TIMBERLY ENETE AVERY ENETE BENJAMIN ENETE BRITTON ENETE DABDOUB JORDAN ENETE AND JESSICA ENETE GARCILLE v. ANDREW PETER REES WALTER BRINGAZE KAYLA LANGLOIS ZUMO PA COURTNEY ANNE SHEETS HANCOCK PA BRIAN GREMILLION AND EMILY COTTON PA (2026)

Plaintiffs, Timberly Enete, Avery Enete, Benjamin Enete, Britton Enete Dabdoub, Jordan Enete, and Jessica Enete Garcille (collectively “plaintiffs”), appeal the trial court's November 21, 2024 judgment granting motions for summary judgment filed by defendant, Andrew P. Rees, M.D., and defendant, Brian C. Gremillion, M.D., and dismissing plaintiffs’ claims against Dr. Rees and Dr. Gremillion with prejudice. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

On August 7, 2019, George D. Enete, then 67-years-old, underwent cardiac catheterization, which was performed by his cardiologist, Dr. Rees. One day prior to the procedure, Mr. Enete had complained to Dr. Rees that he was experiencing chest discomfort and shortness of breath when he exercised. Mr. Enete also noted he was having pain and numbness that radiated down his left arm. During the cardiac catheterization, Dr. Rees discovered Mr. Enete had multivessel coronary artery disease. A cardiothoracic surgeon was consulted, who recommended that Mr. Enete undergo bypass surgery. Dr. Rees ordered a chest X-ray for Mr. Enete, which was also performed on August 7, 2019. The radiologist's impression of the X-ray was as follows:

Emphysema with subtle irregular opacity right upper lobe overlapping with the second anterior rib, not evident previously but may represent a fortuitous superimposition of shadows, as this is not well depicted on lateral projection. Need to exclude neoplastic process. Recommend CT chest.

Before his bypass surgery, Mr. Enete underwent a non-contrast CT scan of his chest. The radiologist's impression of the CT scan was as follows:

1. Emphysema and apical pleural scarring.

2. Irregular scarlike opacity in the anterior aspect of the right upper lobe. A follow-up noncontrast chest CT is recommended in 3 months.

3. Severe coronary artery calcification.

Dr. Walter Bringaze, III performed the bypass surgery as planned on August 9,2019, and Mr. Enete was discharged from the hospital on August 13, 2019.

On August 20, 2019, Mr. Enete visited Dr. Gremillion, an internal medicine doctor, for a follow-up visit after his surgery. Dr. Gremillion noted that Mr. Enete was not suffering from shortness of breath or chest pain at that time. On February 25, 2020, Mr. Enete saw Dr. Gremillion for a general checkup. During the visit, Mr. Enete complained that he was having worsening shortness of breath, usually occurring with exertion. Dr. Gremillion placed an order for Mr. Enete to have a chest X-ray, which was taken that day. The radiologist's impression of the X-ray was as follows:

Stable cardiomegaly. Reticular opacities in both lungs, right greater than left can be seen with pulmonary edema in the acute setting for interstitial lung disease in the chronic setting.

Dr. Gremillion referred Mr. Enete to a pulmonologist for additional workup.

On March 3, 2020, Mr. Enete visited Dr. Mark Hodges, a pulmonologist, complaining of worsening shortness of breath. Dr. Hodges noted that Mr. Enete denied chest pain and had been suffering from shortness of breath for approximately four to five weeks. Dr. Hodges ordered a chest CT angiogram for Mr. Enete, which was performed that day. The CT angiogram revealed “nonocclusive subsegmental right lower lobe pulmonary artery embolus, mediastinal and hilar lymphadenopathy” and a “[r]ight paratracheal lymph node measuring 2 x 1.4 cm with advanced centrally lobular emphysema without obvious lung mass.”

On March 16, 2020, Mr. Enete was seen by Dr. Bringaze, who stated in his notes for the visit that Mr. Enete “now has a pericardial effusion and his cardiologist and pulmonologist are concerned about the possibility of malignancy.” Dr. Bringaze noted he “saw nothing at the time of [Mr. Enete's] original operation consistent with cancer.” Dr. Bringaze scheduled Mr. Enete for a pericardial window procedure.

