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L.T. v. Chandler12/14/2005
ailure. The plaintiffs have not asserted that the medical care rendered involved a dereliction of professional skill or fell below the appropriate standard of care. Although the opportunity for the alleged acts occurred in the context of seeking medical treatment, they were not related to the rendition of that treatment. The plaintiffs' sole allegation is that emotional damages occurred as a result of Dr. Chandler's sexual exploitation of Laura. The plaintiffs have alleged only an intentional tort on the part of Dr. Chandler. Intentional torts are not included in the definition of medical malpractice. The acts complained of fall under general tort principles.
CREDIBILITY
The plaintiffs argue that, because Dr. Chandler's credibility is at issue, summary judgment was not appropriate. They cite the facts that he did not appear for his deposition in this matter and that he pled guilty to one count of dispensing a controlled dangerous substance for a non-medical purpose and three counts of simple battery, which were reduced from sexual battery. This argument is without merit.
A motion for summary judgment will be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law." La. C.C.P. art. 966(B). Summary judgment procedure is designed to secure the "just, speedy, and inexpensive determination of every action, except those disallowed by La. C.C.P. art. 969." La. C.C.P. art. 966(A)(2); Jones v. Estate of Santiago, 2003-1424 (La. 4/14/04), 870 So. 2d 1002.
In 1997, the legislature enacted La. C.C.P. art. 966 (C)(2) which clarified the burden of proof in summary judgment proceedings. The initial burden of proof remains with the mover to show that no genuine issue of material fact exists. If the mover has made a prima facie showing that the motion should be granted, the burden shifts to the non-moving party to present evidence demonstrating that a material issue remains. The failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. Jones v. Estate of Santiago, supra.
The review of a grant or denial of a motion for summary judgment is de novo, under the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Jones v. Estate of Santiago, supra; Robertson v. West Carroll Ambulance Service District, 39,331 (La. App. 2d Cir. 1/26/05), 892 So. 2d 772, writ denied, 2005-0460 (La. 4/22/05), 899 So. 2d 577.
In deciding to grant LAMMICO's motion for summary judgment, the trial court was not required to weigh the credibility of Dr. Chandler. In fact, Dr. Chandler has not offered any statements in this record upon which a credibility determination could be made.
Based upon the pleadings, depositions, answers to interrogatories, and admissions on file, it is clear that the only claim raised by the plaintiffs, sexual exploitation, is excluded from coverage under the LAMMICO policy. There is no genuine issue of material fact and LAMMICO, as the mover, is entitled to judgment as a matter of law. The trial court correctly granted summary judgment in favor of LAMMICO.
CONCLUSION
For the reasons stated above, we affirm the decision of the trial court in granting summary judgment in favor of LAMMICO and dismissing the plaintiffs' claims against it. Costs are assessed to the plaintiffs.
AFFIRMED.
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