that the plaintiff failed to plead facts sufficient to state a claim for gross negligence or willful misconduct.

At issue in Zibilich was the sufficiency of the plaintiff's expert affidavit and whether it created a genuine issue of material fact. The court explained that “[b]ecause of the complex medical and factual issues involved, a plaintiff will likely fail to sustain the burden of proving his claim under La. R.S. 9:2794 without medical expert testimony.” Id. at 1128. The doctor was questioned about his affidavit in his deposition. He was specifically asked about his knowledge of gross negligence. He answered:“I mean now you're getting into legal terms. I don't know the exact definition. I mean I would imagine like doing something that you don't know how to do, doing it wrong and causing damage to the patient I guess?” Id. at 1129. Later in the questioning, he was asked what is the difference between a normal breach of the standard of care and a gross negligence issue. He stated: “Again, you're getting technical. I'm not sure that I know what gross negligence versus – you know, I'm not an attorney.” Id. He also testified that the plaintiff's attorney sent him the affidavit to review, revise, and execute.

After reviewing the evidence, the appellate court found that the doctor's opinion fell “woefully short and [was] insufficient as a matter of law to meet plaintiff's burden of establishing gross negligence or willful misconduct on the part of [defendant].” Id. at 1129–30. The court went on to opine: “It is apparent that Dr. Kadish did not draft the affidavit and did not know the meanings of ‘gross negligence’ or ‘willful misconduct.’ Further a mere conclusory statement adopted by plaintiff's expert does not create a genuine issue of material fact.” Id. at 1130.

In Shortridge v. West Calcasieu Cameron Hospital, 23-562 (La.App. 3 Cir. 3/20/24), 411 So.3d 651, writ denied, 24-719 (La. 10/1/24), 393 So.3d 869, the plaintiff brought a medical malpractice action against the hospital, alleging the hospital's staff breached the standard of care by failing to turn the plaintiff while she was in a medically-induced coma. The failure caused the plaintiff to develop an ulcer which became septic and required additional hospitalization. The incident occurred in February 2021, when the LHEPA was in effect. The trial court granted the defendant's motion for summary judgment, and the plaintiff appealed.

One of the issues in Shortridge was the sufficiency of the plaintiff's affidavits. The plaintiff filed the affidavit of a doctor who:

discussed the care rendered to Plaintiff and rendered the general opinions that (1) the nursing staff “seemed reckless” in not applying pressure reduction measures; (2) the nursing staff “recklessly and deliberately seem not to turn the patient;” and (3) the nursing staff was “reckless in their failure to maintain adequate nutrition.”

Id. at 656.

The plaintiff in Shortridge also attached the affidavit of a nurse to support her claims. The nurse's affidavit referenced what she perceived as the nursing staff's “indifference” and “lack of diligence” to serving the patient's needs and that the nursing staff “demonstrated utter and complete disregard of ordinary prudence and intentional breach of duty” in providing for the needs of the patient.

Id.

The court in Shortridge agreed with the trial court that the affidavits were insufficient to overcome summary judgment. The court explained:

In order to show gross negligence or willful misconduct, a plaintiff must show that the health care provider either “(1) consciously desires the physical result of his act[;] or (2) knows that the result is substantially certain to follow from his conduct, whatever his desire may be as to that result.”

Id. at 657 (quoting Whitehead v. Christus Health Cent. La., 21-764, p. 7 (La.App. 3 Cir. 6/8/22), 344 So.3d 91, 96) (alteration in original).

The court concluded, “Under the heightened burden of proof, the affidavits are devoid of any facts that the conduct of the [hospital] staff was grossly negligent or amounted to willful misconduct.” Id. at 656–57.

In Lejeune v. Steck, 13-1017 (La.App. 5 Cir. 5/21/14), 138 So.3d 1280, writ denied sub nom, Daigle v. Steck, 14-1408 (La. 10/3/14), 149 So.3d 800, the plaintiff had laminectomy surgery for a pinched nerve while the LHEPA was invoked after Hurricane Katrina. For several days after the surgery, the plaintiff described intense pain near the surgical site. An x-ray revealed a foreign object. After enduring a second surgery, it was determined that the surgeon left a surgical sponge inside the plaintiff during the laminectomy. The plaintiff filed suit, and the defendant doctor filed a motion for summary judgment, arguing that the plaintiff did not provide sufficient evidence to meet her burden of proving gross negligence or willful misconduct.

