Louisiana Personal Injury Lawyer Blog

In a medical malpractice lawsuit, the plaintiff faces a three-part evidentiary burden. First, she must present evidence to establish the applicable standard of care. Next, she must show that a breach of that standard of care occurred. Finally, she must demonstrate a link between that breach and the injury that resulted. In nearly all cases, the opinion of a medical expert is an essential element of the required evidence. Without a qualified medical expert's opinion, the plaintiff risks losing at summary judgment due to a lack of material issues of fact to be determined at trial. The availability of an expert's opinion was at the center of the recent case in the Third Circuit, Dupree v. Louisiana Medical Mutual Insurance Co.

Katie Dupree became a patient of Dr. Jose Dorta, an OB/GYN specialist, in 2008 when she was pregnant. On January 9, 2009, Dupree went to the ER at Opelousas General Hospital with facial swelling, vomiting, and a severe headache. She was told to stop working and rest at home due to elevated blood pressure. Two weeks later, Dupree again went to the ER with elevated blood pressure and other symptoms that suggested pregnancy complications. Dr. Dorta did nothing to treat these issues and did not suggest an early delivery of Dupree's baby. In fact, Dr. Dorta merely sent Dupree home with the suggestion of bed rest. Two days later, Dupree was found face down and unconscious. Tragically, her baby was stillborn the following day, at which point Dupree was then taken off life support and died. Dupree's parents requested review by a Medical Review Panel in June 25, 2009. The panel rendered its finding of no malpractice on Dr. Dorta's part on May 12, 2010. Sixteen days later, Dupree's parents filed suit against Dr. Dorta and his medical malpractice insurance carrier, Louisiana Medical Mutual Insurance Co. After overcoming a series of exceptions filed by the defendants, the plaintiffs requested a status conference to schedule a trial date. Immediately thereafter, the defendants filed a motion for summary judgment. The trial judge granted the defendants' motion based on the plaintiffs' "failure to submit an affidavit from an expert showing a genuine issue of material fact sufficient to defeat summary judgment." At the hearing, plaintiffs' counsel argued that he had obtained an expert but did not submit an affidavit because the trial scheduling order called for expert reports to be exchanged several months later. The trial court disregarded this argument. It then denied the plaintiffs' request for a new trial after they produced an affidavit from Dr. James Tappan, a board certified physician specializing in obstetrics and gynecology.

The Third Circuit Court of Appeal, mindful that a "trial court is imbued with great discretion in both pre-trial and post-trial matters," ultimately concluded the this denial of a new trial was an abuse of that discretion. "[T]he Louisiana Code of Civil Procedure provides that a 'new trial may be granted in any case if there is good ground therefor, except as otherwise provided by law,'" the court reasoned, and "after reviewing the record before us, we find good and valid reasons for a new trial." Namely, Dr. Tappan's affidavit included "three specific acts of medical negligence ... : failure to diagnose, failure to warn, and failure to timely deliver the baby." The court noted that Dr. Tappan reported that "Dr. Dorta failed to warn Ms. Dupree and/or her family of her condition and what to look for with respect to further symptoms,” which was at odds with the Medical Review Panel's finding that “we are sure a lengthy discussion ensued” when Dupree sought treatment. These conflicting views presented a genuine issue of material fact. Yet, the trial court "ruled on the motion for new trial without reference to the affidavit, choosing to rely instead on the fact that plaintiffs failed to take advantage of their one opportunity to present evidence." Being careful not to "condone or legitimize the actions of plaintiffs' counsel in failing to timely file an expert affidavit," the court concluded that "the facts, the law, and plaintiffs' prudence and initiative in prosecuting this case compel a finding of an abuse of discretion by the trial court," and reversed the denial of a new trial.

The court admitted that "[r]are is the case where we find an abuse of the trial court's great discretion." But the Dupree case shows that a negative result at the trial level can still be overcome on appeal. Moreover, the case demonstrates the need for a skilled attorney for every step of a medical malpractice dispute.

Continue reading "Third Circuit Reverses Trial Court in Rare Finding of Abuse of Discretion in Med Mal Action" »

The Louisiana Court of Appeals rejected an appeal filed by Brenna Davis regarding her medical malpractice claim against the Women and Children’s Hospital Lake Charles and her doctor, Dr. Richard Shimer. Davis underwent a weight loss procedure known as a lap band surgery. Known in the medical industry to be a minimally invasive surgery, this procedure involves the doctor inserting an adjustable belt around the top section of the stomach to create a full feeling in the patient. Davis filed her claim in order to recover damages as a result of a sponge that had been left within her abdomen during the procedure despite the numerous counts required by the hospital’s procedure for surgery.

The district court awarded Davis $50,000 and apportioned fault equally between Dr. Shimer and the hospital. For a variety of reasons, Davis appealed that judgment, claiming that Dr. Shimer was not at fault in her claim and asking the courts to put full responsibility upon the hospital. In personal injuries law, the judge is responsible for distributing fault between the parties involved so that each one only pays for the damages he specifically caused. To prove medical malpractice against a Louisiana physician, the plaintiff must show the doctor lacked the knowledge and skill required by physicians in his specialty or failed to use reasonable care, and that the plaintiff suffered in a way that plaintiff would not have otherwise. The hospital’s procedure requires three separate sponge counts during different periods of the surgery. Not only does the surgical technician count the sponges, but a nurse oversees each of the counts.

So who is responsible for SpongeBob being left in Davis’ abdomen? The appeals court agreed with the lower district court in their ruling, following previous decisions holding that leaving sponges in patients is a breach of duty by the surgeon. But when a hospital affirmatively assigns that duty to multiple staff members (none of which are the surgeon) on what do the courts rely for creating such a duty for the surgeon? During most of the entire surgery, it wasn’t even possible for the surgeon to see the sponges since his field of view is limited and magnified. Two members of the surgical staff were responsible for counting the sponges on three separate occasions. The count is recorded on the white board at the beginning of the procedure. Therefore, both staff members counting could have double-checked their numbers on the white board at the end of the surgery.

The appeals court affirmed the district court’s judgment that the surgeon had breached his duty to Ms. Davis by negligently leaving one of the surgical sponges within her body. However, when considering Dr. Shimer’s fault, neither of the courts seemed to consider the numerous preventative measures the hospital had in place, instead following the “well-established jurisprudence” on the issue.

In all, a case of medical malpractice carries with it crucial requirements to have the matter handled properly by an attorney that closely identifies the legal possibilities at work. Whether apportioning responsibility or making sure that all of the diverse issue are handled properly for the correct financial restitution, hiring the proper legal representative can mean the difference in tens, if not hundreds, of thousands of financial settlement or judgment.

On behalf of the Berniard Law Firm, we'd like to wish all of our clients and employees a Happy and Safe Holidays and New Years.

The blog will resume postings in 2012!

Previously on this blog, we have discussed at length the importance of filing a lawsuit within the period of time required by law. For medical malpractice actions, Louisiana statute

“sets forth two prescriptive limits within which to bring a medical malpractice action, namely one year from the date of the alleged act or one year from the date of discovery with a three year limitation from the date of the alleged act, omission or neglect to bring such claims.” Campo v. Correa.

Determining the date of discovery is based on a test of reasonableness: “[p]rescription commences when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort.” Constructive knowledge is considered whatever notice is sufficient to "excite attention and put the injured party on guard and call for inquiry.” However, even when the victim is entirely reasonable, it cannot be later than three years from the date of the original incident that the suit is filed.

Another topic we have often explored on this blog is the need for expert counsel to navigate the myriad of strategic and procedural challenges in litigation. This theme was evident in the recent case of Patin v. State of Louisiana. In 2006, Rita Patin sought treatment from Dr. Charles Norwood at the LSU Family Practice Center in Alexandria. During one or more visits in 2006, she believed that Dr. Norwood "administered inappropriate treatment which resulted in a stroke, heart attack, and other serious injuries." Patin sent a letter requesting a medical review panel to the Commissioner of Administration on December 11, 2009. The letter contained no details beyond her cursory allegation of wrongdoing by Dr. Norwood. LSU Center filed an exception of prescription in the district court. Patin, who represented herself, filed an answer that explained Dr. Norwood had “consistently mislead” her during telephone calls in 2008 in which he claimed her symptoms were a normal part of the healing process. The answer also alleged that Dr. Norwood administered excessive electromagnetic shocks which caused a stroke and heart attack. However, the answer included "nothing about when Patin became aware that she may have been the victim of malpractice." She did not indicate when she experienced the stroke and heart attack, or when she discovered that these conditions were related to Dr. Norwood's treatment. As a result, the court concluded that "Patin submitted no sufficient evidence upon which the ... court could determine whether her actions/inactions were reasonable." Thus, the Third Circuit upheld the trial court's judgment granting an exception of prescription in favor of LSU Center.

Continue reading "Self-Represented Plaintiff Waits Too Long to File Medical Malpractice Action " »

Everyone expects adequate, timely, and complete care from medical professionals in hospitals. However, unfortunately, times come when the expected level of care fails to come to fruition, and an action for medical malpractice arises. In March of 1993, a Tallulah, Louisiana, resident began a series of trips to doctors in hospitals in which his continued back, shoulder, and neck pain eventually led to lung cancer. The Tallulah, Louisiana resident, Mr. Kerry Scarborough, died 2 years later in March of 1995.

For a malpractice claim against a hospital, plaintiffs like Mr. Scarborough's mother, suing in her son's name, must prove by a preponderance of the evidence first, that the defendant owed the plaintiff a duty to protect against the risk involved, essentially providing a standard of care that the plaintiff was owed, second, that the defendant breached that duty or standard of care, and third, that the injury was caused by that breach. A hospital can be sued for its own negligence (such as failure to keep its facilities clean), or under a theory of vicarious liability, in which a plaintiff alleges that the hospital is liable for the negligence of one of its doctors. Of course, a medical malpractice action can be extended to any health care provider, including dentists, nurses, hospital workers, physical therapists, radiologists, and more.

Louisiana revised statute 9:2794 provides the statutory language laying out the plaintiff's burden for a general malpractice action:

A. In a malpractice action based on the negligence of a physician licensed under R.S. 37:1261 et seq., . . . the plaintiff shall have the burden of proving: (1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, . . . licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians . . . within the involved medical specialty. (2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill. (3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

Generally, expert testimony is required to establish the degree of care that the defendant must meet and whether that standard was breached, except where the negligence is so clear on its face that an expert is unnecessary. Whether an expert's particular testimony will be admissible depends on whether a trial judge finds them qualified to testify as an expert, analyzed under what is called a 'Daubert standard,' in which the court will look at a variety of factors regarding the expert's background.

In Mr. Scarborough's case, not all his expert's met this standard, and some testimony that could have potentially helped his case was barred and never heard. We understand these complex issues patients face in these types of lawsuits, and are here to help you get through those difficult times. If you feel you were the victim of inadequate medical care, picking experts that will be able to assist in winning your case is critical.

In Louisiana, medical malpractice suits like Mr. Scarbourough's can be brought against either qualified health care providers, or non qualified health care providers. There will be a cap on liability of $100,000 for what is referred to as a QHCP, but there will be no cap on a NQHCP. A QHCP has paid into a state insurance fund called the Patient Compensation Fund and, as such, limits their own liability. This difference is critical, as any medical malpractice actions brought against a qualified health care provider must first go to a panel consisting of three doctors and one non-voting attorney. This panel determines whether the evidence in a case like Mr. Scarborough's (assuming a qualified health care provider) demonstrate that a doctor or hospital failed to meet a given standard of care. The decision of the panel is treated like that of an expert's testimony and may be used during court proceedings.

Nuances such as these are important to understand, especially in the technical field of medical malpractice. The term "medical malpractice" is so broad, and includes things such as a doctor's failure to take adequate medical history, failure to prescribe correct medications, and other negligent acts or omissions by a health care provider that leads to an injury.

Continue reading "Inadequate Medical Care and the Legal Ramifications Capable of Causing Life-Changing Problems" »

This post serves as a concluding piece on the Oliver Medical Malpractice case reviewed in our previous two entries:

The higher burden in a medical malpractice case requires that the state show that the discrimination furthers a legitimate governmental interest. The Taylors argued that by including nurses in the categories of medical practitioners who have limited liability, those in Taylor's shoes have inadequate remedy. The state argued that it was creating this distinction for the overall purpose of protecting individuals who are in situations just like Taylor.

Ultimately, the state argued that by creating the liability limit for nurses in the act, it had in mind the future consequences of unlimited liability. They argued that by creating the cap the amount of liability is reduced, which means that it costs less overall for a nurse to practice within the state of Louisiana. The state goes on to argue that this reduction in cost insures that there will be a sufficient number of nurse and medical practitioners who practice within Louisiana. This, they argue, ensures people like Taylor that someone will be there to help them. Moreover, the state argues that a lower liability limit means that nurses like nurse Duhon will have at least enough money to cover the costs up to the cap and that with unlimited liability, it would not be guaranteed that nurses would have the sufficient amount of resources to compensate victims of malpractice.

The court did not agree with this. The court noted that its first objective was to see if the clause which includes nurses can be taken out of the act without destroying the acts underlying purpose. If this can be done, the court must save the act by taking that part out. In this case, the court held that removing nurses from the protection of the act will not have such an effect. The court went on to state that nurses like nurse Duhon are allowed to practice in Louisiana without sufficient training and experience required to be a doctor. As a result, nurses are able to give medical advice without jumping through the hoops that doctors have to. The court stated that individuals like Taylor get advice without realizing that they may be getting wrong advice. Further, he court did not see that there was any legitimate governmental interest which could justify leaving Taylor in the state she is in by nurses who give wrong advice. The court argued that those in Taylor's situation would likely be more than happy to take the chance at suing for malpractice without the liability limit rather than be assured that they will get at least $500,000 but no more. In its conclusion, the court ruled the limitation as it applied to nurses to be unconstitutional.

Medical malpractice cases are inherently complicated and require exceptional legal assistance in order to get the financial judgment you deserve. If you believe you have suffered due to the actions of a medical professional, contact an attorney immediately to preserve your legal rights.

Ultimately, the Olivers sued the nurse practitioner alleging malpractice. A jury awarded them over one million dollars in damages. Eventually, the award of general damages, which in Louisiana included medical and non-medical costs, was reduced to $500,000 as required by the statute. Needless to say the Olivers were distraught at the low value the court ascribed to Taylor's injury.

The Oliver's challenged the constitutionality of the statute by alleging that it violated the principle of equal protection. When a statute is constitutionally challenged one of the most important aspects of the case is what burden the state has in defending the act. If the act does not violate the equal protection clause of the 5th and 14th amendment, the state only needs to prove that the act has a rational basis connected with a legitimate government interest. Generally, this standard is not very hard to meet. On the other hand, if the act violates equal protection, a higher standard is used to evaluate the act. The Louisiana equal protection clause states the following:

"No person shall be denied the equal protection of the law. No law shall discriminate against a person because of race or religious ideas, beliefs, or affiliations. No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas or affiliations."

If the act does violate any of these categories the state has a higher burden to meet. The state must show that the act furthers a legitimate governmental interest. The defendants argued that the act did meet the rational basis test because the goal was to prevent medical practitioners from being subject to excessive malpractice suits.

The Olivers argued that the act violated the equal protection clause. The court stated that there was in fact a distinction drawn by the act which would appear to violate the clause. The Louisiana equal protection clause states that there should not be any unreasonable discrimination based on physical condition. The court viewed the effect of the act on children like Taylor who are catastrophically and severely injured by a medical practitioner. The $500,000 liability limitation in fact creates a category of those whose injuries are not severe or catastrophic and who will likely be able to be fully compensated for damages done to them within the limitation. The act also creates a category of those victims of medical malpractice who are severely and catastrophically injured and who will not be able to be fully compensated for their injuries.

Taylor had a disease which would be fully treated in 90% of cases if diagnosed at an early stage. Nurse Duhon did not consult with a doctor when Taylor was her patient. As a result, the cancer spread to a point where Taylor would be almost fully disabled for the rest of her life. She is a victim of malpractice who cannot be compensated within the $500,000 liability limit. This disparity of protection in the law is what the court saw as a violation of equal protection. As a result, the higher standard of burden was imposed on the state.

In some states, the legislative branch creates certain protections for classes of residents. These protections can come in the form of protective presumptions, statutory liability limitations, or any other form which the legislative branch thinks is necessary for its state. In most states, statutes protect those in the medical field from unlimited liability. The reality is that these protections are necessary in order to protect doctors and hospitals from being involved in numerous civil cases. If doctors could be sued freely, chances are that the cost of liability insurance would sky rocket. If this happens, medical professionals would be wary to establish a practice in that particular state. Needless to say, this would create a huge crisis in the medical field.

These protections generally do not apply if there has been an egregious act by a doctor. Moreover, these protections do not apply if a doctor has intentionally committed an act against a patient. In Louisiana, for a general claim of malpractice, the award of general damages is limited to $500,000. This protection exists for doctors, hospitals, and some types of nurse practitioners. However, if an exception to the statutes application exists, the shield will not be helpful to medical practitioners.

In a recent case Joe Oliver vs. Megnoila Clinic, the protection did not apply to a nurse practitioner. The statute involved was expanded to include nurse practitioners of the type the defendant was. However, one of the requirements was that the nurse practioner consult with a medical doctor on issues before giving medical advice. Susan Duhon, one of the defendants in the case, was a nurse practitioner. She was seeing the Taylor Oliver who was an infant at the time that she was first brought to Ms. Duhon's office. Taylor was brought in because she was crying a lot and the parents could not figure out what the problem was.

Ultimately, Ms. Duhon rendered an incorrect prognosis and sent the Olivers on their way. In fact, the Olivers returned to the office on a number of occasions because Taylor would simply not get better. Every time the Olivers came to her office, Ms. Duhon made a diagnosis without consulting with a medical doctor, as was required by Louisiana law. Eventually, the Olivers took Taylor to the hospital to see the doctor that Ms. Duhon was supposed to be consulting with all along. The doctor referred the case to a children's hospital where the Olivers' learned that Taylor had neuroblastoma which is a form of cancer that originates from the nerve tissue. It was also determined that Taylor showed signs of bruising around the eye, which is a tell-tale sign of the disease. However, this was not diagnosed until much later after the disease began to manifest.

This topic will be continued in our next entry.

As part of our Constitutional right to due process, an individual is allowed to bring grievances before a court. However, certain judicial policies may be enacted to deny plaintiffs from bringing suits that have already been litigated, are being brought with the intent to harass, or are frivolous. The purpose behind such policies is to make courts as efficient as possible by deterring such actions. A recent case out of the Louisiana Fourth Circuit Court of Appeal shines a light on several of these deterrents.

In Mendonca v. Tidewater, Inc., the plaintiff sought to nullify several final judgments made by the district court. Mendonca's list of suits stretched over four years, with multiple appeals and pleas for annulment. However, none of Mendonca's nullity claims or his appeals were successful. In his final appeal for anulment, the Fourth Circuit Court of Appeals handed down three restrictions that laid Mendonca's long line of cases to rest.

The first of these restrictions was the court's upholding of the defendent's plea of res judicata and failure to state a claim. When res judicata is enacted, the court declares one of two denials. First, that the claim has been subject to a final judgment and thus no longer qualifies for an appeal, or second, that the litigant cannot bring a claim against the same party in a second claim because all claims should have been brought against that party in the initial suit. The policy considerations supporting res judicata is to preserve court resources and protect defendants from being subject to litigation multiple times, with the possibility of having to pay damages more than once. A defendant's plea that a plaintiff has failed to state a claim goes hand-in-hand with res judicata. If res judicata is applicable, then all duplicitous claims cancelled. In Mendonca's case, this means that there were no new claims. Since there were no such claims, the court held that Mendonca's nu
llity actions were a failure to state a new claim.

A second deterrent to brining frivolous, harassing, or duplicitous suits is the possibility of monetary sanctions. Rules of civil procedure require that an attorney make objective inquiries into the facts of a case and the law that pertains to it. These inquiries are held to a high standard as they are seen as an attorney's duty. This means that one's subjective good faith inquiry is not sufficient. When an attorney files a claim, it is important that case history is analyzed to ensure that res judicata does not apply. A failure to inquire about previous claims is a failure to impose the applicable law and is essentially poor lawyering. This was the case in Mendonca's appeal. Any attorney who objectively analyzed the situation would have known that the claim was precluded through res judicata. Yet, Mendonca proceeded. The court interpreted this as an abuse of the judicial system and an attempt to harass the defendant. This abuse justifies the imposition of sanctions.

Sanctions are typically defined as an order to pay to the other party the amount of reasonable expenses through the employment of an attorney. Yet, "reasonable" is not confined to the actual expense accrued by the attorney. Instead, "reasonable" has been interpreted to mean additional costs that act to deter, punish, and compensate. When sanctions are imposed by a trial judge they are unlikely to be appealed. Appellate judges tend to give deference to the trial judge's intimate knowledge of the case, litigants, and attorneys. For these reasons, Mendonca was sanctioned in the amount of $10,000, all of which were upheld on appeal.

A third way that a court can punish an individual as a deterrent is to issue a sanction revoking in forma pauperis status. In forma pauperis is a legal termed used by a judge to allow a poor individual to file a legal case and/or represent oneself at trial. Allowing one to claim this status is to essentially cut most court associated costs for the needy individual in order to ensure due process. Mendonca qualified and was granted this status. However, courts have held that in forma pauperis status is a privilege, not a right. Therefore, any abuse of this status will result in revocation. The most common reason why in forma pauperis status is revoked is because one brings frivolous suits. Mendonca did this in his case and was punished accordingly.

Res judicata, sanctions, and other rules of civil procedure are complicated, requiring a full analysis of the facts and the law. Such situations should only be approached by a licensed practicing attorney.

Continue reading "Louisiana Fourth Circuit Court of Appeal Punishes For Duplicitous Suits " »

In 2008, Debra Goulas worked as a bookkeeper for Sunbelt Air Conditioning Supply in Baton Rouge. Jessie Touchet, owner of Sunbelt, and Diane Jones, Goulas's manager, accused her of stealing over $500 from the company during February and April that year. Goulas was tried for felony theft and acquitted. Following the criminal trial, she filed suit against Touchet and Jones in July, 2010 alleging defamation. Specifically, Goulas argued that Touchet and Jones "intentionally and negligently inflicted emotional distress" upon her, and that their accusations were "founded in malice to damage her person and reputation." The complaint sought damages for medical expenses, physical and mental pain and suffering, and loss of wages. The defendants filed an exception of prescription. The basis of the exception was that Goulas's claims were based on the defendants' actions that allegedly occurred during February and April of 2008. By the time Goulas filed suit in 2010, more than one year had passed, thereby prescribing the claims. In October, 2010, the trial judge granted the defendants' exception of prescription and dismissed Goulas's claims with prejudice.

Goulas appealed, alleging error on the trial court's ruling that her defamation claim was prescribed. Goulas reasoned that she could not initiate her defamation action until her criminal trial was concluded in March, 2010; accordingly, she argued that prescription did not begin to run until Frederick Jones publicly accused her of theft when testifying at her trial. The First Circuit noted that Louisiana recognizes a qualified privilege that protects parties from charges of defamation related to statements they make during a trial. "It necessarily follows that, during this time, the one-year period that applies to the filing of a defamation action is suspended." However, the court explained, the suspension of prescription applies "only to allegedly defamatory statements made by parties to a lawsuit." In this situation, Frederick and Jones were not parties to Goulas's criminal prosecution, so the prescription suspension did not apply. The court concluded that "since there has been no suspension of the 2008 alleged defamatory statements," the trial court properly granted the defendants' exception of prescription.

This result was no doubt a painful lesson to the Goulas that prescriptive periods and other rules of Louisiana civil procedure can be complex and confusing. At worst, such as here, missing a deadline can prove fatal to a plaintiff's case. Accordingly, it is critical that victims who think they may have a claim should consult a knowledgeable attorney immediately. Time may very well be of the essence in order to secure a day in court.

Continue reading "Baton Rouge Plaintiff Loses Defamation Claim Due to Prescription " »

Everyone expects adequate, timely, and complete care from medical professionals in hospitals. However, times come when the expected level of care fails to come to fruition, and an action for medical malpractice arises. In March of 1993, a Tallulah, Louisiana, resident began a series of trips to doctors in hospitals in which his continued back, shoulder, and neck pain eventually led to lung cancer. This unfortunate victim of cancer, Mr. Kerry Scarborough, died 2 years later in March of 1995.

For a malpractice claim against a hospital, plaintiffs like Mr. Scarborough's mother, suing in her son's name, must prove by a preponderance of the evidence first, that the defendant owed the plaintiff a duty to protect against the risk involved, essentially providing a standard of care that the plaintiff was owed, second, that the defendant breached that duty or standard of care, and third, that the injury was caused by that breach. Louisiana revised statute 9:2794 provides the statutory language laying out the plaintiff's burden:

A. In a malpractice action based on the negligence of a physician licensed under R.S. 37:1261 et seq., . . . the plaintiff shall have the burden of proving:

(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, . . . licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians . . . within the involved medical specialty.

(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.

(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

Generally, expert testimony is required to establish the degree of care that the defendant must meet and whether that standard was breached, except where the negligence is so clear on its face that an expert is unnecessary. Whether an expert's particular testimony will be admissible depends on whether a trial judge finds them qualified to testify as an expert, analyzed under what is called a 'Daubert standard,' in which the court will look at a variety of factors regarding the expert's background.

