MARTHA PATE v. RICHARD COVEY ROBERTSON JR FAIRWAY MEDICAL CENTER LLC AVALA (2026)

Plaintiff, Martha Pate, appeals a summary judgment dismissing her medical malpractice action against Richard Covey Robertson, Jr., M.D. and Fairway Medical Center, LLC d/b/a AVALA (AVALA) (collectively “defendants”). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On April 22, 2019, Ms. Pate underwent an epidural steroid injection (ESI), which was performed by Dr. Robertson at AVALA. Following the procedure, Ms. Pate experienced severe pain and soreness on the left side of her back. On April 15, 2020, Ms. Pate filed a request for a medical review panel against Dr. Robertson and AVALA, alleging that Dr. Robertson performed the ESI on the left side of her back, when it should have been performed on the right side. On July 6, 2022, the medical review panel issued its opinion with a split decision regarding the alleged breach in the standard of care. Specifically, two of the panelists concluded there were issues of fact that prevented them from determining whether the defendants breached the applicable standard of care; the remaining panelist concluded the evidence supported the determination that the defendants breached the standard of care in their care and treatment of Ms. Pate. Despite the split decision regarding the breach of the standard of care, the medical review panel reached a unanimous decision regarding causation, concluding that Ms. Pate “probably did not experience an injury from the treatment. Any ongoing pain [was] likely explainable by [Ms. Pate's] lumbar stenosis.”

Ms. Pate thereafter filed a petition for damages on November 29, 2022, naming Dr. Robertson and AVALA as defendants and alleging she sustained new and significant injuries as a result of being injected on her left side instead of her right side. The defendants answered the petition, asserting that any injuries and/or damages suffered by Ms. Pate were not caused in any way by any actions or omissions of the defendants.

On February 26, 2025, the defendants filed a motion for summary judgment, arguing Ms. Pate had failed to produce any evidence to prove that the negligence she alleged against the defendants caused her complained-of damages. The defendants attached Ms. Pate's request for a medical review panel, her petition, and her response to interrogatories and requests for production of documents; the defendants’ certificates of enrollment issued by the Patient's Compensation Fund Oversight Board; and the authenticated medical review panel's opinion with reasons.² Ms. Pate filed a memorandum in opposition with attachments, including her affidavit. Ms. Pate attested therein that she was supposed to have a procedure on the right side of her back at L5, S1, but instead, Dr. Robertson performed the procedure on the left side at L5, S1. She further attested that she immediately started having severe pain and soreness on the left side of her back, and called Dr. Robertson's office to inform him of the pain and discomfort she was experiencing on her left side. Ms. Pate attested that at a follow-up office visit with Dr. Robertson, when she advised him of the pain on her left side, he informed her that he had performed the procedure on the left side, apologized, and asked Ms. Pate to allow him to correct the problem. Ms. Pate attested that in response, she requested her medical records.

The trial court held a hearing on the defendants’ motion for summary judgment on May 22, 2025, and granted the defendants’ motion, finding that the causation issue was not so obvious as to be evident to a lay person, and thus required expert testimony, which Ms. Pate failed to produce. The trial court signed a judgment on June 18, 2025, granting the defendants’ motion for summary judgment and dismissing Ms. Pate's claims with prejudice. Ms. Pate appeals, contending the trial court erred in granting the defendants’ motion for summary judgment.

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. The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of civil actions. La. C.C.P. art. 966(A)(2). After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3).

The burden of proof rests with the mover. La. C.C.P. art. 966(D)(1). 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. Rather, the mover must 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. Id. 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).

In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Reynolds v. Bordelon, 2014-2371 (La. 6/30/15), 172 So. 3d 607, 610. 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. Young v. Hall, 2025-0501 (La. App. 1 Cir. 11/7/25), 423 So. 3d 1281, 1284, writ denied, 2025-01548 (La. 2/10/26), 425 So. 3d 1206.