Dr. Bringaze performed a pericardial window on Mr. Enete on March 23, 2020. Unfortunately, the procedure was complicated due to a puncture of Mr. Enete's right ventricle. Pericardial fluid was drained and a sample was sent to pathology for biopsy. The results of the biopsy were “[p]ositive for metastatic adenocarcinoma consistent with pulmonary origin.” On June 18, 2020, Mr. Enete died of metastatic lung cancer.

Thereafter, plaintiffs, Mr. Enete's surviving spouse and major children, filed medical malpractice complaints with the Louisiana Patient's Compensation Fund against Dr. Rees, Dr. Bringaze, and Dr. Gremillion.² The medical review panel assigned to the complaints unanimously found that the evidence submitted did not support the conclusion that Dr. Rees, Dr. Bringaze, or Dr. Gremillion breached the applicable standard of care.

In July 2023, plaintiffs filed a medical malpractice suit against Dr. Rees, Dr. Bringaze, and Dr. Gremillion.³ Plaintiffs alleged that no health care provider informed Mr. Enete or his wife that he needed a non-contrast chest CT in the first week of November 2019. Plaintiffs alleged, in pertinent part, that Dr. Rees, Dr. Bringaze, and Dr. Gremillion “negligently failed to act on [the] recommendation of [the] radiologist to follow-up and did not note a reason for not making [a] recommendation.” Plaintiffs alleged the defendant doctors’ negligence caused a seven-month delay in Mr. Enete's diagnosis and reduced his chances for successful treatment and ultimately caused his death from metastatic lung cancer.⁴ Dr. Rees and Dr. Bringaze, and Dr. Gremillion, filed answers generally denying plaintiffs’ allegations against them.

On November 16, 2023, Dr. Rees ⁵ filed a motion for summary judgment arguing plaintiffs will be unable to provide expert testimony to establish that he breached the standard of care as to his treatment of Mr. Enete, or that any such alleged breach caused Mr. Enete's death. Dr. Rees attached to his motion the following pertinent documents: (1) plaintiffs’ petition; (2) plaintiffs’ responses to Dr. Rees and Dr. Bringaze's requests for admission; (3) an affidavit by John G. Swift, the attorney chairman of the medical review panel that considered plaintiffs’ medical malpractice complaints filed against Dr. Rees, Dr. Bringaze, and Dr. Gremillion, and the corresponding opinions of the medical review panel; and (4) an affidavit by Mark B. Garnick, M.D., an internal medicine doctor and oncologist. Dr. Rees pointed out that in their November 1, 2023 response to his requests for admission, plaintiffs admitted they had not retained an expert to establish the standard of care, or breach thereof, for their claims against Dr. Rees and Dr. Bringaze. Dr. Rees further noted that the medical review panel determined that he did not breach the standard of care in regard to Mr. Enete.

In his affidavit, Dr. Garnick opined that “more likely than not, [Mr. Enete] had Stage IV lung cancer that was metastatic and incurable at the time of the August 8, 2019 chest CT.” Dr. Garnick further stated that it was his expert medical opinion that “more likely than not, even if the lung cancer had been diagnosed in August 2019, it would have been associated with metastatic spread to the mediastinum and regional hilar lymph nodes at that time.” Dr. Garnick explained that “[m]ore often than not, primary lung cancers are not clinically or radiologically diagnosable until 70-80% of the malignant cells’ life cycle have been completed and the cancer has progressed or metastasized significantly.” Dr. Garnick also opined that even if Mr. Enete had been diagnosed with lung cancer in August 2019, “there would have been subclinical metastatic spread to the pericardium which would not have been diagnosed at that time and would have presented clinically at the same time and as it did in March 2020.” It was Dr. Garnick's expert medical opinion that “more likely than not, the prognosis, treatment options, and ultimate outcome for [Mr. Enete] would have been the same if he had undergone a repeat chest CT within 3 months of the August 8, 2019 chest CT and had his cancer been diagnosed between November 2019 and March 2020.”