In Mr. Scarborough's case, not all his expert's met this standard, and some testimony that could have potentially helped his case was barred and never heard. We understand these complex issues patients face in these types of lawsuits, and are here to help you get through those difficult times.

Continue reading "The Scary Prospect of Inadequate Medical Care and the Legal Ramifications" »

Is the Failure to Observe a "Do-Not-Resuscitate" Order Medical Malpractice?
A common element in medical malpractice cases we have previously examined on this blog is the role of Louisiana's medical review panel. As a brief review, claims brought against healthcare providers under Louisiana's Medical Malpractice Act ("MMA") must be reviewed by a medical review panel before proceeding to court. The panel's purpose is limited to determining whether the evidence supports the plaintiff's allegation that the healthcare provider failed to observe the appropriate standard of care. If the board determines the standard was not met, it must then decide whether that failure contributed to the plaintiff's injury. The panel's report, though not conclusive, is admissible in any subsequent litigation.

A plaintiff who believes he has been a victim of medical malpractice must first determine whether a particular claim is even subject to the MMA, and therefore whether it must be submitted to a medical review panel prior to litigation. This is an important matter, because a medical malpractice claim against a health care provider is "subject to dismissal on an exception of prematurity if such claim has not first been presented to a medical review panel." The Louisiana Supreme Court, in the case of Coleman v. Deno, identified six factors which are to be considered when determining whether a claim falls under the medical malpractice umbrella. But even with these factors as a guide, the decision may not necessarily be straightforward. A recent case that demonstrates the "grey area" of medical malpractice claims involved a hospital's ignoring a patient's Do-Not-Resuscitate Order ("DNR"). Agnes Liles was admitted to the Northern Louisiana Medical Center ("NLMC") in Ruston on July 10, 2009. A few days later, he went into cardiac arrest. Despite NLMC's knowledge of Liles's DNR, hospital employees resuscitated Liles. The process left him with physical disabilities until his death two months later. Liles's two daughters filed suit against NLMC for recovery of the medical expenses attributable to Liles's post-resuscitation care as well as physical and mental pain and suffering, loss of enjoyment of life, and cognitive decline. They also asserted a claim for bystander recovery. NLMC filed an exception of prematurity in the trial court arguing that the plaintiffs’ claims must be reviewed by a medical review panel prior to litigation. The trial judge overruled the exception after a hearing and NMLC filed for supervisory review of the judgment with the Second Circuit Court of Appeal. The court relied primarily on two cases to ultimately conclude that "the actions by the nursing personnel in failing to honor the DNR order were not covered under the MMA as medical malpractice, but instead should be governed by Louisiana negligence principles of law." The first case contained the Louisiana Supreme Court's pronouncement that

"While clearly an act of malpractice can occur in the
rendition of professional services, the patient must still be in the process of receiving 'health care' from the doctor or hospital when the negligent rendition of professional services
occurs. This means that the act or omission must have occurred 'during the patient’s medical care, treatment or confinement.'" Richard v. Louisiana Extended Care Centers, Inc.

The other case was the Second Circuit's own prior decision involving an ignored DNR in which it concluded that

"the problems [the deceased] experienced were not 'treatment related' because the problems came as a result of [the nursing home’s] failure to abide by [the deceased’s] wishes not to be resuscitated by CPR. The fact that they 'treated' her after they negligently acted does not bring this case under the MMA." Terry v. Red River Center Corp.

Accordingly, the court found that the plaintiffs' "lawsuit was not premature, and the trial court was not in error in so finding."

This case shows, once again, the complexity of medical malpractice litigation and makes clear the need for a plaintiff to obtain counsel from an experienced attorney.

Continue reading "Medical Malpractice Case in Louisiana Shows Importance of Panels" »

The Louisiana Second Circuit Court of Appeals recently affirmed a $550,840 jury-verdict award based on a medical malpractice claim. The verdict accounted for both wrongful death and survival damages, all of which were awarded for the benefit of the decedents 8 surviving children.

In order to prevail in a medical malpractice lawsuit, the plaintiffs must show by a preponderance of the evidence that the hospital, their doctors, nurses and/or staff breached the applicable "standard of care," and that this breach of care was a substantial factor in contributing to the patients injury or death. The applicable standard of care is "the degree of skill ordinarily employed, under similar circumstances, by members of the health care profession in good standing in the same community or locality, and to use reasonable care and diligence, along with his or her best judgment, in the application of his or her skill to the case." The standard of care for medical malpractice claims is a comparative one; that is, a member of the medical profession is required to conduct themselves with the same amount of care as would a professional of equal status, under equal circumstances, and within the same community. For example, a nurse practicing medicine in a state-of-the art hospital in New Orleans would be subjected to the standard of care used by similarly situated nurses in similar hospitals, and a doctor would be held to the standard of a similarly situated doctor, etc., etc. Moreover, hindsight or subsequent events cannot be considered when determining whether the standard of care was breached. Instead, the judgment and conduct of medical professionals must be evaluated under the then existing circumstances.

In the instant case, the 75-year-old decedent underwent a colectomy and was recovering in the intensive care unit. She was recovering "fairly well" until December 2, 2003, at which point her condition began to deteriorate. She reportedly was having trouble breathing throughout the day and was pronounced dead at 6:28 P.M. The direct cause of her death and whether or not the hospital was at fault was an issue decided by the jury. The jury returned a 9-3 verdict in favor of plaintiffs, finding that Christus Schumpert Medical Center breached the standard of care in its treatment of the decedent, and the breach in the standard of care was a substantial factor in contributing to the death of the decedent. In reaching this verdict the jury heard testimony that the patient was having significant difficulty breathing throughout the day, and that the children of the decedent had brought this to the attention of the medical staff on several occasions. Moreover, that the attending physician ordered a number of medical tests to better assess the decedent's breathing troubles, and that these tests were not administered by the attending nurse. To be sure, there was some testimony that the attending nurse maintained the standard of care, and that the decedent may have died from a pulmonary embolism, which would have been sudden and unexpected, relieving the hospital of any fault. However, in the end the jurors weighed the volumes of testimony and 9 of the 12 jurors sided with the plaintiffs.

On appeal, the Second Circuit found no error in the trials court's ruling that would have had any substantial impact on the case. Moreover, the Second Circuit found that the jury verdict was reasonable in light of the evidence. It is important to point out that on appeal, the court will not reweigh the totality of the evidence. Instead, the court will only overturn a jury verdict on appeal if the evidence is so overwhelming that no reasonable jury could have decided the case the way that it did.

In fact, the jury verdict was a close 9-3 result - one less juror and the plaintiffs would have lost the trial. Moreover, the standard of review on appeal makes it very difficult to overturn jury verdicts. Thus, if you have been the victim of substandard care or negligent medical treatment, it is important to contact experienced legal representation so that complex matters such as these can be handled properly the first time, and you can secure the financial award you deserve.

Continue reading "Second Circuit Appeals Court Upholds Caddo Parish Wrongful Death Ruling" »

The Louisiana Supreme Court recently clarified rules of service of a medical malpractice lawsuit against State of Louisiana officials. The Court's conclusion recognizes that some notice requirements are more flexible than others. The case is also a warning about difficulties in knowing whether all parties to a lawsuit receive proper service of the opposing claim.

Whitley v. State Board of Supervisors of Louisiana State University Agricultural Mechanical College, ex rel. Medical Center of Louisiana at New Orleans-University Campus, No. 2011-CC-0040 (La. 7/1/11) resulted from medical care to Regina Whitley after she had been injured in an automobile accident when five months pregnant. She later delivered a stillborn infant. Whitley sued the hospital located in New Orleans for medical malpractice regarding its care of her and her unborn child.

Whitley's lawsuit was timely served on the Chairman of the University's Board of Supervisors. Two and a half years later, Whitley's lawyer faxed a copy of the citation and petition to the Attorney General (AG) and the Office of Risk Management (ORM). The University sought to have the case dismissed because it argued that the AG and ORM did not receive timely service. The argument failed at trial court and the court of appeals.

The Court explained that service to State officials is unusually complicated. Two statutes are involved, and the effect between the two was unclear. Louisiana courts had made different conclusions about the effects of the statutes. State defendants had recently begun to regularly use these statutes to argue lack of service.

La. R.S. 13:5107(A) permits lawsuits filed against a State agency to be served on the AG or proper officer or person "and on the department, board, commission, or agency head or person." The court admitted that this is a confusing statute. However, the use of the word "may" is permissive, and the use of the term "or" indicates alternatives. In effect, the statute specifies service may be made on the defendant government and its legal counsel. The statute does not require that service be made. A few paragraphs down, La. R.S. 13:5107(D) requires that failure to serve the State agency as a party within 90 days shall result in dismissal. This requirement, the Court said, means that La. R.S. 13:5107(A) could be read in two ways, including required dismissal. The Court considered such a result too harsh and against a policy favoring the maintenance of actions. Because Whitley had properly notified the University, the University knew about the case and had the opportunity to obtain a lawyer. She had complied with the statute.

In contrast, La. R.S. 39:1538 requires claims against the State "shall be served upon the head of the department concerned, the office of risk management, and the attorney general, as well as any others required by R.S. 13:5107." The Court said that this statute applied, but the University could not get the case dismissed based on it. The statute did not incorporate all the requirements and penalties of La. R.S. 13:5107 or the Code of Civil Procedure. All the statute requires is that "the AG, the ORM, and the department head" receive notice of tort actions. It does not specify a time, and it does not authorize dismissal for failure to effect service under the statute. Whitley's subsequent fax to the AG and ORM was, therefore, sufficient.

The Court's decision is just but not the only conclusion that could have been made about the statutes. La. R.S. 13:5107 requires service within 90 days from naming the state as a party, and if service is not made, the state "shall be dismissed," as long as proper motion for dismissal is made under the Code of Civil Procedure. The Court made an equitable choice based on the typical policy to avoid harsh results. After all, a State official knew about the lawsuit, so the State knew. Without the interpretation in this case, one could have anticipated such an error of service would result in dismissal. Similarly, although the Court is correct that La. R.S. 39:1538 does not mention dismissal as a penalty, one could have read the statute as supplemental to the prohibitions in La. R.S. 13:5107(D). Poor legislative drafting justifies the Court's interpretation. The results are not entirely consistent with the text of the statutes and rules, but the Court's decision clears away potential traps for the unwary.

This case demonstrates the complexities of properly serving parties. La. C.C.P. art. 1201(A) warns that citation and service of the citation "are essential in all civil actions. . . . Without them all proceedings are absolutely null." The applicable statutes in Whitley were not user friendly. Failure to properly serve opponents can result in dismissal. Therefore, it is crucial to make sure that all parties that need to know about the lawsuit receive service on a timely basis. It is for these questions that a lawyer is an investment to ensure that one's case gets heard and resolved on the merits.

Continue reading "Supreme Court Finds Sufficient Service in New Orleans MedMal Case" »

Louisiana Woman's

This latter part of the discussion regarding the McGlothlin v. Christus St. Patrick Hospital case is based upon the difference between issues of fact and law, and to who or whom such issues are to be determined. In this case, the issue gets blended with the difference between a lay person's opinion and the opinion of an expert. This difference, though most commonly an issue during a jury trial, where the rules of evidence permit certain statements and opinions specific to either a lay person or an expert witness. A lay person may make statements as to observations based upon the common five senses (sight, sound, tough, taste, and smell) and may not make a statement as to one's opinion regarding a material fact in question, that is the job of the jury. Similarly, an expert is permitted to make statements and observations based upon scientific, scholarly, or professional opinion regarding the facts, but as with lay person testimony, an expert may not make an opinion of the material fact in question, as it is the job of the jury. Thus, the job of the jury is to observe and digest the testimonies and facts presented, scrutinizing and determining whose is most credible, and thus determine, within the parameter of the law, the material fact or facts at issue.

Referencing back to the discussion in Part I regarding the medical review panel, the sole purpose of the medical review panel is to review all evidence and examinations of either party, and then "to express its expert opinion as to whether or not the evidence supports the conclusion that the defendant or defendants acted or failed to act within the appropriate standards of care." Specifically, the doctors on the panel would determine whether, in their expert opinion as doctors in the field of medicine, and even more specifically orthopedics in this case, if the hospital, doctors, nurses, etc. failed to act according to the proper standard of care owed to patients. Here is where the blur between such an issue between fact and law arises. It appears that the doctors, in their expert opinions, are making a statement to the determination of a material issue of fact, which as discussed is reserved to the jury, however, statutorily, the medical review panel is given the purpose to determine this issue and make its opinion and give reasons, in short, according to whether the evidence supports or does not support the conclusion that the defendant(s) (hospital, etc.) failed to comply with or meet the applicable standard of care. This is very similar to the question a jury would be asked if determining whether a hospital or doctor, etc. committed medical malpractice.

The problem here, and the difference between the ability of the medical review panel to make a decision versus a jury to decide, is in what luxuries each has in examining and analyzing the facts and law to make its decision. The medical review panel, through statute, is allowed only to examine and analyze the facts to make a determination based on an expert opinion, that in its expert opinion, both as a whole and individually, the medical review panel believes that there has, or has not been, an instance or instances of a breach of the duty of care owed to a patient or patients. However, a jury may take into account the mannerisms and demeanor of witnesses, as well as the credibility of those witnesses and testimony, and weigh the facts in accordingly. This ability to utilize judgment in the credibility of witnesses and testimony is not given to the medical review panel. What happened in this case is that the medical review panel came to its unanimous opinion because it did not find the testimony of the injured party (plaintiffs) credible, and thus determined that there was no breach of duty. This, of course, is not an expert opinion then, which violates the statute regarding the medical review panel's authority and role.

To summarize the result of the appeals in this case, the plaintiffs brought an action against the hospital and the findings of the medical review panel were admitted as evidence, which statutorily they are permitted to be, however, the judge allowed the findings into evidence through testimony and documents, but with the language that involves the credibility of the witnesses out. The Trial Court found for the Hospital (defendants). The Appeals Court however, found that the admittance of the findings of the medical review panel was improper and thus reviewed the case de novo, meaning the appeals court reviewed the case as though it was the first Court to hear the case, and found for the plaintiffs. On appeal to the Louisiana Supreme Court, the Court determined that the Appeals Court erred in vacating the judgment of the Trial Court and reinstated its finding in favor of the Hospital (defendants) stating that, although the medical review panel superseded its authority and thus its findings are not mandatorily admissible, the Appeals Court erred in finding that the admission was tainted and in its de novo review, when the Trial Court fixed this problem by not allowing the credibility information in the findings of the medical review panel into evidence.

If you or a loved one feels as though you are victim to the malpractice of doctors and other health professionals, contact the Berniard Law Firm to determine the validity of your claim.

Most people's fear of hospitals is usually justified in that one does not usually go to a hospital unless there is something wrong, or something negative has occurred. Everyone who seeks medical treatment, whether in a hospital or private doctor's office, is seeking an expert's diagnosis and treatment to prevent future, or cure current, ailments, or to have one's body 'fixed' in some way, as in a broken bone. Unfortunately, problems arise and the treatment one seeks does not always fully help, or even makes the issue worse. But sometimes, whose fault it is, that the problem does not subside, or that the problem only gets worse, is up for debate. That is where a medical malpractice issue arises, and the topic that shall be explored here.

The factual and legal basis of this discussion comes from the Louisiana Supreme Court case McGlothlin v. Christus St. Patrick Hospital, decided July 1, 2011. The issue in this case is, "whether [the Louisiana statute in question] mandates the admission of a medical review panel opinion when the panel exceeds its statutory authority and renders an opinion based on its determination of plaintiffs' credibility, not on the medical standard." The following questions must be asked first to clarify the terms and substance of this discussion: What is 'medical malpractice'? And what is a 'medical review panel?'

The term 'medical malpractice' gets thrown around more than it should. It is a specific legal negligence term devised to describe a cause of action that may be brought by a patient of a doctor and/or hospital claiming that the doctors, nurses, and anyone involved with the care and safety of the patient was negligent, and through this negligence, that a harm came to the patient that otherwise would not have occurred. More specifically, 1) a duty of care exists in which those that are employed to care for a patient must maintain the proper diligence in their medical and professional duties, 2) a doctor or nurse, or other individual employed in a professional and medical sense has breached this duty of care through his or her actions, or in the case of a hospital's negligence, through that actions of its employees (doctors, nurses, etc.), 3) that this breach of duty is the cause of the resulting harm to the patient, a harm that otherwise would not have happened and can be linked to the action(s) or inaction(s), of those who owe a duty of care to the patient, and 4) that a harm is the result of that breach that would otherwise not have occurred, and is something not reasonably foreseen so that there is no other cause than the breach of the proper duty of care owed to the patient.

A medical review panel is made up of three doctors and an attorney to hear a claim of medical malpractice in an attempt to curb costs of litigation for both parties involved, patients and hospitals, and more specifically, to curb health insurance costs. The statutory creation of the medical review panel prevents any litigation in matters of medical malpractice unless the complaint was initially submitted to the panel. It is the medical review panel's purpose to hear both sides' case, and issue its expert opinion as to whether it is an instance of medical malpractice. The hope here, is that the medical review panel will filter frivolous claims and potentially foreshadow successes or failures in litigation and lead to settlements outside of court. The sole purpose of the medical review panel is to review all evidence and examinations of either party, and then "to express its expert opinion as to whether or not the evidence supports the conclusion that the defendant or defendants acted or failed to act within the appropriate standards of care."

What will be further explored, and what is the major issue in this case, is what is the authority of this medical review panel and what happens if and when the panelists overstep their authority and begin to make judgments of fact, stepping into the realm of the juror. This will be discussed in Part II.

Continue reading "Louisiana Woman's Knee Replacement Leads to 'He Said, She Said' Confrontation (Part I)" »

One of the first things that must be determined in a potential medical malpractice claim is whether the statute of limitations bars the claim. An otherwise legitimate malpractice lawsuit may be invalid simply because the injured party waited too long to file the claim. In the State of Louisiana, the statutory period in which a claim must be filed is referred to as the "prescriptive period." If a case is "prescribed", it is beyond the statutory period. Louisiana statutory law (La. R.S. 9:5628(A)) states that malpractice suits must be filed "within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission or neglect."

In a recent Louisiana Court of Appeals Case, Amos v. Crouch, the court addressed the issue of what constitutes "discovery" of the alleged negligent act or omission. In the Amos case, Dr. Crouch, a Jackson Parish general surgeon, diagnosed a patient with severe hemorrhoids when in fact the patient had colorectal cancer. After receiving the hemorrhoids diagnosis from Dr. Crouch, the patient decided to see another doctor for a second opinion. After a brief examination, the second doctor ordered tests that ultimately revealed the colorectal cancer. The Court of Appeals concluded that it was at the time of his cancer diagnosis that the statutory period began to run. The Court declared, "Prescription begins when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort." It is important to note that knowledge only refers to "such information that ought to put the alleged victim on inquiry." Therefore, in certain circumstances, a correct diagnosis from a second physician can equate to "discovery" of the doctor's negligent act, triggering the prescriptive period.

However, the court refused to treat a correct secondary diagnosis as a per se reasonable belief that the original doctor committed malpractice. Instead, the court declared, "it depends on the particular circumstances of each case." But, the Amos case does infer that a correct secondary diagnosis, although not conclusive, acts as strong evidence toward proving that a reasonable person would have discovered the possibility of malpractice at that time.

Of course, a secondary diagnosis that proves a previous diagnosis to be erroneous does not necessarily equate to malpractice. It is certainly possible for doctors to maintain their duty of care while reaching an ultimately erroneous diagnosis. Even so, there is always the possibility that an erroneous diagnosis may have been caused by negligence. Therefore, it is important for all patients to be weary of the short prescriptive period in Louisiana (one year), and to understand that a correct secondary diagnosis may start the clock on the one year timer. Therefore, if you believe you may have been the victim of medical malpractice, your best chance of compensation is to contact an attorney as soon as possible to ensure the statute of limitations does not expire.

Continue reading "Statute of Limitations on Medical Malpractice Claims in Louisiana: Information Every Patient Should Know " »

With the vast criticisms that surround medical malpractice cases, it is no wonder why many keep a close eye on these types of cases. While it is very rare for an appellate court to do so, once in a blue moon an appellate decision will overturn a jury verdict of a medical malpractice judgment. Patten v. Gayle is one of those cases in which the plaintiff appeals the court’s verdict that malpractice occurred, but resulted in no injury and thus awarded no damages.

The plaintiff, Ms. Charlotte Patten, was the patient of her OB-GYN, Dr. Christopher Gayle, the defendant. Dr. Gayle had scheduled Ms. Patten for a laparoscopic evaluation after Ms. Patten complained of severe pain that was believed to be related to an abdominal hysterectomy she received from Dr. Gayle in 1997. In performing the procedure, Dr. Gayle placed multiple operative trocars (a medical instrument used to gain access into the abdominal cavity) throughout the abdominal area in order to insert a laparoscope, which enabled Dr. Gayle to see within Ms. Patten’s abdominal cavity. While performing the procedure, Dr. Gayle moved the trocars to gain better visibility of Ms. Patten’s abdominal cavity, and inadvertently punctured Ms. Patten’s abdomen. Initially, Dr. Gayle did not believe that the abdomen cavity had been compromised, but after further investigation later in the procedure, Dr. Gayle discovered that the trocars had penetrated through Ms. Patten’s small bowel. The result of the injury required Dr. Gayle to have the hospital’s general surgeon perform an emergency surgery on Ms. Patten to correct the error. In addition, feculent material was found to have leaked into Ms. Patten’s abdominal cavity a few days after the surgery had been completed, resulting in an abdominal infection known as peritonitis and pneumonia. After her recovery, Ms. Patten filed a medical malpractice suit against, among other individuals, Dr. Gayle. The jury determined that Dr. Gayle had in fact deviated from the required standard of care and had committed malpractice, but found that his actions did not result in the injuries sustained to Ms. Patten and awarded no damages. Ms. Patten appealed stating that the jury manifestly erred in finding a lack of causation between Ms. Patten’s injuries and Dr. Gayle’s malpractice.

In medical malpractice cases, the appellate courts apply the manifest error standard of review when ruling on issues of causation. The manifest error standard, as stated in Johnson v. Morehouse General Hospital, mandates that an appellate court may not overturn a trial court’s ruling, unless it is determined that the court’s factual determination is clearly wrong or manifestly erroneous. The court in Johnson states that it is not enough that the appellate court disagree with the trial court’s decision, it must find that there is no reasonable factual basis for the trial court’s conclusion. The court in Lovelace v. Giddens requires the appellate courts to pay close attention to medical malpractice cases when it comes to conclusions of causation, as great deference must be given when medical experts make differing conclusions as to medical causation.

While the appellate court affirmed the trial court’s conclusions about the causation of Mr. Gayle’s performance, the court did reverse the finding that the injuries to Ms. Patten’s bowel and the time and expense of its repair were not related to Dr. Gayle’s negligence. The appellate court determined that additional costs were directly incurred because of Dr. Gayle’s puncturing of Ms. Patten’s bowel. The appellate court explained that Ms. Patten’s placement under anesthetic gases for a longer period of time to repair the punctured bowel, for instance, was a direct result of the negligently punctured bowel. Such additional costs would not have occurred had Dr. Gayle properly performed the procedure, concluding that the trial court’s decision that no causation existed between some of the injury and Dr. Gayle’s negligence was manifestly erroneous. Because of the conflicting testimony from medical experts, the lack of damages awarded for the post-surgery illnesses sustained by Ms. Patten was not reversed. Based on the direct medical expenses to the repair of Ms. Patten’s bowel and some pain and suffering related to her injury, the appellate court awarded just over $14,000 in damages.

The small amount of damages awarded to Ms. Patten as a result of her appeal highlights the very difficult and technical nature of medical malpractice cases. Full of medical jargon and expert testimony, it is a rarity that one would see a reversal in judgment for such a case as Ms. Patten’s. However, medical accidents do happen, and it is always important to consult a lawyer if you believe to be the victim of any medical procedure believed to have gone wrong.

A lawsuit can be resolved in many ways. Prior to formal court proceedings, the suit may be dropped voluntarily for one reason or another, or the parties might come to an agreement in mediation. If the case goes to trial, it may be resolved with the judge or jury entering a verdict after a full trial. It may also be resolved before the close of proceedings by way of dismissal. If a case is dismissed it can have serious repercussions for a suit, and often destroys the likelihood of recovery if a dismissal is entered against a plaintiff. There are many types of possible dismissals that can end a proceeding including the involuntary dismissal of a claim.

Louisiana Code of Civil Procedure Article 1627 governs involuntary dismissal. The plaintiff presents their case first, and upon the completion of the presentation of the plaintiff’s case, the defendant may make a motion for involuntary dismissal. The judge then reviews the evidence presented. If he finds the plaintiff has shown no right to relief, he may grant the motion for involuntary dismissal. On a motion for involuntary dismissal, the plaintiff’s testimony should generally be accepted as true. So long as the plaintiff has presented enough evidence to establish his argument by a preponderance of the evidence, a fairly low burden of proof, the case should be allowed to proceed and the motion denied. If the motion is granted, the plaintiff can appeal the decision. A decision granting involuntary dismissal is difficult to overcome on appeal but it is not impossible. The 2011 case of Settle v. Paul illustrates what can happen where a plaintiff successfully appeals an involuntary dismissal.

