ARTHUR SERPAS AND PATRICIA SERPAS WIFE OF ARTHUR SERPAS v. UNIVERSITY HEALTHCARE SYSTEM TULANE UNIVERSITY HOSPITAL AND CLINIC ET AL

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Court of Appeal of Louisiana, Fourth Circuit.

ARTHUR A. SERPAS AND PATRICIA SERPAS, WIFE OF ARTHUR A. SERPAS v. UNIVERSITY HEALTHCARE SYSTEM, D/B/A TULANE UNIVERSITY HOSPITAL AND CLINIC, ET AL

ARTHUR A. SERPAS AND PATRICIA SERPAS, W/O/A AUTHUR A. SERPAS v. UNIVERSITY HEALTHCARE SYSTEM, D/B/A TULANE UNVIERSITY HOSPITAL AND CLINIC

NO. 2016-C-0948, NO. 2016-C-0986

Decided: March 08, 2017

(Court composed of Chief Judge James F. McKay, III, Judge Terri F. Love, Judge Madeleine M. Landrieu, Judge Joy Cossich Lobrano, Judge Marion F. Edwards, Pro Tempore) Peter E. Sperling, Nairda T. Colon, James P. Waldron, FRILOT, L.L.C., 1100 Poydras Street, Suite 3700, New Orleans, LA 70163-3700, Steward E. Niles, Jr., Bryan J. Knight, Mark E. Kaufman, NILES, BOURQUE, & KNIGHT, L.L.C., 909 Poydras Street, 35th Floor, New Orleans, LA 70112, COUNSEL FOR DEFENDANTS/RELATORS Marie Riccio Wisner, LAW OFFICES OF MARIE RICCIO WISNER, 700 Camp Street, New Orleans, Louisiana 70130, COUNSEL FOR PLAINTIFFS/RESPONDENTS

In this medical malpractice case, relators, Allen Jacobs, M.D., Brian Rodgers, M.D., and Brett Travis, M.D., seek supervisory review of the August 18, 2016 judgment of the district court, which denied the motions for summary judgment filed by relators. On the showing made, we find that there was not an opportunity for adequate discovery as provided under La. C.C.P. art. 966(A)(3). Accordingly, we exercise our supervisory jurisdiction, grant the writ, and affirm the denial of summary judgment.

Respondents, Arthur A. Serpas and Patricia Serpas, brought claims against several health care providers in connection with a foreign object allegedly left in Mr. Serpas' body following surgery. Relators, who are radiologists, were named as defendants along with other health care providers. Relators filed motions for summary judgment seeking dismissal of all claims against them, contending that respondents had not identified an expert witness who would testify that relators breached the standard of care applicable to radiologists. The district court denied relator's motions.

“Appellate courts review a judgment granting or denying a motion for summary judgment de novo.” Louisiana High Sch. Athletics Ass'n, Inc. v. State, 2012-1471, p. 18 (La. 1/29/13), 107 So.3d 583, 598 (citing Bonin v. Westport Ins. Corp., 2005-0886, p. 4 (La. 5/17/06), 930 So.2d 906, 910). Generally, a motion for summary judgment may only be granted “[a]fter an opportunity for adequate discovery․” La. C.C.P. 966(A)(3). “Although the language of article 966 does not grant a party the absolute right to delay a decision on a motion for summary judgment until all discovery is complete, the law does require that the parties be given a fair opportunity to present their case.” Leake & Andersson, LLP v. SIA Ins. Co. (Risk Retention Grp.), 2003-1600, pp. 3-4 (La. App. 4 Cir. 3/3/04), 868 So.2d 967, 969 (citing Doe v. ABC Corp., 2000-1905, pp. 10-11 (La. App. 4 Cir. 6/27/01), 790 So.2d 136, 143). This Court has found summary judgment premature where the party opposing summary judgment was not afforded a reasonable opportunity to take relevant depositions prior to being required to defend against the motion for summary judgment. Doe, 2000-1905 at p. 11, 790 So.2d at 143.

On review of the record before us, we are unable to conclude that there has been an opportunity for adequate discovery. The writ application lacks any showing of deadlines in which the parties are required to disclose expert witnesses or complete discovery. Rather, the record reflects no dispute that discovery was ongoing. For example, John Pigott, M.D., one of the surgeons named as a defendant, had not been deposed at the time that the motion for summary judgment was before the district court. In this litigation, the standards of care for multiple types of health care providers are at issue. Under the particular facts of this case, it is reasonable for the respondents to take Dr. Pigott's deposition and obtain any testimony that may shed light on the fault of potentially responsible parties, if any, prior to requiring respondents to oppose summary judgment with expert opinion. Denial of summary judgment was proper.

Accordingly, for these reasons, we exercise our supervisory jurisdiction, grant the writ, and affirm the August 18, 2016 judgment of the district court.

WRIT GRANTED; AFFIRMED

Judge Joy Cossich Lobrano

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