source: Caselaw Access Project

author: WHIPPLE, C.J.

license: Public Domain

text:
    Loy M. McCORKLE, Tweety M. Dufrene and Matthew E. McCorkle v. Wayne D. GRAVOIS, M.D.
    No. 2013 CA 2009.
    Court of Appeal of Louisiana, First Circuit.
    June 6, 2014.
    Rehearing Denied Sept. 26, 2014.

      William D. Grimley, Baton Rouge, LA, for Plaintiffs/Appellants, Loy M. McCor-kle, Tweety M. Dufrene, and Matthew E. MeCorkle.
    Peter T. Dazzio, Craig J. Sabottke, Baton Rouge, LA, Counsel for Defendant/Ap-pellee, Wayne D. Gravois, M.D.
    Before WHIPPLE, C.J., WELCH and CRAIN, JJ.
   WHIPPLE, C.J.

|2Plaintiffs appeal the trial court’s judgment, granting the defendant physician’s motion for summary judgment and dismissing with prejudice their wrongful death and survival action based on alleged medical malpractice. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On January 13, 2010, Harvey MeCorkle visited Dr. Wayne Gravois, a family medicine physician, with complaints of insomnia and work-related stress. In addition to providing MeCorkle with educational materials about management of stress and insomnia, Dr. Gravois also gave MeCorkle eight to ten samples of the medication Lunesta to aid with sleep, instructing him to take one pill at bedtime. Dr. Gravois told MeCorkle to call or return to the clinic if he had any problems with the medication.

MeCorkle began taking the Lunesta oh January 13 and continued to take it for the next three nights. At around 3:00 a.m. in the early morning hours of January 17, 2010, McCorkle’s wife found him lying in their driveway with a gunshot wound to the head. MeCorkle later died from his self-inflicted injuries.

A medical review panel was convened, and ultimately the panel rendered its decision, finding that Dr. Gravois’s actions in prescribing Lunesta were appropriate and that the evidence did not support a finding that Dr. Gravois had failed to meet the applicable standard of care in his treatment of MeCorkle. Mrs. MeCorkle and McCorkle’s children, Tweety Dufrene and Matthew MeCorkle, then filed the instant suit in district court against Dr. Gravois on February 14, 2012.

Plaintiffs contended that, while under the influence of, and as a direct cause of taking Lunesta, MeCorkle either hallucinated or fell into the depths | sof depression and unintentionally took his own life. Plaintiffs further alleged that Dr. Gravois failed to exercise the degree of knowledge and skill or degree of care ordinarily exercised by health care professionals in his field by prescribing Lunesta to MeCorkle in light of McCorkle’s history of depression and contemporaneous signs of depression, including anxiety and disturbed sleep.

Additionally, plaintiffs alleged that the manufacturer of Lunesta provided to physicians instructions approved by the Food and Drug Administration (the FDA), stating that certain instructions must be given to patients in order for the drug to be used safely. According to plaintiffs, Dr. Gravois failed to inform himself of critical manufacturer directions for the safe administration of Lunesta. Plaintiffs further contended that Dr. Gravois failed to inform McCorkle of certain instructions provided by the manufacturer and that, as a direct result of this failure, McCorkle continued to take Lunesta, which ultimately caused him to take his own life.

On April 10, 2013, Dr. Gravois filed a motion for summary judgment, contending that there were no genuine issues of material fact and that he was entitled to judgment as a matter of law dismissing plaintiffs’ claims against him. (R. 31). Specifically, Dr. Gravois contended that in addition to the medical review panel unanimously concluding that the evidence did not support the conclusion that he had failed to meet the applicable standard of care in his treatment of McCorkle, plaintiffs’ own expert, Dr. Matthew Abraham, testified that Dr. Gravois did not breach the applicable standard of care. Thus, Dr. Gravois contended that plaintiffs had no expert to opine that he had breached the applicable standard of care and, accordingly, could not establish the essential elements of their claims against him. [4In a reply memorandum in support of his motion, Dr. Gravois also contended that plaintiffs could not meet their burden of establishing the other elements of their claim. Specifically, he averred that plaintiffs could not establish the applicable standard of care by relying solely on the Physicians’ Desk Reference (PDR) and, further, that they could not meet their burden of establishing that any alleged breach by him caused McCorkle’s death.

In opposition to the motion for summary judgment, plaintiffs contended that the package inserts that are included with prescription medication by the manufacturer can establish the standard of care, asserting that jurisprudence within this state provides that package inserts can establish a .prima facie case of negligence. Moreover, they contended: (1) that the Lunesta package insert and related PDR reference, which they submitted among other things in opposition to the motion for summary judgment, instruct the prescribing physician to provide certain information to his patients, including an instruction that the patient should “read the accompanying Medication Guide with each new prescription and refill”; and (2) that Dr. Gravois’s actions in failing to provide the instructions listed in the Lunesta package insert, and instead providing a generalized instruction that McCorkle should call him if he had any problems, violated the standard of care as established by the Lunesta package insert and resulted in McCorkle’s death.

| sAfter a hearing on the motion, the trial court concluded that plaintiffs had failed to establish that they could meet their burden of proof at trial, stating that “plaintiffs do not have an expert witness who will testify that Dr. Gravois breached the standard of care, assuming that they can establish the applicable standard of care.” Accordingly, by judgment dated August 15, 2013, the trial court granted Dr. Gra-vois’s motion for summary judgment and dismissed plaintiffs’ claims against him with prejudice. From this judgment, plaintiffs appeal, contending that the trial court erred in: (1) granting Dr. Gravois’s. motion for summary judgment for no other reason than plaintiffs had no expert to establish the standard of care; and (2) ruling on an issue that was not before the court, ie., whether plaintiffs needed an expert to establish that Luiiesta caused McCorkle to take his life, where three experts concluded that it had.

BURDEN OF PROOF AND STANDARD OF REVIEW FOR SUMMARY JUDGMENT

A motion for summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, if any, admitted for purposes of the motion, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). The summary judgment procedure is expressly favored in the law and is designed to secure the just, speedy, and inexpensive determination of non-domestic civil actions. LSA-C.C.P. art. 966(A)(2).

The mover bears the burden of proving that he is entitled to summary judgment. LSA-C.C.P. art. 966(C)(2). However, if the mover will not bear the burden of proof at trial on the subject matter of the motion, he need only demonstrate the absence of factual support for one or more essential | fielements of his opponent’s claim, action, or defense. LSA-C.C.P. art. 966(C)(2). If the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense, then the nonmoving party must produce factual support sufficient to satisfy his evi-dentiary burden at trial. LSA-C.C.P. art. 966(C)(2). If the mover has put forth supporting proof through affidavits or otherwise, the adverse party may not rest on the mere allegations or denials of his pleadings, but his response, by affidavits or otherwise, must set forth specific facts showing that there is a genuine issue for trial. LSA-C.C.P. art. 967(B).

In ruling on a motion for summary judgment, the trial court’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Hines v. Garrett, 2004-0806 (La.6/25/04), 876 So.2d 764, 765. Despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent’s favor. Willis v. Medders, 2000-2507 (La.12/8/00), 775 So.2d 1049, 1050.

In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. East Tangipahoa Development Company, LLC v. Bedico Junction, LLC, 2008-1262 (La.App. 1st Cir.12/23/08), 5 So.3d 238, 243-244, writ denied, 2009-0166 (La.3/27/09), 5 S6.3d 146.

^ANALYSIS

In their first assignment of error, plaintiffs contend that the trial court erred in concluding that they were required to present the testimony of a medical expert to establish the standard of care, in light of the instructions provided by the manufacturer of Lunesta in the package insert and in the PDR. Plaintiffs assert that the standard of care need not be established in every case by testimony of a medical expert and that when it comes to the administration of medicines, the pharmaceutical manufacturer’s instructions to the physician can serve that purpose. Thus, plaintiffs assert that the Lunesta package insert establishes the standard of care with regard to the information that a prescribing physician should communicate to his patient.

|rA plaintiff in a medical malpractice case has the burden of proving the applicable standard of care, its breach, and a causal connection between the physician’s alleged negligence and the patient’s injuries. Pfiffner v. Correa, 94-924, 94-963, 94-992 (La.10/17/94), 643 So.2d 1228, 1233. The Louisiana Supreme Court has held that expert medical testimony is generally required to establish the applicable standard of care and whether the standard was breached, except where the negligence is so obvious that a lay person can perceive negligence without guidance of expert testimony. Pfiffner, 643 So.2d at 1234. Examples of situations where expert medical testimony would not be required include: (1) the physician performs an obviously careless act, such as fracturing a leg during an examination, amputating the wrong arm, dropping a knife, scalpel or acid on a patient, or leaving a sponge in a patient’s body, from which a lay person can infer negligence; (2) the defendant/physician testifies as to the standard of care and his breach thereof; or (3) the alleged negligence consists of violating a statute and/or the hospital’s bylaws. Pfiffner, 643 So.2d at 1233-1234. The Court further explained:

Though in most cases, because of the complex medical and factual issues involved, a plaintiff will likely fail to sustain his burden of proving his claim under LSA-R.S. 9:2794’s requirements without medical experts, there are instances in which the medical and factual issues are such that a lay jury can perceive negligence in the charged physician’s conduct as well as any expert can, or in which the defendanVphysician testifies as to the standard of care and there is objective evidence, including the testimony of the defendant/physician, which demonstrates a breach thereof.