On January 29, 2024, Dr. Gremillion filed a motion for summary judgment, arguing plaintiffs will be unable to prove that Dr. Gremillion breached the standard of care or that the alleged breach caused Mr. Enete's death. In support of his motion, Dr. Gremillion attached the following pertinent documents: (1) certified medical records for Mr. Enete; (2) the death certificate for Mr. Enete; (3) the affidavit by Swift, and the corresponding opinions of the medical review panel; (4) plaintiffs’ petition; and (5) plaintiffs’ responses to Dr. Rees and Dr. Bringaze's requests for admission, wherein plaintiffs admitted they had not yet retained an expert witness. Dr. Gremillion pointed out that the medical review panel determined that the evidence did not support a finding that Dr. Gremillion breached the standard of care in regard to Mr. Enete's treatment because “[t]here is no evidence that Dr. Gremillion had any knowledge of the CT scan of 8/8/19 and chest x-ray from 8/7/19 or the recommendation for an appropriate follow up thereafter.”

On April 10, 2024, plaintiffs filed a joint opposition to Dr. Rees’ and Dr. Gremillion's motions for summary judgment. Plaintiffs noted that they had retained two medical experts—Martin J. Sullivan, M.D., an internal medicine doctor and cardiologist, and Ian Newmark, M.D., an internal medicine doctor and pulmonologist. Plaintiffs attached affidavits by Dr. Sullivan and Dr. Newmark to their opposition.

In his affidavit, Dr. Sullivan opined that the radiologist's recommendation for a CT scan three months after the CT scan on August 9, 2019 was appropriate and “the failure on the part of [Dr. Rees] and [Dr. Gremillion] to follow up with that recommendation and to assure that the recommended CT was indeed performed was below the standard of care.” Dr. Sullivan also stated that in his expert medical opinion, Dr. Gremillion “was one of the treating physicians and thus had an obligation to be aware of the treatment recommendations which had been outlined as a part of the treatment plan for Mr. Enete.” Dr. Sullivan opined that Dr. Gremillion breached the standard of care by failing to familiarize himself with the treatment plan and to ensure that the recommended CT scan was performed on a timely basis. Dr. Sullivan stated his belief that Mr. Enete died from metastatic lung cancer and noted that “[f]urther evaluation of the pathophysiology of death by a pulmonology/oncology expert would be helpful in determining the full extent of the damages, including a lost chance of survival” as a result of Dr. Rees’ and Dr. Gremillion's substandard care.

In his affidavit, Dr. Newmark opined that Dr. Rees and Dr. Gremillion breached the standard of care by failing to follow up with the recommendation that Mr. Enete have another chest CT scan in November of 2019. Dr. Newmark agreed with Dr. Sullivan that Dr. Gremillion had an obligation to familiarize himself with the treatment plan for Mr. Enete and breached the standard of care by failing to do so. Dr. Newmark stated that in his expert medical opinion “[t]he failure of Dr. Andrew Rees and Dr. Brian Gremillion to order the follow up CT scan recommended by the radiologist and confirmed by Dr. Andrew Rees deprived Mr. Enete of the opportunity for earlier diagnosis and timely treatment of his [lung cancer].”

On April 22, 2024, Dr. Rees filed a reply to plaintiffs’ opposition to his motion for summary judgment. Dr. Rees objected to Dr. Sullivan's and Dr. Newmark's affidavits, arguing their statements regarding the issue of causation were conclusory and devoid of any factual basis to support their opinions. Dr. Rees further asserted that Dr. Sullivan and Dr. Newmark failed to attest to scientific, technical, or specialized knowledge regarding the prognosis and treatment of metastatic lung cancer. Therefore, Dr. Rees argued Dr. Sullivan's and Dr. Newmark's affidavits failed to comply with La. C.C.P. art. 967 and La. C.E. art. 702. Dr. Rees asserted that plaintiffs failed to present evidence to show a genuine issue of material fact existed regarding whether Mr. Enete's cancer would have been diagnosed earlier if a CT scan was performed in November 2019. Dr. Rees also argued plaintiffs failed to present evidence of what treatments would have been available and effective if Mr. Enete had been diagnosed in November 2019.

On April 23, 2024, Dr. Gremillion filed a reply to plaintiffs’ opposition to his motion for summary judgment. Included in his reply was a motion to strike Dr. Sullivan's and Dr. Newmark's affidavits as not competent summary judgment evidence.⁶ Dr. Gremillion further argued that Dr. Sullivan's and Dr. Newmark's affidavits did not create a genuine issue of material fact as to causation because Dr. Sullivan and Dr. Newmark are not experts in the field of medical oncology. Dr. Gremillion also asserted there was no factual evidence to support Dr. Newmark's opinion as to causation.

