"Samaha v. Rau": Impact on Louisiana Physicians
By Carl T. Conrad, Attorney; Law Firm of Blue Williams, L.L.P.
The First Circuit Court of Appeal is headquartered in Baton
Rouge and covers a large 16-parish region, including the entire
Northshore, most of the Bayou Region, and the area surrounding
Louisiana’s capital city. Until the Samaha decision by the Supreme
Court, it had consistently resisted upholding summary judgment
dismissals rendered in favor of physicians, and took an activist
stance in reinstating dismissed cases. Angel Hymel, Senior Field
Representative of the LAMMICO Claims Department and I
decided to oppose the First Circuit’s reinstatement of a case against
a Houma general surgeon which had been correctly dismissed by
the district court there.
1. How did the Samaha case get to the Supreme Court?
In October, 1998, Mrs. Karmann Samaha underwent thyroid
surgery, but was unsatisfied with its result and filed a request for a
medical review panel against her surgeon, Dr. David Rau. After the
medical review panel ruled against her claim, she nevertheless filed
suit against Dr. Rau in district court in Houma; located in
Terrebonne Parish. After pretrial discovery, Dr. Rau moved for
summary judgment to dismiss Mrs. Samaha’s claim on grounds that
she did not have an expert to testify in support of her claims of
malpractice. At the hearing, the district court agreed and dismissed
her claim. On appeal of that decision to the First Circuit Court of Appeal, the appellate court reversed the district court’s dismissal and
reinstated the plaintiff’s claim. Dr. Rau’s defense team decided to
challenge the First Circuit’s ruling that he had to negate elements of
the plaintiff’s case before he could obtain its dismissal.
2. Ruling Eases Dismissal Of Med Mal Claims
On February 26, 2008, the Louisiana Supreme Court
unanimously ruled in Dr. Rau’s favor, dismissing the plaintiff’s case
against him. The Court held that Dr. Rau did not have the burden
of disproving the plaintiff’s claim before he could obtain its
dismissal. Instead, when faced with Dr. Rau’s Motion for Summary
Judgment, it was the plaintiff’s burden to show that she had
necessary evidence to support her allegations of fault and damages
before she could proceed with further action against Dr. Rau. The
Court ruled that the plaintiff had failed in this regard, such that
the district court had properly dismissed her case. In ruling as it
did, the Supreme Court clarified the law on summary judgment,
explaining that when a defendant moves for summary judgment,
that party does not have the burden of producing new evidence in
support of the Motion, but can instead simply point out that the
plaintiff opposing the Motion does not have necessary evidence of
her own in support of her case. When that is done, as Dr. Rau did
in his Motion, it is then the plaintiff’s obligation to show either that the existing evidence supports her claim or offer new evidence
in support of her claim. In this case, the plaintiff did neither.
3. Significance For Louisiana Physicians
The ruling removes incorrect and artificial barriers to the “just,
speedy and inexpensive” resolution of claims, as required by
Louisiana Code of Civil Procedure article 966. The practical
effects of the decision specifically touch on two aspects of medical
malpractice litigation: (1) a medical review panel opinion need not
even be offered into evidence in support of a Motion for Summary
Judgment pointing out that the plaintiff does not have an expert to
testify in support of her claim, if the plaintiff’s discovery responses
do not properly, or at all, identify a medical expert who will testify
in support of the plaintiff’s case; and, (2) if a medical review panel
opinion is offered, it need not be accompanied by new affidavits of
the physician panelists, identifying the panel opinion as still being
that to which they earlier subscribed.
This latter part of the decision overrules all First Circuit
opinions which previously required either a new affidavit from a
physician panelist or the substitution of a panelist's deposition
testimony for the panel opinion itself. This should reduce the costs
and expense of filing a Motion because defense counsel need no
longer spend time propping up the panel opinion with a new
affidavit. Samaha also, for the first time, makes clear that a
defendant moving for summary judgment need not produce new
evidence in support of the motion as long as what already exists is
sufficient to “point out” that the opposing plaintiff does not have
sufficient evidence of their own to prove their claim. This will affect
all civil litigation in Louisiana, not merely medical malpractice
litigation, and should reduce overall defense costs by making
summary judgments easier and less costly to obtain.
