THIBODEAUX, Chief Judge.
Plaintiff, Hershel Blood, filed this medical malpractice lawsuit against Defendant, Regional Medical Center of Acadiana ("RMCA")
We will consider whether the trial court erred in granting RMCA's Motion for Summary Judgment.
The day after Mr. Blood underwent gastric bypass surgery at RMCA, Nurses Rachelle Sorlie and Roger Henson transferred Mr. Blood from his bed to a reclining surgical chair. After the nurses completed the transfer, Nurse Sorlie attempted
Mr. Blood filed a medical malpractice lawsuit alleging that RMCA failed to properly complete the transfer of Mr. Blood from his hospital bed to the surgical chair; failed to properly inspect or operate the surgical chair; and, failed to meet the standard of care.
We review a grant of summary judgment de novo "using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate, i.e., whether a genuine issue of material fact exists and whether the mover is entitled to judgment as a matter of law." Supreme Servs. and Specialty Co., Inc. v. Sonny Greer, Inc., 06-1827, p. 4 (La.5/22/07), 958 So.2d 634, 638. If the mover will not bear the burden of proof at trial on the matter, then he must only present evidence showing a lack of factual support for one or more elements essential to the non-mover's case. La.Civ.Code art. 966(C)(2); Simien v. Med. Protective Co., 08-1185 (La.App. 3 Cir. 6/3/09), 11 So.3d 1206, writ denied, 09-1488 (La.10/2/09), 18 So.3d 117. Once the mover has made a prima facie case that the motion should be granted, the non-mover must then present evidence sufficient to show a genuine issue of material fact. Id. If the non-mover fails to present some evidence that he might be able to meet his burden of proof at trial, the motion should be granted. Id.
Mr. Blood asserts that the evidence he presented to the trial court is sufficient to overcome a grant of summary judgment. Specifically, Mr. Blood asserts three things: that RMCA failed to completely transfer him from the hospital bed to the chair; that he did not need expert evidence to overcome summary judgment; and that Nurse Sorlie had a duty to visually and physically inspect the chair prior to placing Mr. Blood in it.
Mr. Blood first alleges RMCA failed to properly complete the transfer from his hospital bed to the surgical chair. We disagree. Mr. Blood presented no evidence in the trial court to support this allegation. In fact, Mr. Blood's own deposition contradicts his argument. The following exchange between Mr. Blood and the deposing attorney illustrates this contradiction:
By Mr. Blood's own testimony, the nurses had completed the transfer when this incident happened. No genuine issue of material fact exists on this issue. The trial court, therefore, properly disposed of this claim on summary judgment.
Mr. Blood maintains that although medical malpractice cases generally require expert testimony to prove the standard of care, Mr. Blood himself is not required to present such evidence for two reasons. First, he asserts that the Panel's opinion should direct this court to find that he does not need to prove the standard of care with an expert opinion. We disagree with Mr. Blood's interpretation of the Panel's opinion and, alternatively, with his contention that we must follow it. The Panel stated "[w]ith respect to the allegations pertaining to the alleged failure to properly inspect and/or operate the hospital equipment, there is a material issue of fact, not requiring expert opinion, bearing on liability for consideration by the court." The Panel concluded that there were "no records to indicate that the equipment was improperly inspected or operated." Mr. Blood asserts that the Panel was instructing this court to find an expert opinion unnecessary. We conclude, however, that the Panel stated that it had no medical opinion regarding the operation of the chair because the plaintiff presented no evidence to guide the Panel's decision in that regard. Further, even if we decide the Panel did indeed state that the plaintiff did not need an expert, this court is not bound by the Panel's opinion.
Mr. Blood also contends that this case falls under an exception to the expert testimony requirement in medical malpractice cases.
Mr. Blood argues that the evidence is sufficient to show that Nurse Sorlie had a duty to visually and physically inspect the surgical chair before using it. We disagree. In its motion, RMCA pointed out the absence of evidence establishing both the standard of care and that Nurse Sorlie had breached the standard, two elements essential to Mr. Blood's claim. RMCA supported its motion with the affidavit of Nurse Sorlie, who attested that she performed
To prevail at trial, Mr. Blood would have to establish the standard of care applicable to RMCA; show that RMCA breached the standard of care; and demonstrate that a causal connection exists between RMCA's breach and the plaintiff's resulting injury. Schultz v. Guoth, 10-0343 (La.1/19/11), 57 So.3d 1002. To prove the standard of care, Mr. Blood must show that Nurse Sorlie had a duty to exercise the same degree of skill exercised by other nurses in a similar locality; that she failed to exercise such skill; and that he suffered injuries as a result. La.R.S. 9:2794; Odom v. State ex rel. Dep't of Health and Hosp., 98-1590 (La.App. 3 Cir. 3/24/99), 733 So.2d 91. On summary judgment, Mr. Blood had to provide some evidence that he could meet this burden at trial. We find he has not demonstrated such evidence.
The only evidence Mr. Blood presented in opposition to summary judgment was an affidavit from a registered nurse, Craig Savoie, purporting to establish the standard of care and RMCA's breach thereof. In his affidavit, Mr. Savoie attests that he is a Certified Registered Nurse Anesthetist and a Registered Nurse with five years of critical care experience. Mr. Savoie claims familiarity with the specific chair used to transport Mr. Blood and states that "[p]rior to the use and implementation of any medical device in the treatment and care of a patient; it is necessary to perform both a visual and physical examination of the equipment; including `automatic' functions;" and "[f]ailure to perform both visual and physical examination of equipment falls below the applicable standard of care."
Affidavits in opposition to a motion for summary judgment must be made on personal knowledge, set forth facts that would be admissible as evidence, and show the affiant is competent to testify as to the matters asserted. La.Code Civ.P. art. 967. We conclude that while Mr. Savoie's affidavit is sufficient to establish the standard of care, it is insufficient to establish to whom the standard of care applies. That is, the affidavit is insufficient to establish that Nurse Sorlie herself had the duty to physically inspect the chair.
In his Brief submitted to this court, Mr. Blood argues that because the nurse failed to physically inspect the chair, the hospital breached the standard of care. Mr. Savoie's affidavit, however, does not support that contention. Moreover, Mr. Blood provides no other evidence to support it either. Mr. Savoie attests that a medical device must be physically examined; however, he does not attest that a nurse must perform this task. The affidavit merely states that "it is necessary" to physically inspect the chair; it does not state by whom it is necessary. In fact, Nurse Sorlie's deposition testimony states that it was her belief that the hospital's maintenance department inspected the chairs prior to use. Mr. Blood provided no evidence to contradict that belief. Since establishing
For the reasons above, we affirm the trial court's judgment. Costs of this appeal are assessed against Appellant, Hershel Blood.