Pfiffner, 643 So.2d at 1234.

In the instant ease, the uncontested testimony establishes that when Dr. Gravois gave McCorkle samples of Lunesta, he did not give McCorkle a |9copy of the Lunesta package insert. Nonetheless, Dr. Gravois instructed McCorkle to call the clinic if he had any problems at all with the medication. After the first night he took the Lunesta sample, McCorkle related to his wife that he had experienced a vivid dream about his deceased mother, a dream which he talked about until his death. Additionally, after the second night of taking Lunesta, McCorkle had difficulty concentrating at work, which was very disturbing to him, and he made a mistake of some significance in a calculation that day. However, McCorkle did not communicate these occurrences to Dr. Gravois. After taking Lunesta on the fourth night, McCorkle fatally shot himself.

In support of his motion for summary judgment, Dr. Gravois submitted the opinion of the medical review panel, which concluded that the evidence did not support the conclusion that Dr. Gravois had failed to meet the applicable standard of care, as alleged. Moreover, he offered the deposition testimony of Dr. Matthew Abraham, a board-certified physician in the field of sleep medicine, who was initially retained by plaintiffs to provide an expert opinion herein. While in an earlier affidavit Dr. Abraham had attested that a patient to whom Lunesta is prescribed should be instructed by the physician or his staff that “should he experience any unusual or disturbing thoughts or behavior, which can be early warnings of | ^potential parasomnias, he should stop the medicine and call the physician,” in his deposition, he testified he did not realize he had specifically written that in his affidavit. Moreover, he acknowledged that he does not give such a detañed instruction, but instead, usually recommends that the patient be instructed to “contact the office if there is any problem associated with the medication.”

Additionally, when asked to compare the instructions recommended in the Lunesta package insert to the instructions he actually gives to patients to whom he prescribes Lunesta, Dr. Abraham stated that he gives his patients “way less instruction” than what the package insert provides, candidly admitting that his instructions are “severely less ... to where it’s not even' a comparison.” He also testified that he never discusses suicide with a patient to whom he prescribes Lunesta.

With regard to the standard of care for a family practitioner or sleep medicine practitioner in prescribing this medication, Dr. Abraham testified that the PDR does not establish the standard of care, but, rather, in his opinion, the standard of care would be “to make sure the patient has the understanding to communicate with the physician if there’s any changes related to medications.” Thus, Dr. Abraham opined that if Dr. Gravois told the patient to call with any problems whatsoever, then he did not breach the standard of care.

While noting that Dr. Abraham had “basically disowned” an earlier affidavit in which he had allegedly concluded that Dr. Gravois had deviated from the standard of care if he failed to give his patient appropriate instructions on the administration of Lunesta, plaintiffs nonetheless contended in opposition to the summary judgment and again on appeal that they can establish the applicable standard of care and Dr. Gravois’s breach |nthereof through the manufacturer’s package insert and the related PDR excerpt for Lunesta. The Lunesta package insert and related PDR excerpt, while listing no “contraindications” to the use of Lunesta, do state in the “warnings” section that, in primarily depressed patients, worsening of depression, including suicidal thoughts and actions, has been reported in association with the use of sedative/hypnotics. Moreover, the “precautions” section of the product information and related PDR excerpt contain, in part, the following statement:

Patients should be instructed to read the accompanying Medication Guide with each new prescription and refill. The complete text of the Medication Guide is reprinted at the end of this document. Patients should be given the following information:
1. Patients should be instructed to take LUNESTA immediately prior to going to bed, and only if they can dedicate 8 hours to sleep.
2. Patients should be instructed not to take LUNESTA with alcohol or with other sedating medications.
3. Patients should be advised to consult with their physician if they have a history of depression, mental illness, or suicidal thoughts, have a history of drug or alcohol abuse, or have liver disease.
4. Women should be advised to contact them physician if they become pregnant, plan to become pregnant, or if they are nursing.

(Emphasis added). The Medication Guide, which the package insert and PDR excerpt recommend the patient should be instructed to read, lists the following “possible serious side effects” of Lunesta, among others: “getting out of bed while not fully awake and do[ing] an activity that you do not know you are doing” and “abnormal thoughts and behavior,” including more outgoing or aggressive behavior than normal, confusion, agitation, hallucinations, worsening of depression, and suicidal thoughts or actions.

Thus, plaintiffs contend that the applicable standard of care herein required Dr. Gravois, as directed by the Lunesta package insert, to instruct McCorkle to read the Medication Guide for Lunesta, which listed the abovejmentioned12 possible side effects of Lunesta and that Dr. Gravois’s failure to do so constituted a breach of the applicable standard of care and resulted in McCorkle’s death.

The FDA, pursuant to congressional directives, has developed a regulatory procedure to inform the medical profession about prescription drugs and, as such, requires that package inserts accompany shipments of prescription drugs by pharmaceutical manufacturers. 21 U.S.C. § 301 et seq.; 21 C.F.R. § 201.1 et seq.; David Carl Minneman, Annotation, Medical Malpractice: Drug Manufacturer’s Package Insert Recommendations as Evidence of Standard of Care, 82 A.L.R.4th 166, § l[a] (1990). These package inserts form the basis of the FDA’s notification system concerning composition, dosage, indications, contraindications, potential side effects, and adverse reactions of drugs. The PDR is an annual publication that compiles product information about pharmaceuticals. The information contained in the PDR, which is provided by drug manufacturers, is substantially similar, if not identical, to the material contained in the drug package inserts. David Carl Minne-man, Annotation, Medical Malpractice: Drug Manufacturer’s Package Insert Recommendations as Evidence of Standard of Care, 82 A.L.R.4th 166, § 2[a] (1990); see also Cagnolatti v. Hightower, 95-2598 (La.App. 4th Cir.12/11/96), 692 So.2d 1104, 1110.

Federal regulations specifically require manufacturers of prescription drugs to include sections in their labeling information entitled Contraindications, Warnings, and Precautions, among other information. |1S21 C.F.R. § 201.56(d) & (e). The “Contraindications” section of the product labeling must describe any situations in which the drug should not be used because the risk of use clearly outweighs any possible therapeutic benefit. 21 C.F.R. §§ 201.57(c)(5) and 201.80(d). The “Warnings” section must describe significant adverse reactions and potential safety hazards, and the “precautions” must include, among other information, any special care to be exercised by the practitioner for safe and effective use of the drug. 21 C.F.R. §§ 201.57(c)(6) & 201.80(e) & (f).

Package inserts and the PDR have been used in medical malpractice cases in conjunction with expert medical testimony to establish the applicable standard of care and breach thereof. See e.g. Jones v. Pick, 2004-0758 (La.App. 4th Cir.12/15/04), 891 So.2d 737, 744-746, writ denied, 2005-0142 (La.3/24/05), 896 So.2d 1043, Bailey v. State, Department of Health and Human Resources, 96-2797 (La.App. 4th Cir.5/21/97), 695 So.2d 557, 560-561, and Cagnolatti, 692 So.2d at 1110-1111. However, the determination of whether the package insert or PDR, either alone or where contradicted by expert medical testimony, may be used to establish the applicable standard of care and breach thereof is more complex and more problematic.

In support of their argument that they should be allowed to prove the applicable standard of care herein through the Lunesta package insert and related PDR reference, plaintiffs rely on the cases of Terrebonne v. Floyd, 99—0766 (La.App. 1st Cir.5/23/00), 767 So.2d 758, writ not considered, 2000-1931 (La.9/29/00), 769 So.2d 549; Fournet v. Roule-Graham, 00-1653 (La.App. 5th Cir.3/14/01), 783 So.2d 439, writ denied, 2001-0985 (La.6/15/01), 793 So.2d 1242; and Christiana v. Sudderth, 02-1080 (La.App. 5th Cir.2/25/03), 841 So.2d 911.

