LOUVENIA RICHARD INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF ERNEST RICHARD SR DECEASED AND DAMIEN SMART INDIVIDUALLY AND AS SURVIVING SON OF ERNEST RICHARD SR v. OUR LADY OF THE LAKE HOSPITAL INC OUR LADY OF THE LAKE REGIONAL MEDICAL CENTER JAMES FORD HEATHER McCULLOUGH MORGAN BABIN HANNAH MAIER (2026)

Plaintiff, Louvenia Richard, individually and on behalf of her deceased husband, Ernest Richard, appeals a summary judgment dismissing her medical malpractice action against Our Lady of the Lake Hospital, Inc. (OLOL), Dr. James Cody Ford, Morgan Babin, RN, and Hannah Maier, RN (collectively “defendants”). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On January 27, 2021, Mr. Richard, 71 years old, presented to the Emergency Department (ED) of OLOL complaining of shortness of breath. It was noted that he had been diagnosed with Covid on January 1, 2021, and had a history of diabetes, cirrhosis, hepatitis C, CVA (cerebrovascular accident), CKD (chronic kidney disease), and sleep apnea. Mr. Richard was diagnosed in the ED with Covid-19, acute respiratory failure with hypoxia, acute renal failure superimposed on stage 5 chronic kidney disease, and hyperglycemia, and was admitted to the medical ward of OLOL. Mr. Richard's symptoms worsened, and he was transferred to the ICU on January 29, 2021. In the ICU, despite broad-spectrum antibiotics, remdesivir, and Decadron, Mr. Richard continued to decompensate and required intubation on February 5, 2021. Mr. Richard was paralyzed in a prone position due to his worsening acute respiratory distress syndrome. On February 6, 2021, Mr. Richard required initiation of hemodialysis resulting from progressive renal failure.

The OLOL medical records show that Mr. Richard was seen by Dr. Ford, a critical care physician, on the morning of February 10, 2021. At that time, Dr. Ford noted that Mr. Richard had “progressive deterioration, difficulty tolerating hemodialysis, [and] no improvement despite multiple interventions.” Dr. Ford noted that he discussed with Mrs. Richard his concern about Mr. Richard's overall poor prognosis. That evening, at approximately 6:30 p.m., Mr. Richard's endotracheal tube (ET) dislodged when he was being turned for routine medical care. Dr. Ford noted that the ET tube likely slid out of the holder due to secretions. Dr. Ford rapidly intubated Mr. Richard, and obtained an X-ray to confirm that the ET tube was properly positioned. Dr. Ford noted that he updated Mrs. Richard on the phone and answered all questions. The following morning, February 11, 2021, Dr. Ford saw Mr. Richard and noted that he was critically ill and continued to be on “vasopressors and tolerating hemodialysis poorly.” Dr. Ford returned to see Mr. Richard that afternoon and noted that he was continuing to worsen. Dr. Ford called Mr. Richard's family, alerted them, and recommended they see Mr. Richard soon. On February 12, 2021, Mr. Richard went into cardiac arrest. Despite resuscitative efforts, Mr. Richard died at 6:22 p.m. His cause of death was listed on the death certificate as acute respiratory distress syndrome, pneumonia, and Covid-19.

A medical review panel unanimously found no deviation from the appropriate standard of medical care. The panel opinion stated:

It is the opinion of this medical review panel that there was no deviation from the appropriate standard of medical care by Our Lady of the Lake Hospital, Inc., Dr. Cody Ford, Heather McCullough, RN, Morgan Babin, RN, and Hannah Maier, RN. The patient suffered from a number of comorbidities including Covid, COPD, and chronic kidney disease progressing toward end stage renal disease. The patient developed ARDS. The patient received all appropriate therapies for Covid 19 and ARDS including Corticosteroids, lung protective ventilation, proning pharmacological paralysis with consideration for antiviral therapy and anti-inflammatory therapies. Each of these fell within the standard of care for Covid 19. His inadvertent extubation, although not ideal, was not unexpected in this situation and was promptly and effectively addressed without a significant change in the patient's condition. The IV infiltration was appropriately addressed by the nursing staff. The timing of the initiation of dialysis was appropriate. Nutrition was appropriately handled by the staff of Our Lady of the Lake Hospital. Nutritional support was adequate for patients with ARDS in a prone position. The panel is of the opinion the staff of Our Lady of the Lake Hospital rendered appropriate treatment.

