Print Page   |   Sign In   |   Register
Community Search
Sign In
Sign In securely
Latest News
Featured Members
Luke P. SbarraHedrick Gardner Kincheloe & Garofalo, Charlotte, NC
David F. RyanPatton & Ryan, LLC, Chicago, IL

Member Achievement and Case News: Featured

Nursing Home SJ Denied: BOP Not Met

Wednesday, January 3, 2018   (0 Comments)
Posted by: Tom Jensen
Share |

Nursing home patient before death suffered from severe dehydration, malnutrition, a urinary tract infection, and skin sores. Estate sued after his death claiming medical malpractice. Defense sought summary judgment on grounds estate did not present expert opinion support. Motion was supported by an unsigned copy of the medical review panel's opinion and reasons. Trial court granted SJ, and that ruling was reversed in Cryer v. Tangi Pines Nursing Center, 2017 WL 6559312 (La. App. Dec. 21, 2017). The court analyzed burden of proof shifting in SJ practice. Yes, the estate did not timely offer expert support in opposition to the motion. But if the mover fails in the burden to show an absence of factual support for one or more of the elements of the adverse party's claim, the burden never shifts to the adverse party, and the mover is not entitled to summary judgment. Here defendants argued the medical review panel's opinion met its burden, thus shifting the burden to plaintiff. But that opinion was not signed or sworn to and thus "has no evidentiary value on a motion for summary judgment." So the defense proffer never caused the burden to shift.   

PLDF © 2013 | 1350 AT&T Tower | 901 Marquette Avenue South | Minneapolis, MN 55402 | 612-481-4169 |