November 19, 2020

The State of Louisiana Court of Appeal, Third Circuit (“Louisiana Appellate Court”), in its decision dated October 28, 2020, reversed summary judgment granted to the defendant pediatric cardiologist in a Louisiana medical malpractice case, finding that the plaintiff’s medical malpractice expert’s affidavit in support of the plaintiff’s opposition to the defendant’s motion for summary judgment was “sufficient to allow a reasonable juror to conclude that [the defendant] breached the applicable standard of care, and that [the plaintiff] sustained damages therefrom.””

The Underlying Facts

Mariah Charles (“Mariah”) was born prematurely on October 8, 2014, at Lafayette General Medical Center (“LGMC”). Several days later, on October 13, 2014, an echocardiogram was performed and read by Getta Dalal, M.D. (“Dr. Dalal”), which, according to the plaintiff, revealed a patent foramen ovale (“PFO”) with a small left to right shunt and patent ductus arteriosus (PDA) with a large left to right shunt.

Over the course of the next seven months, Dr. Dalal read approximately eleven additional echocardiograms that were performed on Mariah: seven at LGMC, three at Women’s and Children’s Hospital (“WCH”), and one while caring for Mariah on an outpatient basis. Dr. Dalal continued to note the PDA with a left to right shunt.

On May 8, 2015, Mariah was admitted to the Pediatric Intensive Care Unit at WCH due to low oxygen saturation levels. Albert M. Gutierrez, M.D. (“Dr. Gutierrez”) examined Mariah and ordered an echocardiogram. Dr. Gutierrez thereafter diagnosed Mariah with pulmonary artery hypertension. Mariah, who was in pulmonary hypertensive crisis, was immediately taken by helicopter to Children’s Hospital of New Orleans. On May 13, 2015, Mariah underwent a heart catheterization procedure to close the PDA.

The mother’s Louisiana medical malpractice lawsuit alleged that Dr. Dalal should have detected Mariah’s pulmonary artery hypertension and treated the conditions, but that, despite noting the PDA on the echocardiograms, Dr. Dalal failed to recommend treatment. The plaintiff alleged that due to Dr. Dalal’s prolonged failure to detect and treat Mariah’s condition, Mariah suffered numerous serious and permanent injuries.

Dr. Dalal responded that she treated Mariah at LGMC as a consultant to Mariah’s neonatologist, acted as a consultant at WCH, and treated Mariah on an outpatient basis. She admitted that she interpreted approximately twelve echocardiograms for Mariah. However, Dr. Dalal alleged that, while at LGMC, decisions regarding the abnormalities detected by the echocardiograms were made by the treating neonatologist.

Dr. Dalal moved for summary judgment and attached the favorable decision from the Louisiana medical review panel (“MRP”), which found no breach in the standard of care. The plaintiff opposed the defendant’s motion for summary judgment and provided an affidavit from Dr. Gutierrez, which opined that Dr. Dalal did breach the standard of care for a pediatric cardiologist while treating, or not treating, Mariah’s PDA and that failure caused her damage. In forming his opinions, Dr. Gutierrez attested that he reviewed excerpts of various medical records from LGMC, Dr. Dalal, WCH, and Children’s Hospital of New Orleans, as well as the echocardiograms and the reports interpreting the echocardiograms included in those records. Furthermore, he has personally treated and continues to treat Mariah. Dr. Gutierrez opined that Dr. Dalal did breach the standard of care for a pediatric cardiologist in treating Mariah’s PDA and that failure caused her damage.

The defendant argued that Dr. Gutierrez’s affidavit was inadmissible based on its failure to identify the factual basis for her opinions. The trial court granted the defendant’s motion for summary judgment, and the plaintiff appealed.

Louisiana Appellate Court Decision

In reversing the summary judgment granted to Dr. Dalal, the Louisiana Appellate Court stated: “Dr. Gutierrez states the applicable standard of care for pediatric cardiologists and concludes that Dr. Dalal breached that standard by failing to calculate Mariah’s heart and vessel pressures, failing to diagnose pulmonary artery hypertension, and failing to provide any treatment of her PDA, which Children’s Hospital of New Orleans later closed via a cardiac catheterization. He then opines that these failures more probably than not caused her damages, including damage to her lungs and heart. After a de novo review of the record, we find that Dr. Gutierrez’s affidavit was “sufficient to allow a reasonable juror to conclude that [the defendant] breached the applicable standard of care, and that [the plaintiff] sustained damages therefrom.” Thompson, 244 So.3d at 449. Thus, summary judgment was not proper.”

Source Thomas v. Dalal, 20-65.

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