Mrs. Richard thereafter filed a petition for damages on February 28, 2024,² naming as defendants OLOL, Dr. Ford, Heather McCullough, RN,³ Morgan Babin, RN, and Hannah Maier, RN, alleging that they breached the duty of care owed to Mr. Richard on several occasions “through delayed medical treatments, gross negligence(s), reckless behavior including providing false and/or misleading statements on medical records that exacerbated [Mr. Richard's] condition.” The petition further alleged that as a direct and proximate result of the breach of the applicable standard of medical care by the defendants, Mr. Richard suffered “Great” harm, including his ultimate death.

The defendants answered the petition, noting that the events involved in Mrs. Richard's claim occurred during the time of a declared public health emergency, requiring the plaintiff to establish gross negligence on the part of the healthcare provider. The defendants denied that their care fell to the level of gross negligence. The defendants thereafter filed a motion for summary judgment on March 13, 2025, asserting that Mrs. Richard had failed to come forth with admissible expert testimony to meet her burden of proof that the defendants breached the standard of care in their treatment of Mr. Richard and caused injury to, or the death of, Mr. Richard. The defendants further argued that because Mr. Richard's care and treatment occurred during a state of public health emergency related to Covid-19, Mrs. Richard's burden of proof was heightened, and she was required to prove the defendants’ alleged actions or inactions amounted to gross negligence and/or willful misconduct. The defendants argued she could not carry the heightened burden of proof.

Mrs. Richard filed a memorandum in opposition, to which she attached the following documents: (a) excerpts from the OLOL medical records and from a policy manual regarding critical care ventilator management; (b) an amended death certificate and email correspondence to/from the coroner; (c) the cover page from the defendants’ position paper to the medical review panel and statements provided by Dr. Ford, Ms. Babin, and Ms. Maier submitted on behalf of the defendants to the medical review panel; (d) a “Medical Review Report” prepared by Helen P. Holland, RN, BSN; (e) the transcript of a grievance conference call held on October 19, 2021; (f) the transcript of a pre-medical review panel conference call held on November 30, 2023; (g) the transcript of a motion to compel discovery conference call held on September 24, 2024; (h) email correspondence to/from Mrs. Richard and the chairperson for the medical review panel and to/from Mrs. Richard and defendants’ attorneys; (i) email correspondence to/from Mrs. Richard and OLOL regarding Mr. Richard's lost belongings; (j) records from the Louisiana State Board of Nursing in response to a public record request from Mrs. Richard; and (k) responses to discovery issued by Mrs. Richard.

In response, the defendants timely filed a reply memorandum including objections to the excerpt from the policy manual regarding critical care ventilator management included in exhibit (a), the email correspondence included in exhibit (b), and exhibits (c)-(j) as improper summary judgment evidence. With regard to exhibit (d), Ms. Holland's report, the defendants also argued that Ms. Holland was not qualified by her education, training, or experience to offer expert opinions regarding causation.

The defendants’ motion for summary judgment was heard on May 5, 2025. After hearing the defendants’ objections to the exhibits attached to Mrs. Richard's opposition, the trial court granted the objections with the exception of Ms. Holland's report. The trial court recognized that the report did not technically fit the type of evidence that the court could consider on a motion for summary judgment, but found that even with Ms. Holland's report, Mrs. Richard would not be able to meet her burden of proof at trial that the defendants’ actions rose to the level of gross negligence, and granted the motion for summary judgment.

The trial court signed a judgment in accordance with its ruling on June 11, 2025, dismissing Mrs. Richard's claims against the defendants, and issued written reasons for judgment on July 17, 2025. Mrs. Richard now appeals, contending the trial court erred in granting the defendants’ motion for summary judgment.

ASSIGNMENTS OF ERROR

Mrs. Richard assigns the following as error:

1. The trial court erred in granting the motion for summary judgment because she met her burden of proof in showing the defendants breached the applicable standard of care that resulted in Mr. Richard's death;

2. The trial court erred in excluding the statements from the defendant medical providers (exhibit c); and

3. Adequate discovery had not occurred prior to the defendants’ motion for summary judgment being filed and decided.

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).

Additional Time to Complete Discovery

We first address Mrs. Richard's third assignment of error, that the trial court erred in granting the defendants’ motion for summary judgment because adequate discovery had not occurred. According to Mrs. Richard, the defendants circumvented discovery by failing to provide her an opportunity to depose OLOL medical staff and providing evasive responses to interrogatories.