The plaintiff submitted the affidavit of her expert doctor who stated that “ ‘leaving a foreign body unintentionally in the patient then closing the operative site then discharging the patient home was a negligent act below the standard of care.’ ” Id. at 1282. She submitted a second affidavit by the same doctor who said, “ ‘I am of the medical opinion that leaving a sponge in the body of MABEL DAIGLE LEJEUNE at the operation on November 28th, 2005[,] constitutes the gross negligence of DR. JOHN C. STECK.’ ” Id. at 1285. The appellate court noted, at the hearing on the motion for summary judgment, that the trial judge said that “the action of leaving a sponge during an operation sounded like gross negligence to him.” Id. Even so, the trial court ruled that the plaintiff's evidence “failed to show that Ms. Daigle could sustain her burden of proof at trial.” Id. After considering the evidence, the appellate court agreed with the trial court.

Turning to the evidence in the present case, Plaintiffs attached the affidavit of Dr. David Smith to its motion for summary judgment, and they contend that it is sufficient to prove Defendants acted with gross negligence. Dr. Smith's affidavit states, in pertinent part:

24. It is my opinion that Dr. Charles Vidrine breached the standard of care by failing to monitor whether Ms. Stevens underwent the chest x-ray he ordered and the results of the x-ray after it was completed.

25. It is my opinion that Dr. Charles Vidrine breached the standard of care by waiting for Ms. Stevens to come into his office for a follow-up visit to review her imaging results.

26. It is my opinion that Dr. Charles Vidrine breached the standard of care by failing to schedule a follow-up CT scan as recommended by Dr. Stuart Head.

27. It is my opinion that Oakdale Community Hospital breached the standard of care as well as their own procedure by failing to fax Ms. Stevens’ December 15, 2021 x-ray results to Dr. Vidrine.

28. It is my opinion that the breaches in the standard of care discussed above rise to the level of gross negligence.

In his deposition, Dr. Smith was asked about his knowledge of the term gross negligence. The following colloquy occurred:

Q. Okay. And then the last paragraph, “It is my opinion that the breaches in the standard of care discussed above rise to the level of gross negligence.” This term, “gross negligence,” what does that mean to you?

A. Gross negligence is -- I don't have the legal definition of that. I'm not an attorney at all. But when I think of gross negligence, I think of completely being negligent. To actually say that you're not obligated to get a copy of the test that you ordered because someone doesn't keep one follow-up appointment, and then to be fine with the fact that that wasn't obtained and a patient was harmed, to me, it's gross negligence.

Q. So you would agree that gross negligence is a legal, not a medical term, correct?

A. That is a legal term.

Q. Okay. Why did you include this in your report?

A. This was actually suggested by the law firm. This line, that's not a line that I devised myself.

Q. Did you have an opinion, or a thought about what gross negligence was prior to writing this affidavit, or signing this affidavit?

A. When I read the affidavit of what was recommended here, I did not have, in my mind, a legal definition of it, but only what subjectively I would consider to be gross negligence. And that's what I just stated.

Q. Do you know anything about Louisiana law and how gross negligence is defined in Louisiana law?

A. No, I do not.

Plaintiffs also submitted the testimony of Dr. Leroy Fredericks, Ms. Stevens’ treating oncologist. Plaintiffs contend Dr. Fredericks suggested that Dr. Vidrine breached the standard of care when he testified that he did not know why there would be a delay in treatment. Plaintiffs also attached the affidavit of Dr. Thomas Cartwright, a board-certified oncologist. It was his opinion that Ms. Stevens would have had a better medical outcome had she been diagnosed on December 15, 2021. The evidence in this case is similar to the evidence in Zibilich, 405 So.3d 1125, Shortridge, 411 So.3d 651, and Lejeune, 138 So.3d 1280. Dr. Smith admitted that he did not write the portion of the affidavit which stated that Dr. Vidrine's actions rose to the level of gross negligence. He testified that the law firm suggested the line, and it was “not a line that I devised myself.” Dr. Smith also admitted that he did not know the definition of gross negligence, the same as the doctor in Zibilich testified. This case is distinguishable from Aldridge, 385 So.3d 712, because the affidavit in Aldridge was much more detailed. The Aldridge affidavit clearly stated “that the opinions were rendered therein after reviewing the applicable law and applying the standards set forth in the American Psychiatric Association Practice Guidelines for the Psychiatric Evaluation of Adults” and included facts to explain why the defendant's actions violated that standard. Id. at 724. Plaintiff's affidavit in the present case simply falls short. Further, Plaintiffs have not shown with any of their evidence that Dr. Vidrine “consciously desired the physical result of [his] act or knew that the result was substantially certain to follow from [his] conduct.” Shortridge, 393 So.3d at 657, quoting Hebert, 353 So.3d at 853.”