In 2009, James Settle sued Brenda Michelle Paul, his ex-girlfriend, in a dispute over the existence of a partnership agreement between the parties. Mr. Settle and Ms. Paul formed a construction company and took on several small projects in the company’s infancy. In 2003, Ms. Paul filed the necessary paperwork to have the company incorporated in Louisiana, forming the limited liability corporation Landmark Construction Company of Coushatta (Landmark). She was listed as the sole member of Landmark. Mr. Settle agreed that the parties decided Ms. Paul would be the sole member of the corporation because they wanted the company protected from seizure against Mr. Settle’s child support obligations. The company was profitable throughout the duration of its operation.

Mr. Settle and Ms. Paul’s personal relationship deteriorated, and they separated in 2008. Mr. Settle left the company, and Landmark ceased all operations. Ms. Paul refused to give Mr. Settle access to Landmark records or funds and took the position that she was the owner of the company and that Mr. Settle was merely an employee. Mr. Settle filed his suit seeking recognition as a co-owner of Landmark and a partition of the company’s assets. He argued that, as business partners, he and Ms. Paul each owned one-half of the company. The case proceeded to trial where Judge Peyton Cunningham of the Judicial District Court of Red River Parish granted Ms. Paul’s motion for involuntary dismissal of the case. The court held that Ms. Paul was the sole owner of Landmark based on documentation presented to the court.

Mr. Settle appealed the decision arguing that the court erred in granting the motion, because he had presented enough evidence to establish that a partnership had existed between himself and the defendant. The Second Circuit Court of Appeals of Louisiana agreed. It reversed the dismissal citing evidence presented by the plaintiff that Ms. Paul was listed as the sole owner of the company only to protect it against Mr. Settle’s child support obligations and that there was evidence of intent that the company be owned equally between the parties. The matter was sent back to the trial court for a completion of the trial on the merits. In other words, Mr. Settle was awarded a chance to have the case fully heard in court.

To ensure you receive a full and fair trial based on the merits of your case you need representation with knowledge of the possible outcomes of litigation. If you have a claim for personal injury or an insurance dispute, you need the services of an effective legal team to help you with your case.

Continue reading "The Complexities of the Involuntary Dismissal of a Claim" »

Previously on this blog, we have explored a number of cases where a party has faced defeat in court because of the failure to follow a procedural rule in litigation. Louisiana's rules of civil procedure are designed to require a timely commencement to a suit and to ensure that the suit is then adjudicated in an expedient manner. Similar rules apply to the procedure for summary judgments. Motions either for or in opposition to summary judgments may be accompanied by affidavits (in fact, in some cases, affidavits are required). An affidavit must be filed no later than eight days prior to the hearing on the motion. La. C.C.P. art. 966(B). A party's failure to observe this time requirement will result in the court's excluding the affidavit from consideration. As the plaintiff in Sims v. Hawkins-Sheppard learned, such a failure can result in a dismissal of the case when the affidavit is critical to opposing summary judgment.

On May 22, 2009, Rebecca Sims sued Dr. Tonya Hawkins-Sheppard alleging medical malpractice after Sims's son was severely injured and disfigured during delivery at the Glenwood Regional Medical Center in Ouachita Parish. During the discovery phase, Hawkins-Sheppard requested the identity of any medical expert who could support Sims's claim of malpractice. Sims responded that she had not consulted a medical expert, and Hawkins-Sheppard filed a motion for summary judgment. A hearing on the motion was set for May 4, 2010. Sims requested, and was granted, a continuance of the hearing until July 7, 2010. Sims then filed an opposition to summary judgment that included an unsigned physician’s affidavit. Sims's lawyer stated that the unsigned affidavit would be replaced with a valid affidavit before the scheduled hearing on the motion. No such substitution was made. On the day of the hearing, Sims explained to the trial judge that she had fired her lawyer and was seeking new counsel. Sims suggested that she had been misled by her attorney. Refusing to permit further delay, the judge went ahead with the hearing and then granted Hawkins-Sheppard's motion for summary judgment. Sims appealed. The Second Circuit found that the trial court had abused its discretion in failing to permit Sims a reasonable amount of time to find new counsel and to substitute the unsigned affidavit with a valid, signed version. Hawkins-Sheppard then appealed to the Supreme Court of Louisiana, which reached a different result. "[W]e find no abuse of the trial court’s discretion in this case," the supreme court stated. "[Sims] failed to show 'good cause' under La. C.C.P. art. 966(B) why she should have been given additional time to file an opposing affidavit." Consequently, the court concluded, there was no genuine
issue to the material fact that Sims was unable to prove that Hawkins-Sheppard breached the standard of care. A medical malpractice action is one that, on summary judgment, requires a valid affidavit containing a medical expert's opinion on the issue of the doctor's breach of duty. Had Sims's motion been accompanied by a valid affidavit, she could have avoided the trial court's grant of summary judgment. Thus, the court reversed the Court of Appeal and affirmed the trial court's grant of summary judgment in favor of Hawkins-Sheppard.

The result in this case, though it may appear harsh to the plaintiff, points up the seriousness with which the Louisiana courts take the rules of civil procedure. For any plaintiff, retaining experienced and competent counsel is essential to ensuring that the case is not lost due to the failure to observe deadlines or the violation of some other procedural rule.

Continue reading "Ouachita Parish Medical Malpractice Case Reminds Litigants of the Importance of Meeting Litigation Deadlines" »

In order for a court to have jurisdiction over a person, proper service of process must be employed, giving legal notice to the party of the suit and enabling them to timely prepare in anticipation of the suit. If proper service is not performed, a court may not have jurisdiction over such person. In a recent Louisiana Supreme Court case, the requirements of proper service were explored in order to determine whether the proper steps were employed. proper service of process is one of the most important parts of a law suit, without proper service, the defendant may not be forced to participate in the case. Thus, the importance of proper service cannot be emphasized enough.

The case at issue involves the plaintiff, who fax-filed suit against several defendants, including the State of Louisiana, through the Department of Transportation and Development (DOTD), seeking to recover damages arising from an automobile accident. In the plaintiffs petition, requested service on DOTD though the attorney general was made. The issue became whether the plaintiff's service of process was insufficient based on the fact that he did not request service on the secretary of DOTD. Citing to Louisiana Revised Statute 13:5107(A) which provides in part:

"In all suits filed against the state of Louisiana or a state agency, citation and service may be obtained by citation and service on the attorney general of Louisiana, or on any employee in his office above the age of sixteen years, or any other proper officer or person, depending upon the identity of the named defendant and in accordance with the laws of this state, and on the department, board, commission, or agency head or person..."

The plaintiff has 90 days from filing the complaint, to properly serve the named defendant(s). Here, the defendant argues that the plaintiff failed to request proper service within 90 days of the filing of his suit pursuant to La. R.S. 13:5107(A), entitling DOTD to the dismissal of the plaintiffs claims. the issue is whether or not litigation involving two state agencies requires double service, i.e., service on the agency head and the attorney general. The appellate court relied on jurisprudential interpretation to dismiss the plaintiffs claim, stating that the interpretation of LSA-R.S. 13:5107 mandates service of citation on the state agency must be made upon the attorney general and on the agency head for the department against whom the action is filed. However, upon the Louisiana Supreme Court's grant of supervisory writ, the court specifically explored whether an actual "double service" was indeed required. The Court held that a double request for service is not necessary. Clearly, the plaintiff's request for service on the attorney general alone satisifed the service requirements of LSA-R.S. 13:5107(A). This is supported by LSA-R.S. 39:1538 which neither imposes a time constraint on the service required by the plaintiff nor provides for dismissal for the failure to effectuate service. In fact, the plaintiff's failure to request service on the department head and the office of risk management within 90 days of commencement of his action did not entitle DOTD to the dismissal of his claims against it. Since there are no time periods set forth nor a requirement for dismissal, the Louisiana Supreme Court held that the incomplete service can be cured by the plaintiff simply requesting and obtaining service of process on DOTD's secretary and the office of risk management, and the appellate court had erred in failing to allow him the opportuity to so do.

In summary, proper service is monumentally important in allowing a case to go forward against a specific defendant. If proper service is not effectuated the complaint may not be heard. However, if the plaintiff has properly served named defendants according to the revised Statutes, than his complaint may not be dismissed for a mere technicality that requires him to further serve specific parties within a state agency. As a result, a plaintiff who properly does perform service on the "main" defendants as named in the revised statutes will be permitted to remedy the incomplete service by permitting extra time to obtain service on the additional enumerated parties.

Numerous prior posts on this blog have examined Louisiana's system for helping plaintiffs who have been the victim of medical malpractice. Although the state's medical review panel is in place to screen potential claims before they get to court, a plaintiff must still rely on competent legal counsel to see the case to resolution. So important is the lawyer's role that the courts have consistently held that when a litigant loses his day in court solely due to his attorney's negligence, strictly enforcing a technical rule should not result in the miscarriage of justice. This principle was recently relied upon by the Second Circuit Court of Appeal in the case of Sims v. Hawkins-Sheppard to avoid an unjust outcome for the plaintiff.

Rebecca Sims was admitted to the maternity ward of the Glenwood Regional Medical Center in Ouachita Parish on April 2, 2007 for the delivery of her baby. She requested a delivery by Caesarean section due to complications she experienced with her first child. Sims's doctor, Tonya Hawkins-Sheppard, nevertheless decided to perform a surgical vaginal delivery
with the use of forceps. Sims's baby suffered permanent eye injuries from the use of the forceps, and Sims herself suffered injuries that required a hysterectomy. Sims submitted her claim to the state's medical review panel. She alleged that she was heavily medicated and in great pain, and therefore did not give consent for the delivery as performed by Dr. Hawkins-Sheppard; further, Sims asserted that Dr. Hawkins-Sheppard breached the applicable standard of care in the delivery of her baby. After receiving the review panel's opinion that Dr. Hawkins-Sheppard did meet the standard of care, Sims filed a lawsuit. Dr. Hawkins-Sheppard filed a motion for summary judgment when Sims's counsel responded to discovery requests with a statement that Sims did not have a medical expert who could offer an opinion. Sims's counsel then filed a memorandum in opposition to the motion for summary judgment which contained an unsigned physician’s affidavit. Sims's lawyer assured both Sims and the court that the unsigned affidavit would be replaced with a valid affidavit before the scheduled hearing on the motion. But Sims's lawyer failed to obtain the signed affidavit because he did not present it to the physician, Dr. Kimberly Hess, before she left for vacation out of state. Sims learned of this only the day before the hearing, at which time she fired her attorney. At the hearing, Sims explained the situation to the court but the judge refused to grant a continuance so she could obtain new counsel. Instead, the court granted the motion for summary judgment. Sims found new counsel about a month later, who immediately filed an appeal of the court's granting of summary judgment for Dr. Hawkins-Sheppard.

The Second Circuit noted that under La. C.C.P. art. 966(B), affidavits to oppose a motion for summary judgment must be filed eight days prior to the hearing on the motion, which Sims's original counsel clearly failed to do. However, "the trial judge retains great discretion regarding the time of filing. The court shall give the adverse party additional time to file a response, including opposing affidavits, if good cause is shown." Furthermore, it is entirely within the trial judge's discretion to "continue the hearing to enable compliance with the eight day filing requirement." Citing the principle for ensuring the proper carriage of justice, the court noted that Sims was not aware of her attorney’s failure to obtain a valid affidavit and that, even though the doctor would have been able to correct the problem simply by signing the affidavit, the trial court "rendered judgment..., closing its doors to a trial on the merits of [Sims's] case." Yet, it is the court's duty "to permit litigants all reasonable opportunity to place before a court all facts bearing on the issues involved." The court concluded:

"When weighing the options of giving a litigant, who was misled by her attorney, more time to obtain the necessary documents that are, based on the record, easily attainable versus shutting the doors to litigation, we find that the trial court abused [its] discretion... The trial court should have allowed [Sims] a reasonable amount of time to obtain new counsel and secure the signature of Dr. Hess rather than cutting off [Sims] at the summary judgment phase, which was a clear and direct result of her being misled and deceived by her former counsel."

Thus, the court reversed the trial judge’s grant of summary judgment and remanded the case to the trial court for further proceedings.

One cannot help but sympathize with a plaintiff whose physician inflicts serious injuries to her and her baby and who then encounters an astonishingly ineffective lawyer. Although Sims presumably will have her day in court following the Second Circuit's decision, other plaintiffs may not be so fortunate if they put their trust in an attorney who is not experienced in medical malpractice litigation.

Continue reading "Ouachita Parish Medical Malpractice Case Reveals Second Circuit's Interest in Allowing Plaintiffs Their Day in Court" »

The ABA (American Bar Association) has called upon lawyers and non-lawyers alike to submit blogs from across the internet as exceptional examples of legal advice and content. With content about the law ranging widely across the internet, the ABA recognizes the value of those blogs that wish to educate the public about a wide range of issues as examples of how attorneys can help bring an understanding of public policy to the masses.

Through a form, located here, ABA members and/or the public can nominate the efforts of attorneys whose work helps explain the complexities that the law has to offer. While the competition prevents bloggers from nominating themselves, the ABA has requested that the work of their peers be showcased. Due by September 9th, blog suggestions can cover any topic of the law, whether maritime, personal injury, civil or criminal in nature. This possibility of diversity makes the Top 100 list all the more interesting because of the wide variety of content the selected are sure to cover.

If you know of a blog that wishes to discuss legal issues of interest to lawyers (and perhaps those outside of the field), click here to fill out the ABA's form. Limited to 500 words, nominations should explain why the blog, obviously, deserves to be included in the list as well as its value as a whole. Nominated sites should avoid the regurgitation of content from other sites (copy and pasted quotes of news items, etc.), showing that the main focus of the content is original discussion of those issues of law that affect professionals as well as the public.

We will undoubtedly be checking out this list as it is sure to contain content that is of interest not only to residents of Louisiana but across the country. For a directory of 'blawgs,' as categorized by the American Bar Association, you can click here to tour the spectrum of content available by state or topic.

This blog was started as an effort to not only showcase the knowledge of our law firm but to also provide people, whether residents of New Orleans, Louisiana, the Gulf Coast, or throughout the country, a resource that explains how the law is important to their everyday lives. Blogging is a powerful tool not only in the legal profession but as a medium of empowering people who may not realize that an instance of tragedy or harm comes with it legal recourse. We hope that the content we have provided over time has helped people find an answer to legal issues or simply gain a little bit of knowledge about how this country's system of law works. This is said not to shill for a nomination to the aforementioned contest but, instead, to note that this ABA-sponsored contest highlights something we feel strongly about, that being the power of legal blogs.

We hope you continue to enjoy your weekend and will have new content available Monday.

When you have kids, you know how painful it is to watch when they are sick, to worry about every scratch, every bite. What is worse is when one child is sick, but another's pain and suffering could have been prevented or alleviated with proper notice and tests. This is precisely what happened to Mickey and Amy Atkinson who consulted Dr. Young for treatment of their son Gabriel's deep-skin pigmentation condition.

During the visit, Dr. Young diagnosed Gabriel with idiopathic Addison's Disease but failed to test him to determine the cause of the disease, and this turned out to have reprecussions for the family. When Gabriel did not feel better, the Atkinsons sought a second opinion from another doctor, Dr. Janna Flint. To the family's great dismay, Gabriel tested positive for a potentially fatal case of Addison's Disease, which if left untreated, would result in death by age thirteen.

Upon finding this out, Dr. Flint recommended that the Atkinson's other two sons get tested for this disease. As a result of Dr. Young's failure to test the other sons, Evan and Luke, the Atkinsons filed suit alleging Dr. Young's failure to test and sought damages. The doctor, however, stated that this case falls into an exception set out by the Louisiana Patient's Fund Compensation Oversight Board because Luke was not a patient as defined within the meaning of the MMA (The Louisiana Medical Malpractice Act). Because of this exception, the claim is not subject to review by the medical review panel. Fortunately, the trial court heard the case and found that through Gabriel, Luke was a patient. Not only was the family dealing with the stress of two sick children, they were now preoccupied with the next steps to take in this matter.

There are ways for plaintiffs to file suit under this act, but there are also ways for the defendants to get around it. For example, if the patient fails to submit a claim to the medical review board before the institution of the suit, then remedy is the exception of prematurity. The MMA also has a narrow definition of the word "patient" which means a natural person who receives or should have received healthcare. But where does this leave parents like the Atkinsons and patients like Luke and Evan?

While Dr. Young alleged that there was no patient/physician relationship between him and Luke, Dr. Young was aware that this is a fatal, genetic disorder and a reasonable, careful doctor would have thought to test the siblings as well as the "patient." While Luke may not have been a direct patient as defined by the MMA, he was still a patient in the sense that his brother was just diagnosed with a rare fatal disease, the result of which could be coma or death. This is alarming enough to make sure all children in the family are safe because based on the stated physician/patient relationship with Gabriel, there are cases that fall into exceptions in situations like these.

If you think you may have claim for medical malpractice or just want to speak to a professional who understands your needs and rights, call a team of people who are happy to address any of your concerns and questions.

Continue reading "Parents File Suit When Minor Child Suffers as a Result of Physician's Failure to Test Brother" »

Hospitals, their staff, and doctors must treat patients in accordance with an established "standard of care." A standard of care is generally the amount of care a reasonable person would exercise in a particular situation. For doctors and nurses this means that they must act in a manner similar to a reasonable person with similar training and skills in that profession. They must conform their conduct to the customs of their profession.

In the seminal case, Belinda and Jonathon Johnson ("the plaintiffs") filed a lawsuit against Morehouse General Hospital and Ms. Johnson's treating doctor. The plaintiffs alleged that the negligent care provided by the treating doctor and the hospital staff to Ms. Johnson resulted in injuries to plaintiffs' son.

Belinda Johnson is an insulin-dependent diabetic and, because of this condition, her pregnancy was considered high-risk. In such high-risk pregnancies, delivery is usually accomplished through a C-section once the baby's lungs have sufficiently developed. When Ms. Johnson was approximately 36 1/2 weeks pregnant, she made an appointment with her treating doctor because she had become concerned about the baby's health. Over the course of the next four days, Ms. Johnson received care from Morehouse Hospital staff and her treating doctor because of continuing concerns regarding the Ms. Johnson's baby. According to the trial court jury findings, both the Morehouse Hospital staff and the treating doctor were negligent in their care of Ms. Johnson. Ms. Johnson's son was born with brain damage and cerebral palsy which were caused by lack of oxygen to the brain during the delivery process.

The jury found that the actions of the hospital staff and the treating doctor fell below the applicable standard of care which resulted in injury, loss, and damage to the Johnson's son. A determination of fault in a medical malpractice suit requires a fact-specific analysis in each case. Based on the evidence presented, the jury apportioned 80% of the fault to Morehouse hospital and 20% of the fault to the treating physician. This finding was appealed. The court of appeal found that "the jury was manifestly erroneous" in its findings and re-apportioned the fault, finding Morehouse Hospital 20% at fault and the treating physician 80% at fault. The Louisiana Supreme Court reviewed the case to determine if the court of appeal properly modified the jury verdict.

When a party brings a medical malpractice lawsuit against a doctor or a hospital, that party, known as the plaintiff, must establish that 1) the established standard of care governing the doctor's and/or hospital staff's actions; 2) the doctor and/or staff failed to practice within that standard of care and therefore acted negligently; and 3) that the doctor and/or staff's actions were the cause of the resulting injuries to the plaintiff.

Nurses are held to the same standard of care as doctors. In an action against a hospital, the plaintiff must demonstrate that the hospital staff provided sub-standard care which resulted in injury to the plaintiff. In cases where two or more parties are accused of causing injury to the plaintiff, a jury may apportion the fault among the parties accused, based upon each party's relative negligence. A party may be relieved of its responsibility for its negligence, if after that party's conduct has ceased, but before the plaintiff has suffered injury, an intervening cause, such as another's negligence, comes into play and alone causes the plaintiff's injuries. However, if the original party should have known that his or her negligence could result in injury, he or she will still be liable for negligence, even if there is an intervening cause. If a jury finds that multiple parties are at fault for a plaintiff's injuries and that case is later appealed to a higher court, and that court of appeals finds that the jury's apportionment of fault is "'clearly wrong,'" that court should adjust the award using certain factors.

In the Johnson's case, the Louisiana Supreme Court used the factors laid out in a 1985 Louisiana Supreme Court case, Watson v. State Farm Fire & Casualty Insurance Co., to reapportion the fault between the treating doctor and the hospital after finding that the jury's apportioning 80% of the fault to the hospital and 20% of the fault to the physician was incorrect based on the evidence presented. As stated in the supreme court's decision, the five factors an appellate court should consider in determining the degree of fault are: "(1) whether the conduct resulted from inadvertence or involved
an awareness of the danger; (2) how great a risk was created by the conduct; (3) the
significance of what was sought by the conduct; (4) the capacities of the actor,
whether superior or inferior; and (5) any extenuating circumstances which might
require the actor to proceed in haste without proper thought." After weighing these five factors, the court reapportioned the fault, allocating 50% to the doctor and 50% to the hospital.

This case demonstrates the importance of facts and court discretion in the awarding of damages in a medical malpractice lawsuit. The evidence regarding individual negligence, and the manner in which that evidence is presented, is very important to both trial court and appellate court proceedings. Not having the proper legal representation may lead to such issues being mishandled and a ruling less favorable than you deserve.

Continue reading "Louisiana Supreme Court Changes Apportionment of Fault in Medical Malpractice Case " »

After filing a lawsuit, plaintiffs are required to notify defendants of the impending suit so that they may defend and respond to the claim. Without notice that a lawsuit has been filed against them, defendants' due process rights may be violated if an unfavorable judgment is entered or rendered without their knowledge. The time frame for this requirement - commonly known as "service of process" - varies among state and federal jurisdictions. In Louisiana, plaintiffs have ninety days from filing a lawsuit to request service of process, which is known in Louisiana as “citation and service.” The lawsuit officially begins once a defendant receives citation and service because only then will a court have jurisdiction over all of the parties. If service is not completed within the statutory period, defendants may justifiably make a motion to dismiss the case. Plaintiffs, however, may be able to defeat a motion to dismiss if they can show good cause for being untimely with the requirement. This issue was recently before the Supreme Court of Louisiana in George Igbinoghene and Sebastian Busari v. St. Paul Travelers Ins. Co.

In the seminal case, Igbinoghene and Busari (hereinafter "plaintiffs") filed their petition in the parish of Orleans on May 18, 2007, but failed to request service within ninety days of the filing date. St. Paul Travelers Insurance Company (hereinafter "St. Paul") filed a motion to dismiss for insufficient service of process. The district court denied the motion and St. Paul appealed.

On appeal, the plaintiffs argued that denying the motion to dismiss was proper because good cause was shown for being untimely since they agreed to St. Paul's request to extend the time to file responsive pleadings. The Supreme Court found this argument unpersuasive given that such events occurred in 2008 and 2009, which were outside of the relevant period. Moreover, the Supreme Court stated that requesting an extension to file pleadings did not act as an express, written waiver of citation and service. In addition, the Supreme Court declared that St. Paul's knowledge of the suit did not make citation and service unnecessary. To support this assertion, the Supreme Court relied on Naquin v. Titan Indemnity Co., a Louisiana Fourth Circuit Court of Appeals case, which held that "defendant's actual knowledge of a legal action cannot supply the want of citation because proper citation is the foundation of all actions."

Accordingly, the Supreme Court reversed the decision of the lower court and granted St. Paul's motion to dismiss because it found that the district court erred in denying the motion. Igbinoghene and Busari v. St. Paul shows us that it is important to have competent representation that will successfully prepare for and fulfill the procedural requirements in bringing a lawsuit. As this case demonstrates, there are grave consequences, such as losing your case, if the lawsuit is challenged and dismissed on procedural grounds.

Continue reading "Louisiana Supreme Court Dismisses Plaintiffs' Case Based on Failing To Show Good Cause For Untimely Service of Process" »

Gleason v. Louisiana Dept. of Health and Hospitals is a Medical Malpractice case arising out of the unfortunate death of a 47-year-old severely mentally challenged man, Donnie Gleason. Donnie had been a resident of Northwest since December of 1974 and was nonverbal and incapable of self-medicating, arranging or monitoring his own medical assistance. On December 23, 2002, after two earlier unsuccessful attempts, Donnie was transported to Willis Knighton Medical Center ("Willis Knighton") in Bossier City, to undergo a routine CT scan and EEG after he suffered a seizure. When Donnie returned, he was lethargic and placed in the infirmary.

The documentation of his treatment there showed that Donnie had ingested a foreign object which caused a bowel impaction that precipitated Donnie’s fecal vomiting. Presumably due to his condition, Donnie was unable to expel the vomit and breathed some of the gastric content into his respiratory tract. At Willis Knighton, Donnie was placed on a ventilator in the intensive care unit and diagnosed with bowel obstruction, respiratory failure and aspiration pneumonia relating to the vomit aspiration. After a brief recovery, Donnie once again went into respiratory distressed, was placed on a ventilator, and passed. The staff were unable to revive him.