A hearing was held on Dr. Rees’ and Dr. Gremillion's motions for summary judgment on April 29, 2024. Following argument, the trial court reset the motions for summary judgment in order to “give [plaintiffs] an opportunity to supplement any affidavits that you deem would be necessary in support of your case for purposes of establishing causation and standard of care[.]”

On June 25, 2024, Dr. Gremillion filed a supplemental memorandum in support of his motion for summary judgment and attached thereto Dr. Garnick's affidavit.

Plaintiffs filed a supplemental joint opposition to Dr. Rees’ and Dr. Gremillion's motions for summary judgment and attached to their memorandum the affidavit of Mark Levin, M.D., an internal medicine doctor and oncologist. In his affidavit, Dr. Levin opined, in pertinent part, as follows:

I believe that diagnosis was delayed from August 2019, until April 2020; approximately 9 months, or 6 months if the CT scan had been repeated as recommended. Since imaging in August 2019 did not show metastatic disease, and there was no evidence of mediastinal or hilar adenopathy, I conclude that the CT findings represented stage 2 lung cancer. This is localized disease and Mr. Enete's asymptomatic presentation signifies a particularly good prognosis․

I conclude that had Mr. Enete been diagnosed in August 2019, or even three months later in October or November 2019, he would have survived much longer. His symptoms developed in April 2020, leading me to the conclusion that metastatic disease more likely than not had not yet developed, and would not have developed until January of 2020. Even if there had been low volume metastatic disease and even had he not been treated until November 2019, his chance of long term survival would have been much higher than what it turned out to be in April․

Dr. Rees filed a supplemental reply in support of his motion for summary judgment. Therein, Dr. Rees argued that Dr. Levin's affidavit was insufficient to raise a genuine issue of material fact regarding the element of causation because it is devoid of any specific facts to support that Mr. Enete's lung cancer would have been discovered on a follow-up non-contrast chest CT scan at any time prior to the March 2020 contrast CT angiogram.

On November 6, 2024, a second hearing was held on Dr. Rees’ and Dr. Gremillion's motions for summary judgment. Following argument, the trial court granted Dr. Rees’ and Dr. Gremillion's motions for summary judgment, explaining, in pertinent part:

It's undisputed that there was a recommendation that was made and there was a failure to follow-up on that recommendation, but that's not the issue before me. Whether or not the – the medical providers followed up with getting that subsequent CT scan within that three-month timeframe, and it's unfortunate that this gentleman had to go through this, and I will say that. I'm very familiar with adenocarcinoma.

Actually, had a parent who had the same con- -- the same illness; and so, I'm very familiar with it, the process relative to diagnosis, the treatment procedures, the treatment process, and all of it; but the issue before me is one of causation, which is why I deferred ruling previously to give you an opportunity to see if there was an expert who could [give an] opinion relative to that particular issue.

And the court takes judicial notice of the affidavit of Dr. Levin; however, finds that it does not directly speak to that issue of causation relative to whether or not the CAT Scan would have revealed a metastatic condition within that three-month time period; and if that - if the CAT Scan had even been obtained, whether or not a diagnosis would have been made of the lung cancer.

The trial court signed a written judgment on November 21, 2024, granting Dr. Rees’ and Dr. Gremillion's motions for summary judgment and dismissing plaintiffs’ claims against them with prejudice.⁷

On December 12, 2024, plaintiffs filed a motion for new trial and motion to recuse the trial court judge, Judge Tiffany Foxworth-Roberts. Plaintiffs argued Judge Foxworth-Roberts legally erred by granting Dr. Rees’ and Dr. Gremillion's motions for summary judgment because there existed evidence establishing a genuine issue of material fact as to causation. Plaintiffs also argued that Judge Foxworth-Roberts erred by “interjecting her own personal opinions and experiences and relying, in whole or in part, [on] her personal experiences with the treatment of cancer of a family member in rendering her judgment.” Plaintiffs further asserted that Judge Foxworth-Roberts’ comments evidenced her bias, prejudice, and interest, and required her recusal from consideration of their motion for new trial. Dr. Rees and Dr. Gremillion opposed plaintiffs’ motion for new trial and to recuse Judge Foxworth-Roberts.