In Terrebonne, this court noted that the case therein may have presented the first instance in Louisiana where a plaintiff sought to rely solely on an admitted deviation from a manufacturer’s specific warning to establish the standard of care. Ter-rebonne, 767 So.2d at 763. In opposition to the defendant/physician’s motion for summary judgment, the plaintiff in Terre-bonne relied upon the warnings section in the package insert that the drug was to be administered only at certain times within a woman’s menstrual cycle to establish the applicable standard of care and further argued that the physician’s admitted use of the drug contrary to the manufacturer’s instructions constituted prima facie evidence of negligence. Terrebonne, 767 So.2d at 760.

In addressing the issue, this court first noted the Louisiana Supreme Court’s holding in Pfiffner that expert testimony is not necessary to establish the applicable standard of care and breach thereof in instances in which the medical and factual issues are such that a lay jury can perceive negligence in the complained-of conduct as well as any expert can. Terrebonne, 767 So.2d at 762, quoting Pfiffner, 643 So.2d at 1233-1234. Additionally, this court considered and cited with favor the Minnesota Supreme Court’s opinion in Mulder v. Parke Davis & Company, 288 Minn. 332, 181 N.W.2d 882 (1970).

In Mulder, the defendant/physician prescribed a lower-than-recommended dosage of a medication,, thus allegedly prolonging the need 11fifor continued use of the medication by the decedent patient. In addition to recommending the dosage to be prescribed, the manufacturer’s package insert and the PDR reference contained a “Warning section,” which warned that serious and even fatal disorders could occur after use of the drug and, thus, gave the precaution that adequate blood studies during treatment with the drug were “essential.” Mulder, 288 Minn, at 334, 181 N.W.2d at 884-885. In reversing a directed verdict in favor of the prescribing physician, the Court held that “[wjhere the dosage is prescribed by the manufacturer, testimony of the physician’s failure to adhere to its recommendation is sufficient evidence to require him to explain the reason for his deviation,” which the Court said was “particularly true where the manufacturer’s warning puts the doctor on notice of potentially lethal effects.” Mulder, 288 Minn, at 339, 181 N.W.2d at 887.

Moreover, on rehearing, the Court expanded its decision to hold as follows:

Where a drug manufacturer recommends to the medical profession (1) the conditions under which its drug should be prescribed; (2) the disorders it is designed to relieve; (3) the precautionary measures which should be observed; and (4) warns of the dangers which are inherent in its use, a doctor’s deviation from such recommendations is prima facie evidence of negligence if there is competent medical testimony that his patient’s injury or death resulted from the doctor’s failure to adhere to the recommendations.11

Mulder, 288 Minn, at 339-340, 181 N.W.2d at 887 (per curiam on rehearing) (emphasis added).

This court in Terrebonne also noted that the Mississippi Supreme Court in Thompson v. Carter, 518 So.2d 609, 613 (Miss.1987), held that | ^information contained in package inserts and the PDR constituted prima facie proof of the proper use of a drug. Terrebonne, 767 So.2d at 763.

This court then stated that the Louisiana Supreme Court’s pronouncements in Pfijfner as well as the above-referenced jurisprudence from other jurisdictions “soundly points [sic] in favor of considering such evidence sufficient to make a prima facie showing of negligence.” However, without expressly holding that a specific warning in a manufacturer’s package insert alone could establish the applicable standard of care or that a physician’s admitted deviation from that specific warning was sufficient to establish prima facie evidence of negligence, this court then concluded that “whether plaintiffs may use the evidence they intend to offer as prima facie proof of [the physician’s] negligence is itself a matter seriously unresolved; and the granting of summary judgment under the circumstances was inappropriate.” Terrebonne, 767 So.2d at 763.

In Foumet, which involved a physician’s alleged negligence in prescribing a drug when it was contraindicated and her failure to inform the patient of the risk associated with prescribed medication, the plaintiff was prescribed a medication even though the PDR listed a contraindication for prescribing it to a patient with a history of a disorder that the plaintiff had. Foumet, 783 So.2d at 441. Despite the contraindication contained in the PDR, the defendant/physician testified that it was “standard practice” for physicians in her field to prescribe the drug even to patients with a known |17history of this disorder. The defendant/physician appealed the trial court’s judgment in favor of the plaintiff, contending that the trial court erred in basing its decision solely on the contraindications contained in the PDR. Foumet, 783 So.2d at 442. In affirming the trial court, the Fifth Circuit Court of Appeal stated that it “cannot ignore the fact that there is a source of information, the PDR, which definitively states that [the drug prescribed] should not have been prescribed for a patient with [the plaintiffs condition].” Foumet, 783 So.2d at 442-443.

Additionally, in rejecting the defendant/physician’s argument that the plaintiff had failed to prove lack of informed consent, the court noted that under the Informed Consent Doctrine, where circumstances permit, a patient should be told the nature of the pertinent condition, the general nature of the proposed treatment, the risk involved in the proposed treatment, the risks of failure to undergo any treatment or procedure at all, and the risks of any alternative method of treatment. Foumet, 783 So.2d at 444. While the defendant/physician testified that the majority of doctors in her specialty “simply do not believe that there is any risk of harm in prescribing” the drug she prescribed to a patient with the plaintiffs condition, the appellate court noted that “[sjuch an opinion directly contradicts the warnings in the PDR” and concluded that “there is nothing in the record that convinces us the PDR is wrong and should not be relied on as an authoritative medical source.” Foumet, 783 So.2d at 445.

Finally, in Christiana, the Fifth Circuit Court of Appeal reversed a |issummary judgment in favor of the defendant/hospital, noting that the affidavits of three physicians as to the proper use of a medical stapler did not address the manufacturer’s instructions under “Contraindications” as to the size of staple to use. Christiana, 841 So.2d at 915-916. In reversing, the court relied upon Foumet and Terrebonne and held that “[a] health-care provider’s deviation from a manufacturer’s warning may be negligence for which expert testimony is not required to establish the applicable standard of care, because such evidence may be sufficient to make a prima facie showing of negligence.” Christia-na, 841 So.2d at 916.

A review of Terrebonne. Foumet. and Christiana reveals that the package inserts and related PDR references relied upon in those cases contained specific contraindications or warnings that in clear and specific language directed the manner or timing in which a drug or device was to be used and warned against uses in certain specified situations, language from which a lay jury could readily perceive a standard of care. Moreover, those cases involved physicians administering, using or prescribing the medication or device in direct contradiction to the manufacturer’s contraindications or warnings, actions from which a prima facie case of negligence could be inferred, see Terrebonne, 767 So.2d at 763, and Christiana, 841 So.2d at 113916, and, ultimately, from which a factfinder could perceive a deviation from the standard of care as well as any expert. See generally Foumet, 783 So.2d at 443-45.

On the other hand, in Deroche v. Tanenbaum, 2013-0979 (La.App. 4th Cir.12/18/13), 131 So.3d 400, 411, in affirming the granting of the defendant/physician’s motion for summary judgment and resulting dismissal of the plaintiffs’ claim against him, the Fourth Circuit Court of Appeal specifically held that “a manufacturer’s labeling and package insert standing alone is insufficient to establish the prevailing medical standard of care required by La. R.S. 9:2794” and that “a physician’s medical decision to deviate from a manufacturer’s labeling also does not ipso facto establish a breach of the applicable standard of care.” In Deroche, the plaintiffs contended that the physician had breached the applicable standard of care in providing the patient with instructions on taking a Fleet Phospho-Soda preparation that were contrary to the manufacturer’s instructions as set forth in the PDR. Deroche, 131 So.3d at 402-403. The plaintiffs offered no expert medical testimony to support this contention, instead referring to the PDR’s instructions and warnings. Finding that this evidence was insufficient to establish the standard of care and a breach thereof, the court affirmed the granting of summary judgment and dismissal of the plaintiffs’ case against the physician given the absence of expert medical testimony to support this theory of liability, among others. Deroche, 131 So.3d at 411-412.-

Moreover, in Robin v. Hebert, 2012-1417, p. 8 (La.App. 3rd Cir.5/1/13), — So.3d —, —, 2013 WL 1809821, the Third Circuit Court of Appeal concluded that the plaintiffs’ reliance on the Xanax product labeling alone, without expert testimony, was insufficient to establish the applicable 12pstandard of care where the case presented complex medical issues including a cardiologist’s standard of care for medical decision-making, determining the appropriate medication to prescribe, and clinical evidence as to the patient’s actual cause of death, which were not the types of issues where a lay jury could infer negligence. Accordingly, because the plaintiff had not opposed the motion for summary judgment with expert testimony as to these issues, the court affirmed the dismissal of the plaintiffs’ claims against the cardiologist on summary judgment. Robin, 2012-1417 at p. 8, — So.3d at

In the instant ease, the “warnings” section of the Lunesta package insert and related PDR reference contained only a general warning that in primarily depressed patients, worsening of depression, including suicidal thoughts and actions, had been reported in association with “the use of sedative/hypnotics” and the “precautions” section recommended that patients “should” be instructed to read the accompanying Medication Guide “with each new prescription and refill.” It did not list any contraindications to-this medication being prescribed to a patient such as McCorkle, nor did it provide any specific warning that in clear and explicit language directed a manner in which the drug should be administered that differed from those actions taken by Dr. Gravois. Thus, we conclude that in the absence of a specific contraindication or warning in the package insert and PDR, the [21plaintiffs could not satisfy their burden of establishing the applicable standard of care, nor establish a prima facie case of negligence, by relying upon the package insert and PDR alone, but instead, needed expert testimony.