In Louisiana, medical malpractice complaints must first be filed with the Louisiana Patient’s Compensation Fund before a lawsuit may be commenced. That organization’s medical review panel ruled for the defendants in this action - Northwest (intermediate care facility) and Willis Knighton (hospital) and their doctors and physician’s assistants individually. The panel concluded that the evidence did not support the conclusion that Northwest failed to comply with the appropriate standard of care because they found no evidence that Donnie ingested a foreign object while there. After the panel ruling, Donnie’s family filed suit against Northwest and Willis Knighton. They alleged, among other things, that Northwest’s failure to properly supervise Donnie and his treatment and its failure to recognize the seriousness of his condition and the inadequacy of the monitoring of Donnie’s respiratory status.

To establish a claim for medical malpractice, a plaintiff must prove (1) the standard of care applicable to the defendant; (2) that the defendant breached that standard of care; and (3) that there was a causal connection between the breach and the resulting injury. The testimony of an expert is generally required to establish the applicable standard of care and whether that standard was breached, unless the negligence is so obvious that it can be inferred with expert guidance. Expert testimony is not required, but is typically relied upon to prove causation when its determination is not a matter of common knowledge.

Northwest filed a motion to be summarily dismissed from the case because Donnie’s family initially did not designate any expert and Donnie’s family asked for an extension, which the Court granted. Even after Donnie’s family submitted an unsigned affidavit from an experienced nurse, the Court granted Northwest’s motion on the ground that the affidavit was not enough to establish a breach of the duty of care.

After another adverse ruling, Donnie’s family appealed to the Court of Appeals (“COA”) seeking a new trial, arguing that the Court needed no additional information to determine causation. The COA found that a fact issue remained regarding Northwest’s duty to protect Donnie from the danger that could result from his access to an object which the circumstances indicate he may have swallowed, since Donnie was primarily in Northwest’s custody in the days leading up to the discovery of the object. Moreover, the COA thought the matter should proceed to trial since the causal link between the object’s impaction of Donnie’s bowels also still needed to be resolved.

Unfortunately, Donnie’s family’s attorneys initially failed to get their expert to sign her affidavit, which required much procedural maneuvers at considerable expense and at the risk of having the case thrown out altogether. All of these remedial steps also delayed what compensation may eventually come to Donnie’s family and cost them more in legal fees. Competent legal representation is invaluable in an area as technical and regulated as medical malpractice. The need for expert testimony and the sufficiency of claims making out an allegation of medical malpractice call for seasoned skills and a conscientious and personal touch.

In a recent medical malpractice case, the Second Circuit Court of Appeal for the State of Louisiana found Dr. Donovan Bailey not liable for medical malpractice. His patient, Mrs. Mary Prine, died at the age of 58 a mere two months after being diagnosed with colon cancer. Her surviving spouse and two children sued and claimed that Dr. Bailey's medical negligence caused Mrs. Prine's wrongful death.

In order to prove that Dr. Bailey was medically negligent, the plaintiffs had to prove: 1) a duty of care owed by the health care provider to the plaintiff; 2) breach of that duty by failure to abide by the appropriate standard of care; 3) a causal connection between the breach and the patient’s injury or death; and 4) damages.

Both sides essentially agreed that since 1997, colorectal cancer screening should be recommended to patients 50 years of age or older, and that Dr. Bailey had not done so even though he had been caring for Mrs. Prine since 1997. The only pivotal issue in this case was whether Dr. Bailey was Mrs. Prine's primary health care physician. If he was not, then he could not be liable for medical malpractice because he would owe her no special duty, which is an element for the medical negligence cause of action.

Numerous experts testified about whether Dr. Bailey was Mrs. Prine’s primary health care physician. The plaintiffs' expert testified that an important factor for determining whether a doctor is someone's primary health care physician is whether a doctor is making referrals and receiving reports back. Not receiving reports back would tend to suggest that a doctor is not the primary health care physician. Although Dr. Bailey had referred Mrs. Prine to several doctors, he did not receive reports about her back. Additionally, Mrs. Prine's visits to Dr. Bailey were sporadic and at irregular intervals, and Mrs. Prine used Dr. Bailey on an "as needed" basis.

Another factor in Dr. Bailey's favor was that Mrs. Prine had been seeing other medical personnel for her primary and/or overall health care management; Dr. Bailey was not receiving the results of those medical tests. There was also evidence given by a nurse that Mrs. Prine had said, "I don't want to know if there is something wrong with me," and that she failed to return medical tests and to return for a follow-up x-ray.

Dr. Bailey had completed only a year's internship in family practice and had not been board certified or board eligible. He was not listed as Mrs. Prine’s primary physician on various medical records; a different doctor, an OB-GYN, was.

Before the plaintiffs sued, a medical review panel reviewed the allegations, and all of the doctors on the panel agreed that Dr. Bailey was not Mrs. Prine's primary health care physician. All of the experts agreed that a doctor can have a variety of kinds of patients in his or her practice, so the fact that Dr. Bailey might have had other patients for whom he was the primary health care physician was not at all dispositive.

Because Mrs. Prine's spouse and children were not able to prove that Dr. Bailey was Mrs. Prine’s primary health care physician, they could not show that Dr. Bailey owed Mrs. Prine a special "duty of care" to offer Mrs. Prine colorectal screening, which would probably have saved her life. The plaintiffs therefore lost at the trial court as well as on appeal.

Continue reading "Case Illustrates the Issues Surrounding Medical Malpractice Exceptions" »

The Louisiana Code of Civil Procedure generally affords the trial court wide discretion in assessing the costs of litigation to one or more of the parties. "Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against
any party, as it may consider equitable.” La. C.C.P. Art. 1920. The expenses that the court can tax as costs include the fees of the court clerk or sheriff, witness’ fees, costs of taking depositions, and the cost of photocopies of laws, regulations, medical reports, and hospital records used during the trial. So great is the trial court's discretion, in fact, that the trial court's assessment can be overturned only upon a showing of abuse of discretion.

As mentioned, though, there are limitations in the law to the trial court's authority. For instance, special provisions exist for allocating costs in workers' compensation cases as well as those involving a plaintiff who proceeds in forma pauperis (through a pauper's action). The recent case of Curry v. HealthSouth Rehabilitation Hospital illustrates that one path to reversible error on the part of the trial judge is running afoul of the special rules for impoverished plaintiffs.

Matha Curry, an elderly stroke survivor, visited the HealthSouth Rehabilitation Hospital in Homer, Louisiana on August 29, 2002 for physical therapy. While under the care of a nurse technician, Curry fell and fractured her arm in two places. She subsequently filed a pauper's suit against the hospital, which admitted fault for the accident. The trial court reviewed the depositions of Curry, the nurse technician, and two physicians. It awarded Curry $30,000 in general damages for pain and suffering and $3,199 in special damages for medical expenses. Court costs were assessed against the hospital. The court assessed the costs of one of the physician's depositions, to which Curry’s lawyer was late by three hours, against Curry. It also ordered the costs of the medical records used during the trial and the costs of the second physician's deposition to be shared equally between Curry and the hospital. Curry appealed, arguing that the trial court erred in assessing costs against her. The Second Circuit Court of Appeal noted that the Louisiana Code of Civil Procedure includes special rules for the waiver of costs for indigent plaintiffs. In sum, the Code provides that the defendant is liable for paying the impoverished plaintiff's costs if the plaintiff prevails. The hospital argued that the cost-sharing for one deposition and medical records was fair in light of Curry's last minute refusal, prior to the trial, to execute the settlement agreement that accompanied the settlement check that she deposited and was later forced to return. However, the court stated, "While we are sympathetic to the frustrations experienced by [the hospital] in its good-faith attempt to settle the matter, the [pauper] provisions ... are mandatory. The assessment of the costs ... against Curry was an abuse of discretion." Likewise, the court rejected the hospital's argument that the assessment of the costs of the deposition to which Curry's attorney arrived late was permissible as a penalty because "[t]he trial court never referred to it as a sanction." Accordingly, the court reversed the portion of the trial court's judgment that assessed costs against Curry and instead taxed all costs of the action to the hospital.

This case, while perhaps somewhat unusual in that it involved an impoverished plaintiff, is instructive on the issue of the costs of litigation. Especially in cases involving expert witnesses or significant documents, records, or other paperwork, ancillary costs can add up quickly. It is important for any plaintiff to understand the trial court's role in assessing costs so that a successful judgment is not unduly reduced by these expenses.

Continue reading "The Impoverished Plaintiff and the Assessment of Court Costs" »

As we have explored in numerous prior posts, a doctor or other healthcare provider owes his or her patient a duty to meet the standard of care applicable to the patient's situation. The failure to follow the standard of care points to the doctor's negligence which, in the case of the death of the patient, can give rise to a claim of "lost chance of survival" for the spouse or children of the deceased. In a lost chance of survival action, the plaintiff "does not have to shoulder the unreasonable burden of proving that the patient would have lived had proper treatment been
given." Rather, the plaintiff must establish by a preponderance of the evidence that the doctor's negligent conduct "denied the patient a chance of survival." In other words, a lost chance of survival claim will not be successful if the patient would have died anyway due to causes unrelated to the doctor's actions; the plaintiff must tie the doctor's negligence to the death of the decedent. Whether a plaintiff carries this burden is a question of fact reserved for the jury.

Third Circuit Court of Appeal recently reviewed a jury verdict on this question in the case of Skinner v. Christus St. Francis Cabrini Hospital. Robert Skinner was admitted to Christus Hospital in Alexandria on August 17, 2000 for an elective hemorrhoidectomy and partial sphincterotomy. He died the following morning after spending the night in the hospital. His wife, Pamela Skinner, filed suit against the hospital and Stephen Ford, the nurse who had charge of Mr. Skinner from 7:00 PM to 7:00 AM during the night of his stay. At the trial, various witnesses from the hospital explained that the surgery had gone well. The only reason Mr. Skinner stayed overnight was because of his high level of anxiety over the procedure. Mr. Skinner had a history of mental and physical problems, and was taking numerous prescription medications to address his depression, high blood pressure, high cholesterol, and heart burn. Several members of the hospital staff reviewed Mr. Skinner's medication list on separate occasions, and each time he neglected to mention that he had taken a particular antidepressant prior to coming to the hospital. In fact, the toxicology screening that was conducted as part of an autopsy revealed dangerously high levels of the drug in his system--a concentration which the medical experts in the case agreed was "known to kill." Nevertheless, the jury found that the evidence supported the conclusion that the hospital and Nurse Ford failed to properly monitor Mr. Skinner after the surgery, Therefore, the defendants "deviated from the appropriate standard of care in the medical treatment of Mr. Skinner," causing a lost chance of survival. The jury awarded Mrs. Skinner $250,000 in general damages. The defendants appealed, arguing that the jury erred in finding the plaintiff had carried her burden.

The Third Circuit reviewed the record at length and found that Nurse Ford and other hospital staff had properly checked Mr. Skinner's vital signs per the hospital's established schedule throughout the night. It also noted that Mr. Skinner was given several doses of pain medicine to provide him comfort after the surgery. These drugs were administered with the hospital staff's knowledge of the other medications Mr. Skinner had identified that he had taken. It was undisputed that no one at the hospital knew or could have known about the anti-depressant Mr. Skinner had taken but not revealed during several pre-op interviews. The autopsy further revealed that Mr. Skinner's death was caused by heart failure, which the defendants' experts linked to the exceedingly high level of the anti-depressant in his blood. One of the defendants' experts explained that death would have been sudden and without warning, such that an examination only 15 minutes prior to death would likely have revealed nothing unusual even to a careful and experienced practitioner. Another expert opined that "Mr. Skinner would have looked absolutely fine five minutes before he died." In light of this evidence, and Mrs. Skinner's "fail[ure] to produce a scintilla of evidence" that pointed to the hospital's negligence, the court concluded, "we are convinced that the jury manifestly erred in its determination that Christus Hospital/Nurse Ford’s negligence caused Mr. Skinner a lost chance of survival." Accordingly, the court vacated the trial court's judgment that awarded Mrs. Skinner $250,000 in general damages for the lost chance of survival.

The Skinner case, while tragic, offers a reminder to plaintiffs that their burden in a lost chance of survival action is not a light one. The theory of recovery can only be employed where a healthcare provider's negligence played a direct role in denying the decedent the treatment that could have saved his life. As the Skinner case demonstrates, healthcare providers are not held to a standard that requires them to respond to complications about which they could not have known or reasonably discovered.

Continue reading "Court Vacates Jury's Award in Rapides Parish Lost Chance of Survival Case" »

The plaintiffs in this case are the family of Cody Ebarb, a 12-year-old boy who suffered a stroke and subsequently died after receiving care from various doctors at Willis Knighton Medical Center in Shreveport-Bossier City, Louisiana. Cody suffered from several pre-existing medical problems, including a viral chronic fatigue syndrome, suspected disease of the connective tissue, and herpes virus of the eye. He had spent much time in medical treatment and was, sadly, a very sick child for much of his life.

On the morning of November 5, while on his way to the pediatrician, Cody suddenly said that he couldn’t see and fell to the floor, moaning. He was transported by EMTs to Willis-Knighton South, and they noted only that he was having seizures. It turned out that he had actually had a stroke due to a small tear in his basilar artery (which is surrounded by the spine).

Dr. Felty, an emergency room physician, performed a basic emergency exam and ran a batter of standard tests. He did not perform a full neurological exam because Cody could not communicate and was moving involuntarily. He also did not order an MRI because subspecialists, not ER physicians, normally do so. While at the hospital, Cody could not open his eyes or speak, but at some point was aware of his surroundings. Eventually, at approximately 2 pm, a pediatrician arrived, ordered Ativan (a widely used sedative and anticonvulsant) and left. Between the hours of 2 pm and 6:30 pm, several doctors examined Cody, who by then had deteriorated and was unable to move his arms or communicate. He was then transferred into the Intensive Care Unit (ICU). During his night in the ICU, Cody went into cardiac arrest and was placed on life support. While on life support, an MRI was taken that showed a very rare torn basilar artery, which resulted in a stroke.

A medical review panel unanimously found that the doctors did not breach the standard of care due to t he complicated nature of the case.

A medical malpractice case is not about hindsight, asking if there was anything the doctors could possibly have done to save someone’s life. Rather, it is about determining whether Cody’s doctors breached the standard of care that doctors are required to abide by. In order to prove that the doctors in this case were medically negligent, the plaintiffs had to prove: 1) a duty of care owed by the health care provider to Cody; 2) breach of that duty by failure to abide by the appropriate standard of care; 3) a causal connection between the breach and the patient’s injury or death; and 4) damages.

It is clear that the doctors owed a duty of care to Cody, who was their patient. At trial, the plaintiffs’ expert and the defense expert strongly disagreed about what the standard of care was and whether the doctors had breached it. The plaintiffs’ experts thought that Dr. Felty should have ordered an MRI right away, which might have shown the torn artery. They also strongly criticized the doctors for keeping incomplete charts. Torn basilar arteries are not always fatal, but do have a high mortality rate. On the other hand, the defense expert testified that by the time Cody arrived in the ER, it was already too late. She also testified that ER doctors do not normally order MRIs and in any event it would have been difficult with an involuntarily moving child. Another defense expert thought that even an early MRI could not have saved Cody.

The jury found that the doctors did not cause Cody’s death. Additionally, causation was difficult for the plaintiffs to prove because no autopsy was performed.

The court noted that the lack of documentation and the fact that Cody lay in the emergency room for four hours even after he had been ordered to be transferred to the ICU were cause for concern, but the jury appeared to have accepted the doctors’ trial testimony and a court is not allowed to re-weigh credibility. Therefore, the Second Circuit Court of Appeal for the State of Louisiana upheld the jury verdict.

Continue reading "Caddo Parish Jury Finds Doctors Not Liable in Medical Malpractice Case; Verdict Upheld " »

For those wishing to be kept abreast of the latest products to receive governmental warnings regarding the safety surrounding their use, feel free to check out SaferProducts.gov. With a list of incident reports from other consumers, this effort by the government hopefully will help enable people to make conscious decisions regarding the products they put in their homes.

According to the Louisiana Code of Civil Procedure, a defendant can file an "exception of prematurity" to challenge whether the plaintiff's cause of action has "matured to
the point where it is ripe for judicial determination.” A classic (mis)application of the exception is found in the 1999 case, Steed v. St. Paul's United Methodist Church. In that case, the church's choir director sued the minister for sexual harassment. The minister filed a counter-claim for defamation, arguing that the choir director's false allegations damaged his reputation in the Monroe community. Before the appellate court, the choir director asserted that the minister's defamation claim was premature because the trial court had not yet entered a judgment declaring that her harassment allegations were false (truth being an absolute defense to defamation). However, because the choir director never filed an exception of prematurity in the trial court, she could not raise the issue on appeal. This is because, as a "dilatory" exception, it is waived if not specifically pled and a court cannot "supply an exception of prematurity on its own motion."

A similar failure to plead the exception plagued the plaintiff in the more recent case of Moreno v. Entergy Corp.. Daniel Moreno was badly shocked while working around overhead power lines in Jefferson Parish. Moreno sued Entergy Corporation, the owner of the power lines. Entergy filed a cross-claim against Moreno's employer, Stewart Interior Contractors, LLC. Entergy argued that, if it were found liable for Moreno's injuries, the Act would create a right of indemnity against Stewart because the contractor violated the Overhead Power Line Safety Act (the "Act") by working near the power lines without first contacting the owner of the lines (Entergy) and making the necessary safety arrangements. The trial court ruled against Entergy, finding that the Act "does not create an independent right of indemnity for damages incurred as a result of injuries suffered by third parties." When Entergy appealed this judgment, the Fifth Circuit Court of Appeal affirmed on the grounds of prematurity, though the exception had not been raised by any party. The Fifth Circuit declared that because no fault had yet been allocated to any party, no cause of action for indemnity had been created. The court entered an “exception of no cause of action on the basis of prematurity,” a judgment which had not been seen previously in Louisiana jurisprudence. Upon review, the Louisiana Supreme Court found that the Fifth Circuit erred as a matter of law in supplying the exception to prematurity on its own motion. "Although the court of appeal claimed it was entering an exception of no cause of action, the judgment was not truly based on the legal insufficiency of the allegations [for which it was permitted to raise an exception on its own accord]. It is clear that the court based its ruling solely on the theory that Entergy’s indemnity claim was not ripe for adjudication, which is properly raised only via dilatory exception." Accordingly, the court reversed the Fifth Circuit and remanded the case.

The complexity of dilatory exceptions like prematurity reinforces the importance of retaining a competent attorney in any legal action.

Continue reading "On Prematurity and a Plaintiff's Case for Damages" »

A person's worst fear when undergoing an invasive surgery, is for something to go wrong. For one patient, this fear came true when his doctor operated on the wrong knee. This severe error was not disputed by the Doctor, who admitted he erroneously operated on the plaintiff's right knee when he intended to treat the plaintiff patient's left knee with arthoscopic surgery. What was at issue in this recent Louisiana Second Circuit Court of Appeals decision, is whether or not the injured plaintiff was awarded an appropriate amount in damages. Numerous factors are weighed when determining damages. However, in Louisiana, as well as numerous other states, there is a cap on how much a person may recover in a medical malpractice suit. Patients who have been injured face a litany of complicated issues and standards that are difficult to understand, thus, obtaining legal representation as soon as possible is highly recommended in order to protect legal rights throughout the process.

In a recent Louisiana Second Circuit Court of Appeals decision, the court explored the amount of damages a patient was initially awarded for damages they sustained from an erroneously performed surgical procedure. The plaintiff patient complained on appeal that the trial court abused its discretion in awarding inadequate damages for past lost wages, past medical expenses, as well as pain and suffering. Additionally, the victim contended that the trial court erred in failing to award future lost wages and future medical expenses for the patient plaintiff and loss of consortium for his wife. The appellate court affirmed the trial courts damages award for numerous reasons, many based on statutory limits that are in place restricting the amount a patient may obtain. Yet, the decision is in large part held by the jury. The jury has the duty to hear the evidence and determine a price that may "make the plaintiff whole again." In this case, the jury decided that the patient plaintiff had $40,000 in pain and suffering and $10,000 in loss of income. It may seem a harsh factor in the legal process, that despite the severity of a patients injuries, the numerical value given such injuries is designed to "fix" such issues. The plaintiff in this case felt that the jury's damages award did not adequately resolve any of the issues he was experiencing after having the botched surgical procedure. Since the accident, the victim of this botched surgery had been experiencing serious issues in almost every part of his life, including that the knee which was erroneously operated on was in constant pain, decreased his range of motion, his sense of instability caused him to limp, insomnia, impaired ability to work, back pain induced by the limp which resulted in a herniated disk, and loss of consortium with his wife. Thus, the problems went deeper then the categorical terms such as "pain and suffering and loss of income." The court however, explains and supports their decision by exploring the governing statutes at issue.

Juries factual finding decisions are highly regarded, and under Louisiana law such decisions may not be set aside unless the appellate court finds that it is manifestly erroneous or clearly wrong. The appellate court will review the witnesses testimony at trial in order to determine whether or not their may have been an erroneous decision. Here, the plaintiff alleged he had to undergo four surgeries due to the Doctor operating on the wrong knee plus a discogram of his back. To support the additional damages that were a result of the erroneous surgical procedure performed by the defendant doctor, the plaintiff offered the testimony of a doctor who contended that the plaintiff would need two back and neck surgeries and would have pain in his right knee for the rest of his life. Further, the plaintiff would have to get a total knee replacement at some point in his life. In consequence to the erroneous surgery, the plaintiff was declared disabled by Social Security and began receiving Social Security Income payments. Additionally, the plaintiff was unable to perform the part time work he was previously able to and the couple eventually went bankrupt. Despite these very sad consequences, the court has to abide by the regulations and statutes that are in place and govern medical malpractice issues.

For health care providers that are insured by the state, they have their liability limited to $100,000 as described in the Patient Compensation Funds and Physicians Insurance. The Patient Compensation Fund (PCF) is the cap of what any injured patient may recover from any one or more doctors. Under Louisiana Statute § 40:1299.44, the liability of each qualified health care provider is limited to $100,000 plus interest per patient per incident. Judgments, settlements, or binding arbitration orders in excess of $100,000 per provider are paid out of the fund. The total recovery a patient may receive is limited to $500,000 plus future medical costs. However, such future medical costs are paid as incurred from the PCF. In the case at hand, the plaintiff patient was facing two major difficulties in the appellate court. First, in order to overturn the trial court's decision, there must have been manifest error in the jury's determination and award. Secondly, the plaintiff offered numerous witnesses, some whose testimony was determined not to be credible and others whose testimony was credible. The appellate court explored the lower level decision in order to determine whether or not the Doctor was liable for additional damages or whether the PCF was available for additional damages. The record contained a reasonable factual basis for each factual finding from which plaintiffs sought relief on appeal. In fact, the appellate court could not find any clear wrong or manifest error. The jury and trial judge heard the testimony and were in the best position to evaluate variations in demeanor and tone of voice that influence heavily the listener's understanding and belief in what is said. Virtually, the jury's decision to credit the testimony of one of two or more witnesses and reject others is never considered manifestly erroneous or clearly wrong. So, the fact that the defendant doctor was covered by the PCF protected him from paying any of the appellate court costs involved, or even having to pay any additional damages. Instead, the appellate court determined that the PCF and the plaintiff were to divide the costs attributale to the appellate court and pay in equal amounts. Therefore, at the end of the day, a jury's decision making ability is highly regarded, and it takes a substantial amount of error to overturn such a decision.

Thus, a medical malpractice case is a difficult and arduous process. An injured patient has to go through more than the physical pain sustained from a poorly performed surgery, but they also have to experience the complicated legal process that is involved. Having a competent legal representative is a necessity in such situations, someone who can protect your legal rights, answer all of your questions, and make a difficult process easier to handle.

Continue reading "Medical Malpractice and the Patient Compensation Fund" »

As we have explored in several prior posts on this blog, claims brought against healthcare providers under the Louisiana Medical Malpractice Act must be examined by medical review panel before proceeding to court. Just over a year ago, the First Circuit Court of Appeal issued guidance to plaintiffs on the procedure they must follow if they should uncover new claims of negligence after the medical panel has completed its review of the original claims and issued an opinion.

On September 14, 1998 Doris Abel underwent surgery at the North Oaks Medical Center ("NOMC") in Hammond. She died a short time later from complications arising from the surgery. Her family (the "Plaintiffs") submitted a malpractice complaint against NOMC to the medical review panel in September of 2003, which rendered a decision in favor of NOMC. Plaintiffs then filed suit against NOMC that led to a protracted period of pre-trial discovery. During that time, Plaintiffs discovered new claims of negligence against NOMC and petitioned the court to amend their complaint to include these claims. NOMC objected on the grounds that the medical review panel had not examined these new claims and requested a new trial. The trial court denied NOMC's request and instead remanded the matter to the original medical review panel for the sole purpose of reviewing Plaintiffs' new allegations. NOMC sought review by the First Circuit, urging that the there is no procedure in the Louisiana Medical Malpractice Act (the "Act") for remanding a case back to a review panel once it has rendered its opinion and a suit has been filed.

