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Simmons v. Berry12/22/2000
Fitzsimmons, J. concurs without reasons
Foil, J., concurs in the result
Gonzales, J. concurs in the result
This matter comes before us on remand from the Louisiana Supreme Court. In Simmons v. Berry, 99-3608 (La. 5/5/00), 760 So.2d 1186, the court ordered that we reconsider our previous decision in light of Independent Fire Insurance Company v. Sunbeam Corporation, 99-2181, 99-2257 (La. 2/29/00), 755 So.2d 226.
In 1985, E. Adelle Simmons ("Ms. Simmons") experienced abdominal pain in the left lower quadrant and sought the medical care of Dr. Rick Staggers. Dr. Staggers determined that the pain experienced by Ms. Simmons was most likely due to a problem with one of her ovaries. Medication prescribed by Dr. Staggers resolved the pain for approximately two years. In May or June 1987, Ms. Simmons again began to experience the same type of pain she had experienced in 1985, and she consulted Dr. Charles M. Berry ("Dr. Berry"). When conservative measures were unsuccessful in controlling Ms. Simmons' pain, she agreed to corrective surgery.
On July 20, 1987, Ms. Simmons underwent a left salpingo-oophorectomy with excision of varicosities in the left infundibulopelvic ligament and right ovarian cystectomy (the removal of the left fallopian tube and ovary and the removal of a cyst on the right ovary). Dr. Berry performed the surgery, with Dr. William G. Black ("Dr. Black") assisting. The following day, July 21, 1987, a pathological examination revealed that a section of Ms. Simmons' left ureter, approximately 1.7 centimeters in length, had been removed during surgery. Ms. Simmons underwent corrective surgery on July 21, 1987, and was discharged from the hospital on July 28, 1987.
Ms. Simmons filed a medical malpractice claim pursuant to La. R.S. 40:1299.47 on July 18, 1988, alleging that Drs. Berry and Black had been negligent and that their actions violated the applicable standard of medical care during the initial surgery. Specifically, Ms. Simmons claimed that Drs. Berry and Black inflicted the ureteral injury , failed to recognize that the injury had occurred, and failed to correct the injury, thereby necessitating a second surgery to correct and repair the injury. A medical review panel rendered an opinion on December 12, 1989, and determined that neither Dr. Berry nor Dr. Black had deviated from the recommended standard of care. Thereafter, on March 8, 1990, Ms. Simmons filed suit against Drs. Berry and Black and their insurer, Louisiana Medical Mutual Insurance Company ("defendants").
In April 1990, defendants propounded interrogatories and requests for production of documents to Ms. Simmons seeking, among other information, the name(s) of any expert(s) who would be relied on to establish that the defendant doctors had deviated from the appropriate standard of care. In her answers to the interrogatories, Ms. Simmons identified Dr. Ruary C. O'Connell ("Dr. O'Connell") as her only expert. In March 1992, the defendants deposed Dr. O'Connell. No other discovery was conducted.
On August 14, 1997, the defendants filed a motion for summary judgment. A hearing was scheduled for October 20, 1997. After hearing the arguments and reviewing the exhibits submitted by the parties, the district court granted the motion for summary judgment, dismissing Ms. Simmons' claim. Ms. Simmons appealed that judgment to this court.
In support of their motion for summary judgment, defendants placed into evidence: 1) an uncertified copy of the opinion of the medical review panel; 2) the deposition of Ms. Simmons' expert, Dr. O'Connell; 3) interrogatories and answers to interrogatories of Ms. Simmons, identifying Dr. O'Connell as
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