Plaintiffs’ motion to recuse was heard on January 28, 2025 by an ad hoc judge and was denied on January 31, 2025.⁸ Thereafter, plaintiffs filed an unopposed motion to dismiss their motion for new trial, which was granted. Plaintiffs now devolutively appeal the trial court's November 21, 2024 summary judgment.

ASSIGNMENTS OF ERROR

Plaintiffs assign the following as error:

1. The trial court committed reversible legal error by concluding that the expert opinions of Drs. Newmark, Sullivan, and Levin contained in their affidavits filed in opposition to appellees’ motion[s] for summary judgment did not establish a genuine issue of material fact with regard to the causal relationship between the breaches of applicable medical standards by appellees and the damages suffered by the deceased patient.

2. The trial court committed reversible legal error by substituting her personal family experience regarding the diagnosis, treatment, and impact of lung cancer for the expert opinions of Drs. Newmark, Sullivan, and Levin.

LAW AND DISCUSSION

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Murphy v. Savannah, 2018-0991 (La. 5/8/19), 282 So. 3d 1034, 1038. After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3); Campbell v. Dolgencorp, LLC, 2019-0036 (La. App. 1 Cir. 1/9/20), 294 So. 3d 522, 526.

The burden of proof on a motion for summary judgment rests with the mover. La. C.C.P. art. 966(D)(1); Lucas v. Maison Insurance Co., 2021-1401 (La. App. 1 Cir. 12/22/22), 358 So. 3d 76, 84. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense. Instead, after meeting his initial burden of showing that there are no genuine issues of material fact, the mover may 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, action, or defense. Thereafter, summary judgment shall be granted unless the adverse party can produce factual evidence 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. See La. C.C.P. art. 966(D)(1); Lucas, 358 So.3d at 84.

Appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Leet v. Hospital Service District No. 1 of East Baton Rouge Parish, 2018-1148 (La. App. 1 Cir. 2/28/19), 274 So. 3d 583, 587. In ruling on a motion for summary judgment, the court's role is not to evaluate the weight of the evidence or to make a credibility determination, but instead to determine whether or not there is a genuine issue of material fact. Collins v. Franciscan Missionaries of Our Lady Health System, Inc., 2019-0577 (La. App. 1 Cir. 2/21/20), 298 So. 3d 191, 194, writ denied, 2020-00480 (La. 6/22/20), 297 So. 3d 773. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Chapman v. Haynes, 2022-0288 (La. App. 1 Cir. 9/16/22), 352 So. 3d 1023, 1027.

To establish a claim for medical malpractice, a plaintiff must prove the following by a preponderance of the evidence: (1) the standard of care applicable to the defendant; (2) the defendant breached that standard of care; and (3) there was a causal connection between the breach and the resulting injury. See La. R.S. 9:2794(A); Schultz v. Guoth, 2010-0343 (La. 1/19/11), 57 So. 3d 1002, 1006. Expert testimony generally is required to establish the applicable standard of care and whether or not that standard was breached. See Methvien v. Our Lady of the Lake Hospital, 2022-0398 (La. App. 1st Cir. 11/4/22), 354 So. 3d 720, 724. Further, except for cases where the causal connection between a defendant's fault and the injury alleged is obvious, expert medical testimony is also necessary to establish causation. See Pfiffner v. Correa, 94-0924 (La. 10/17/94), 643 So. 2d 1228, 1234. Normally, in cases involving patients with complicated medical histories and complex medical conditions, causation is simply beyond the province of lay persons to assess. Sylvest v. Rolling, 2024-0408 (La. App. 1 Cir. 11/13/24), 405 So. 3d 988, 991.

In a medical malpractice case for lost chance of survival, the plaintiff does not have the unreasonable burden of proving that the patient would have lived if the defendant had not been negligent. However, the plaintiff does have the burden of establishing by a preponderance of the evidence that the defendant's conduct denied the patient a chance of survival. Smith v. State through Dep't of Health & Human Resources Admin., 523 So. 2d 815, 822 (La. 1988).