Louisiana Code of Civil Procedure art. 966(A)(3) provides that a motion for summary judgment shall be granted after an opportunity for adequate discovery 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. The requirement that a summary judgment should be considered only after “adequate discovery” has been construed to mean that there is no absolute right to delay action on a motion for summary judgment until discovery is complete; rather, the requirement is only that the parties have a fair opportunity to carry out discovery and to present their claim. Campbell v. Dolgencorp, LLC, 2019-0036 (La. App. 1 Cir. 1/9/20), 294 So. 3d 522, 527. Unless a party shows a probable injustice, a suit should not be delayed pending discovery when it appears at an early stage that there is no genuine issue of fact. Id.

Pursuant to La. C.C.P. art. 967(C), if it appears from the affidavits of a party opposing the motion for summary judgment that for reasons stated he cannot present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

Trial courts in Louisiana have broad discretion when regulating pre-trial discovery, which discretion will not be disturbed on appeal absent a clear showing of abuse. It is not an abuse of the trial court's wide discretion in discovery matters to grant a motion for summary judgment before discovery has been completed. Primeaux v. Best Western Plus Houma Inn, 2018-0841 (La. App. 1 Cir. 2/28/19), 274 So. 3d 20, 32. It is within the trial court's discretion to render a summary judgment or require further discovery. Dortch v. Jane Doe & Chrysler Group, LLC, 2016-0933 (La. App. 1 Cir. 4/6/17), 217 So. 3d 449, 454.

Mrs. Richard filed her initial request to impanel a medical review panel on December 15, 2021, and her petition for damages on February 28, 2024. In July of 2024, Mrs. Richard propounded discovery, including interrogatories, requests for production, and requests for admission. The defendants responded to the interrogatories and requests for production and filed a motion to quash the requests for admission, arguing the 115 requests were unduly burdensome, and seeking an order limiting Mrs. Richard's requests. The motion to quash came for hearing on September 30, 2024, and the trial court granted the motion, limiting Mrs. Richard to propounding 30 requests for admission to each of OLOL, Dr. Ford, and Nurse Babin, for a total of 90 requests for admission. On appeal, Mrs. Richard argues the responses that were submitted were either evasive or general denials; however, the record does not indicate that Mrs. Richard filed a motion to compel in connection with these responses. The defendants filed their motion for summary judgment on March 13, 2025. Although Mrs. Richard argues on appeal that she sought to depose members of the OLOL medical staff, she did not file a motion to continue the hearing on the motion for summary judgment, and she failed to comply with the provisions of La. C.C.P. art. 967(C).

We find that Mrs. Richard had a fair opportunity to carry out discovery in this matter. Considering the trial court's broad discretion in regulating pre-trial discovery, we find no clear showing of abuse of discretion. This assignment of error lacks merit.

Summary Judgment Evidence

In her second assignment of error, Mrs. Richard contends the trial court erred in excluding from consideration, pursuant to the defendants’ objections thereto, the statements provided by Dr. Ford, Ms. Babin, and Ms. Maier that were submitted on behalf of the defendants to the medical review panel.⁴ Although the statements were not in the form of an affidavit, Mrs. Richard argues that the statements encompassed the personal knowledge of the OLOL medical staff during Mr. Richard's treatment, and thus constitute competent summary judgment evidence.

Louisiana Code of Civil Procedure art. 966(A)(4)(a) provides:

The only documents that may be filed or referenced in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, certified copies of public documents or public records, certified copies of insurance policies, authentic acts, private acts duly acknowledged, promissory notes and assignments thereof, written stipulations, and admissions.

Pursuant to La. C.C.P. art. 966(D)(2), the court shall consider only those documents filed or referenced in support of or in opposition to the motion for summary judgment but shall not consider any document that is excluded pursuant to a timely filed objection. The abuse of discretion standard is applicable to the trial court's rulings on objections to documents filed in support of or in opposition to a summary judgment motion that are raised by a party in a timely filed opposition or reply memorandum in accordance with La. C.C.P. art. 966(D)(2). Lucas v. Maison Ins. Co., 2021-1401 (La. App. 1 Cir. 12/22/22), 358 So. 3d 76, 88-89. Unsworn or unverified documents, such as letters, reports, or contracts, annexed to motions for summary judgment are not self-proving and will not be considered; attaching such documents to a motion for summary judgment does not transform them into competent summary judgment evidence, if objected to. Id. at 89.