The First Circuit began its analysis by noting that the Act's language "must be strictly construed." The court, in reiterating that the Act requires that "all malpractice claims against health care providers covered under the Act shall be reviewed by a medical review panel," concluded that the "use of the term 'shall' in these statutory provisions indicates that these procedures are mandatory." And, although the Act does not specifically address late-discovered claims, the court concluded that "the procedures the legislature mandates for filing a request for review by a medical review panel also encompass malpractice claims that are discovered after the panel has rendered an opinion and suit has been filed." The court found additional support for this conclusion in the statutory language that describes the review panel's duty to "express its expert opinion as to whether or not the evidence supports the conclusion that the defendant or defendants acted or failed to act within the appropriate standards of care." The panel must be presented with all evidence in order to discharge this duty. Further, the court decreed that once a panel renders an opinion, its duty has been discharged. "Therefore, if additional malpractice claims are discovered... these new claims must be presented for review by a new medical review panel." Accordingly, the court found that the trial court erred by remanding the matter back to the original medical review panel. It reversed the judgment and remanded the case back to the trial court so it could arrange for a new panel to review the Plaintiffs' late-discovered claims before trial.

This case makes clear that under the Louisiana Medical Malpractice Act, no claim can get to a jury unless it has first been reviewed by the medical panel. This is critically important for an injured plaintiff to bear in mind given the Act's requirement for filing a petition for a panel review within one year from the negligent act or the date of its discovery. A plaintiff cannot rely on the proceedings of one malpractice claim to save another related, but later-found, claim from prescription. I

Continue reading "Court Clarifies Procedure for Medical Panel's Review of New Claims " »

On March 13, 2008, Sarah Hollier visited Dr. Gregory Green for treatment of bronchitis. Dr. Green wrote Hollier a prescription, which she took to the Super One Pharmacy in Monroe to have filled. The pharmacist on duty, Katy Buntyn, was not familiar with the particular form of the drug that Dr. Green prescribed because it had been discontinued some four years prior. Buntyn directed her pharmacy technician to phone Dr. Green's office for clarification on how to fill the order. Ultimately, after further confusion over the form of the drug and the dose, Buntyn mistakenly filled the prescription at a dosage which was at more than 2.5 times the "top end" dose indicated on the drug's literature and eight times the dose intended by Dr. Green. When Hollier began taking the medication, she experienced high energy levels, sleeplessness, increased heart rate, and nausea.

Hollier's husband, himself a pharmacist, recognized her symptoms and discovered the erroneous dose after inspecting the prescription bottle. The Holliers reported the problem to the pharmacy and, later, filed suit against the pharmacy and Buntyn. In Louisiana, pharmacists are not subject to the state's Medical Malpractice Act, so the matter was heard in Monroe City Court on September 21, 2009. The trial court entered a judgment for Hollier and awarded her $7,500 in general damages and $827.08 for medical expenses. The defendants appealed, refuting liability.

The Second Circuit first reviewed the elements of general negligence, but then noted that a "pharmacist has a duty to fill a prescription correctly and to warn the patient or to notify the prescribing physician of an excessive dosage or of obvious inadequacies on the face of the prescription which create a substantial risk of harm to the patient." Buntyn argued that she met this duty by calling Dr. Green's office to inquire about the prescription. But the court disagreed that this action was sufficient to discharge her duty; instead, "the fact that the package insert lists the top end of an initial daily dosage of [the drug] at 9 mg should have aroused Ms. Buntyn’s suspicions that a 24 mg initial daily dosage was excessive." At that point, reasoned the court, Buntyn "should have inquired further." Thus, the court could not find that trial court committed manifest error in finding that Buntyn breached her duty to Hollier by supplying the extremely high dose of the drug, and affirmed the judgment.

The Hollier case makes clear that the law considers a patient's health paramount. Even if some or all of the fault for an erroneous prescription can be traced back to the doctor, a pharmacist is still required to use independent judgment when filling a prescription. Circumstances such as a particularly high or low dose, a call for a drug that's unrelated to the patient's condition, or other irregularity should trigger the pharmacist to investigate further before dispensing the medication. The Hollier case suggests that simply confirming with the ordering doctor may not be sufficient when other common resources, such as the drug manufacturer's package insert, suggest that the doctor's orders are unsafe or inappropriate.

Continue reading "Prescription Drug Overdose Leads Court to Review Pharmacist's Standard of Care " »

Previously on this blog, we have discussed the Louisiana Medical Malpractice Act ("LMMA") and its requirement that "all claims against healthcare providers be reviewed or 'filtered' through a medical review panel before proceeding to any other court." A plaintiff who fails to do this is subject to the defendant's "exception of prematurity," which is a procedural mechanism by which the defendant can petition the court to dismiss the plaintiff's claim until the medical review panel has properly conducted its review. The defendants in the case of Heacock v. Cook attempted to invoke the exception in a case that involved a sexual relationship between a doctor and his patient.

In December of 2005, Margaret Heacock was admitted to the Palmetto Addiction Recovery Center (“Palmetto”) in Rayville for an inpatient substance abuse treatment program. After being discharged in May of 2006, she underwent outpatient treatment which continued through January of 2008. In 2009, Heacock filed two lawsuits against Palmetto and her treating physician, Dr. Douglas Cook. Both suits alleged essentially the same facts: that Dr. Cook "entered into an inappropriate, sexual relationship" with Heacock during the time she was his patient; one suit's theory of recovery was based on intentional tort, the other on negligence. Dr. Cook and Palmetto filed exceptions of prematurity, seeking to have all claims dismissed in the trial court and instead brought before the medical review panel. After a hearing, the trial court determined that Heacock's claims sounded primarily in medical malpractice and therefore required a review by the medical panel. Thus, the trial court dismissed Heacock's suits without prejudice. Heacock appealed, arguing that it was error for the trial court to require the panel's review given that her allegations gave rise to a general tort claim, and not a medical malpractice claim.

The Second Circuit Court of Appeal noted that the LMMA applies only to “malpractice” as defined by the statute, while other tort liability on the part of a health care provider is governed by general tort law. Further, Louisiana statute provides separate and distinct definitions for "malpractice" and "tort," the former extending only to unintentional actions. Thus, "by definition, 'malpractice' does not include the intentional acts of the health care provider." Noting that "Dr. Cook took deliberate action as a physician by becoming involved in a sexual relationship with his patient," the court reasoned that Heacock's claim of intentional tort against Dr. Cook was not “malpractice” as defined by the LMMA. Instead, "this type of deliberate action, a sexual relationship, has been deemed to be an intentional tort, and, as such, not considered a malpractice claim." The court, concluding that the trial court erred in granting Dr. Cook’s exception of prematurity for Heacock's claim of intentional tort, reversed the trial court's judgment as to the intentional tort action and affirmed the trial court's judgment as to the negligence claim.

The Heacock case reveals the limits of the LMMA and its requirement for panel review before a case can proceed to trial. Intentional torts, even when committed by a healthcare provider, are outside of the LMMA's scope. Indeed, only actions in negligence that meet the state's specific definition of "malpractice" trigger the application of the Act. This is a critical point for a plaintiff who, like Heacock, may have several possible theories of recovery against a defendant medical provider. Any action that can be styled as an intentional tort will avoid the delay of the LMMA's review process.

Continue reading "Ouachita Parish Case Examines the Applicability of the Louisiana Medical Malpractice Act to Intentional Torts" »

Previously on this blog, we have discussed the Louisiana Medical Malpractice Act ("LMMA") and its requirement that "all claims against healthcare providers be reviewed or 'filtered' through a medical review panel before proceeding to any other court." A plaintiff who fails to do this is subject to the defendant's "exception of prematurity," which is a procedural mechanism by which the defendant can petition the court to dismiss the plaintiff's claim until the medical review panel has properly conducted its review. The defendants in the case of Heacock v. Cook attempted to invoke the exception in a case that involved a sexual relationship between a doctor and his patient.

In December of 2005, Margaret Heacock was admitted to the Palmetto Addiction Recovery Center (“Palmetto”) in Rayville for an inpatient substance abuse treatment program. After being discharged in May of 2006, she underwent outpatient treatment which continued through January, 2008. In 2009, Heacock filed two lawsuits against Palmetto and her treating physician, Dr. Douglas Cook. Both suits alleged essentially the same facts: that Dr. Cook "entered into an inappropriate, sexual relationship" with Heacock during the time she was his patient; one suit's theory of recovery was based on intentional tort, and the other on negligence. Dr. Cook and Palmetto filed exceptions of prematurity, seeking to have all claims dismissed in the trial court and instead brought before the medical review panel. After a hearing, the trial court determined that Heacock's claims sounded primarily in medical malpractice and therefore required a review by the medical panel. Thus, the trial court dismissed Heacock's suits without prejudice. Heacock appealed, arguing that it was error for the trial court to require the panel's review given that her allegations gave rise to a general tort claim, and not a medical malpractice claim.

The Second Circuit Court of Appeal noted that the LMMA applies only to “malpractice” as defined by the statute, while other tort liability on the part of a health care provider is
governed by general tort law. Further, Louisiana statute provides separate and distinct definitions for "malpractice" and "tort," the former extending only to unintentional actions. Thus, "by definition, 'malpractice' does not include the intentional acts of the
health care provider." Noting that "Dr. Cook took deliberate action as a physician by becoming involved in a sexual relationship with his patient," the court reasoned that Heacock's claim of intentional tort against Dr. Cook was not “malpractice” as defined by the LMMA. Instead, "this type of deliberate action, a sexual relationship, has been deemed to be an intentional tort, and, as such, not considered a malpractice claim." The court, concluding that the trial court erred in granting Dr. Cook’s exception of prematurity for Heacock's claim of intentional tort, reversed the trial court's judgment as to the intentional tort action and affirmed the trial court's judgment as to the negligence claim.

The Heacock case reveals the limits of the LMMA and its requirement for panel review before a case can proceed to trial. Intentional torts, even when committed by a healthcare provider, are outside of the LMMA's scope. Indeed, only actions in negligence that meet the state's specific definition of "malpractice" trigger the application of the Act. This is a critical point for a plaintiff who, like Heacock, may have several possible theories of recovery against a defendant medical provider. Any action that can be styled as an intentional tort will avoid the delay of the LMMA's review process.

Continue reading "Ouachita Parish Case Examines the Applicability of the Louisiana Medical Malpractice Act to Intentional Torts" »

In Louisiana, a general tort claim has a prescriptive period of one year. This means that the plaintiff must file a claim within one year of the injury bringing about the claim. The prescriptive period has been implemented by the Louisiana legislature in LSA-C.C. art 3492 as follows:

Delictual actions are subject to a liberative prescription of one year. This prescription commences to run from the day the injury or damage is sustained. It does not run against minors or interdicts in actions involving permanent disability and brought pursuant to the Louisiana Products Liability Act or state law governing product liability actions in effect at the time of the injury or damage.

Thus, no one except a child or interdict can complain of the prescriptive period because it is clearly established by law. All attorneys are aware of this period and any action, in order to be timely, must be filed within the one year period. However, Louisiana law also states that this period can be altered by legislation. This means that article 3492 is a fall back provision for cases where the legislature has not created another sort of prescriptive period. Different prescriptive periods are implemented due to the nature of the injury or damage. For example, medical malpractice claims also have a general one year prescriptive period, but the legislation creates leeway to bring a claim past the one year prescriptive period. The prescriptive period for a survival claim based on medical malpractice is implemented by LSA-R.S.9:5828 as follows:

No action for damages for injury or death against any physician...[or] hospital..., whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.

This means that in medical malpractice claim, in a circumstance where the injury that resulted from the malpractice is not discovered, or could not be discovered within a year of the negligent treatment, the legislature decided that the plaintiff should still be able to bring the claim once the injury is discovered, even if it is more than a year after the negligent treatment. However, the claim must still be filed within an overall three year period. In a recent case, Hammond Ex Rel v. Saint Francis Medicine, a court clarified how a malpractice claim would fit into the category allowed to extend beyond a year of the negligent treatment. Mrs. Hammond sued St. Francis and Dr. Joiner on behalf of her daughter and grand daughter. Her daughter was sent to St. Francis because of an increased heart rate. St. Francis subsequently sent her to Louisiana State University Health Sciences Center-Monroe. When she arrived here, she discovered that her fetus had died. She was then sent to a nursing home where her condition deteriorated further until she was eventually pronounced dead.

Her mother, Mrs. Hammond, filed the medical malpractice claim more than one year after the treatment given to her daughter at St. Francis. At trial, Mrs. Hammond claimed that she did not know that there was any medical malpractice on the part of St. Francis. The evidence was to the contrary. Within months of her daughter's death, she had filed a claim with the medical review board against other defendants, not including St. Francis. Clearly, she had some indication that someone did something to cause the deterioration of her daughter's condition. Further, she provided no evidence that showed that she was unaware of any negligence on the part of St. Francis. The Court held that they could not make a determination based on a mere assertion from Mrs. Hammond that she did not know that St. Francis could be liable. Some evidence needed to be provided in order to claim lack of knowledge which could have allowed her three years to file her claim. Since there was no evidence that she lacked knowledge of St. Francis' alleged liability, her claim falls into the one year prescriptive period which means her claim had prescribed.

Continue reading "Court Throws Out Medical Malpractice Case Because the Case Was Not Timely Filed" »

Medical Malpractice Claims Against Public Sector Health Providers Must Be Submitted to a Medical Review Panel

The State of Louisiana Division of Administration, headquartered in Baton Rouge, requires that that medical malpractice claims against public sector health care providers must be processed through its administrative procedure, starting with the claim's submission to the Commissioner of Administration.

A request for a medical review panel must be in writing and contain:
- A request for the formation of a medical review panel.
- The name of the patient.
- The names of the claimants.
- The names of defendant state health care providers.
- The dates of the alleged malpractice.
- A brief description of the alleged malpractice as to each named defendant state health care provider.
- A brief description of alleged injuries

Once the claim has been filed, several time-sensitive procedures are triggered. First, the Commissioner of Administration to whom the claim is submitted has 30 days to complete the following:

- Confirm to the claimant that the claimant's complaint has been received.
- Determine whether the defendant is or is not a qualified public health care provider with State of Louisiana.
- Determine amount of filing fee owed or paid.

a. If filing fee not paid, acknowledge claimant, advise of qualifications, request payment of filing fees and diary for forty-five (45) days for money to be collected from claimant or affidavit or forma pauperis ruling.
b. If filing fee paid, acknowledge claimant and advise the Office of Risk Management in order for an attorney to be assigned to represent the defendant(s) and notify defendant(s).

- Notify all named defendants that a complaint has been filed as well as a request for the formation of a Medical Review Panel.

Then, before the claim can move forward, it must be presented to the medical review panel who generally has twelve (12) months after its chairman is selected to render an opinion on the claim. The parties determine the chairman from a list of five local attorneys submitted to the Commissioner of Administration by the Clerk of the Supreme Court. The Medical Review Panel also contains 3 physicians; each party selects one each and then those selected physicians select the third physician.

Once the Panel is formed, the parties may submit evidence and testimony for its consideration and can convene the panel at a mutually convenient time and place. Within 30 days, but in all events with 180 days after the last panel member is selected, it shall issue its expert opinion.

Costs

If the panel finds in favor of the Defendant(s) the Division of Administration shall pay the costs of the Medical Review Panel. If It holds in favor of the Claimant, he shall pay the costs. If, however, the panel finds that there is a material factual issue that needs resolution in court, the costs shall be split between the claimant and the Division of Administration.

The Claimant must pay a filing fee within forty-five days of the acknowledgment letter from the Commissioner - it is $100 per named defendant. But, this fee may be waived by either the submission of an affidavit by a physician certifying that the claim constitutes a breach or an in forma paureris ruling issued by a district court holding that the malpractice claim could properly be brought.

Submitting a claim for medical malpractice pursuant to this requirement and its procedures can be an intimidating prospect. In order to bring a successful claim, one really should seek expert advice from an attorney to navigate the often confusing and technical waters of this administrative process.

Continue reading "Medical Malpractice Claims Against Public Sector Health Providers Must Be Submitted to a Medical Review Panel" »

Medical malpractice can be a serious issue that involves very unfortunate circumstances and strong feelings. One such case, analyzed below, examines the parameters of such a matter and how they are handled. Because of the sensitive nature of this case, names will not be used and, instead, the individuals involved will be referred to as doctor, plaintiff, etc. The issue in the case is whether the plaintiff, without presentation of any expert testimony, should be able to sustain her case of proving at trial that the defendant's (doctor's) conduct constituted a breach in the appropriate standard of care and this breach resulted in the wrongful death of the unborn child. 

The unfortunate plaintiff in this case came to see defendant doctor complaining of cramps and missing menstrual cycle; she was 28.4 weeks pregnant at the time. The doctor, determining that she needed a higher level of neonatal care due to complications during labor, transferred the patient to Rapides Women's and Children's Hospital "RWCH" (Parish of Rapides). The doctor's order showed that the pregnant woman was suffering from placental tear and an obstetrician-gynecologist at RWCH accepted this transfer. Upon the plaintiff's arrival, fetal heart rates were no longer detectable; after a C section, doctor delivered a still-born fetus.

The plaintiff claims that it was primarily due to the doctor's negligence in failing to meet the applicable standard of care during the medical procedure that the fetus was still-born. The defendant doctor, on the other hand, argues that his actions did not fall below the appropriate standard of care.

The question that remains is what comprises an "applicable standard of care?" The plaintiff argues that doctor waited too long in performing a C-section and this delay was the reason for the death of the fetus. The plaintiff maintained that the doctor's failure to respond in a timely manner to her emergency constituted negligence on his part, and he is, therefore, liable for the death of the fetus. As one can imagine, this is a very tragic situation for the plaintiff and could potentially minimize her trust in the medical profession as a whole. 

The "applicable standard of care" could be violated in numerous ways, in anything from amputating the wrong arm to a less extreme case of waiting an extra minute to begin a procedure. In this case, the plaintiff had the burden of proving that the doctor did not exercise proper care during the procedure, a tough situation for someone who has just lost an unborn child. In such instances it is essential to have the best team of experts to help the meet the burden of proof. While in this case, the court found that the fetus was dead on arrival and granted summary judgment for the defendant, it is not uncommon for a doctor to fail to order a C-section or another procedure at the correct time. A deceased chance of survival could be a matter of minutes, and this is why you need the best help you can find, both at trial and from your legal representative.

If you feel that there was has been a breach of a standard or lack of due care which resulted in any harm to you or your loved one, contact the Berniard Law Firm with any questions or concerns.

Continue reading "Medical Malpractice Suit for Wrongful Death Action of Unborn Child  " »

The level of care required of medical practitioners is very high. This is because people put their trust, and sometimes their lives and well being in the hands of a doctor or surgeon. The level of care is high because we must attain the very best from the people who perform the most delicate and important tasks the affect our lives. This is true of doctors, lawyers, and anyone else who has the position of a fiduciary. When the level of care falls below the bare minimum, the result can be disastrous. In a recent case, Ronald and Peggy Bianchi v. Dr. Ernesto Kufoy, the Third Circuit Louisiana Court of Appeal had to decide whether damages done to a patient were a result of the doctor's negligence or were an acceptable outcome of the procedure.

On October 30, 2002, Mr. Bianchi went to Dr. Kufoy for a cataract surgery and the implantation of an artificial lens in the right eye. The lining of the old lens was to remain intact so as to allow the placement of the new artificial lens on that lining. However, during the surgery, the old lining was torn out. It was found that this could occur without any negligence. Another artificial lens was used due to this complication, and it was not argued that anything had occurred during this setback that amounted to medical negligence. When Mr. Bianchi returned for his post surgery check-up, he complained of pain in his right eye. Dr. Kufoy checked the eye, but did not investigate the cause of the pain and the resulting loss of eye sight. Over the course of the next few days, Mr. Bianchi's eye pain increased. When he came to see Dr. Kufoy next, Dr. Kufoy diagnosed him with a form of glaucoma and referred him to a specialist. By the time he went to the first specialist, Dr. Jeff Lanier, Biachi had only light perception in his right eye. This was one step above total blindness. Dr. Lanier disagreed with Dr. Kufoy's glaucoma diagnosis, and found that there was a hemorrhage in the choroid, which likely began during the initial surgery. The second specialist drained the hemorrhage.

At trial, the jury found that Dr. Kufoy's actions were lower than the level of care required by his profession. The jury also found that there were clear damages to Mr. and Mrs. Bianchi. In a medical malpractice case, the plaintiff has two levels of burden. First, plaintiff must prove by preponderance of the evidence that the doctor's treatment fell below the standard of care required for the profession. Second, the plaintiff must prove that the sub-par standard of care resulted in the injury. The jury based its determination that there was no causation shown on the fact that there was contradicting evidence. The Appellate Court cited to the standards it was using to judge the jury's determination:

When different medical procedures are involved, the defendant is liable not only for harm resulting from his substandard treatment, but for subsequent treatment that seeks to resolve the original harm. Under the appropriate standard of review, we do not consider only so much of the evidence as will uphold or undermine the judgment, but rather the whole of the evidence with an eye to determining whether the judgment is plainly wrong.

The plaintiff does not necessarily have to show that all the damage was as a direct result of the doctor's negligence. Rather, what can be shown is that due to Dr. Kufoy's negligent treatment, there was a loss of a chance of a better medical outcome. Based on the record, when Mr. Bianchi came in for his post-surgery check-up, Dr. Kufoy's failure, on multiple occasions, to diagnose the cause of the eye pain and loss of vision resulted in a much more dire situation by the time Mr. Bianchi received treatment by specialists. The trial court focused on actions taken by Dr. Kufoy at the time of surgery and found that none of the actions by themselves amounted to negligence. However, the record must be viewed in its totality, which shows that the post-op steps taken by Dr. Kufoy were insufficient under reasonable standards of care, which resulted in a loss of a chance of a better medical outcome. The Appellate Court reversed the decision of the jury.

If you feel you have received substandard medical care that has resulted in pain or aggravation of prior symptoms, your first course of action should be to seek a second opinion of a medical specialist. Your second court of action should be to seek legal advice.

Continue reading "Duty of Care Doctors Owe their Patients and Medical Malpractice" »

Regular readers of this blog are no doubt aware that the Louisiana Medical Malpractice Act requires that all "claims against healthcare providers be reviewed or 'filtered' through a medical review panel before proceeding to any other court." Also, medical malpractice suits are subject to a period of prescription -- that is, the action must be filed within a certain period of time following the incident. La. R.S. 9:5628 establishes that this time period is one year from the negligent act or the date of its discovery, with the added limitation that the discovery extension is inapplicable after three years. State statute also specifically addresses how the medical review panel's review of the case affects the prescriptive period. According to La. R.S. 40:1299.47(B), the running of the prescriptive period is suspended by the medical review panel's proceedings until the panel's decision is communicated to the plaintiff. In effect, the time required by the panel to review the case and issue a finding does not "count against" the plaintiff when determining the latest point at which the law permits him or her to file suit.

The plaintiff in the recent case of Blake v. Maley saw the dismissal of her suit due to her failure to file the action before the prescription period expired. Beverly Blake filed a request for a medical review panel on June 2, 2004. The request alleged medical malpractice against Dr. Warren Maley and the Willis Knighton Medical Center in Dr. Maley's misdiagnosis of a fatal drug reaction suffered by her husband, Barry, who died on January 31, 2004. The medical review panel rendered a unanimous decision in favor of the defendants on May 15, 2007 and mailed the decision letter to Blake on May 25, 2007. Blake filed suit on November 3, 2009. In response to Dr. Maley's subsequently filing an exception of prescription due to the delay, Blake responded that she was mentally incapable of filing the claim in a timely manner because she was severely depressed during the month of July, 2009. The trial court granted Dr. Maley’s exception and dismissed Blake's suit. On appeal, the Second Circuit noted that Blake "concede[d] that the date of the alleged malpractice occurred on June 22, 2003, when Barry Blake received the drug" that caused the fatal reaction. Thus, Blake's request for medical review by the panel was timely, and her "cause of action was suspended by the medical review panel proceedings until the mailing of the opinion on May 27, 2007." After that date, the court calculated, Blake had 90 days plus the additional 20 days left on her original one-year period to file her suit. Yet, Blake filed her suit on November 3, 2009, "nearly two years after the prescriptive period for filing suit had tolled and more than six years after Blake’s stated date of the act of malpractice." Blake's argument for additional tolling due to her mental condition did not move the court. Observing that Civil Code Article 3468 provides that "[p]rescription runs against absent persons and incompetents, including minors and interdicts, unless exception is established by legislation," the court determined that no statutory exception was available and that, accordingly, Blake's "claims have clearly prescribed."

The Blake case demonstrates the courts' strict adherence to the timing requirements contained in Louisiana's prescription statutes. While a widow's state of depression following the death of her spouse is entirely understandable, it is critical to remember that the law demands swift action on the part of plaintiffs to initiate a lawsuit in medical malpractice cases.

Continue reading "Court Discusses Prescriptive Period in Medical Malpractice Case" »

Many families in America have had to move their loved ones into a nursing home. Whether the reason is that they don't have the room to care for the elder, they don't have the time or money to provide adequate care, or their elder wishes to be in the nursing home, the decision to send them to a nursing home is a difficult one. Families may be concerned about the level and amount of care their elders receive at the nursing home. Continuous stories of abuse at nursing homes may also be a cause of concern for families. Nursing homes are given a high level of trust in the care of their patrons. When this level of trust is broken, the results can be horrific and unacceptable. The law provides for levels of care that nursing homes and medical practitioners have to live by. Once these levels of care are ignored, the law steps in to provide relief for families.