In so holding, we note the admonition of the New Jersey Supreme Court in Morlino v. Medical Center of Ocean County, 152 N.J. 568, 578, 580, 706 A.2d 721, 728, 729-730 (1998), wherein it cautioned that drug manufacturers do not design package inserts and PDR entries to establish a standard of medical care, as follows:

Manufacturers write drug package inserts and PDR warnings for many reasons including compliance with FDA requirements, .advertisement, the provision of useful information to physicians, and an attempt to limit the manufacturer’s liability. After a drug has been on the market for a sufficient period of time, moreover, physicians may rely more on their own experience and the professional publications of others than on a drug manufacturer’s advertisements, inserts, or PDR entries.
Those considerations highlight the reasons expert testimony must accompany the introduction of PDR warnings to establish the applicable standard of care in prescribing a drug. Additionally, expert testimony often is needed to explain the information contained in package inserts or the PDR. Drug manufacturers write explanations and warnings for doctors, not the general public. Comprehension of the terms and their significance may depend on medical expertise.
Accordingly, wé hold that package inserts and PDR references alone do not establish the standard of care. It follows that a physician’s failure to adhere to PDR warnings does not by itself constitute negligence. Reliance on the PDR alone to establish negligence would both obviate expert testimony on an issue where it is needed and could mislead the jury about the appropriate standard of care.
* * *
Allowing the admission of PDR warnings without accompanying expert testimony could transform drug manufacturers into judges of acceptable medical care. The 12aeffect would be to force doctors to follow the PDR’s recommendations or run the risk of liability for malpractice.11 [Emphasis added, citations omitted.]

Accordingly, we find no error in the trial court’s judgment granting Dr. Gravois’s motion for summary judgment and dismissing plaintiffs’ claims against him. Because of our conclusions with regard to the issues of standard of care and breach thereof, we pretermit consideration of plaintiffs’ second assignment of error with regard to causation.

CONCLUSION

For the above and foregoing reasons, the trial court’s August 15, 2013 judgment, granting Dr. Gravois’s motion for summary judgment and dismissing plaintiffs’ claims against him, is affirmed. Costs of this appeal are assessed against plaintiffs, Loy McCorkle, Tweety Dufrene, and Matthew McCorkle.

AFFIRMED.

      . Notably, in opposing the motion, plaintiffs did not specifically assert that Dr. Gravois breached the standard of care in prescribing Lunesta to McCorkle, stating in this regard only that Dr. Gravois prescribed Lunesta despite the fact that McCorkle had symptoms suggesting that he might be depressed, but averring in the same sentence that hallucinations, and not depression, caused his death. Rather, plaintiffs focused their argument on the contention that Dr. Gravois breached the standard of care in failing to provide McCor-kle with the instructions listed in the Lunesta package. Indeed, no expert opined that Dr. Gravois’s action in prescribing Lunesta was a breach of the applicable standard of care.

      . At the outset, we note that while plaintiffs contend on appeal that the trial court erred in finding that they could not establish the applicable standard of care herein because they had no expert witness to establish the standard of care, the trial court did not actually make such a finding. Rather, the trial court found that the breach of the standard of care by the defendant doctor must be established through expert testimony, stating in oral reasons for judgment that "the plaintiffs do not have an expert witness who will testify that Dr. Gravois breached the standard of care, assuming that they can establish the standard of care.” (Emphasis added).
      Nonetheless, we note that the factual finding regarding breach of standard of care is so intertwined with the applicable standard of care that we cannot consider the issue of whether the trial court correctly determined that plaintiffs could not carry their burden of establishing a breach of the standard of care without first considering plaintiffs' argument that they met their burden of establishing the standard of care.
      Indeed, none of the physicians whose testimony was presented in the proceedings below stated that the package insert and related PDR reference established the standard of care for a prescribing physician. If, in fact, the standard of care can be established by the instructions listed in package inserts, then the experts' failure to accept that as the standard could raise questions about their opinions that the standard was not breached herein or at the very least create an issue of fact as to whether the standard of care was breached. See generally Fournet v. Route-Graham, 00-1653 (La.App. 5th Cir.3/14/01), 783 So.2d 439, 445, writ denied, 2001-0985 (La.6/15/01), 793 So.2d 1242 (wherein the appellate court noted that the expert opinion directly contradicted the warnings in the PDR and concluded that nothing in the record established that the PDR was wrong and should not be relied upon); see also Terrebonne v. Floyd, 99-0766 (La.App. 1st Cir.5/23/00), 767 So.2d 758, 763, writ not considered, 2000-1931 (La.9/29/00), 769 So.2d 549 (wherein this court determined that whether the plaintiffs could use the manufacturer’s specific warning with regard to administration of a drug and the defendant physician's admitted failure to adhere to that warning as prima facie proof of negligence was "a matter seriously unresolved" and rendered the granting of summary judgment inappropriate).
      Moreover, given our role on appeal of reviewing summary judgments de novo, we will address the issue of whether plaintiffs failed to demonstrate that they can satisfy their burden of proving the applicable standard of care as to Dr. Gravois in prescribing Lunesta by reliance on the Lunesta package insert and related PDR reference.

      . Dr. Gravois explained that only one package insert is included in a box of samples provided to a physician.

      . While Dr. Gravois specifically testified that he told McCorkle to call the clinic with any problems at all with the medication and with any problems whatsoever, defense counsel later asked him, "[a]nd part of your instruction about if [the patient] ha[s] any problems with medications is to stop taking the medications and come see me or call me,” to which Dr. Gravois responded "yes.” (Emphasis added). However, Dr. Gravois had not previously testified that he included within his instructions the statement that the patient should stop taking the medication if he had any problems.

      . While the panel concluded that the evidence did not support a finding that Dr. Gravois had breached the standard of care herein and that it was appropriate for Dr. Gravois to prescribe Lunesta to McCorkle, sadly, all three expert physicians also believed that it was likely that Lunesta did in fact cause McCorkle to take his own life.

      . Newer prescription drugs must also include a "Boxed Warning,” where applicable, which if required by the FDA, must contain certain contraindications or serious warnings, particularly those that may lead to death or serious injury. 21 C.F.R. §§ 201.56(d) & 201.57(a)(4) & (c)(1).

      . For newer drugs (which include prescription drug products for which a new drug application was approved by the FDA between June 30, 2001, and June 30, 2006; those with pending applications on June 20.2006; and those for which an application is submitted on or after June 20, 2006, 21 C.F.R. § 201.56(b)(1)), the "Warnings” and "Precautions” are combined into one section, whereas they are separate sections in the labeling of older drugs. 21 C.F.R. §§ 201.57(c)(6) and 201.80(e) & (f). Moreover, while for older drugs, the "Precautions” section must also include information for patients necessary for them to use the drug safely and effectively, 21 C.F.R. § 201.80(f)(2), the same information is required for newer drugs under the "Patient counseling information” section. 21 C.F.R. § 201.57(c)(18).

      . Notably, in Mulder, the plaintiff had also presented physicians' testimony and was not relying solely on the package insert. Mulder, 288 Minn, at 336-337, 181 N.W.2d at 886-887.

      . In Thompson, the Mississippi Supreme Court held that the package insert was "some evidence of the standard of care, but it is not conclusive evidence.” However, the Court then stated that the physician could rebut this "implication” and explain his deviation from the manufacturer’s recommended use on dosage, noting that the holding would shift the burden of persuasion to the physician to provide a sound reason for his deviation. Thompson, 518 So.2d at 613.

      . The court noted that a "contraindication” means "it is inadvisable to prescribe a particular drug when a patient suffers from one or more enumerated conditions.” Foumet, 783 So.2d at 441.

      . However, the court therein noted that unlike the plaintiff in Terrebonne, the' plaintiff in Foumet was not attempting to rely solely on the contraindication contained in the PDR to establish the standard of care. Nevertheless, the court stated that Terrebonne was instructive because it demonstrated that other courts have considered the PDR as an authoritative medical source in a medical malpractice case. Foumet, 783 So.2d at 443.