Based on our de novo review of the record, we find the evidence to be insufficient to support plaintiff's burden of proof of establishing gross negligence or willful misconduct in this case. We find that Dr. Smith's affidavit is conclusory and lacks facts to support her claim. “Mere speculation will not defeat a motion for summary judgment[.]” Kinch v. Our Lady of Lourdes Reg'l Med. Ctr., 15-603, p. 7 (La.App. 3 Cir. 12/9/15), 181 So.3d 900, 905. Based on the evidence before us, we cannot say that Dr. Vidrine's actions exhibited “an active desire to cause harm, or a callous indifference to the risk of potential harm from flagrantly bad conduct[.]” McQuirter, 308 So.3d at 286.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Plaintiffs.

AFFIRMED.

I respectfully dissent.

I agree with the majority that the trial court ruling is not clear about whether it used the definition of gross negligence or intentional tort. I disagree with the majority's failure to recognize gross negligence as a trial issue. I also disagree with the majority's conclusion that the evidence submitted at summary judgment had to show that Dr. Vidrine “consciously desired the physical result” of his actions or knew that the results were “substantially certain to follow.” That is simply not the test. Finally, I disagree with the majority's finding that the summary judgment evidence was not sufficient to create a genuine issue of material fact on the issue of gross negligence.

Gross negligence is for the factfinder to decide.

Whether a duty is owed is a question of law, but whether a duty has been breached is a question of fact. Mundy v. Dep't of Health and Human Res., 620 So.2d 811 (La.1993). The fact-intensive nature of this question means summary judgments should not dispose of issues of negligence. Biggs v. Cancienne, 12-187 (La.App. 1 Cir. 9/21/12), 111 So.3d 6. Negligence means the act or omission is unreasonable. Gross negligence means the conduct showed a reckless disregard, want of even slight care and diligence, or an entire absence of care. Rabalais v. Nash, 06-999 (La. 3/9/07), 952 So.2d 653. One is measured against a standard of reasonableness while the other is a matter of degree.

The Louisiana Supreme Court has told us how to deal with the issue of gross negligence. In Sebble on Behalf of Est. of Brown v. St. Luke's #2, LLC, 23-483, pp. 8–9 (La. 10/20/23), 379 So.3d 615, 621, the court said:

There is a distinction between a medical standard of care and a legal standard of care. The medical standard of care is a determination made by the medical review panel, medical experts, whose duty it is to apply their medical expertise and opine on whether the defendant health care provider failed to adhere to the appropriate medical standard. By contrast, the LHEPA sets forth a legal standard of care, which is a determination left to the trier of fact, lay persons, who consider all of the evidence, including the medical review panel's opinion, in making a determination of whether the defendant health care provider's conduct was grossly negligent. In other words, a finding by a medical review panel that there was a breach in the standard of care is a “baseline” determination; the degree of that breach is a judicial determination by the trier of fact.

(emphasis added)

So, whether conduct amounts to gross negligence is a question of fact. We should not use summary judgment to dispose of it. We see this in cases outside of medical malpractice. The fifth circuit has said, “In our opinion, a finding of gross negligence requires a factual inquiry which is improper on summary judgment.” Mt. Hawley Ins. Co. v. ADT Sec. Systems, Inc., 02-298, pp. 4–5 (La.App. 5 Cir. 10/29/02), 831 So.2d 480, 483 (emphasis added). The second circuit found the issue of gross negligence to be a question of fact preventing summary judgment in Cameron v. Bruce, 42,873, 42,983, p. 6 (La.App. 2 Cir. 4/23/08), 981 So.2d 204, 208, writ denied, 08-1127 (La. 9/19/08), 992 So.2d 940.

Summary judgments have their place, but in the realm of medical malpractice and the issue of gross negligence, the issue should be referred to the factfinder to allow that “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Aldridge v. Greenbrier Hosp., L.L.C., 23-526, p. 16 (La.App. 1 Cir. 3/13/24), 385 So.3d 712, 725, writs denied, 24-480, 24-484, 24-492 (La. 9/17/24), 392 So.3d 633, 634, 635.

Yet, despite this, some courts, and like the majority in this case, have decided they must make a preliminary assessment of whether the facts support the plaintiff's “burden of proof of establishing” gross negligence. The plaintiffs do not have a burden of establishing gross negligence at summary judgment; they have a burden to create a genuine issue of material fact on the issue.

In my opinion, the trial court and the majority erroneously inserted their own conclusions as to medical conduct rather than allowing a trial on the issue of gross negligence. Also, in my opinion, the summary judgment evidence created an issue of fact regarding gross negligence in this case.

The evidence created a genuine issue of material fact as to gross negligence.