In Braud v. Woodland Village, LLC, the issue was whether the trial court instructed the jury to view the case under the right legal standard. Mr. Braud was diagnosed with Alzheimer's disease and Pick's dementia. This combination of diseases left Mr. Braud with many issues including an eating disorder and a higher chance of heart attack. Mr. Braud was moved to Woodland Village nursing home (Woodland). After his arrival at Woodland, Mr. Braud began showing signs of aggression towards staff. He was prescribed anti-psychotic medication as part of his treatment. After some time, Mrs. Braud reported to her husband's physician that Mr. Braud seemed very zombie-like. The physician instructed the Woodland staff that they were to check on Mr. Braud every 15 minutes for signs of distress. This was carried on for some time. The method used to check on Mr. Braud was to look through the window into his room to observe whether he was under any distress. The Woodland staff were never instructed to enter the room to check close-up. On September 2, 2004, after a 45 minute period of no Woodland staff checking on Mr. Braud, he was found to be unresponsive. Woodland staff called paramedics who arrived to the scene to find that Mr. Braud was likely dead for at least an hour before their arrival from a heart attack. At no point did any member of the Woodland staff attempt CPR on Mr. Braud. Mr. Braud's family (collectively "plaintiff") filed suit against Woodland for wrongful death and were awarded an amount of $1,650,000. After trial, defendants argued that (1) there was no harm from alleged medication errors (2) there was no evidence that Mr. Braud could be resuscitated (3) the award of $1,650,000 was far above the $500,000 statutory amount (4) there was no evidence that Woodland caused the heart attack and (5) evidence presented proved, at most, that there was a loss of chance of life, not that there was wrongful death. Woodland lost on all of these claims except that the amount of damages was reduced to $500,000. Woodland appealed the decision stating that the trial court's refusal to include jury instructions for the "loss of a chance of survival" claim was a grounds to reverse the jury decision. The plaintiff appealed the decision to reduce the damages to $500,000.

In Louisiana, pursuant to LA.Rev. Stat. Section 9:2794(A), to find medical malpractice, the plaintiff must establish the standard of care applicable to the charged physician, a violation by the physician of that standard of care, and a causal connection between the physician's alleged negligence and the plaintiff's injuries resulting therefrom. The standard attributed to the physician is the standard used in Louisiana, based on the type of field, locale, and community in which the physician or medical practitioner practices. Further, in order for an appellate court to overturn a fact-finder's decision, a two-prong test is used to analyze the result. First, the appellate court must find from the record that a reasonable factual basis does not exist for the finding in the trial court. Second, the court must further determine that the record established that the finding is manifestly erroneous.

The Appellate Court found that the record did not contain evidence sufficient enough to find a reasonable basis for it. Throughout the testimony, every expert refuted the idea that any action taken on the part of the Woodland caused Mr. Braud's heart attack. Even the expert for plaintiff determined that no medication administered, or medication withheld led to Mr. Braud's heart attack. Another expert stated that the heart attack was likely the result of the Pick's dementia. Pick's dementia leaves the victim with an eating disorder, which at Mr. Braud's age could lead to significant damage to the body. Further, there was no action taken by any Woodland employee that caused Mr. Braud to have the heart attack. At most, not following the physician's order of checking on Mr. Braud every 15 minutes, in addition to not performing CPR after calling the paramedics was negligence that allows for a claim of loss of a chance of survival. The issue was, as argued by Woodland, that the trial court did not instruct the jury as to the "loss of a chance of survival" claim. The burden of proof of both the wrongful death claim and the loss of a chance of survival claim are the same. The plaintiff must prove that there was a chance of survival and that this chance was lost due to defendant's negligence. Since the trial court did not instruct the jury as to this claim, this impacted the determination of the jury, which amounted to legal error. For these reasons, the appellate court sent the case back to the trial court at which time the jury should be instructed on the loss of a chance of survival claim.

It may be a harsh decision to reverse a win for a family that lost a loved one. It is clear that there is a chance that Woodland was liable to plaintiff. The Court's decision reminds us that there was more than one claim upon which plaintiff could have based its legal theory. The Court won a battle on behalf of the legal system by emphasizing that even if a defendant is liable, the defendant will not be liable for a claim for which it is not responsible. The correct legal standards should be applied to defendants to ensure the proper determination of justice. If you or a loved one have been injured due to the negligence of a physician or medical practitioner, it is essential that you seek immediate legal advice. As Braud v. Woodland Village, LLC. demonstrates, there are many legal theories upon which your rights are protected.

Continue reading "Court Dissects Nursing Home Wrongful Death Case" »

In June 2010, the First Circuit of the State of Louisiana Court of Appeal reversed and remanded the case of Lena Hebert et al. v. Plaquemine Caring, L.L.C. due to a legal error committed by the Eighteenth Judicial District Court for Iberville Parish. This legal error proved to be a compelling element to the case and demonstrates why a competent attorney is highly important, especially in the case of a loss of a family member or other personal injury element.

The plaintiffs in this case are the survivors of the deceased, Mr. Morgan Hebert. He suffered a fractured hip from falling, but had a heart attack before he was able to undergo surgery. Upon leaving the hospital, Mr. Hebert was discharged to a long-term skilled nursing facility owned by the defendants, Plaquemine Caring, L.L.C. At the time Mr. Hebert was admitted to the nursing facility, he had been diagnosed with several serious conditions, which required him to be dependent upon a ventilator. On October 19, 2001, his family members found him cold and nonresponsive. They notified the staff at once and Mr. Hebert was pronounced dead from respiratory failure, cerebrovascular accident, and cervical neuropathy.

Mr. Hebert’s surviving spouse and children alleged that the defendants’ fault and negligence caused Mr. Hebert’s loss of a chance of survival. After a bench trial, the judge granted the defendant’s oral motion for involuntary dismissal, finding that plaintiffs had not established that a breach of the standard of care was a cause of Mr. Hebert’s death. The First Circuit Court of Appeal reversed and remanded because the trial court used the incorrect legal standard in granting defendant’s motion.

In a lost chance of survival case, the plaintiff does not have to prove that the patient would have lived had proper treatment been given. Rather, the plaintiff has to establish by a preponderance of the evidence that 1) a chance of survival existed in the first place and 2) the defendant’s negligent conduct denied the patient a chance of survival that he or she had before the defendant’s conduct. The defendant’s conduct does not need to be the only cause of death, but the conduct must have increased the risk of harm. The plaintiff can recover even when it is more likely than not that the patient would have died due to a pre-existing condition. In addition, the plaintiff does not have to show that the defendant’s actions led to Mr. Hebert’s death to a “medical degree of certainty.”

At trial, a plaintiffs’ expert testified that Mr. Hebert’s vital signs indicated that he was in distress in the hours leading up to his death. There had been inconsistencies in Mr. Hebert’s chart that were corroborated by sworn testimony by the nursing staff as well as a lack of proper recordkeeping, which meant that no problematic patterns were recorded that might have alerted staff. Another doctor, who was not qualified as an expert witness, testified that Mr. Hebert was in frail health at the time of admission to the nursing facility and that patients with Mr. Hebert’s symptoms commonly experience “sudden death episodes.”

The First Circuit acknowledged that the evidence was not strong, but because an involuntary dismissal in a bench trial is like a directed verdict in a jury trial, the plaintiff must have offered no evidence to support its claims and the facts presented so strongly supported the defendant’s position that no reasonable person could have reached a contrary verdict. Because that was not the case here, the First Circuit reversed and remanded for further proceedings.

In Louisiana, there are certain steps that need to be taken in order to file a case for medical malpractice. In order to get a case to trial, a plaintiff must first submit a malpractice petition to a medical review board. The board reviews the facts surrounding a case and compares health care providers with a basic standard of care required for those practitioners in the locale in which they practice. If the board decides in favor of the defendants, the plaintiff can take the case to a judicial proceeding. A civil case in Louisiana must be filed or settled within a year.

This is the basic fall-back provision of how long a case can remain in effect. The legislature has the authority to add to this period for certain causes of action, in certain circumstances. For example, a medical malpractice claim must usually be filed within one year from the negligent treatment. However, if the plaintiff did not know that the medical malpractice occurred, the plaintiff can file within one year of discovering the malpractice. In any case, no claim can be filed more than three years after the alleged negligent treatment. Thus, even if the negligent treatment is not discoverable until four years have gone by, the plaintiff will be out of luck and the time for filing the suit will have expired.

The medical review board takes a great deal of time to make a decision. Thus, while the review board is making a determination, the one year prescription period is stopped to allow the board to make its decision without taking away the plaintiff's time to bring a case. However, once the review board has made a decision, the plaintiff only has 90 days plus any additional time left over from the one year prescription period to file a claim.

In Beverley Blake v. Dr. Warren Maley, a Louisiana court discussed how these different time frames interlock. Mrs. Blake brought a suit on her behalf and on behalf of her two children due to alleged malpractice by Dr. Maley, when the doctor was treating her husband. As a result of alleged mismanagement of medical treatment, Mr. Blake suffered amputated fingers, feet, and hands. Mrs. Blake brought the matter before the board on June 2, 2004. The alleged malpractice occurred on June 22, 2003. At this point, Mrs. Blake brought the matter before the review board in a timely matter. The board made its decision on March 15, 2007, unanimously ruling in favor of all defendants. On November 3, 2009, Mrs. Blake filed suit against Dr. Maley in court. She stated that the review panel did not make an informed decision and that she was still entitled to file her case before court. She claimed that after her husband died, and after the board made its determination, she fell into an extreme depression and was unable to make determinations. She argued that she had three total years to file her suit. However, in Louisiana, in order to get three years to file a medical malpractice claim, a party must not know, and should not be able to know, that malpractice occurred until a later date than when the malpractice occurred. Mrs. Blake never alleged that she was unaware that malpractice occurred. In fact, her taking the case to the medical board showed that she believed that there had been negligence. Therefore, this argument did not work.

She further argued that since she was in a state of depression she had no idea what was going on. She argued that the one year time period should be stalled during the period when she had fallen into a state of depression. Louisiana law states,"Prescription runs against absent persons and incompetents, including minors and interdicts, unless exception is established by legislation." There is no law in Louisiana that excuses a violation of the prescriptive period due to depression. The period continues to run regardless of the plaintiff's mindset.

Mrs. Blake was unfortunate because she lost her legal representation right before she fell into a state of depression. She failed to hire new legal counsel and had thus let the prescriptive period expire without a fight. Acquiring legal counsel gives a party an objective non-emotional partner in a law suit. Even if the party is depressed, sad, or angry, competent legal counsel will remain objective and committed to finding a solution to a problem.

Continue reading "Disastrous Results for Plaintiffs that Wait Too Long to File Suit" »

The Court of Appeals of Louisiana, Third Circuit, recently held the Medical Malpractice Act’s (MMA) award limitation unconstitutional when applied in violation of the Equal Protection clause of the 1974 Louisiana State Constitution. In Oliver v. Magnolia Clinic, a minor child was treated by a nurse practitioner who failed to identify tell-tale signs of neuroblastoma, a form of childhood cancer originating in the nerve tissue, and failed to refer the child for more specialized care in a timely manner. The matter was originally tried before a jury, which returned a verdict against the nurse practitioner in favor of the child's family, for $6,000,000.00 in general damages. The MMA's $500,000.00 award cap would have severely limited this verdict, to one-twelfth of the jury’s award. Plaintiffs filed a Petition for Declaratory Relief asserting the MMA is unconstitutional. The plaintiffs made a number of claims that the MMA cap violates the Louisiana State Constitution, including an argument based on the equal protection guarantee of La.Const. art. I, § 3. Because the court found the “equal protection” argument had merit, it did not address the other constitutional challenges raised by the plaintiffs.

The Louisiana Supreme Court made clear in Everett v. Goldman that unless a fundamental right is impacted or a separate or suspect classification is created, the legislature is constitutionally free to limit damage recoveries or to grant immunities from suit so long as it articulates a rational basis for the discriminatory treatment reasonably related to the governmental interest sought to be advanced. The Supreme Court has also held that the right of malpractice victims to sue for damages caused them by medical professionals does not involve a fundamental constitutional right, and requires only rational basis review. However, because the MMA, on its face, discriminates between classes of people based on physical attributes, the Louisiana Supreme Court held in Sibley II that the State must articulate more than a “rational basis” for the cap in cases involving severely or catastrophically injured victims of malpractice to avoid Article 1, §3’s constitutional bar to its enforcement.

In this case, the minor child is a severely injured victim of malpractice. She was injured as a baby and she will endure a lifetime of devastating and debilitating effects on her capacity to perform even basic human functions. The State failed to present evidence to the contrary. Thus, on appeal, the Court decided that “there simply is no rational reason why the most severely injured malpractice victims should be singled out to pay for special relief for a nurse practitioner who operated in derogation of her statutorily mandated duties.” The Court also concluded that “the cap, to the extent it includes nurse practitioners within its ambit, violates the equal protection guarantees of the Louisiana Constitution and La.R.S. 40:1299.41(A)(1), and, thus, is unconstitutional.” The Court reinstated the jury's award of damages to the plaintiffs.

The legislative purpose underlying enactment of the MMA’s all-inclusive monetary and non-monetary $500,000 award cap in Louisiana was to assure available and affordable malpractice insurance for healthcare providers. The state of Louisiana has a relatively high rate of medical malpractice reports. Louisiana is responsible for 1.3% of all medical malpractice payment reports made against physicians in the United States, a rate higher than over half of the states in the country. This high rate of malpractice indicates that patients should be particularly concerned that they receive the best medical care from their doctors.

A patient is owed the same standard of care regardless of whether the doctor or nurse practitioner has medical malpractice insurance. To have a viable claim for medical malpractice a patient must demonstrate the applicable standard of care, often determined by expert testimony, and that the doctor breached that standard of care as to the patient. The standard of care is a legal term meaning the degree of knowledge or skill possessed or ordinarily exercised by physicians licensed to practice in the state of Louisiana, and practicing in a similar community under similar circumstances. After the standard of care is established the patient must show the care giver failed to provide that level of care. If the doctor's failure to provide adequate care was the cause of the patient's injury, it is likely to be malpractice.

If a patient thinks they may have been the victim of medical malpractice, they have one year to file a claim. A medical malpractice action for injury or death must be filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect. If the claim is not filed within one year of the discovery of the injury, it is barred by the statute of limitations, and may not be filed. It is of paramount importance to file a claim within the statutory period in order to seek relief for death or injury from medical malpractice.

Continue reading "Understanding Medical Malpractice and Legal Caps to Awards" »

Certain legal rights are transferable. If you owe a debt to some entity, upon your death, there is a chance that the entity will have some rights to your estate in order to satisfy your debt. Another example of a transferable right is a right of survival. If the victim in any circumstance has this right, upon the victim's death, the right would be transferable to the victim's family. The concept is relatively easy to understand but the situation gets complicated when the potential rights belong to an unborn fetus.

Throughout the country, different states have different interpretations of when a fetus becomes a person, and this has a big impact on what rights attach to protect the fetus. In Louisiana, the legislature has decided that an unborn fetus can in fact have rights against other persons or entities. However, Louisiana Civil Code article 26, which discusses a fetus' rights, has some important limitations:

An unborn child shall be considered as a natural person for whatever relates to its interests from the moment of conception. If the child is born dead, it shall be considered never to have existed as a person, except for actions resulting from its wrongful death.

Thus, the Louisiana legislature has codified what rights a fetus has. These rights extend to the moment of conception. However, if the fetus is born dead, all rights that attach to the fetus, except rights that find their origin in the cause of death, are extinguished.

The Louisiana Supreme Court discussed if survival rights attach to an unborn fetus, stating that fetuses can gain rights. However, for most circumstances, the rights attach only if the fetus is born alive. The Court stated that survival action attaches to someone's life. However, under Louisiana law a fetus that is born dead, is considered to never have existed at all. Even though the fetus gained the right to a survival action, because a stillborn fetus is considered to never have existed at all, the survival action, which attaches to a life, is extinguished.

In a recent case, Cari Long v. North Oaks Medical Center, the issue of survival action came up again. Ms. Long was involved in a car accident. She was pinned as a result of the accident. After emergency services arrived, she was taken to North Oaks Medical Center. The ER doctor and nurse contacted her obstetrician because she was pregnant. At the hospital, the heartrate of the baby was recorded at 120 beats per minute. After being taken out of ER, the doctor found that the fetus did not have a heart rate. Subsequently, the fetus was delivered as a stillborn. Ms. Long filed suit and as one of her causes of action, she claimed a survival action on behalf of the baby. All defendants filed exception claiming that there was no survival cause of action on behalf of the baby that was transferred to the parents. Based on Louisiana Civil Code article 26 and the Supreme Court ruling discussed above, there was no basis for the survival action. Under the current law there is no recourse in this type of circumstance. Only by legislative action can a survival action attach for a stillborn fetus.

While this matter is undoubtedly unfortunate and all parties involve wish that things did not go the way they did. However, the case also illustrates how complex the law can be and the ever-changing nature of some claims. Codified law can be extremely important and having an attorney that understands rights as provided by the state is significant in any matter.

Continue reading "Transferable Rights and How They Pertain to a Lost Pregnancy" »

Taylor Oliver was born on September 5, 2000. Shortly after birth, Taylor began experiencing health problems and was brought to the Magnolia Clinic, where she was treated exclusively by Susan Duhon on thirty-two occasions. Since Nurse Practitioners are required to collaborate with a physician, Duhon agreed to collaborate with Dr. Jennette Bergstedt, M.D., when providing primary care from the Magnolia Clinic. Taylor was in the clinic several times per month with various complaints, including repeat infections, persistent abdominal pain, nausea, vomiting, diarrhea and anemia. Despite her statutory duty to consult with a physician when needed, Ms. Duhon did not collaborate with Dr. Bergstedt concerning Taylor’s condition. Instead, she verbally reassured Taylor’s mother and prescribed over thirty medications to treat the child’s multiple complaints and observable symptoms. Additionally, Duhon stated that Taylor only needed to see Dr. Bergstedt in connection with admission to a hospital.

After no progress in her condition, Taylor’s mother eventually brought her to Women & Children’s Hospital in Lake Charles, where she was treated for the first time by Dr. Bergstedt. Taylor was diagnosed with neuroblastoma, a form of childhood cancer originating in the nerve tissue. The records maintained by the Magnolia Clinic revealed at approximately six months, Taylor developed severe bruising around the eyes – one of the signs of childhood neuroblastoma. If neuroblastoma is diagnosed within the first year of life, a child has a ninety percent chance of an event-free survival. Fortunately, Taylor survived the cancer, but the quality of her life has been severely diminished. The tumor advanced into her long bone, face, eyes, ears, skull and spine leading to a variety of physical defects and vision difficulties. What's more, her bones have become weakened and brittle and she struggles each day to overcome learning disabilities.

As a result, the Olivers pursued medical malpractice claims and a jury returned a verdict against Duhon in favor of the Olivers, on Taylor’s behalf, for $6,000,000.00 in general damages, $629,728.24 in past medical expenses, and $3,358,828.00 in future medical expenses. The jury awarded Mr. Oliver $33,000.00 for loss of consortium and Ms. Oliver $200,000.00. Unfortunately, the MMA malpractice insurance coverage limited recoverable damages to $500,000.00 and the Olivers petitioned the court to have the MMA declared unconstitutional. A trial court found that the MMA was constitutional and subsequently reduced the jury’s award to conform to the limitation on general damage recovery and other restrictions of the Louisiana Medical Malpractice Act. The Olivers appealed the trial court’s decision and the appellate court found that the cap on general damage awards unconstitutionally disadvantages and discriminates against Taylor and her parents because of the severity of Taylor’s physical condition when compared to other malpractice victims who receive full recovery for their injuries.

In the opinion, the court examined whether the MMA violated the equal protection clause of the Louisiana Constitution which provides, in part: "No person shall be denied the equal protection of the laws. No law shall discriminate against a person because of race or religious ideas, beliefs, or affiliations. No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas or affiliations." In fact, the legislature is constitutionally free to limit damage recoveries or to grant immunities from suit as long as there is a rational basis for the discriminatory treatment that is reasonably related to the governmental interest. While the state insisted that the legislative purpose of the MMA cap was to assure available and affordable malpractice insurance for healthcare providers, the Court did not agree. The court noted that when the state chooses to provide an adequate remedy to provide an "adequate remedy" to some members of a class of victims and denies it to other members of the same class because of their physical condition, it creates a separate classification. Essentially, limiting the recovery of victims whose injuries exceed $500,000 creates two classes of victims and, as a result, "classifies individuals because of their physical condition." Victims with minor injuries are allowed to fully recover while those harmed the most recover minimal damages in comparison.

This opinion modifies the statutory scheme that limits damages recoverable by victims of medical malpractice. As the court noted, "[a] statute may be constitutionally valid when enacted but may become constitutionally invalid because of changes in the conditions to which the statute applies. A past crisis does not forever render a law valid." As such, victims of medical malpractice should consult experienced attorneys to assist them in recovering damages from medical malpractice as well as understanding medical malpractice statutes.

Medical malpractice cases often turn on whether the plaintiff can establish that the health care provider breached the standard of care. Louisiana's Medical Malpractice Act governs the conduct of health care professionals and mandates that the standard of care owed is that of the average member of the profession under similar circumstances. For the Act to apply, the defendant must be a qualified health care provider. Determining if this is a provider, and if the plaintiff has rights, are two of the most important factors that hiring a competent attorney can help guarantee when filing a case.

At issue in Ruby "Nell" Coleman vs. La Terre Physical Therapy, Inc., D/B/A Terrebonne Physical Therapy Clinic and Donald P. Kinnard, P.T., was the standard of care owed to patients of physical therapists. The plaintiff, Ruby Coleman, attended physical therapy with the defendants following a total knee replacement. Mrs. Coleman sustained injuries to her left knee during physical therapy exercises on a Continuous Passive Range of Motion machine. After it was discovered that Mrs. Coleman sustained a fracture to her knee, she underwent surgery. Afterwards, Coleman filed suit against the defendants, alleging that her injuries were caused by physical therapist Mr. Kinnard's failure to obtain a complete medical history, which would have revealed she suffered from severe osteoporosis. In her suit, Coleman claimed that if Kinnard had done so, he would have administered a safer method of physical therapy. The defendants filed a motion for summary judgment, arguing that Coleman did not show the treatment fell below the applicable standard of care.

The trial court granted the defendants' motion for summary judgment on the grounds that expert witness testimony supported the conclusion that the applicable standard of care was not breached. The plaintiff appealed, but the Louisiana Court of Appeal, First Circuit, affirmed the decision of the lower court. The Court cited Boudreaux v. Panger, in which the Louisiana Supreme Court held that a chiropractor, although not subject to the Medical Malpractice Act, is judged by the standard of his or her profession and, therefore, general negligence is not available as a basis of recovery. Therefore, Mrs. Coleman could not prove the elements of general negligence (i.e., duty, breach, causation, and damages) but was required to show that Mr. Kinnard failed to act in accordance with the standard of care practiced by his peers in the same locality under similar circumstances.

Mrs. Coleman's expert witness testified that if Kinnard utilized a safer method of physical therapy, such as the passive manual stretch, sustaining a fracture to her femur was still possible. Since Coleman was unable to show that failing to obtain a complete medical history caused her harm, the appellate court concluded that the defendants were entitled to summary judgment as a matter of law.

This case demonstrates the importance of consulting an attorney who is knowledgeable of the appropriate standard of care in medical malpractice cases. Since plaintiffs have the burden of proving a breach occurred, filing a lawsuit without knowing your chances of prevailing might cost you considerable time and resources. Our experienced attorneys will be able to recommend the best course of action to take in a given case.

In a post earlier this week, we reviewed the Third Circuit's treatment of a medical malpractice case that arose from a double knee replacement surgery. In addition to her enumeration of error about the faulty opinion returned by the state medical review panel, the plaintiff, Margie McGlothlin, also asserted there was no "reasonable factual basis" for the jury's conclusion that the hospital was not liable for her injuries. As part of its de novo review, the court examined the record for details on the two incidents that McGlothlin pointed to as the cause of her kneecap dislocation. The first involved her transfer between a wheelchair and her hospital bed at the rehabilitation center during which a nursing assistant, working without help, dropped McGlothlin. The other incident similarly involved a nursing assistant--again working unaided--who dropped McGlothlin as she was transferring to the restroom. The court reviewed the applicable standard of care for these situations:

The transfer from wheelchair to either bed or toilet of a bilateral knee replacement patient weighing almost 300 pounds requires at least two people assisting in the transfer together with the use of a gait belt.

Whether the hospital employees breached that standard of care, and whether that breach caused McGlothlin's injury, are questions of fact usually left to the jury. The second incident, in particular, involved several factual discrepancies. McGlothlin testified that, after she fell while attempting to make her way to the bathroom, she immediately called for her doctor, explained what happened, and submitted to an x-ray which revealed the dislocation of her kneecap. The nursing assistant caring for McGlothlin during this time, however, denied that the restroom incident occurred at all and maintained that McGlothlin never suffered injuries of any kind. The hospital further argued that McGlothlin's kneecap became dislocated as a result of activities during rehabilitation and without any negligence on the part of hospital employees. In reviewing the account of McGlothlin's progress, the court found no evidence of a "traumatic event" during therapy that could have caused the injury. However, the report did make note of McGlothlin's increased pain in her left knee and a corresponding reduction in recommended exercise by her therapist. Ultimately, the court found that McGlothlin's allegations had "credibility." Reviewing the entire record, the court concluded that McGlothlin carried her burden of establishing that during the restroom transfer, the nursing assistant breached the duty of the care, and that this breach resulted in an injury to McGlothlin's left knee. Accordingly, after considering the appropriate level of damages, the court reversed the trial court's judgment dismissing McGlothlin's claims and rendered judgment in her favor and against Christus St. Patrick Hospital. The court awarded McGlothlin the statutory maximum of $500,000.00 in damages, plus $62,341.29 in past medical costs and the expenses of reasonable future medical treatment.