      . See also LW v. Delta Clinic of Baton Rouge, Inc., 2006-0134, p. 6 n. 5 (La.App. 1st Cir.2/23/07), 2007 WL 866478, at *3 n. 5 (unpublished), wherein this court, citing Ter-rebonne and Foumet. stated that "[c]ourts have approved the use of the PDR and the manufacturer's labeling and instructions for a prescription drug to establish the standard of care owed by a physician and a prima facie showing of negligence.” The alleged malpractice in LW involved the intravenous injection of a drug at an allegedly higher concentration than specified in the PDR. However, the facts in LW are distinguishable from the facts herein in that the defendant/physician acknowledged that the PDR is commonly accepted and recognized in the field of prescription drugs and, additionally, referred to the PDR in his testimony to establish the standard of care. However, while the defendant/physician contended that he had complied with the PDR by injecting a higher concentration of the drug over a longer interval of time, the plaintiff claimed he had injected the drug in a "matter of seconds.” Thus, this court reversed a summary judgment in favor of the defendant/physician, finding that "conflicting evidence raisefd] questions of fact and credibility concerning the issue of whether [the defendant/physician] complied with the relevant portions of the PDR.” LW, 2006-0134 at pp. 6-8, 2007 WL 866478, at *3-4.

      . Similarly, in Ekendahl v. Louisiana Medical Mutual Insurance Company, 48,374 (La.App. 2nd Cir.8/28/13), 124 So.3d 461, 468-469, the Second Circuit Court of Appeal concluded that a manufacturer’s warning is evidence, but not conclusive evidence, of a standard of care. The court concluded that the trial court was not manifestly erroneous in accepting the testimony of medical experts, which conflicted with the manufacturer's recommendations as to the administering of a medical test and that the plaintiff’s argument that the standard of care should be set by the manufacturer "is contrary to well-settled law” that generally requires expert testimony to establish the standard of care and breach thereof in the absence of obvious negligence. Ekendahl, 124 So.3d at 469 & n. 21. Notably, however, Ekendahl involved a manifest error review of a trial court’s decision, following trial on the merits, to credit the testimony of medical experts instead of relying upon the manufacturer’s instructions and recommendations.

      . The New Jersey Supreme Court held that product package inserts and PDR references alone do not establish the standard of care and that a jury may consider package inserts and parallel PDR references to determine the appropriate standard of care in a medical malpractice case only when they are supported by expert testimony. Morlino, 152 N.J. at 578, 580, 706 A.2d at 728, 730.


author: DRAKE, J.

text:
    LAKEVIEW REGIONAL MEDICAL CENTER v. WASHINGTON PARISH SCHOOL BOARD.
    No. 2013 CA 1934.
    Court of Appeal of Louisiana, First Circuit.
    July 17, 2014.

      Helen Hsu, Houston, Texas, for Plaintiff/Appellant, Lakeview Regional Medical Center.
    Daren Sarphie, Metairie, Louisiana, Christopher M. Moody, Albert D. Giraud, Hammond, Louisiana, for Defendant/Ap-pellee, Washington Parish School Board.
    Before PARRO, GUIDRY, and DRAKE, JJ.
   DRAKE, J.

| ¡.Plaintiff-appellant, Lakeview Regional Medical Center (Lakeview), appeals the judgment of the Office of Workers’ Compensation Administration (OWCA), denying Lakeview’s claims for reimbursement against defendant-appellee, Washington Parish School Board (School Board) for the medical expenses related to an injured employee of the School Board. We affirm.

FACTUAL AND PROCEDURAL HISTORY

It is undisputed that School Board employee, Leisa Rawls, sustained a work-related injury on January 3, 2000, while in the course and scope of her employment. On August 14, 2008, while undergoing an epidural steroid injection in connection with her work-related injury, she began to experience chest tightness and shortness of breath. Rawls was then taken to Lake-view where she was stabilized as a heart patient. The treating physician, Dr. Smita Patel, evaluated Rawls for both a pulmonary embolism and heart issues. Rawls had mild pain but otherwise her exam was normal. A CT scan of the heart vessels was ordered, as well as a CT scan and angiogram of the pulmonary vessels.

Dr. Barry Kusnick, a cardiologist, treated Rawls while she was at Lakeview. The CT scan of the heart showed some blockages. The first CT scan of the pulmonary vessels was unclear, so Rawls underwent a second test that showed a small pulmonary embolus. On August 18, 2008, Dr. Kus-nick performed a cardiac catheterization, but found the blockage insufficient to require a stent to be placed in the heart. Dr. Kusnick concluded that Rawls had “normal left ventricular size and function,” “minimal, if any, nonobstructive coronary artery disease,” a “false positive coronary CT angiography,” and “noncardiac chest pain.” No intervention was taken by the cardiologist. As a result, Dr. Patel determined that Rawls had a pulmonary embolism. Rawls was hospitalized from August 14, 2008, to August 20, 2008. The total charge for the hospital stay at Lakeview was $54,588.34. On ^September 29, 2008, the School Board, the party responsible for the costs of Rawls’s procedure under the Louisiana Workers’ Compensation Act, paid only $12,354 to Lakeview, which represented six days of surgical per diem for the New Orleans area at the rate of $2059 per day.

Lakeview filed suit with the OWCA, claiming that it was entitled to the remainder of the amount charged for Rawls’s hospital stay, pursuant to the inpatient outlier reimbursement provision, as set forth in the Louisiana Administrative Code, Title 40, Part I, § 2519(B)(1)(c). Lakeview asserts that it is entitled to special reimbursement consideration and that the payment of medical expenses is not limited to the per diem rate if the average per day charge for any case equates to 1.75 times the applicable per diem rate and meets certain outlier criteria. In such a case, Lakeview claims that it is to be reimbursed at covered billed charges less a fifteen (15) percent discount.

A trial was held before the OWCA on May 24, 2013. On June 19, 2013, the OWCA issued its judgment, denying Lake-view’s claim for outlier status and dismissing the case with prejudice. On the same day, the OWCA issued written reasons for judgment, stating that Lakeview had not carried its burden of proof that it was entitled to outlier status. Lakeview appealed this judgment.

STANDARD OF REVIEW

A court of appeal may not overturn a judgment of a trial court unless there is an error of law or a factual finding that is manifestly erroneous or clearly wrong. Morris v. Safeway Ins. Co. of Louisiana, 03-1361 (La.App. 1 Cir. 9/17/04), 897 So.2d 616, 617, writ denied, 04-2572 (La.12/17/04), 888 So.2d 872. The Louisiana Supreme Court has posited a two-part test for the appellate review of facts in order to affirm the factual findings of the trier of fact: (1) the appellate court must find from the record that there is a reasonable factual basis for the finding of the trier of fact; and (2) the appellate court must further determine that |4the record establishes that the finding is not clearly wrong (manifestly erroneous). See Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Thus, if there is no reasonable factual basis in the record for the trier of fact’s finding, no additional inquiry is necessary to conclude there was manifest error. ‘However, if a reasonable factual basis exists, an appellate court may set aside a factual finding only if, after reviewing the record in its entirety, it determines the factual finding was clearly wrong. See Stobart v. State, through Dept. of Transp. and Dev., 617 So.2d 880, 882 (La.1993); Moss v. State, 07-1686 (La.App. 1 Cir. 8/8/08), 993 So.2d 687, 693, writ denied, 08-2166 (La.11/14/08), 996 So.2d 1092. If the trial court’s factual findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse those findings, even though convinced that, had it been sitting as the trier of fact, it would have weighed the evidence differently. Smegal v. Gettys, 10-0648 (La.App. 1 Cir. 10/29/10), 48 So.3d 431, 435.

DISCUSSION

The Louisiana legislature has established a reimbursement schedule for medical, surgical, and hospital services due under our workers’ compensation' laws. Louisiana Revised Statute 23:1034.2(B) directs the OWCA to adopt rules and regulations necessary to establish and implement such a schedule. Fees in excess of this schedule are not recoverable against the employee, employer, or workers’ compensation insurer. La. R.S. 23:1034.2(D). Winn-Dixie Louisiana v. HCA Mgmt. Servs., L.P., 10-2205 (La.App. 1 Cir. 6/10/11), 68 So.3d 1187, 1189; Gray Ins. Co. v. St. Charles Gen. Hosp., 96-1637 (La.App. 1 Cir. 6/20/97), 696 So.2d 577, 578.

The reimbursement schedule is set forth in Louisiana Administrative Code, Title 40, Part I, § 2505 and provides a per diem rate that varies by locality. It also provides for additional payments for medical cases that are “outliers,” i.e., statistical anomalies. Hospitalizations for acquired immune deficiency syndrome, | .¡acute myocardial infarction, and severe bums are considered “automatic outliers” and are reimbursed at 85% of the billed hospital charges. La. Admin. -Code 40:2519(A). Other cases, after an appeal process, may be reimbursed as outliers at 85% if they are “atypical in nature due to case acuity causing unusually high charges when compared to the provider’s usual case mix.” La. Admin. Code 40:2519(B). A case originally paid at the per diem rate may be appealed if (1) the total inpatient hospital surgical charges are greater than or equal to $100,000, (2) the total inpatient hospital medical charges are greater than or equal to $75,000, or (3) the average charge per day for any case is equal to 1.75 times the applicable daily rate. La. Admin. Code 40:2519(B)(1).