The plaintiffs’ evidence at summary judgment in opposition to the defendants’ motion created a genuine issue of material fact as to the negligence of both Dr. Vidrine and the hospital. Dr. Smith's affidavit detailed his expertise, the facts of the case, his review of the medical records, the plaintiffs and defendants’ depositions, and which of defendants’ acts or omissions constituted a breach of the standard of care. His affidavit was just like the expert affidavits in Aldridge, 385 So.3d 712. Dr. Vidrine specifically discussed written standards from the larger medical community:

I've got a copy right here of the American Medical Association Code of Medical Ethics, and this is in section 2.1.5 on reporting clinical test results. And it states there ․ “Patients should be able to be confident that they will receive the results of clinical tests in a timely fashion. Physicians should ensure patients receive test results within a reasonable timeframe ․ Physicians should adopt or advocate for policies and procedures that ensure that a patient is informed about when he or she can reasonably expect to learn the results of clinical tests and how those results will be conveyed. And the patient is instructed what to do if he or she does not receive results.”

Therefore, in this case, instead of disregarding the expert opinion, the trial court should have followed the Aldridge court:

On review, we find it an abuse of discretion to exclude Dr. Adhia's affidavit setting forth his expert opinions at this stage of the litigation ․ We further find the exclusion of same at the summary judgment stage would improperly usurp the function of the factfinder at trial, which is to weigh the evidence and expert opinions in order to determine whether the plaintiff has met her burden of proving causation.

Aldridge, 385 So.3d at 724-25 (citations omitted).

The trial court and the majority ignore the deposition testimony submitted in opposition to the defendants’ motion for summary judgment. The only reference to Dr. Smith's deposition testimony concerned the term gross negligence. The majority makes the point that the attorneys suggested the language. Yet, Dr. Smith signed it. It was his sworn testimony, and it was competent summary judgment evidence. He also testified:

But when I think of gross negligence, I think of completely being negligent. To actually say that you're not obligated to get a copy of the test that you ordered because someone doesn't keep one follow-up appointment, and then to be fine with the fact that that wasn't obtained and a patient was harmed, to me, it's gross negligence. (emphasis added)

Dr. Smith elaborated in his deposition about why the breaches in this case rose to the level of gross negligence:

To me, that’ s – I'm in shock, to be honest, that someone feels like that it's okay to order a test, and because they don't follow up to have it looked at ․ that it's somehow okay to not worry about whether they've had it and not worry about the results. I just find that abhorrent. I would never do a patient that way. And nobody here would ever do that. When I was in Mississippi, everything was always tracked, as well, whether or not they come back for a follow-up appointment. If you order the test, you're responsible for the results of it and for following up on it, period. There's no ifs, ands, or buts about it. (emphasis added)

․

It's his way of doing it, but it's inadequate. You know, if a patient doesn't show up, like in this case, for that follow up visit, then they don't get their results ․ If you've ordered that test, you are obligated to follow up on the results of that test. And you are obligated to have a system in place that ensures to the greatest extent possible that you can do that. Otherwise, people get hurt, just like this lady's been hurt because nobody followed up on the chest x-ray that was ordered in his office. And it should have been followed up.

In addition to this testimony, the plaintiffs relied on undisputed facts to defeat summary judgment. The key facts were:

1. Dr. Stuart Head, the radiologist who reviewed and interpreted Ms. Stevens’ chest x-ray, noted the mass was suspicious for malignancy and recommended a follow-up with a CT of Ms. Stevens’ chest.

2. The results of Ms. Stevens’ chest x-ray were uploaded to her Oakdale Community Hospital electronic medical record on December 15, 2021.

3. Dr. Charles Vidrine had access to Ms. Stevens’ electronic medical records at Oakdale Community Hospital at his clinic.

4. Dr. Charles Vidrine, via his electronic record system, was in possession of Ms. Stevens’ December 15, 2021 chest x-ray the day it was performed.

5. Dr. Charles Vidrine had privileges at Oakdale Community Hospital.

6. Dr. Charles Vidrine's clinic was across the street from Oakdale Community Hospital.

7. Oakdale Community Hospital did not fax the x-ray results of Ms. Stevens’ December 15, 2021 chest x-ray to Dr. Charles Vidrine.

8. Dr. Charles Vidrine failed to order a follow-up CT scan until October 10, 2022.

The plaintiffs also introduced the deposition testimony of Dr. Leroy Fredericks, Ms. Stevens’ treating oncologist. He said Dr. Vidrine breached the standard of care. During Dr. Fredericks’ deposition, he could not understand a delay in treatment. Dr. Fredericks testified:

Not really sure why there was a delay like that. I don't know if Dr. Vidrine was not able to get in touch with the patient. I never delved into that, if there was [sic] maybe post hurricane issues or if the patient just didn't want treatment. I don't know why there would be a delay like that.