In their first assignment of error, plaintiffs argue the trial court erred by granting Dr. Rees’ and Dr. Gremillion's motions for summary judgment because the affidavits of Dr. Sullivan, Dr. Newmark, and Dr. Levin raised genuine issues of material fact regarding whether Dr. Rees’ and Dr. Gremillion's allegedly substandard care caused Mr. Enete's death from metastatic lung cancer, or at the very least, deprived Mr. Enete of an increased opportunity for survival. Plaintiffs specifically point to the portion of Dr. Newmark's affidavit wherein he opined that the failure of Dr. Rees and Dr. Gremillion to order the CT scan “deprived Mr. Enete of the opportunity for earlier diagnosis and timely treatment of his adenocarcinoma.” Plaintiffs also note that Dr. Levin opined in his affidavit that “had Mr. Enete been diagnosed in August 2019, or even three months later in October or November 2019, he would have survived much longer.” However, the issue before us is not whether Dr. Rees’ and Dr. Gremillion's failure to diagnose Mr. Enete caused his death or deprived him of a chance of survival. The issue is whether the failure of Dr. Rees and Dr. Gremillion to order a non-contrast chest CT scan in November 2019 caused Mr. Enete's death or deprived him of a chance of survival.

In Smith, 523 So. 2d 815, 816, the plaintiffs filed a medical malpractice suit alleging the defendant health care providers caused the death of the patient by failing to perform tests, such as an EKG, that would have allowed the defendants to diagnose the patient's heart condition and render preventative treatment. After a trial on the merits, the trial court found the plaintiffs failed to prove the defendants’ negligence caused the patient's heart attack or death. The appellate court affirmed. The Louisiana Supreme Court affirmed, finding the plaintiffs failed to prove that the defendants caused the patient to lose any chance of survival. Id. at 816-17. In conducting its analysis, the supreme court explained the relevant inquiry as follows:

In this particular case there are two separate questions pertinent to causation, and both must be answered in the affirmative in order for the plaintiffs] to prevail on the issue. The first question is: If the defendants had regularly monitored the patient's condition or administered the EKG sooner, would they have discovered at an earlier point in time that [the patient] was in imminent danger of suffering a heart attack? This question is important because the plaintiffs do not allege that the initial course of treatment proposed by Dr. Staudinger— the Lasix, the X-ray and the EKG—was inadequate. Instead, they contend that because the defendants failed to promptly administer the EKG and did not monitor the patient's condition, they missed an opportunity to save her life. Thus, it must initially be determined whether the defendants could have made an earlier diagnosis of a dangerous condition that called for a different course of treatment. If so, the second question is whether the defendants’ failure to undertake that course of treatment decreased the patient's chances of survival.

Smith, 523 So.2d at 820.

As to the first question, the supreme court found “no evidence in the record which support[ed] the conclusion that if the defendants had monitored [the patient's] condition on a more regular basis, and administered the EKG at an earlier time, they would have discovered a change in her condition that would have triggered more active management.” Id. at 820. The supreme court further found the plaintiffs failed to establish that the patient had a chance of survival that was denied to her as a result of the defendants’ negligence. Id. at 821.

Herein, as in Smith, plaintiffs failed to provide proof that the diagnostic tool at issue in this case, a non-contrast chest CT scan, if ordered by Dr. Rees’ or Dr. Gremillion, and if performed on Mr. Enete in November 2019, would have resulted in Mr. Enete being diagnosed with lung cancer at that time. As discussed, Mr. Enete's medical records reveal that the radiologist who interpreted the results of the August 2019 chest CT scan did not observe anything indicating Mr. Enete had lung cancer. It was not until March 2020, when Dr. Hodges ordered a chest CT angiogram, that physicians became concerned about the possibility of malignancy, and Mr. Enete was not definitively diagnosed with lung cancer until after a biopsy of pericardial fluid was taken from Mr. Enete during the cardiac window procedure. Even if the affidavits of Dr. Levin and Dr. Newmark establish the existence of genuine issues of material fact regarding whether Mr. Enete suffered a lost chance of survival because he was not diagnosed earlier with metastatic lung cancer, plaintiffs failed to provide any evidence to support the conclusion that a non-contrast chest CT, if performed three months after the August 2019 chest CT, would have revealed that Mr. Enete was suffering from lung cancer. Thus, on our de novo review, we find plaintiffs failed to produce factual support in the form of expert testimony sufficient to establish that they would be able to satisfy their evidentiary burden of proof at trial on the issue of causation. Accordingly, this assignment of error is without merit.