If a health-care provider believes a case fits the appealable criteria, it may submit a request for review to the insurer. If that request is denied, the provider may file a “special reimbursement consideration appeal” with the OWCA, La. Admin. Code 40:2519(B)(2) and (3). An appeal of that decision may then be filed using the same procedures established for dispute resolution of claims for workers’ compensation benefits. La. R.S. 23:1034.2(F).

Lakeview had the burden at the trial before the OWCA to prove outlier status, so as to qualify for payments in excess of the surgical per diem. See Winn-Dixie v. HCA, 68 So.3d at 1190. An outlier is a statistical anomaly and permits special reimbursement consideration in cases that are atypical. Winn-Dixie Louisiana v. Physicians Surgical Specialty Hospital, 13-0075 n. 2 (La.App. 1 Cir. 10/18/13), 136 So.3d 801. In order to prove outlier status, Lakeview had to show that Rawls’s case was “atypical in nature due to case acuity causing unusually high charges when compared to the provider’s usual case mix.” La. Admin.Code 40:2519(B); Winn-Dixie v. HCA, 68 So.3d at 1190.

This court has previously recognized that La. Admin. Code 40:2519(B) does not define “acuity.” Winn-Dixie v. HCA, 68 So.3d at 1190; Gray, 696 So.2d at 579. Therefore, this court determined in Gray that the drafters meant “acuteness,” which in a medical sense, means having a short and relatively severe course. Gray, 696 So.2d at 579. Winn-Dixie agreed with Gray and determined that the test for outlier status encompasses more than whether a surgery is typical when coin-pared, not only to other surgeries involving the same area of the body, but also, to all other inpatient procedures performed at a hospital. Winn-Dixie v. HCA, 68 So.3d at 1190-91.

Jarrett James Taylor, a financial analyst manager for Hospital Corporation of America, which owns Lakeview, testified on behalf of Lakeview. Taylor explained that each patient is assigned a Diagnoses Related Group (DRG) to provide Medicare with a basis for payment. He testified that Rawls was at Lakeview for six days, but that the average length of stay for all inpatients for a year ending August 31, 2008, was 4.82 days. Lakeview argues that because Rawls stayed 1.2 days above the average, her case falls into the outlier category. We do not agree that every case which is above average is an outlier case. A little over one day above the average does not make Rawls’s case atypical. Lake-view’s argument would mean that every case which is above the average hospital stay is an outlier. This ignores the wording of La. Admin. Code 40:2519(B), which allows special reimbursement consideration for cases “atypical in nature due to case acuity.”

Lance Loria, a management consultant and certified public accountant, testified on behalf of Lakeview. He testified that Rawls was assigned a DRG of 286, which is for disorders of circulatory systems with major complications and comorbidities. He created an exhibit that listed all of the DRG 286 cases at Lakeview for the calendar year of 2008. Lakeview prepared an analysis based on Rawls’s length of stay to come up with a case mix index. Lakeview argues that-the testimony and exhibits show that the average case mix index for the hospital |7was 1.29 and for Rawls, a DRG 286, was 1.677. Therefore, Lakeview asserts that Rawls’s particular DRG case mix is 30% greater than the average of all cases that Lakeview saw that year. Loria also testified that of all the DRG 286 cases at Lakeview for the calendar year 2008, Rawls was in the top quarter percentile. Ten cases cost less than the cost of her stay and four cases cost more than the cost of her stay.

John Kocke, an expert in medical bill review, testified for the School Board. He testified that if an average of all the DRG 286’s at Lakeview for the calendar year 2008 was taken, Rawls’s charges were approximately $2000 above the average cost for those cases. Kocke explained that a DRG 286 is for a person who has circulatory problems. In this case, the patient underwent a cardiac catheterization as part of the treatment for the pulmonary embolism. He testified that DRG 286 is for “circulatory disorders without acute myocardial infarction meaning they did not have a heart attack but with a cardiac catheterization.” Kocke also testified that Rawls’s case was not a case that was atypical in nature due to case acuity causing unusually higher charges when compared to the provider’s usual case mix.

In the instant case, the OWCA heard the testimony of all the witnesses as to the case mix index of the hospital and reviewed the evidence submitted by the parties. Based on the evidence adduced at trial and the credibility determinations made by the OWCA, the OWCA concluded that Lakeview did not carry its burden of proof that the hospitalization of Rawls was an outlier requiring special reimbursement. Under the manifest error rule, the reviewing court does not decide whether the factual findings are right or wrong, but whether they are reasonable in light of the record. Butler v. L & N Food Stores, 11-0577 (La.App. 1 Cir. 2/10/12), 91 So.3d 342, 344. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact may not be disturbed | supon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Credibility determinations are for the trier of fact, even as to the evaluation of expert witness testimony. Sportsman Store of Lake Charles, Inc. v. Sonitrol Security Systems of Calcasieu, Inc., 99-0201 (La.10/19/99), 748 So.2d 417, 421; Lirette v. State Farm Ins. Co., 563 So.2d 850, 853 (La.1990). A fact-finder may accept or reject the opinion expressed by an expert, in whole or in part. Lirette, 563 So.2d at 855. The OWCA was entitled to accept or reject any of the opinions offered by the experts for either party at trial. The OWCA, after hearing all of the testimony, found that Lakeview did not meet its burden of proof as to outlier status. The OWCA noted in its written reasons that it believed both the outpatient data and inpatient data should have been included in the case mix of Lakeview. In reviewing the correctness of the trial court’s judgment against the hospital, we are not limited to the written reasons for judgment. It is well settled that appeals are taken from judgments, not written reasons, and if the trial court reached the proper result, the judgment should be affirmed. Elliott v. Elliott, 10-0755 (La.App. 1 Cir. 9/10/10), 49 So.3d 407, 416 n. 3, unit denied, 10-2260 (La.10/27/10), 48 So.3d 1088. We find that the record is sufficient to support OWCA’s finding that Lakeview did not carry its burden of proof.

We also note that the case relied upon by Lakeview, Johnson Bros. Corp. v. Thibodaux Regional Medical Center, 00-1673 (La.App. 1 Cir.9/28/01), 809 So.2d 430, is distinguishable from the present case. In Johnson, the evidence showed that when comparing the costs for all the cases having the same code as the patient for a two-year period, the charges at issue exceeded all the others. Johnson, 809 So.2d at 437-38. In the present case, comparing the costs for all the cases having DRG 286 for one year, Rawls’s charges of $54,583 are the fifth highest out of 15 cases. One was $110,972, which is more than double Rawls’s charges. The other | ¡¡three above Rawls were $66,586, $81,970, and $100,036. Therefore, reliance on the Johnson case is misplaced, and we agree that Lakeview did not carry its burden of showing Rawls’s case was an anomaly or atypical.

According to the medical records and testimony of Dr. Patel, Rawls had a previous back injury for which she had sought a lumbar epidural injection. During that injection, Rawls began suffering chest pain. She was brought to Lakeview, where Dr. Patel attempted to determine if Rawls had a coronary issue or a pulmonary embolism. After undergoing.many tests and a heart catheterization procedure, it was determined that Rawls had a pulmonary embolism. In this case, the CT scan of the lungs had to be repeated, the left heart catheterization had to be completed, and the patient was placed on Lovenox. Dr. Patel had treated other pulmonary embolism patients prior to treating Rawls, and pulmonary embolisms were a regular part of Lakeview’s cases. Dr. Patel testified that the treatment for Rawls was standard, but that her case was atypical since such a young woman (47 years old) was presenting chest pain and the CT scan showed some blockages. Therefore, Dr. Patel had to rule out heart issues also. However, Dr. Patel agreed that she had seen this situation before where heart issues had to be addressed with pulmonary embolisms. Dr. Patel also agreed on cross examination that the standard of care for Rawls was typical. Dr. Patel also agreed that working up a patient for both cardiac and pulmonary issues is more than average, but not something outside Lakeview’s normal case base.

