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Hyman v. East Jefferson General Hospital3/1/2005
AFFIRMED
Plaintiff, Harriet Hyman, appeals from the trial court judgment in favor of Defendants, East Jefferson General Hospital and Dr. Carol Bayer, granting the Defendants' Motions for Summary Judgment. For the reasons which follow, we affirm.
Plaintiff, Harriet Hyman ("Hyman"), filed the instant suit on October 16, 2002 in the Twenty Fourth Judicial District Court For The Parish of Jefferson alleging claims of medical negligence on behalf of her deceased son against East Jefferson General Hospital ("EJGH") and Dr. Carol Bayer ("Bayer"). Defendants filed respective Motions for Summary Judgment, both of which were heard on July 30, 2003. The trial court thereafter granted Bayer'sMotion for Summary Judgment on August 4, 2003, and EJGH's Motion for Summary Judgment on August 18, 2004. Hyman timely filed the present appeal.
LAW AND ARGUMENT
Hyman's lone assignment on appeal is that the trial court erred in finding that the plaintiff in a medical negligence case is required to retain an expert physician to prevail on a motion for summary judgment.
Appellate courts review summary judgments de novo under the same criteria that govern the district court's consideration of whether summary judgment is appropriate. An appellate court must ask the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is a genuine issue of material fact remaining to be decided, and whether the appellant is entitled to judgment as a matter of law. The appellate court must consider whether the summary judgment is appropriate under the circumstances of the case. There must be a "genuine" or "triable" issue on which reasonable persons could disagree.
Under the amended version of LSA-C.C.P. art. 966, the burden of proof remains on the mover to show "that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." A material fact is one that would matter on the trial of the merits.
The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the trial court on the motion for summary judgment, the movant's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the trial court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.
Once the motion for summary judgment has been properly supported by the moving party, the failure of the adverse party to produce evidence of a material factual dispute mandates the granting of the motion.
In the present case, Hyman alleges that her son, David Hyman, was admitted to East Jefferson General Hospital on November 12, 1997 with a diagnosis of schizophrenia, for which he had been treated for several years. Upon his admission to East Jefferson, the hospital was notified of Hyman's allergy the medications Stelazine, Thorazine, and Haldol. During his stay at East Jefferson, records show that Hyman became combative toward the medical staff, and was given the medication Navane, to subdue him. Plaintiff then contends that the hospital failed to monitor David Hyman closely after the Navane was administered, even in light of his known allergy to similar medications, and that the failure to monitor David Hyman ultimately led to his death by asphyxia
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