Dr. Fredericks further testified:

Q. - - Would there be any circumstances where a physician wouldn't need to review imaging that they ordered?

A. - -No. - I think if you order something, you should – you're ordering it for a reason, and you'd have to act on the results.

Even Dr. Hanson, the defendants’ expert, follows up on any x-ray he orders for patients and agreed that he has an obligation to look at the test results.

Despite this avalanche of evidence, the majority finds “that the evidence to be insufficient to support plaintiff's [sic] burden of proof of establishing gross negligence or willful misconduct” and that “Dr. Smith's affidavit is conclusory and lacks facts to support her claim.” Again, the plaintiffs do not have to prove anything at the summary judgment stage. With Dr. Smith's affidavit, his testimony, the undisputed facts, the other affidavits and testimony, the plaintiffs establish genuine issues of material fact to defeat summary judgment and allow the factfinder to decide whether the conduct rises to the level of gross negligence.

The majority gauges the degree of medical negligence without the benefit of a medical opinion of the degree of negligence. It does so because a medical opinion as to the degree of negligence is deemed “conclusory.” So, the court makes its own conclusion. The result is judges making subjective assessments of medical conduct. To add insult to injury, the trial court and the majority both employ the wrong definition of gross negligence.

The definition of gross negligence does not include intent.

The majority's reliance on McQuirter v. State through La. Dep't. of Pub. Safety and Corrs. Elayn Hunt Corr. Ctr., 20-1192 (La. 1/12/21), 308 So.3d 285, is problematic. The term “gross negligence” does not appear in the opinion. The case only discusses “willful” conduct. And McQuirter dealt with La. R.S. 29:735(A)(1), a different statute with a different standard. That statutory standard is willful misconduct.

The statute in this case, the Emergency Powers Act, requires willful misconduct OR gross negligence. La.R.S. 29:771(B)(2)(c)(i). A willful level of intent is not required to show gross negligence. The majority's reliance on McQuirter gives the incorrect impression that an “active desire to cause harm, or a callous indifference to the risk of potential harm,” is needed to prove gross negligence. It is not. The standard in Rabalais, 952 So.2d 653, requires less severe, but still extreme, conduct to constitute gross negligence: “want of even slight care and diligence.” State v. Vinzant, 7 So. 2d at 922.

Likewise, Shortridge v. W. Calcasieu Cameron Hosp., 23-562 (La.App. 3 Cir. 3/20/24), 411 So.3d 651, 657 writ denied, 24-719 (La. 10/1/24), 393 So.3d 869, also relied on by the majority, conflated these standards and required intent when discussing the standard for gross negligence:

We find this situation is like that in Hebert v. La. Med. Mut. Ins. Co., 22-316, pp. 14–15 (La.App. 3 Cir. 10/26/22), 353 So.3d 846, 853, wherein this court discussed the necessity of factual support for allegations of gross negligence/willful misconduct in a medical malpractice claim:

Plaintiffs’ petition does not allege specific facts to demonstrate that the defendant health care providers consciously desired the physical result of their acts or knew that the result was substantially certain to follow from their conduct. That deficiency of fact pleading, in turn, likewise distances Plaintiffs’ claims from the definition of intentional tort provided by the supreme court in Bazley [v. Tortorich, 397 So.2d 475 (La.1981)].

Requiring facts to show that health care providers “consciously desired” physical harm to patients is like accusing them of criminal, not negligent, behavior. The plaintiffs here did not suggest that Dr. Vidrine had such intent because they did not have to do so. They argued gross negligence—a “want of even slight care and diligence.” Ordering a test and not finding out that the test showed a mass “suspicious for malignancy” fits that bill. The hospital's knowledge of the test result and its failure to not make sure Dr. Vidrine knew about it, fits that bill.

If an expert can lay out his or her qualifications, the facts and evidence upon which he or she relied, the standard of care, and which actions or omissions led to a breach of that standard, then that expert's comments on the severity of the breach should be admissible evidence on summary judgment for the issue of whether the breach rose to the level of gross negligence. Dr. Smith did this, and his affidavit and deposition taken together created a genuine issue of material fact.

For these reasons, I respectfully dissent. I would reverse the trial court's grant of summary judgment in favor of Dr. Vidrine and Oakdale Community Hospital and remand the case to the trial court for further proceedings.

BRADBERRY, Judge.

Davis, J., dissents and assigns reasons.