     Case: 16-30500      Document: 00513822678         Page: 1    Date Filed: 01/05/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                               United States Court of Appeals
                                                                                        Fifth Circuit

                                                                                      FILED
                                    No. 16-30500                                January 5, 2017
                                  Summary Calendar
                                                                                 Lyle W. Cayce
                                                                                      Clerk
TOMMIE RICE, Next Friend on behalf of Minors, CIR and GMR,

              Plaintiff - Appellant

v.

CORNERSTONE HOSPITAL OF WEST MONROE, L.L.C.,

              Defendant - Appellee




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 3:13-CV-362


Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Joshua Rice was a patient at Cornerstone Hospital from December 14,
2011 through January 24, 2012, where he received treatment and
rehabilitation. Joshua Rice passed away on May 6, 2012.
       Joshua’s father, Tommie Rice, brings this appeal on behalf of Joshua’s
minor children and asserts that the district court erred in granting



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 16-30500
Cornerstone Hospital’s motion for summary judgment. He alleges that
Cornerstone Hospital is liable for negligence under the Louisiana Medical
Malpractice Act because its staff entangled Joshua’s leg and shoulder in the
process of transferring him from a cart to a bed, causing his shoulder and hip
to fracture. He claims that that his legal burden is satisfied under the doctrine
of res ipsa loquitur.
      We review the district court’s grant of summary judgment de novo.
Templet v. HydroChem, Inc., 367 F.3d 473, 477 (5th Cir. 2004); Price v. Fed.
Exp. Corp., 283 F.3d 715, 719 (5th Cir. 2002). The party moving for summary
judgment bears the initial responsibility of identifying parts of the record that
it believes demonstrates the absence of a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 322–323 (1986). If the moving party satisfies
this burden, “the burden then shifts to the nonmoving party to go beyond the
pleadings and by her own affidavits, or by the depositions, answers to
interrogatories, and admissions on file, designate specific facts showing that
there is a genuine issue for trial.” Davis v. Fort Bend Cty., 765 F.3d 480, 484
(5th Cir. 2014).
        Lacking expert testimony for the hospital’s standard of care or breach
thereof, Rice relies on appeal on the doctrine of res ipsa loquitur. Res ipsa
loquitur is an evidentiary doctrine, applied after the factual evidence has been
submitted, which may be used “only if there is sufficient circumstantial
evidence to suggest that the only reasonable cause of the plaintiff's injury is
the defendant's breach of the standard of care.” Gisclair v. Bonneval, 2004-
2474 (La. App. 1 Cir. 12/22/05), 928 So. 2d 39, 45. Res ipsa loquitur is applied
when:
      (1) the defendant has actual control of the agency, instrumentality
      or conditions which caused plaintiff's injuries;
       (2) the evidence as to the true cause of plaintiff's loss is more
      readily accessible to defendant than plaintiff; and
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                                 No. 16-30500
      (3) the accident is of a kind that does not occur in the absence of
      negligence and/or the circumstances attending the accident create
      an inference of negligence on the part of defendant.

Shahine v. Louisiana State Univ. Med. Ctr. in Shreveport, 28,691 (La. App. 2
Cir. 9/27/96), 680 So. 2d 1352, 1355.
      The district court thoroughly evaluated the evidence and found that Rice
has not created genuine issues of material fact concerning these elements.
Even assuming that Rice created a material fact issue on the first two elements
of res ipsa loquitur, Rice fails to challenge the district court’s resolution of
element three in Cornerstone Hospital’s favor.
      Rice does not dispute that Joshua had the medical condition of
osteomalacia.   Cornerstone Hospital offered Dr. Randolph Taylor’s expert
testimony that despite the best medical care, osteomalacia weakens the bones
and enables fractures to occur during the normal course of treatment or the
normal transfer process. In response, Rice asserts that Dr. Taylor did not treat
Joshua and argues that his testimony should be given less weight.             His
response, however, does not rebut Dr. Taylor’s testimony on osteomalacia and
does not show that, given his fragile bone condition, Joshua’s fracture would
not have occurred in the absence of negligence. Consequently, res ipsa loquitur
cannot be applied. The district court properly held that Rice has not raised a
genuine issue of material fact demonstrating that Cornerstone Hospital
breached the standard of care. Cornerstone Hospital’s motion for summary
judgment was therefore properly granted on the legal theory of res ipsa
loquitur. The judgment of the district court is AFFIRMED.




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