In their second assignment of error, plaintiffs assert that Judge Foxworth-Roberts legally erred “by injecting her own personal opinions and relying, in whole or in part, on her personal experiences[.]” Plaintiffs argue Judge Foxworth-Roberts substituted her own opinions and experiences for the expert testimony of Dr. Levin, Dr. Newmark, and Dr. Sullivan. Plaintiffs note that they are entitled to a de novo review of the record and evidence to determine whether they met their burden of proof and thus defeated Dr. Rees’ and Dr. Gremillion's motions for summary judgment.

Initially, we note that as an appellate court we review judgments and not reasons for judgment. Wooley v. Lucksinger, 2009-0571 (La. 4/1/11), 61 So.3d 507, 572. Judgments are often upheld on appeal for reasons different than those assigned by a trial court. Id. Furthermore, as discussed above, our de novo review of the evidence demonstrates that plaintiffs failed to meet their burden of proving the existence of genuine issues of material fact regarding causation. Although Judge Foxworth-Roberts related her own personal experience of dealing with the loss of a family member due to lung cancer, she also clearly stated her reasons for granting summary judgment in favor of Dr. Rees and Dr. Gremillion. Accordingly, this assignment of error is without merit.

CONCLUSION

For the aforementioned reasons, we affirm the trial court's November 21, 2024 summary judgment. Costs of this appeal are assessed to the plaintiffs, Timberly Enete, Avery Enete, Benjamin Enete, Britton Enete Dabdoub, Jordan Enete, and Jessica Enete Garcille.

AFFIRMED.

FOOTNOTES

2.   Plaintiffs included in their complaints claims against the physician assistants involved in Mr. Enete's care.

3.   Plaintiffs also named as defendants the physician assistants named in their medical malpractice complaints; the claims against these defendants were dismissed with prejudice by consent judgment and are not before us on appeal.

4.   Plaintiffs alleged in their petition, as shown in Mr. Enete's medical records, that he was diagnosed with lung cancer in April 2020. Therefore, plaintiffs’ allegation that the failure of the defendant doctors to order a non-contrast chest CT to be performed in November 2.019 caused a 7-month delay is incorrect.

5.   The motion for summary judgment was also filed on behalf of Dr. Bringaze. On May 10, 2024, pursuant to plaintiffs’ stipulation, the trial court signed a consent judgment granting summary judgment in favor of Dr. Bringaze and dismissing plaintiffs’ claims against him.

6.   Dr. Gremillion also filed a motion in limine seeking to exclude the opinions of Dr. Sullivan and Dr. Newmark pursuant to La. C.E. art. 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). Specifically, Dr. Gremillion argued that Dr. Sullivan, a cardiologist who does not practice general internal medicine, and Dr. Newmark, a pulmonologist who does not practice general internal medicine, were not qualified to render an opinion regarding the standard of care, and breach thereof, of an internal medicine doctor. On May 29, 2024, the trial court dismissed Dr. Gremillion's motion in limine.

7.   The record in the instant matter does not reveal any specific ruling, either at the hearings or in writing, regarding Dr. Rees’ evidentiary objections to Dr. Sullivan's and Dr. Newmark's affidavits, or Dr. Gremillion's motion to strike those affidavits. However, it does appear from the trial court's oral ruling that it considered all evidence submitted by the parties. When the trial court does not rule upon the objections to summary judgment evidence and appears to have considered the objected-to evidence, the trial court's silence is deemed as a denial or rejection of the objection. Ricketson v. McKenzie, 2023-0311 (La. App. 1 Cir. 10/4/23), 377 So. 3d 693, 700, writ denied, 2023-01451 (La. 2/6/24), 3 78 So. 3d 747. We also note that the motion to strike was removed as a means of challenging the admissibility of documents filed in connection with a motion for summary judgment with the revision of La. C.C.P. art. 966 by 2015 La. Acts No. 422, effective January 1, 2016.

8.   The record before this Court does not contain a transcript of the hearing on plaintiffs’ motion to recuse. Plaintiffs do not seek review of this ruling.