While at Lakeview Rawls, underwent several CT scans. One CT scan indicated a pulmonary embolism. One CT scan of her heart indicated possible blockages. Therefore, a cardiac catheterization was performed on the left side of the heart, which was ultimately found to be normal. The cardiac catheterization also determined that the chest pain was noncardiac, thereby confirming the diagnosis of pulmonary embolism. There were no complications during the |10cardiac catheterization. There is no evidence to indicate that the treatment of Rawls was atypical given the medical records and testimony of Dr. Patel. Although Lakeview had to rule out cardiac issues to diagnose Rawls, there is no evidence that this is atypical in treating pulmonary embolisms. Furthermore, the statistics used by Lakeview indicate that within a year, Lakeview treated much worse cases with a DRG 286 than Rawls.

Based on the evidence presented to OWCA, we find no error in its conclusion that Lakeview is not entitled to special reimbursement consideration under La. Admin. Code 40:2519(B), having failed to establish that Rawls’s case was atypical due to case acuity, since nothing supports a finding that her case was a short and relatively severe course of medical treatment.

CONCLUSION

For the reasons set forth above, the OWCA judgment is affirmed. Costs of the appeal are assessed against Lakeview Regional Medical Center.

AFFIRMED.


author: GUIDRY, J.

text:
    Juanita Christine PAULSELL, as Curator of the Interdict Patricia Jolynn Paulsell-Lathrop v. STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Michael A. Laviolette, ABC Helmet Distributing Company, DEF Labeling Company, GHI Helmet Manufacturing Company, and XYZ Insurance Company.
    Nos. 2013 CA 2117, 2013 CW 1754.
    Court of Appeal of Louisiana, First Circuit.
    July 30, 2014.

      Nelson W. Wagar, III, Sarah Ney, Me-tairie, LA, Ronnie G. Penton, Bogalusa, LA, for Plaintiff-Appellant, Juanita Christine Paulsell, as curator for Patricia Jolynn Paulsell-Lathrop.
    James D. “Buddy” Caldwell, Attorney General, J. Elliott Baker, Irving H. Koch, Special Assistant Attorneys General, Cov-ington, LA, for Defendants-Appellees, State of Louisiana, through the Department of Transportation and Development and the Office of Risk Management.
    Weldon J. Hill, II, Neal R. Elliott, Jr., Baton Rouge, LA, for Intervenor-Appel-lee, State of Louisiana, through the Department of Health and Hospitals.
    Before PARRO, GUIDRY, and DRAKE, JJ.
   GUIDRY, J.

12This is an appeal of a judgment granting the Louisiana Department of Health and Hospitals (DHH) reimbursement from the proceeds of a personal injury settlement that the injured tort victim received pursuant to a compromise of the victim’s claims against the Louisiana Department of Transportation and Development (DOTD). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

A consent judgment was signed by the district court on April 6, 2009, which adopted an agreement between the DOTD and Juanita Christine Paulsell to settle a personal injury suit that Ms. Paulsell filed against the DOTD on behalf of her daughter, Patricia Jolynn Paulsell-Lathrop, for the severe injuries her daughter sustained in a motorcycle accident that occurred on June 13, 2005. The consent judgment awarded Patricia, in part, $1,250,000 for future medical expenses to be paid as incurred from the Future Medical Care Fund, as authorized by La. R.S. 39:1533.2.

On September 7, 2011, the DHH filed a petition for intervention in the district court, asserting the following:

As a direct result of the injuries received by Patricia Jolynn Paulsell-La-throp in the [June 13, 2005] accident described in Plaintiffs Petition for Damages and Request for Trial by Jury filed in these proceedings, DHH has paid $203,788.28 in medical assistance payments and/or medical expenses on behalf of Patricia Jolynn Paulsell-Lathrop of which $82,833.79 represents payments for services rendered on or before April 06, 2009 and $120,954.49 represents payments for services rendered on and after April 07, 2009.
3.
DHH was not served with the Petition for Damages and Request for Trial by Jury filed by Plaintiff nor was DHH provided jsthirty days written notice pri- or to the April 6, 2009 Consent Judgment as required by LSA R.S. 46:446(B).
4.
Under the provisions of R.S. 46:446 and the April 6, 2009 Consent Judgment, DHH has a cause of action against the defendants in intervention to recover the medical assistance payments DHH paid on behalf of Patricia Jolynn Paulsell-Lathrop as a result of the injuries sustained in the [June 13, 2005] accident.

Named as defendants in the intervention were Ms. Paulsell, as curatrix of Patricia, Ms. Paulsell’s attorneys, Nelson W. Wa-gar, III and Ronnie G. Penton, the DOTD, and the State of Louisiana through the Office of Risk Management (ORM). Ms. Paulsell generally denied the allegations of the petition for intervention and further answered the petition to assert: that the DHH failed to state a claim; that its claims, if any, were barred by prescription; that it was not entitled to the provisions of La. R.S. 46:446, because the party from which DHH seeks reimbursement was not a “third-party tortfeasor,” but was also the State of Louisiana; that if its claim for reimbursement were valid, it is subject to reduction for apportionment of the fees incurred by Ms. Paulsell in effecting the settlement with the DOTD and to reduction for apportionment pursuant to the make-whole doctrine; and that the DHH failed to mitigate its damages. Thereafter, the DHH filed an “unopposed” motion for leave to file the petition for intervention, which was granted by the trial court.

Following the trial court’s granting of the DHH’s motion to file a petition for intervention, Ms. Paulsell, Mr. Wagar, and Mr. Penton filed a pleading titled “Exception of No Cause/No Right of Action or, alternatively, Motion for Summary Judgment to Dismiss the Petition for Intervention filed by the Department of Health and Hospitals.” The DOTD and the ORM also filed a motion for summary | ¿judgment in which they sought a ruling from the trial court on the issue of the DHH’s entitlement to reimbursement from the Future Medical Care Fund pursuant to DOTD’s settlement with Ms. Paulsell and La. R.S. 46:446.

On September 3, 2013, the trial court held a hearing to consider the exceptions and alternative motion for summary judgment filed by Ms. Paulsell, as well as the motion for summary judgment filed by the DOTD and the ORM. Following that hearing, the trial court denied the exceptions and alternative motion for summary judgment filed by Ms. Paulsell, but granted the motion for summary judgment filed by the DOTD and the ORM, signing judgments to that effect on September 10, 2013, and September 12, 2013, respectively. Ms. Paulsell was granted a devolutive appeal from the September 12, 2013 summary judgment in favor of the DOTD and the ORM, which judgment was designated as a final judgment pursuant to La. C.C.P. art. 1915(B) by the trial court. Ms. Paulsell filed a separate application for supervisory writs to review the September 10, 2013 judgment denying the exceptions raising her objections of no right and no cause of action and alternatively denying her motion for summary judgment, which writ application, filed under docket number 2013 CW 1754, has been referred to this panel to be considered in conjunction with our review of Ms. Paulsell’s devolutive appeal under docket number 2013 CA 2117.

DISCUSSION

At issue is this appeal and the associated writ application is the application of La. R.S. 46:446, which statute provides, in pertinent part:

|fiA. When an injury has been sustained or an illness or death incurred by any person under circumstances creating in some third person or legal entity a legal liability or obligation to pay damages or compensation to that person or to his spouse, representative, or dependent, the Department of Health and Hospitals shall have a cause of action against such third party and/or may intervene in a suit filed by or on behalf of the injured, ill, or deceased person or his spouse, representative, or dependent against such third party to recover the assistance payments and medical expenses the Department of Health and Hospitals has paid or is obligated to pay on behalf of the injured, ill, or deceased person in connection with said injury, illness, or death. [Emphasis added.]

It is Ms. Paulsell’s contention that the DOTD and/or ORM is not a third party from which the DHH can seek reimbursement, because all three agencies essentially represent one entity, the State of Louisiana. The important determination with respect to the juridical status or legal capacity of an entity is not its creator, nor its size, shape, or label. Rather the determination that must be made in each particular case is whether the entity can appropriately be regarded as an additional and separate governmental unit for the particular purpose at issue. Such a determination will depend on an analysis of specifically what the entity is legally empowered to do. Roberts v. Sewerage and Water Board of New Orleans, 92-2048 (La.3/21/94), 634 So.2d 341, 346-47.

The DHH is established as a body corporate with the power to sue and be sued. Further, DHH is “responsible for the development and providing of health and medical services for the prevention of disease for the citizens of Louisiana” | fiand for providing “health and medical services for the uninsured and medically indigent citizens of Louisiana.” La. R.S. 36:251. Likewise, the DOTD is also established as a body corporate with the power to sue and be sued; however, it is “responsible for developing and implementing programs to assure adequate, safe, and efficient transportation and other public works facilities and services in the state.” La. R.S. 36:501. Finally, the ORM is within the division of administration that is headed by the commissioner of administration. La. R.S. 39:1528. The commissioner of administration, through the ORM, is responsible for managing “all tort claims made against the state or any state agency whether or not covered by the Self-Insurance Fund” and managing “all state insurance covering property and liability exposure, through commercial underwriters or by self-insuring.” La. R.S.39:1535(A).