As indicated above, the defendants timely filed a reply memorandum objecting to a number of exhibits attached to Mrs. Richard's opposition memorandum, including the statements of Dr. Ford, Ms. Babin, and Ms. Maier. The defendants argued these were not documents permitted to be attached in opposition to a motion for summary judgment pursuant to La. C.C.P. art. 966(A)(4)(a), and were inadmissible hearsay pursuant to La. C.E. art 801(C). In its judgment, the trial court sustained the defendants’ objections to these documents. Upon review, we find these statements are not documents permitted to be attached to a motion for summary judgment and, additionally, contain inadmissible hearsay evidence. Accordingly, the trial court did not abuse its discretion in ruling the documents were inadmissible, and we will not consider these documents in reviewing the motion on appeal.

Motion for Summary Judgment

In her remaining assignment of error, Mrs. Richard contends the trial court erred in granting summary judgment because she met her burden of proof in showing the defendants breached the applicable standard of care that resulted in Mr. Richard's death. She further argues the gross negligence requirement is not applicable.

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. Succession of Hickman v. State Through Bd. of Supervisors of Louisiana State Univ. Agric. & Mech. Coll., 2016-1069 (La. App. 1 Cir. 4/12/17), 217 So. 3d 1240, 1244.

Typically, 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.

In 2003, the legislature enacted the Louisiana Health Emergency Powers Act (LHEPA), La. R.S. 29:760, et seq., to protect the health and safety of the citizens of Louisiana by providing the state with the ability to respond, rapidly and effectively, to potential or actual public health emergencies. La. R.S. 29:761(A). The LHEPA provides a heightened burden of proof against private health care providers during the event of a public health emergency. Morrow v. Louisiana Med. Mut. Ins. Co., 2022-1006 (La. App. 1 Cir. 2/24/23), 361 So. 3d 986, 989. In this regard, La. R.S. 29:771(B)(2)(c)(i) provides: “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.”

The Louisiana Supreme Court has defined “gross negligence” as:

[T]he ‘want of even slight care and diligence’ and the ‘want of that diligence which even careless men are accustomed to exercise.’ Gross negligence has also been termed the ‘entire absence of care’ and the ‘utter disregard of ․ prudence, amounting to complete neglect of the rights of others.’ Additionally, gross negligence has been described as an ‘extreme departure from ordinary care or the want of even scant care.’ ‘There is often no clear distinction between such [willful, wanton, or reckless] conduct and ‘gross’ negligence, and the two have tended to merge and take on the same meaning.’

Rabalais v. Nash, 2006-0999 (La. 3/9/07), 952 So. 2d 653, 658 (citations omitted). The burden of proof set forth in La. R.S. 29:771 relative to medical malpractice during a declared state of medical emergency prevails over the more general medical malpractice statutes. Lejeune v. Steck, 13-1017 (La. App. 5 Cir. 5/21/14), 138 So. 3d 1280, 1284.

On March 11, 2020, Louisiana Governor John Bel Edwards declared a public health emergency in Louisiana due to COVID-19 through Proclamation Number 25 JBE 2020. The public health emergency was extended through March 16, 2022.⁵ Because the complained of care and treatment occurred between January 27, 2021 and February 12, 2021, we find the heightened burden of proof applicable to Mrs. Richard's claims.

In support of their motion for summary judgment, the defendants submitted Mr. Richard's medical records from OLOL from January 27, 2021 through February 12, 2021; Mr. Richard's death certificate, indicating his cause of death was acute respiratory distress syndrome, pneumonia, and Covid-19; and the affidavit of the chairperson for the medical review panel, to which was attached the unanimous opinion of the panel concluding that the defendants did not breach the standard of care. Therefore, in order to avoid summary judgment, the burden shifted to Mrs. Richard to produce factual support sufficient to establish that she would be able to sustain her evidentiary burden at trial of proving the defendants were grossly negligent or committed willful misconduct. La. C.C.P. art. 966(D)(1); see Zibilich v. Shingledecker, 24-443 (La. App. 5 Cir. 1/29/25), 405 So. 3d 1125, 1128.

