IN RE: Medical Review Panel Proceedings of Madlyn BAGNERIS (2021)

Writ application denied.

The trial court denied the defendants’ motion for summary judgment. I write separately to express that the trial court arrived at the correct result, but for reasons which I believe were in error. A medical review panel found defendant Kimberly Adkins did not breach the standard of care and that the availability of Narcan would not have changed the patient's outcome. The alleged malpractice is not the type of “obvious negligence” that requires no expert testimony to establish fault or causation. See Pfiffner v. Correa, 94-0924 (La. 10/17/94), 643 So. 2d 1228, 1234.

A summary judgment can be rendered only after the parties have an opportunity for adequate discovery. See La. Code Civ. Pro. art. 966A(2). The plaintiff is entitled to a reasonable opportunity to identify and hire an expert to prove her case. The subject motion was filed about six months after plaintiff's petition, before defendants’ answer, and before any discovery. Under these circumstances, plaintiff was not allowed sufficient time to retain an expert. The trial court correctly denied summary judgment.

Hughes, J., concurs for the reasons assigned by Justice Crain. Crain, J., additionally concurs and assigns reasons.