The particular purpose at issue in this matter is a determination of the DHH’s right to seek reimbursement from the medical proceeds of Patricia’s settlement with the DOTD. Congress has directed States, in administering their Medicaid programs, to seek reimbursement for medical expenses incurred on behalf of beneficiaries who later recover from third-party tortfeasors. States must require beneficiaries “to assign the State any rights ... to support (specified as support for the purpose of medical care by a court or administrative order) and to payment for medical care from any third party.” Wos v. E.M.A. ex rel. Johnson, — U.S.—, —, 133 S.Ct. 1391, 1396, 185 L.Ed.2d 471 (2013)(quoting 42 U.S.C. § 1396k(a)(l)(A)).

The U.S. Supreme Court, in Arkansas Department of Health and Human Services v. Ahlborn, 547 U.S. 268, 275-276, 126 S.Ct. 1752, 1758, 164 L.Ed.2d 459 (2006)(footnotes omitted), succinctly explained:

The Medicaid program, which provides joint federal and state funding of medical care for individuals who cannot afford to pay their own medical costs, was launched in 1965 with the enactment of Title XIX |7of the Social Security Act (SSA), as added, 79 Stat. 343, 42 U.S.C. § 1396 et seq. (2000 ed. and Supp. III). Its administration is entrusted to the Secretary of Health and Human Services (HHS), who in turn exercises his authority through the Centers for Medicare and Medicaid Services (CMS).
States are not required to participate in Medicaid, but all of them do. The program is a cooperative one; the Federal Government pays between 50% and 83% of the costs the State incurs for patient care, and, in return, the State pays its portion of the costs and complies with certain statutory requirements for making eligibility determinations, collecting and maintaining information, and administering the program. See § 1396a.
One such requirement is that the state agency in charge of Medicaid ... “take all reasonable measures to ascertain the legal liability of third parties ... to pay for care and services available under the plan.” § 1396a(a)(25)(A)(2000 ed.).
Moreover, 42 U.S.C. § 1396k(b) provides
any amount collected by the State ... shall be retained by the State as is necessary to reimburse it for medical assistance payments made on behalf of an individual with respect to whom such assignment was executed (with appropriate reimbursement of the Federal Government to the extent of its participation in the financing of such medical assistance), and the remainder of such amount collected shall be paid to such individual.

Therefore, as outlined above, the reimbursement sought by DHH is not only pursuant to La. R.S. 46:446, but is required under federal law as a condition for the partial federal funding of our state Medicaid program. While federal money does not fully fund our state Medicaid program, at least half, if not more, of the state’s Medicaid funding comes from federal funds. The exact percentage of the federal contribution is calculated using a formula keyed to the state’s per capita income. See 42 U.S.C. § 1396d(b) and Ahlborn, 547 U.S. at 275, 126 S.Ct. at 1758 n. 4. Hence, as La. R.S. 46:446 was adopted as a requirement of federal law, it is proper to consider the federal authority by which La. R.S. 46:446 was enacted to properly determine who is a “third party” for the purpose of determining whether the DHH is entitled to seek reimbursement of state Medicaid expenditures from Patricia’s settlement with the DOTD.

| ^According to federal law, for purposes of the Medicaid program and the reimbursement requirement in particular, a third party is defined to mean “any individual, entity or program that is or may be liable to pay all or part of the expenditures for medical assistance furnished under a State plan.” 42 C.F.R. § 433.136. In this case, the party liable, pursuant to the April 6, 2009 consent judgment, is the DOTD. Thus, the DOTD would qualify as a “third party” under the federal definition provided in the applicable Medicaid regulations, because it is an entity liable to “pay all or part of the expenditures formedical assistance furnished under a State plan.” Moreover, the ORM also qualifies as a “third party,” because, as administrator of the Future Medical Care Fund through the state treasurer, it is responsible for issuing payments for Pátricia’s future medical expenses, “as incurred,” from the Future Medical Care Fund in compliance with La. R.S. 13:5106(B)(3)(c) and 89:1538.2 as ordered by the trial court in the consent judgment.

Accordingly, we find no error in the trial court’s conclusion that the DHH is entitled to seek reimbursement from the Future Medical Care Fund administered by the ORM. Likewise, we deny the associated writ application filed by Ms. Paulsell seeking a declaration that the DHH has no right or cause of action to seek such a reimbursement.

As for a second, related assignment of error raised by Ms. Paulsell regarding the trial court’s statements in its reasons for judgment that the ORM, as administrator of the Future Medical Care Fund, is a primary payer, we observe that the issue of “primary payer” is not properly before us in review of the September 12, 2013 summary judgment. The sole issues raised by the ORM and the DOTD in their motion for summary judgment was whether the DHH was entitled to seek reimbursement from the ORM for Medicaid payments made on behalf of Patricia relative to the injuries she sustained in the June 13, 2005 motorcycle accident and |flwhether the plaintiff is entitled to recover attorney’s fees in her action seeking to enforce the settlement with the DOTD. Furthermore, while the trial court did make reference to Medicaid being a payor of last resort, no such ruling is found in the summary judgment rendered. Rather, the summary judgment only holds that the DHH is entitled to reimbursement for Medicaid expenditures made on behalf of Patricia and that the plaintiff may not recover attorney fees for litigating “the propriety of ORM” not paying certain claims submitted for payment from the Future Medical Care Fund. Thus, we decline to consider whether the ORM is the “primary payer” in review of the summary judgment before us. See Wise v. Bossier Parish School Board, 02-1525, p. 8 n. 6 (La.6/27/03), 851 So.2d 1090, 1095 n. 6.

CONCLUSION

For the foregoing reasons, we affirm the summary judgment rendered by the trial court holding that the DHH can seek reimbursement for Medicaid expenditures made by DHH relative to the injuries Patricia sustained in the June 13, 2005 motorcycle accident from the settlement proceeds designated for Patricia’s future medical expenses. Moreover, we deny the associated writ application filed by Ms. Paulsell. All costs of this appeal are cast to Juanita Christine Paulsell, as curator of Patricia Jolynn Paulsell-Lathrop.

SEPTEMBER 12, 2013 SUMMARY JUDGMENT AFFIRMED; WRIT DENIED.

      . A judgment of interdiction was rendered on February 14, 2006, wherein Patricia was interdicted and Ms. Paulsell was appointed her curatrix.

      . DHH erroneously cited the date of the interdiction judgment as the date of the motorcycle accident in which Patricia sustained her injuries.

      .DHH previously filed a petition for intervention on September 7, 2011, which the trial court denied as moot in a November 8, 2011 judgment.

      . As the summary judgment at issue deals solely with the claim of reimbursement of the intervenor, DHH, we find that the summary judgment was properly certified as a final judgment. DHH’s claim for reimbursement has little relationship to Ms. Paulsell's unadju-dicated claim seeking to enforce the settlement agreement in regards to payment of certain claims presented to the ORM by Ms. Paulsell. Further, there is little possibility that the issue of the reimbursement owed to the DHH will be revisited in future proceedings. See R.J. Messinger, Inc. v. Rosenblum, 04-1664, p. 14 (La.3/2/05), 894 So.2d 1113, 1122-23. Thus, we find that the summary judgment was properly certified as a final judgment, and our appellate jurisdiction to review this matter properly invoked. See La. C.C.P. art. 2083.

      . We observe that "the particular purpose at issue” can be highly determinative of the issue of juridical status. Notably, in applying this same principle, several federal courts have held that Louisiana state courts do not qualify as juridical persons who possess the capacity “to sue or be sued.” See e.g. Hall v. Louisiana, 974 F.Supp.2d 957, 963 (M.D.La.2013). However, in two separate cases, the Louisiana Fifth Circuit Court of Appeal expressly found that the Louisiana courts at issue did have the authority to sue and be sued. See Morgan v. Laurent, 06-467, pp. 7-11 (La.App. 5th Cir.12/27/06), 948 So.2d 282, 285-88, writ denied, 07-0178 (La.3/16/07), 952 So.2d 701 (wherein the court held "in master-servant liability matters!, the] Second Parish Court for the Parish of Jefferson is a juridical entity and as such can be named as a defendant in this lawsuit”) and Beevers v. Jefferson Parish Juvenile Court, 552 So.2d 1317, 1322 (La.App. 5th Cir.1989), writ denied, 556 So.2d 1281 (La.1990) (wherein the court held "[i]n this suit[, the] Juvenile Court functions in an administrative capacity and as a litigant, seeking adjudication of its rights. It has standing to maintain this appeal.”). See also Welborn v. 19th Judicial District Court, 07-1087 (La.1/16/08), 974 So.2d 1 (wherein the suit against two separate state courts was not only maintained, but the authority of the courts to be sued was not even questioned).