To establish a claim for medical malpractice, a plaintiff must prove 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; Schultz v. Guoth, 2010-0343 (La. 1/19/11), 57 So. 3d 1002, 1006. Expert testimony is generally required to establish the applicable standard of care and whether that standard was breached, except where the negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony. Id. at 1006-07. Examples of situations in which a lay person can infer negligence and where expert testimony is not necessary include where a physician performs an obviously careless act, such as fracturing a leg during examination, amputating the wrong arm, dropping a knife, scalpel, or acid on a patient, or leaving a sponge in a patient's body. Pfiffner v. Correa, 94-0924 (La. 10/17/94), 643 So. 2d 1228, 1233. 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. Id. at 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 support of their motion for summary judgment, the defendants submitted the affidavit of Sean Graham, M.D., a member of the medical review panel, who authenticated the medical review panel opinion and reasons attached to his affidavit. As noted above, the medical review panel unanimously found that Ms. Pate did not experience an injury from the ESI, reasoning that any pain on the left side of her back was “likely explainable by [her] lumbar stenosis.”³ In addition, Dr. Graham attested that “regardless of [Ms. Pate's] allegations of a breach of the standard of care, the alleged breach did not cause [Ms. Pate's] complained of injuries and symptoms.” By supporting their motion for summary judgment with expert medical evidence that any injuries or symptoms suffered by Ms. Pate were not caused by the ESI, the defendants pointed out the absence of factual support regarding the causal connection between the alleged breach and the resulting injury, which is an essential element of Ms. Pate's action. Therefore, in order to avoid summary judgment, the burden shifted to Ms. Pate to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the defendants are not entitled to judgment as a matter of law. See La. C.C.P. art. 966(D)(1).

Ms. Pate did not provide any expert medical evidence in her opposition to the motion for summary judgment. Rather, she argued that she provided in written discovery the names of physicians who evaluated and treated her, yet the defendants did not depose any of them. However, the defendants’ decision not to depose potential experts identified by Ms. Pate does not alleviate her burden of proving there was a causal connection between the alleged breach of the standard of care and the injuries she claims to have suffered. See La. R.S. 9:2794.

On appeal, Ms. Pate further argues that she did not consent to the ESI being performed on her left side and suffered injuries by the very fact that the procedure was performed. In an action based on a failure to obtain informed consent, a plaintiff must prove the following four elements: (1) a material risk existed that was unknown to the patient; (2) the physician failed to disclose the risk; (3) the disclosure of the risk would have led a reasonable patient in the patient's position to reject the medical procedure or choose another course of treatment; and (4) the patient suffered injury. Snider v. Louisiana Med. Mut. Ins. Co., 2013-0579 (La. 12/10/13), 130 So. 3d 922, 929-30. As in a medical malpractice claim based on negligence, the plaintiff in a lack of informed consent action must prove not only that the physician failed to disclose all material information, but also that there was a causal relationship between the doctor's failure and the damages claimed by the patient. Otherwise, the doctor's conduct, however wrongful, is legally inconsequential. Lugenbuhl v. Dowling, 96-1575 (La. 10/10/97), 701 So. 2d 447, 454.

Based on our de novo review of the record, we find Ms. Pate failed to produce factual support sufficient to establish that she will be able to satisfy her evidentiary burden of proof at trial as to causation. The primary issue in this case is whether there was a causal relationship between the alleged breach of the standard of care and Ms. Pate's complaints of severe pain and soreness on the left side of her back. The instant case is not one of obvious negligence in which a lay person can simply infer causation. Rather, it involves an ESI that was performed at the correct level, but allegedly on the left, rather than right side. We agree with the trial court that, in light of the issues presented in this case, expert testimony is required to prove causation. In the absence of such expert testimony, we find Ms. Pate failed to prove that she will be able to satisfy her evidentiary burden of proof at trial against the defendants concerning the issue of causation, and therefore the defendants are entitled to summary judgment.

CONCLUSION

For the above and foregoing reasons, the June 18, 2025 judgment granting summary judgment in favor of Richard Covey Robertson, Jr., M.D. and Fairway Medical Center, LLC d/b/a AVALA, and dismissing Martha Pate's medical mal-practice action against them is affirmed. All costs of this appeal are assessed to Martha Pate.

AFFIRMED.

FOOTNOTES

2.   In their memorandum in support of their motion for summary judgment, the defendants assert the ESI was performed on the right side. The defendants did not attach the relevant medical records to their motion for summary judgment, which was based solely on Ms. Pate's lack of expert testimony to support her claim that any alleged negligence caused, her alleged injuries.

3.   The opinion of the medical review panel is admissible expert medical evidence that may be used to support or oppose any subsequent medical malpractice suit. See La. R.S. 40:1231.8(H); Methvien v. Our Lady of the Lake Hosp., 2022-0398 (La. App. 1 Cir. 11/4/22), 354 So. 3d 720, 724. In the context of a motion for summary judgment, such evidence may suffice to constitute a prima facie case that no issues of material fact exist. Sylvest, 405 So. 3d at 992 n.5.

HAGGERTY, J.