This rare course of action by the Third Circuit -- to reverse a jury verdict and substitute its own judgment following a de novo review, demonstrates the extremely high level of influence the medical review panel can have on the outcome of a trial. And in a case such as this one, where the review panel reached conclusions beyond those it was legally permitted to entertain, the prejudicial effect on the jury's analysis is striking. Accordingly, in order to preserve the integrity of the tort process, the appellate court felt obligated to correct the jury's inappropriate decision that resulted from the trial court's error in handling the panel opinion. The McGlothlin case shows how critical a persistent, zealous attorney can be for an injured plaintiff.

Continue reading "Lawsuit Over Double Knee Surgery and Subsequent Injury Leads to Ruling Demonstrating MedMal Complexity - Part 2" »

Previously in this blog we have examined a number of cases involving medical malpractice claims. One common thread in these cases is the involvement of the state's medical review panel. This is because claims brought against healthcare providers under the Louisiana Medical Malpractice Act must be reviewed by a medical review panel before proceeding to court. The panel is made up of three doctors and one attorney. The panel's purpose is limited: its authorized by statute only to determine whether the evidence supports the plaintiff's allegation that the defendant healthcare provider failed to observe appropriate standard of care in the plaintiff's treatment and, if the standard was not met, whether the failure contributed to the plaintiff's injury. The panel is specifically prohibited from rendering conclusions about issues of material fact that do not require on an expert opinion. The panel's report, which it issues in writing, is considered an expert opinion which, though not conclusive, is admissible in any subsequent legal action.

In this post, the first of two on the case of McGlothlin v. Christus St. Patrick Hospital, we will explore the Third Circuit's treatment of the trial court's erroneous admission of the medical review panel's faulty opinion. The facts are as follows: In 1999, after nearly a decade of suffering with osteoarthritis, Margie McGlothlin checked into Christus St. Patrick Hospital in Lake Charles for a double total knee replacement. The surgery was successful, and McGlothlin's initial recovery uneventful. Three days after the procedure, McGlothlin was transferred from the main hospital to the rehabilitation wing. While there, McGlothlin alleged that she fell and injured her left knee on two separate occasions when the nursing assistants who were attempting to transfer her did so without assistance. McGlothlin, claiming that these falls caused the dislocation of her knee cap, first submitted her claim for damages to a medical review panel as required by the Louisiana Medical Malpractice Act. The panel rejected McGlothlin's claim, and she filed suit. During the trial, the parties did not dispute that McGlothlin sustained a kneecap dislocation while under the care of the hospital and that the standard of care for moving a double knee replacement patient requires the assistance of more than one trained attendant. But the hospital denied that either of the two falling events alleged by McGlothlin occurred at all and instead suggested that her dislocated kneecap resulted from physical therapy (a risk with all knee replacement procedures). Following a three-day trial, the jury returned a verdict for Christus St. Patrick's, and McGlothlin appealed.

One enumeration of error offered by McGlothlin centered on the trial court's admission of an edited version of the medical review panel's report. The editing resulted from McGlothlin's objecting during the trial to the hospital's attempt to introduce the report into evidence. McGlothlin argued that the report contained non-expert conclusions of issues of material fact, which violated the limited authority granted to the panel by state law. Specifically, the panel determined that there was "no violation of the applicable standard of care without even stating what that standard of care was. Instead, the panel's written reasons addressed only the factual conflicts raised by the information" presented by the parties. In an effort to preserve as much of the panel's report as possible, the trial court redacted from the report the panel's conclusion as well as part of the last sentence, which stated "but we feel that the versions of both of the incidents by the patient and her family appear to have numerous inconsistencies." The Third Circuit stated, "a clear reading of what remains of the medical review panel's opinion establishes to the reader that the underlying dispute was factual and not legal." Furthermore, one of the hospital's trial witnesses was an orthopedic surgeon who served as a member of the medical review panel. Although the trial court ruled that the witness could not, during testimony, state what the panel's (redacted) conclusion was, the witness "made it clear in his testimony that his opinion and that of the panel were based on factual findings." Thus, despite the trial court's attempt to shield the report's impermissible conclusions from the jury, its members were "fully informed" about how the panel's opinion was reached and that it had concluded the hospital did not violate the standard of care. The court held that the trial court's improper admission of the medical review panel's redacted opinion and the surgeon's direct testimony about the inner workings of the panel "tainted the integrity of the trial." Accordingly, the court determined that a de novo review of the record was required.

In a subsequent post, we will look at the court's analysis of McGlothlin's enumeration of error that there was no "reasonable factual basis" for the jury's conclusion that the hospital was free of liability.

Mar'Kirney Holland, only four years old, died tragically in Orleans Parish after allegedly receiving negligent medical care in Lincoln Parish six years ago. This story provides a lesson on how important procedural motions are to a case. Plaintiffs often choose a certain jurisdiction because of different factors. Sometimes certain jurisdictions are chosen because of ease and convenience to parties and witnesses. Other times, plaintiffs have heard that certain courts or judges are more amenable and therefore, more likely, to rule in their favor. No matter the reasoning, deciding which court to proceed in is an essential decision that plaintiffs and plaintiffs' attorneys must make. In this case, Holland v. Lincoln General Hospital, No. 2010-CC-0038 (La. Oct. 19, 2010), Defendants were successful in having the case moved from Plaintiffs preferred location of Orleans Parish to Lincoln Parish.

Mar'Kirney was born prematurely on November 12, 1999, and from an early age suffered from hydrocephalus, a condition where cerebrospinal fluid pools in the brain. At Tulane Hospital in New Orleans, doctors inserted a shunt to drain this fluid. Most, if not all, of the treatment related to the shunt took place at Tulane Hospital. The most recent "shunt revision" took place at Tulane Hospital two weeks before her death.

However, when Mar'Kirney began to suffer headaches, nausea, and vomiting, her mother, Latisha Holland, took Mar'Kirney to the closer hospital, Lincoln General Hospital. There, after fruitlessly waiting an hour, leaving, and coming back, Latisha claims that the doctor diagnosed Mar'Kirney with an upper respiratory infection. This was not the case. Mar'Kirney worsened and had to be transferred to Tulane Hospital after CT scans revealed that the shunt was blocked. Mar'Kirney died less than 24 hours after arriving at Tulane's Pediatric Unit. Latisha brought a wrongful death and survival action against Lincoln General Hospital.

Generally, where proper venue lies in more than on parish, as in this case where Mar'Kirney was treated in both Lincoln General Hospital and Tulane Hospital, plaintiff may choose whichever venue to pursue the case. However, defendants may seek to move the case to another court because of the doctrine known as forum non conveniens. Although plaintiff's initial forum choice is given deference, the court may grant this motion if defendant is able to show why. This procedural doctrine is set forth in La. Code of Civ. Proc. art. 123(A). provides that:

For the convenience of the parties and the witnesses, in the interest of justice, a district court upon contradictory motion, or upon the court's own motion after contradictory hearing, may transfer a civil case to another district court where it might have been brought; however, no suit brought in the parish in which the plaintiff is domiciled, and in a court which is otherwise a court of competent jurisdiction and proper venue, shall be transferred to any other court pursuant to this Article.

Essentially this provides three factors which a court will consider in deciding whether to keep the case with itself or to move it to another court. These three factors are (1) convenience of the parties; (2) convenience of the witnesses; and (3) interest of justice.

In this case, Defendants were able to persuade the Supreme Court of Louisiana that these three factors weighed in their favor. They were able to show that Plaintiffs were residents of Lincoln Parish, Lincoln General Hospital's principal place of business is in Lincoln Parish, and the doctor involved in the initial diagnosis is a resident in the neighboring parish. Further, several of the key witnesses are residents of Lincoln Parish or neighboring parishes. The distance between Ruston and New Orleans is approximately a five hour drive and Defendants were able to show that it would be overly burdensome for them to travel this distance to litigate. Further, Plaintiff did not properly introduce evidence of witnesses who were living in New Orleans. Ultimately, the Court decided that in the interest of justice, the case should be moved to Lincoln Parish, granting Defendants' motion.

It is important to seek knowledgeable legal assistance as this case shows. Bringing a wrongful death and survival action is difficult and fraught with emotion. It is made more difficult by procedural tricks that sophisticated defendants utilize to have an advantage in the case. Further, if you believe you have a claim against a medical provider it may or may not be a medical malpractice claim. As an earlier blog entry discussed. Under the Louisiana Medical Malpractice Act, additional steps must be taken if the nature of the claim indicates that the MMA applies. If these steps are not taken, the claim will fail and is just one more reason why the success of your case depends on a bright, experienced attorney, who understands the intricacies of medical malpractice law.

Continue reading "Defendant's Motion to Switch Courts is Approved in Negligence Suit Against Hospital" »

As we have discussed previously on this blog, summary judgment is a procedural device for expediently resolving a case without a full trial where there is "no genuine issue of material fact." Johnson v. Evan Hall Sugar Co-op, Inc., 836 So.2d 484, 486. (La. App. 1st Cir. 2002). It is well settled in Louisiana that summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact" and that party requesting judgment is entitled to it as a matter of law. See La. Code Civ. P. Art. 966(B). A trial court's analysis of whether summary judgment is proper can involve the review of a considerable volume of documents which may contain conflicting information. The First Circuit Court of Appeals recently ruled on a summary judgment motion in a medical malpractice case that turned on the trial court's treatment of the defendant doctor's deposition and subsequent affidavit.

On June 9, 2007, Percy Bethley, 80, was admitted to Baton Rouge General Medical Center Mid-City ("BRGMC") with breathing difficulties. He had a five-year history of serious heart and lung disease. Bethley underwent various treatments in the hospital and received a pulmonary consultation by Dr. Reza Sheybani. After examining Bethley, Dr. Sheybani decided to replace the Bethley's tracheostomy tube. A respiratory therapist, Cecilia Eason, was brought in to perform the replacement. Eason had great difficulty with the procedure and, sadly, as a result of a series of further complications, Bethley expired.

Following Bethley's death, his widow and children (the plaintiffs) filed a medical malpractice complaint with the Louisiana Patients' Compensation Fund. The panel found that the evidence supported the possibility that Dr. Sheybani failed to meet the applicable standard of care and that his conduct had been a factor in Bethley's death. The plaintiffs then filed suit against BRGMC and Dr. Sheybani, alleging that Dr. Sheybani and the hospital employees who treated Bethley negligently contributed to his death. BRGMC answered and filed a motion for summary judgment. Dr. Sheybani responded with a pleading that opposed summary judgment and which included a personal affidavit that contained his own expert medical testimony. This testimony was offered to prove that genuine issues of material fact existed in the case: Dr. Sheybani alleged that Eason, a BRGMC employee, had been negligent in her treatment of Bethley. BRGMC then filed a motion to strike the affidavit of Dr. Sheybani, which the trial court granted after a hearing. The trial court also granted BRGMC's motion for summary judgment, and dismissed with prejudice the plaintiffs' claims against BRGMC. Dr. Sheybani filed a motion for devolutive appeal.

On appeal, BRGMC argued that the trial court's granting of its motion for summary judgment was proper because "the affidavit of Dr. Sheybani was self-serving and drafted in an attempt to create a false issue of material fact sufficient to defeat summary judgment." BRGMC relied upon Douglas v. Hillhaven Rest Home, Inc., 709 So.2d (La. App. 1st Cir. 1998), for the point that a party's affidavit which contradicts his prior deposition testimony is not sufficient to create an issue of fact which precludes summary judgment. BRGMC also relied on Wheelock v. Winn-Dixie Louisiana, Inc., 822 So.2d 94 (La. App. 1st Cir. 2002), as authority for the position that "where there are unexplained inconsistencies between deposition testimony and a subsequent affidavit, the affidavit is not sufficient to create a genuine issue of material fact ... in order to defeat a motion for summary judgment."

In response, Dr. Sheybani justified his affidavit by citing La. Code Civ. P. Art. 967. This article establishes that, as the adverse party to a motion for summary judgment, he cannot "rest on mere allegations or denials," but "must respond by affidavit to provide evidence of a material dispute that precludes the granting of summary judgment." Given the trial court's failure to assign specific reasons for its ruling, Dr. Sheybani urged the court to presume that the trial court's striking of the affidavit resulted merely "from arguments put forth at the hearing by BRGMC." Furthermore, Dr. Sheybani asserted that the statements in his affidavit did not contradict his earlier deposition testimony, but rather "merely clarified or supplemented [his] previous deposition testimony," which, according to Terrebonne v. Floyd, 767 So.2d 754 (La. App. 1st Cir. 2000), would require the trial court to consider the affidavit when determining genuine issues of material fact.

After reviewing the record, the court sided with Dr. Sheybani. It concluded, "since the statements made by Dr. Sheybani in his subsequent affidavit merely clarified and were not inconsistent with testimony given ... in his earlier deposition, we conclude the affidavit and the attached exhibits were admissible." Dr. Sheybani's affidavit "should have been considered by the trial court in evaluating BRGMC's motion for summary judgment... [W]e conclude that there are genuine issues of material fact regarding whether BRGMC and/or its employees failed to meet the applicable standard of care with respect to their treatment of Mr. Bethley." The court reversed the trial court's granting of BRGMC's motion to strike Dr. Sheybani's affidavit and remanded the case for further proceedings as to Dr. Sheybani's meeting the standard of care in treating Bethley.

This case further demonstrates the complex nature of tort litigation, especially when multiple parties may have been negligent and at fault for harm to the plaintiff. Dr. Sheybani sought to defeat BRGMC's motion for summary judgment in the interest of his own defense; by pointing to the negligence of the respiratory therapist, he could potentially reduce or even eliminate his own blame. This path would have been foreclosed if BRGMC had been dismissed from the action at summary judgment.

Continue reading "Court Examines Role of Key Document in Summary Judgment in Baton Rouge Medical Malpractice Case" »

As we have examined in several prior blog posts, expert testimony plays a very important part in the resolution of many tort suits, especially those involving medical malpractice claims. Because the details of medical procedures can add considerable complexity to a case, expert witnesses are commonly relied on by both plaintiffs and defendants to help the jury better understand the facts. The input of experts is essential to the jury's analysis of whether a doctor's conduct which caused the plaintiff's harm met the applicable standard of care; the recent case of Verdin v. Hospital Service District No. 1 of the Parish of Terrebonne, No. 2010 CA 0456 (La. Ct. App. 1st Cir. 2010), offers a look at the considerations a court may give when qualifying a witness as an expert.

On February 27, 2002, Don Verdin underwent back surgery at the Terrebonne General Medical Center to repair a herniated disc. Dr. Henry Haydel, an orthopedic surgeon, performed the procedure. During the surgery, Dr. Haydel's tool punctured an artery, which required emergency surgery to repair. It was also discovered that Verdin's bowel had been punctured, which necessitated yet another surgery to correct. Following these procedures, Verdin developed a severe infection that required an extended hospital stay, during which he experienced a number of other complications prior to his release from the hospital nearly a month later. Verdin filed a medical malpractice complaint with the Louisiana Patient's Compensation Fund against Dr. Haydel, alleging that Dr. Haydel breached the standard of care in performing the back surgery and failed to properly treat the injuries that occurred during the surgery. Verdin also included similar claims against the surgeons who repaired the artery and bowel perforations. The Medical Review Panel found that none of the doctors who treated Verdin failed to meet the applicable standard of care as charged in the complaint. Nevertheless, Verdin filed a medical malpractice suit against Dr. Haydel in June of 2005, alleging the same claims as were denied by the Review Panel. Following a four-day trial, during which numerous expert witnesses testified, the jury returned a verdict in favor of Dr. Haydel, finding that he did not breach the standard of care in his treatment of Verdin. Verdin then filed an appeal in which he attacked the jury verdict as manifestly erroneous.

Verdin's primary enumeration of error centered on the expert testimony of Dr. Chad Millet, who was called as a witness by Dr. Haydel during the trial. Verdin objected to Dr. Millet's qualifications, arguing that he did not have the necessary knowledge to qualify as an expert witness because he had not performed spine surgery in the six years prior to Verdin's procedure in 2002. Verdin further asserted that because Dr. Millet had not taken any continuing medical education courses in the area of spine surgery during that time, he was not qualified to testify regarding the surgical procedure employed by Dr. Haydel. In reviewing the trial court's decision to nevertheless accept Dr. Millet as an expert in the field of orthopedic surgery, the court reviewed La. R.S. 9:2794(D)(l)(b) and (c). These provisions require that in order to qualify as an expert witness, a physician must have knowledge of accepted standards of medical care for the treatment involved in the claim, and that the physician must be qualified on the basis of training to offer an expert opinion regarding those accepted standards of medical care. The court also reaffirmed the long-standing view "trial courts have great discretion in determining the qualifications of experts and the effect and weight to be given to expert testimony. In the absence of a clear abuse of this discretion, [appellate courts] will not disturb a trial court's ruling on the qualification of a witness." See Bradbury v. Thomas, 757 So.2d 666, 673 (La. App. 1st Cir. 1999). "It is well settled," noted the court, "that the law does not require an expert to be actively practicing in the particular specialty about which he or she will testify." Instead, "the court need only be satisfied that the witness is qualified to give testimony regarding the applicable standard of care. Bradbury, 757 So.2d at 674.

In reviewing the trial record, the court took notice that Dr. Millet is a board certified orthopedic surgeon who performed 100-150 lumbar procedures while in private practice from 1990 through 1996. Although Dr. Millet stopped performing lumbar procedures in 1996 to focus on joint replacement surgeries, he took continuing medical education courses in all of the subspecialties of orthopedics, including spinal surgery, and was recertified as an orthopedic specialist in 2002. The court concluded that, "under these circumstances, we find the trial court did not abuse its discretion in finding that Dr. Millet possessed the requisite knowledge and experience to testify as an expert in orthopedic surgery and render an opinion on whether Dr. Haydel breached the standard of care." Accordingly, the court affirmed the trial court's verdict and assessed all costs to Verdin.

While Mr. Verdin's experience in the hospital was unquestionably difficult and unpleasant, this case demonstrates that not every bad medical outcome indicates malpractice. A patient who has suffered a troubling experience while under the care of a doctor should consult a knowledgeable attorney before rushing to file suit to ensure he or she has a valid negligence claim.

Continue reading "Terrebonne Medical Malpractice Suit Reaffirms Trial Court's Role in Qualifying Expert Witnesses" »

Time is of the essence when filing a claim; a person can essentially lose the case before it even begins if the claim is not filed "in time". But the question is when is a claim "on time?" In the recent case holding of Casborn v. Curran and Northshore Regional Medical Center, the court explained that under Louisiana Revised Statutes 9:5628, "no action for damages for injury or death arising out of patient care shall be brought unless filed within one year from the date of discovery of the alleged act." What has become an issue for many to understand is from what point does the court consider a person to have "discovered" the injury or wrongful act? Exploring the cases' analysis sheds some light on the issue and hopefully provides an answer to this dilemma.

Prescription is a legal term that is a powerful tool that many litigants utilize to dismiss a case. Specifically, prescription is defined as "the loss or forfeiture of a right, by the proprietor's neglecting to exercise or prosecute it during the whole period, which the law hath declared to be sufficient to infer the loss of it." The prescription clock starts ticking as soon as the person who feels they have been damaged discovers the alleged injury; if they wait too long, the time limit is up and the clock stops ticking, resulting in the loss of their claim.

In the case of Cosborn, prescription ultimately ended the case before it even began, causing the plaintiffs to be completely out of luck in obtaining any relief. Dates are extremely important when a court explores the issue of prescription, which is why the dates of the plaintiff's alleged injury, eventual discovery, and final act of filing is vital in the analysis. The plaintiff, Mrs. Casborn, went to the Northshore Regional Medical Center on May 5, 2007, suffering from severe tongue swelling and difficulty breathing. The examining staff physician, Dr. Curran, administered the medication Benadryl —however, Mrs. Casborn continued to suffer and the symptoms actually began to grow worse. Eventually, she had to be taken into surgery and had a mechanical ventilator inserted, where it remained until May 18, 2007. In total, Mrs. Cosborn stayed in the hospital for almost an entire month, suffering from other complications including pneumonia, anemia, and acute renal problems.

On May 23, 2008, Mrs. Cosborn filed a medical malpractice complaint alleging that Dr. Curran's failure to administer the proper medication in the face of an acute allergic reaction was a breach in the medical standard of care. However, this is where the plaintiff's claim has a hiccup: Cosborn filed her complaint over one year after the date of the alleged negligence. The plaintiffs argued that the time did not start ticking until the ventilator was removed and she had regained her ability to speak, and that she did not discover the malpractice until a frame of between May 24, 2007 and June 1, 2007 when she was able to ask questions. The defendants immediately filed an exception of prescription claiming that the clock had stopped ticking and her time was up, alleging she had lost her right to complain since she waited for over one year past the allowed prescriptive time period.

The court held that Mrs. Casborn failed to specify certain facts that could have allowed her case to move forward. Thus, she had lost her ability to file a complaint against Dr. Curran and Northshore Regional Medical Center. Mrs. Cosborn never stated why she was unaware of the malpractice prior to the date of the alleged discovery and any evidence to emerge did not support the argument that she inquired into the issue as soon as she was able. What the court did focus on was the fact that Mrs. Cosborn remained on a ventilator until May 18, 2007 but she did not file her complaint until May 23, 2008. Therefore, her argument that she inquired into the situation as soon as she could speak does not explain or justify why she took over one year to file a claim.

Thus, prescription can be a sharp sword that can do away with a claim before it is even heard. While many individuals may be hesitant to bring a suit, the lesson of the day is if you feel that you have been injured, damaged, hurt, and seek legal guidance in order to ascertain if you have a claim, thus evading prescription. If you have questions or need legal representation feel free to contact our firm any time for a free consultation.

When hurt, many people begin stressing over who to hire to represent their interests. There are thousands of lawyers offering their services and one case, in particular, is a helpful guide to understanding how important picking the right one is. In Horton v. Beck Partners, L.L.C., the claims of a psychiatric patient, Denise Horton, were dismissed because she did not first submit her claims to a medical review panel. In fact, Horton did not characterize her claims as medical malpractice and thereby appealed the decision. Rather. Horton sued for general negligence which is a cause of action under general tort law.

However, the court determined the case did fall under the scope of the Louisiana Medical Malpractice Act which allowed the defendant physician to invoke an 'exception of prematurity.' This 'exception of prematurity' is a procedural mechanism utilized by health care providers in the event medical malpractice claims are not first presented to a medical review panel. To elaborate, if a health care provider is sued and action has commenced in a court of law, an exception of prematurity will be maintained and the lawsuit dismissed when the plaintiff fails to first present the claims to a medical review panel.

This outcome is dictated by the Louisiana Medical Malpractice Act which "requires that all claims against healthcare providers be reviewed or 'filtered' through a medical review panel before proceeding to any other court." Consequently, in Horton v. Beck Partners, L.L.C., both the trial court and the court of appeals maintained the physician's exception of prematurity and dismissed the plaintiff's (Horton) claims.

The Louisiana Medical Malpractice Act ß 40:1299.41 provides useful definitions. For example, 'malpractice' is defined in (A)(8) as "any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely and the handling of a patient, including loading and unloading of a patient, and also includes all legal responsibility of a health care provider arising from acts or omissions during the procurement of blood or blood components, in the training or supervision of health care providers, or from defects in blood, tissue, transplants, drugs, and medicines, or from defects in or failures of prosthetic devices implanted in or used on or in the person of a patient." Further, 'health care' is defined in (A)(9) as "any act or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient's medical care, treatment, or confinement, or during or relating to or in connection with the procurement of human blood or blood components."

The Supreme Court provided a six part test comprising six Coleman factors for determining whether negligent acts of a health care provider fall under the Louisiana Medical Malpractice Act: (1) whether the issue related to treatment or dereliction of professional skill, (2) whether expert medical evidence is necessary for determining if the standard of care was breached, (3) whether the pertinent act or omission involves assessment of the patient's condition, (4) whether the incident occurred within the context of a physician-patient relationship or within the scope of activities a hospital is licensed to perform, (5) whether the injury would have occurred if the patient had not sought treatment, and (6) whether the alleged tort was intentional. Coleman v. Deno, 813 So. 2d 303 at 315-316 Utilizing these Coleman factors, the court determined that the physician's conduct fell under the jurisdiction of the Louisiana Medical Malpractice Act rather than general tort law.

The importance of this case to the general public is simple: by not hiring a competent, well versed attorney, you may end up having your case thrown out and not receiving the compensation you deserve. An attorney with extensive experience in personal injury law may, literally, be the difference between financial compensation and nothing. Contact our offices today for more information on your legal rights if you have been injured by your doctor's improper actions.

A recent Louisiana Court of Appeals decisionshows that the question of which type of claim to file after an injury, general tort or medical malpractice, can make or break a case against a health care provider.