The only documents attached to Mrs. Richard's opposition to the motion for summary judgment that we will consider on appeal are Mr. Richard's hospital records and death certificate, the defendants’ responses to discovery, and Ms. Holland's “Medical Review Report.”⁶ Ms. Holland's report indicated she was a registered nurse, who retired in 2016. Her report summarized the OLOL medical records for January 21, 2021 and January 27, 2021. Ms. Holland opined that based on her experience as a professional nurse, “the standard of care to provide a safe patient care environment was not met.” She noted examples of charting inconsistencies and incomplete documentation. She concluded:

There was a deviation from the appropriate standard of medical care. There was sloppiness in documentation. Mr. Richard, in his already debilitated state suffered hemodynamic charges [sic] adding insult to injury, the medical team had to try and mitigate the damage done. In addition, Mr. Richard suffered an injury to his arm to [sic] which the causation has never been explained to the family. Deviations to acceptable standards of care caused Mr. Richard suffered [sic] severe harm and physical injuries that exacerbated his condition causing his early death.

The causation between these gross negligent actions and Mr. Richard's injuries is clear and direct, and these failures represent an extreme violation of the plaintiff's rights to safe and competent medical care.

We find that Ms. Holland's report is insufficient to satisfy Mrs. Richard's burden of proving that Mr. Richard's death was caused by the defendants’ gross negligence or willful misconduct. Louisiana Code of Civil Procedure art. 967(B) establishes that affidavits that rest on mere allegations or denials cannot contest a properly supported motion for summary judgment. Rather, the affidavit must set forth specific facts showing that there is a genuine issue for trial. While Ms. Holland alleges that there were deviations to acceptable standards of care, she fails to identify the standard of care applicable to each of the defendants, which of the defendants deviated from that standard of care, and what the specific breaches were. Moreover, her allegation that the deviations caused Mr. Richard's early death is likewise conclusory and speculative. Ms. Holland fails to specifically relate how any deviation caused Mr. Richard's death, particularly in light of the death certificate, which indicated that the cause of death included Covid-19 and acute respiratory distress syndrome, conditions with which he was diagnosed at the time he presented to the OLOL ED.

Based on our de novo review of the record, we find Mrs. Richard failed to prove that she will be able to satisfy her evidentiary burden of proof at trial that the defendants were grossly negligent or committed willful misconduct that caused the death of, or injury to, Mr. Richard. Therefore, the defendants are entitled to summary judgment.

CONCLUSION

For the above and foregoing reasons, the June 11, 2025 judgment granting summary judgment in favor of Our Lady of the Lake Hospital, Inc., Dr. James Cody Ford, Morgan Babin, RN, and Hannah Maier, RN, and dismissing Louvenia Richard's medical malpractice action against them is affirmed. All costs of this appeal are assessed to Louvenia Richard.

AFFIRMED.

FOOTNOTES

2.   The petition for damages included, as a plaintiff, Damian Smart, individually and as Mr. Richard's surviving son. Mr. Smart's claims were voluntarily dismissed on September 25, 2024.

3.   On October 31, 2024, the trial court granted an exception of insufficiency of service of process and dismissed Mrs. Richard's action against Ms. McCullough.

4.   As noted above, the trial court also sustained the defendants’ objections to other documents attached to Mrs. Richard's opposition to the motion for summary judgment. Mrs. Richard does not assign as error the trial court's exclusion of these other documents, and we will not consider them on appeal.

5.   The defendants attached Proclamation Number 25 JBE 2020 as an exhibit to their motion for summary judgment. That proclamation remained in effect until April 9, 2020. This court may take judicial notice of the subsequent proclamations extending the emergency provisions pursuant to La. C.E. art. 202(B)(1)(a). See State v. Spell, 2021-00876 (La. 5/13/22), 339 So. 3d 1125, 1128 n.1.

6.   We note that the report is not in affidavit form and is not otherwise a document permitted by La. C.C.P. art. 966(A)(4)(a) to be attached to a motion for summary judgment. However, the trial court denied the defendants’ objection to the report, and the defendants did not appeal this ruling. Because we find that Ms. Holland's report is insufficient to defeat summary judgment in this instance, we do not reach the question of whether her report constitutes competent summary judgment evidence. See Kinch v. Our Lady of Lourdes Reg'l Med. Ctr., 2015-603 (La. App. 3 Cir. 12/9/15), 181 So. 3d 900, 904 n.2.

HAGGERTY, J.