In February 2008, Helen Williams was a patient receiving oxygen at Pointe Coupee General Hospital ("PCGH") in New Roads, Louisiana. Early one morning nurses noticed smoke coming out of a piece of radiology equipment and the fire department was called. By the time the fire department got there, the hospital sprinkler system had already put out the fire which had been confined to the radiology department. However, the decision was made to move patients to the east side of the hospital, behind fire doors. Physicians discussed which patients could be discharged or moved to a local nursing home. They chose to move Ms. Williams to Lakeview Nursing Home in New Roads. She died later that day.

Ms. Williams children and grandchildren ("plaintiffs") filed an action alleging that PCGH failed to properly provided oxygen for their mother as she waited in the hallway, was removed from the hospital, and was transported to the nursing home. They claim that the Ms. Williams death resulted from negligence, not medical malpractice, and as such the case did not need to be submitted to a Medical Review Panel prior to going to court. PCGH disagreed and filed a prematurity exception claiming the allegations involved medial malpractice and must be submitted to a Medical Review Panel under the Louisiana Medical Malpractice Act ("MMA") La. R.S. 40:1299.41et seq. After a hearing, the trial court maintained PCGH's exception , found that the case was premature, and dismissed the plaintiffs' suit.

On appeal, the court considered whether the hospital's inability to properly evacuate a patient and failure to provide oxygen to a patient who needed oxygen falls under the MMA. Under Louisiana Code of Civil Procedure article 926 (A)(1), the purpose of the objection of prematurity is to slow the progress of an action, but not defeat it. A premature suit is one that has been brought before the right to enforce the claim has accrued and is determined by the facts that exist at the time the suit is filed. The objection is usually used when the applicable law or contract has provided a procedure for someone to seek relief before resorting to judicial action. Under the MMA, medical malpractice claims against qualified health care providers must go to a Medical Review Panel for consideration before a civil action may be commenced in any court. The exception of prematurity is the correct procedural mechanism for a health care provider to invoke when a medical malpractice claim is not submitted to a medical review panel first. Here the burden or proving prematurity is on PCGH--they must show that the allegations fall under the MMA.

Only torts that "arise under medical malpractice," are covered by the MMA. In addition, the Louisiana Supreme Court has held that any ambiguity as to whether the MMA applies should be resolved against finding that the claim is medical malpractice.

The MMA defines "malpractice" as:

Any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered by a health care provider, to a patient, including failure to render services timely and the handling of a patient, including loading and unloading of a patient . . La.R.S. 40:1299.41 (A)(13).

The Louisiana Supreme Court has set forth six factors to help courts determine whether a claims is medical malpractice:
1. The wrong is "treatment related," or caused by a lack of professional skill.
2. The wrong requires expert medical evidence to determine if the standard
of care was breached.
3. The act or omission involved assessment of the patient's condition.
4. The incident occurred in the context of a physician-patient relationship in
the scope of activities the hospital is licensed to perform.
5. The injury would not have occurred if the patient did not seek treatment.
6. The alleged tort was intentional.

In this case, the Court of Appeals concluded that when the six factors are applied to the evidence, the proper conclusion is that the claims asserted fall under the purview of the MMA. As such the dismissal for prematurity was proper and the Court of Appeals upheld the trial court's decision.

If you believe you have a claim against a medical provider it may or may not be a medical malpractice claim. As this case shows, under the Louisiana Medical Malpractice Act, additional steps must be taken if the nature of the claim indicates that the MMA applies. If these steps are not taken, the claim will fail. A general tort claim, however, does not have the additional statutory requirements. This is just one more reason why the success of your case depends on a bright, experienced attorney, who understands the intricacies of medical malpractice law.

After having faced a significant heart-related scare and receiving a stent implant, many patients are now facing a rather unbelievable reality: it has been discovered that doctors across the nation have been performing unnecessary surgical procedures in order to financially benefit. Doctors, implanting the device intended to unblock clogged heart vessels, are now accused of recommending the procedure in order to bill private and government health insurers for unnecessary medical procedures. A stent is essentially a mesh tube that is inserted most commonly inside the heart and then expanded, using a small balloon to open blocked arteries that prevent blood flow to heart muscle. Despite the fact that stents are a medical breakthrough, it seems as though many individuals are having these devices implanted without having any need for them. While some might believe this does not have any significant drawbacks, the reality is that the procedure implanting them, and the devices themselves, expose patients to a risk of future medical complications due to the fact they have an unnecessary foreign device inserted into their body.

As a result of these discoveries, numerous doctors all over the United States are currently being investigated or indicted, even sentenced to prison for performing unnecessary procedures on individuals. The main criminal charge these medical professionals face is health care fraud. Many times, this situation would go unnoticed if it were not for the hundreds of patient complaints pouring into the hospital boards, motivating investigations into why the doctors have performed so many of these specific procedures on individuals. One investigation of Dr. Mark Midei, of Maryland, led the Maryland Medical Board to hold that Medei was involved in "gross overutilization of health care services... and willfully making a false report or record in the practice of medicine." One statistic in particular leads some to believe that Dr. Midei is not alone in this practice: the number of stent procedures has almost tripled within the past ten years. What's more, the number of patients receiving this type of implant has increased steadily every year since 1993, and continues to rise.

Additionally, in Lafayette, Louisiana, in 2009, Dr. Mehmood Petel, formerly of Our Lady of Lourdes Hospital and Lafayette General Hospital in Louisiana, was convicted of 51 counts of fraudulent medical procedures and received the maximum sentence of ten years in a federal state penitentiary. Over 75 patients charged Dr. Patel with fraud and of performing unnecessary heart stent procedures on them. Testifying experts, as well as the Department of Justice, revealed that the majority of the patients who received such implant had little or no disease. Patel was also found to have falsified patient symptoms in medical records, including specific symptoms such as heart pain. The amount of money that Patel billed insurers was astronomical; between 1999-2003, Patel billed Medicare and provate insurance companies more than $3 million, pocketing more than $500,000.

In order to prove health care fraud, a certain set of facts need to be proven. Specifically, to convict a "defendant of health care fraud, the government has to prove beyond a reasonable doubt that he knowingly and willfully executed, or attempted to execute: a scheme or artifice --

(1.) To defraud any health care benefit program; or

(2.) To obtain, by means of false or fraudulent pretenses, representations, or promises, any of the money or property owned by, or under the custody or control of, any health care benefit program in connection with the delivery of or payment for health care benefits, items, or services."
(United States v. Refert, 519 F.3d 752, 758 (8 Cir. 2008).

The issue many courts are facing is that the Medical Review Boards have expressed the desire to handle these situations themselves, absent the legal system. This presents patients with the dilemma of communicating what they have gone through and not receiving adequate compensation or justice at the end of the day. In fact, many Medical Review Boards feel that peer review solves any potential problems such as the unnecessary heart stent procedures. However, it has not been until recently that the sting procedures were investigated and/or prosecuted. The New York Times recently reported that stents are a profitable, big business within the medical field — manufacturers such as Johnson & Johnson (who are currently facing legal problems over their recalled hip implant devices) sold over $3 billion worth of stents last year alone. That number has steadily increased along with the incomes of the Doctor's who consistently utilize them.

If a person has had a heart stent implanted within the last ten years, exploration into their medical history and condition may be necessary. The old adage, "It is better to be safe than sorry," may be applied to individual's going through this situation. Instead of experiencing the fear that the heart stent may not have been necessary, allow a legal representative to explore the situation and clarify what is going on. However, they do not have to rely on the Medical Review Boards alone, having legal representation may help to protect their rights as well as ease a stressful situation into a manageable one.

Continue reading "Heart Stent Procedures Done Without any Need" »

The Berniard Law Firm is proud to announce the release of an innovative new iPhone application that can be considered a must-have for individuals in the Gulf Coast. With extensive versatility and options including multiple contact points for our attorneys, as well as consistent site updates that will keep you informed of legal developments as they become available. Released October 26, we recommend everyone download the application in order to stay abreast of a variety of issues that relate to them.

In the works for some time, and with an update already planned, the Berniard Law Firm iPhone app puts law matters that are important to Louisiana residents in the palm of their hands. Constantly refreshing, with updates relating to our website, this application is an effort by our firm to allow our friends and clients quick access and up-to-date information for their daily lives. Whether using the application to send our firm a legal question or to call our offices, we strongly encourage anyone that wants an attorney and a wealth of legal information at your fingertips.

Specifically, the Berniard Law Firm Injury Attorney iPhone App provides users
- Entry page to record important details in the event of an accident
- Minimal size installed (only 3.1 MBs)
- Practice area explanations
- Quick jumps to consistently updated blogs
- Fast contact information to speak with an attorney

One feature that is extremely important and valuable in the Berniard Injury Attorney App is the entry page. Composed of data input fields that target inherently important details of an accident, using this portion of the application can help you make sure you record all of the necessary information at a time in which it maybe be difficult to remember. Providing an easy, step-by-step accident guide, this application can even include a picture with the information report with a simple tap.

For more information on how to download this application, or to discuss your legal rights regarding an issue that you are facing currently, contact our offices today. The Berniard Law Firm would happily discuss with you what opportunities you may have within the realm of the law, as well as give you a free consultation in regards to how we can best get you the justice you deserve.

To download the application, click here.

Discovery is a phase of the litigation process that occurs once a complaint has been filed and answered but before the trial occurs. The purpose of discovery is for the litigants in civil matters to exchange information that is pertinent to the case. Each party can request that the other turn over documents, answer interrogatories (written questions), agree to admissions about facts not in dispute, or submit to a deposition. The parties are required to respond to these requests within a certain period of time. There are some importantexceptions to the materials that must be exchanged through discovery (for instance, privileged information is not subject to disclosure), but the intent is to level the playing field so that the parties can adequately prepare for trial.

The failure to respond to discovery requests in a timely manner can have very negative consequences for a litigant. When a party who has been served with a proper discovery request fails to respond, the serving party can ask the court to impose penalties. These include "dismissing the action or proceeding or any part thereof, or rendering a judgment of default against the disobedient party, or [entering] an order assessing costs and attorney fees ... against the disobedient party and his attorney or both." La. C.C.P. Arts. 1471, 1473. The dismissal of a case is "a drastic penalty and should be reserved for extreme circumstances," but the party seeking to avoid sanctions or dismissal for failure to comply with a discovery order is required to show "that the failure was due to inability and not to willfulness, bad faith, or any fault." Halley v. Guerriero, 577 So.2d 781 (La. App. 2d Cir. 1991).

The case of Jones v. LSU/E.A. Conway Medical Center (No. 45-410, La. App. 2d Cir. 2010) is illustrative. Rodney Jones was an inmate at the Dixon Correctional Center ("DCC") in Jackson, Louisiana. On March 25, 2006, Jones allegedly injured his elbow and was admitted to the LSU/E.A. Conway Medical Center (the "Center") for treatment. The attending orthopedist did not find anything wrong with Jones's elbow and refused to perform arthroscopic surgery or request an MRI. In December of 2008, Jones filed a medical malpractice lawsuit against the Center which alleged that the Center's staff deliberately failed to provide him with the medical care he needed for his elbow. Jones did not hire an attorney and represented himself in the matter.

On December 8, 2008 the Center filed a motion to take Jones's deposition at the DCC at 1:00 p.m. on Thursday, December 11, 2008. The court granted the motion the same day. Jones came to the deposition and complained that he had received the notice of the deposition only the night before, and asserted that he had not been served with a court order granting the Center's motion to take his deposition. Jones ultimately refused to submit to the deposition, so the Center filed a motion to compel Jones's deposition on February 17, 2009. The court issued an order the next day requiring Jones to appear for a deposition under penalty of sanctions for his refusal "up to and including dismissal of his lawsuit." The Center sent two notices of this second deposition, which was scheduled for May 28, 2009, by letters postmarked March 16 and 17. The letters were returned unopened and marked as "refused" by Jones. The Center then filed a motion on April 16, 2009 requesting that Jones's lawsuit be dismissed for refusal to comply with the court's discovery order compelling his deposition. Following a hearing on the matter at which Jones did not appear, the court granted the Center's motion and dismissed Jones's case. Jones then filed a motion for a new trial, which the trial court denied. Jones appealed this decision.

Louisiana's courts hold that "a trial court's wide discretion in determining appropriate sanctions for failure to comply with discovery orders will not be reversed absent a clear showing of an abuse of that discretion." Magri v. Westinghouse Electric, Inc., 590 So. 2d 830, 831 (La. App. 4th Cir. 1991). Noting that refusal to comply with court-ordered discovery is a serious matter, and that trial judges must have severe sanctions available to them to deter litigants from flouting discovery orders, the Court of Appeal concluded there was nothing in the record to suggest that the trial court had abused its discretion in refusing to grant Jones a new trial:

"By refusing to accept the letters containing the notices of deposition ... Jones expressly demonstrated his refusal to comply with the court order to appear and submit to the discovery deposition. A litigant cannot be permitted to thwart the discovery process by refusing mail from the opposing attorney. This constitutes a willful disobedience or flouting of the court order."

Accordingly, the court upheld the trial court's refusal to grant Jones a new trial.

Louisiana judges have made it clear that they do not tolerate efforts by litigants aimed at circumventing the discovery process. A plaintiff in particular is at risk of having his suit dismissed at an early stage if he fails to comply with the defendant's legitimate discovery requests. This does not mean, though, that a plaintiff is required to blindly fulfill the defendant's every request -- the plaintiff can and should dispute any improper discovery requests he receives. Hence, the discovery process is most effectively navigated with the assistance of a competent litigation attorney.

Continue reading "Legal Discovery Process to be Respected, Can Lead to Medical Malpractice Case Dismissal" »

While many people receive much of their legal understanding from popular tv shows and movies, the fact remains that very real legal concepts are often explored. Regardless of your television preferences, the terms remain the same in real life litigation that often involves great tragedy and turmoil for all parties involved. Medical malpractice. Negligence. These two legal terms have unique meanings and can determine many aspects of a case.

Medical malpractice concerns professional negligence committed by a health-care provider such as a hospital, dentist, doctor or similar professional. A medical malpractice action centers around the behavior of the professional and his use of medical practices that depart from the normal care or skill that other similar professionals with similar experience utilize, that ultimately results in harm to the patient. General negligence, on the other hand, concerns conduct of a person that fails to meet the standard of care a reasonable person in their position would have exhibited in whatever the situation may be. Clearly, general negligence is a broader cause of action than medical malpractice.

This comparison recently became crucial in a wrongful death lawsuit against Pendleton Methodist Memorial Hospital. The facts concern Ms. Althea LaCoste, who passed away after Hurricane Katrina knocked out Pendleton's power supply. The Times-Picayune reported that although the hospital was prepared with emergency generators to fight through the storm, the generators lacked the improvements necessary to withstand the storm's raging water levels. Consequently, Ms. LaCoste's life support machine failed.

The Louisiana Supreme Court allowed the plaintiff in this case to proceed on a theory of general negligence, as opposed to medical malpractice. According to the Louisiana medical malpractice laws, damages are capped at $500,000, whereas damages are not so limited if a trial is allowed to proceed under a general negligence theory. The Chicago Tribune reports that just a few weeks ago, the Illinois Supreme Court ruled that the state's cap on medical malpractice damages was unconstitutional. The Court was mainly concerned with the idea of the legislative branch interfering with one of the rights of the judicial branch, that is, the right of a jury to come to its own conclusion about damages. Louisiana is currently embroiled in intense debate over whether to reform its own laws in this area as well.

The difference between medical malpractice and negligence is obviously crucial. We will provide more information on the state of the medical malpractice damage cap as it becomes available as well as any unfolding medical malpractice and general negligence cases of interest.

In November of 2005, Shane Kerry checked into the ER at West Calcasieu Cameron Hospital in Sulphur, Louisiana after fracturing the heel bone in his right foot. Kerry was examined by Dr. Charles Pearson, who discharged him later in the day with instructions to report for a follow-up at the LSU Medical Center in Shreveport the following week. As he was being transported back to his home, Kerry detoured to another ER, this time at the Christus St. Frances Cabrini Hospital in Alexandria. There, Kerry underwent surgery on his heel by a podiatric specialist. In September of 2008 Kerry filed a suit against Dr. Pearson, alleging that as a result of "delay, negligence, and deviations from the standard of care" on Dr. Pearson's part, he suffered "extreme disability, loss of sensation, and tissue necrosis with loss of muscle, tendon, skin, and subcutaneous tissue" around his heel. Kerry argued in his complaint that Dr. Pearson was negligent in failing to immediately decompress his foot, perform surgery, call in an orthopaedic surgeon, or arrange for his immediate transport to a hospital willing to properly treat him.

According to Louisiana procedure in medical malpractice cases, Kerry's complaint was submitted to a state medical review panel. On June 5, 2009, the panel returned a unanimous opinion that "the evidence [did] not support the conclusion that [Dr. Pearson] failed to comply with the appropriate standard of care as charged in the complaint." Accordingly, Dr. Pearson filed a motion for summary judgment with the trial court, requesting that the suit be dismissed on the grounds that Kerry could not establish that Dr. Pearson had failed to meet the applicable standard of care in his treatment of Kerry's foot.

In support of his motion, Dr. Pearson included the written opinion of the medical review panel, the affidavits of two doctors who sat on the review panel and who held licenses to practice emergency medicine in Louisiana, the medical records from Kerry's visit to the ER at West Calcasieu Cameron Hospital, and the discharge summary prepared by the podiatry specialist who treated Kerry at Cabrini Hospital. In his response, Kerry offered the affidavits of his mother and brother, both of whom suggested that there were clear indications that Kerry was in dire need of surgery when he entered the West Calcasieu Cameron ER, but that Dr. Pearson refused to perform it because Kerry lacked health insurance and couldn't afford the procedure. Kerry also attacked the accuracy medical records from his stay at that hospital, alleging that Dr. Pearson prepared them and that they did not reflect the severity of his injury. The trial court granted Dr. Pearson's motion and dismissed Kerry's claim because it "did not find that the submissions at th[at] point [were] adequate to establish a genuine issue of material fact as to the burden that is required under the unique specialization of medical malpractice." Kerry appealed.

The Third Circuit Court of Appeals reviewed the state of medical malpractice law in Louisiana:

"Expert testimony is generally required to establish the applicable standard of care and whether or not that standard was breached, except where the negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony." Samaha v. Rau, 977 So.2d at 884 (La. 2008).

In examining the record, the court concluded that the trial court was correct in holding that Kerry failed to offer sufficient evidence to establish that, during a trial, he would be able to prove that Dr. Pearson was negligent. The court's decision rested heavily on the fact that Kerry was unable to produce any expert testimony to support his negligence theory. Thus, the court concluded that Pearson's motion for summary judgment was properly granted, and affirmed the decision.

This case is yet another in a line of examples demonstrating the uniqueness and complexity of medical malpractice lawsuits. The testimony of an expert witness is absolutely essential for establishing the standard of care and explaining how a doctor failed to meet it. Even in cases of so-called obvious negligence, a plaintiff's case is nearly always made stronger by the opinion of a qualified expert. Here, Kerry was not even able to tell his story to a jury because he had expert to rely on to back up his theory of negligence.

Continue reading "Calcasieu Parish Medical Malpractice Case Shows Complexities of Delays, Negligence" »

Lamar Richardson of Joyce brought an action against his employer, Kansas City Southern (KCS) Railway Company, for injuries he claims to have sustained on May 14, 1990 when he was working on a maintenance crew. While clearing debris off train tracks, Richardson was cutting limbs from a large willow tree on the track at mile post 149.8 in Winn Parish and claims he was struck with a large limb and injured.

Richardson sued KCS under the Federal Employers’ Liability Act (FELA), 45 U.S.C. § 51 et seq for medical expenses, mental anguish, and lost wages that resulted from the alleged injury. He contended that his employer failed to provide a safe workplace and was negligent in not adequately supervising the clearing of trees or training personnel in how to cut trees. Richardson claimed his injuries kept him from working and eventually led to a need for cervical disc surgery. The case went to trial in 1994 and 1995. Judgment was entered in June 1998 in Richardson’s favor and he was awarded medical expenses of $3,869.75, general damages of $150,000, and lost wages of $525,435.00. The major contention presented during the trial was Richardson’s report that he visited the emergency room Jackson Parish Hospital on May 15th after the pain in his neck intensified. Hospital records do not confirm the report but rather show he visited the ER three days prior to his alleged injury on May 11, 1990 where he complained of, among other things, neck pain that had lasted about a week. The emergency room had no record of a visit on May 15. Richardson claimed that he drove his son to a basketball event in Hammond on May 11 and therefore could not have gone to the emergency room. Witnesses at trial corroborated his testimony and the jury found his account more convincing than the hospital records which Richardson claimed had been made in error.

KCS appealed, and in their April 1, 1999 decision, the Louisiana Court of Appeals reversed. The court found that the Richardson failed to show that the date in the hospital records was inaccurate and that the idea that the records were created in error is implausible and not supported. The court also found that Richardson’s claim that he was treated by a particular doctor and nurse when he visited the hospital on May 15th was impossible given the testimony of those individuals. Finally, Richardson made no claim that the hospital intentionally falsified medical records or provide a motive for them to do so. The court found the hospital records to be accurate and reliable. Medical records are typically considered to be inherently reliable given that health care providers rely on them in making life and death decisions. As such, the plaintiff sought medical treatment for neck pain prior to his alleged injury and was not entitled to damages from his employer.

The FELA is a federal law specifically geared at protecting railroad workers who are exposed to additional inherent risks due to the nature of their job. FELA was designed to provide a statutory federal negligence action for railroad employee and are their exclusive remedy for workplace injuries. On appeal, a court will not reverse an FELA case unless they find complete absence of probative fact to support the fact-finder (jury) conclusions.

This case demonstrates how fact intensive workplace injury cases can be. As here, courts sometimes deal with the difficult decision of whose account of an accident is correct given conflicting testimony or medical records. If you have been injured at work it is vital that your attorney be willing to put forth the effort needed to ensure facts are presented clearly and effectively. This requires extensive case preparation, witness selection, and the use of expert testimony if needed.

Continue reading "Louisiana Workplace Injury Judgment in Favor of Joyce Man Reversed " »

In November 2000, Debra Anne Addis of Addis, Louisiana filed a request for review with the Louisiana Patient’s Compensation Fund alleging that Mary Eschette M.D. of LSU Medical Center acted negligently in changing her prescription medications and violated the appropriate standard care in failing to properly diagnose a problem with her left wrist. The medical review board entered their decision in September 2003 and concluded that Ms. Addis failed to show that the defendant’s did not meet the applicable standard of care in her treatment. Two and a half years later the defendant doctor and medical center filed a motion for summary judgment and submitted the medical review panel opinion, asserting that the plaintiff Ms. Addis failed to name an expert despite almost six years of discovery.

The Louisiana Court of Appeals (first circuit) entered their decision in March of last year in favor of the defendants. The court found that the record of the case showed Ms. Addis failed to submit any evidence to counter the medical review panel’s opinion or show she could meet her burden of proof should the case go to trial. Therefore, the court granted summary judgment to the defendants and ordered the Plaintiff to pay all costs associated with her appeal.

The granting of a summary judgment motion means that a case will not proceed any further because the plaintiff has failed to present evidence showing sufficient issues of material fact that can be decided by a jury. Therefore the decision is decided by the court as a matter of law. Summary judgment motions can be granted for the plaintiff or defendant. Here, the motion was granted for the defendant, effectively dismissing Ms. Addis’ case.

In Louisiana injured patients may bring claims against health care providers under the Louisiana Medical Malpractice Act. When such actions are brought they are screened by a panel of one non-voting attorney and three competent doctors to determine whether the evidence proves that the physician or facility failed to act according to the appropriate standard of care or whether they were negligent, incompetent or acted unlawfully. If the patient is successful in her claim, a portion of the damages is then paid out of the Louisiana Patient’s Compensation Fund. The decision of the panel is considered expert testimony and is admissible against a plaintiff. The members of the panel may even be called as an expert witness during court proceedings.

If, as here, the defendant submits a medical review panel opinion in support of a motion for summary judgment, the plaintiff can no longer rely on the allegations in her pleadings to prove her claim but must present evidence establishing genuine issues of material fact. This often requires the expert witness testimony of a doctor that can contradict the findings of the review board. Ms. Addis and her attorney had over six years to find a doctor and get such testimony but according to the court, failed to do so.

Ms. Addis may have been able to get past the defendant’s motion for summary judgment in this case if her attorney had taken the time and effort to employ a competent expert witness to testify on her behalf. In medical malpractice cases expert witnesses are often expensive, but necessary, in order that the injured individual have the greatest chance of recovery.

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With respect to the issue of consent obtained by Dr. Humphries, the Court of Appeals finds that the first form signed by Mr. Price should be presumed valid under Louisiana law, and Mr. Price's statement that he did not read the form does not defeat the presumption. The only way Mr. Price could have overcome the presumption would be if he was able to establish several factors: 1) The existence of a material risk that the physician must disclose, 2) The failure of the physician to inform the patient of this risk, 3) The realization of the risk, and 4) A connection between the failure to inform and the realization of the risk.

With respect to the consent issue, previous courts have held that appellate courts should focus on the duty of a doctor to provide material information to a patient according to the circumstances of the particular case. As long as the trial court has acted reasonably, their findings should not be reversed even if the appellate court would have weighed the evidence differently. Even though there is conflicting testimony, the evidence establishes that Mr. Price did receive specific information about the possibility of removing polyps immediately after they were discovered during his procedure. In addition, three of the four expert witnesses found that Dr. Humphries met the applicable standard of care in obtaining consent. As such, the Court of Appeals finds no manifest error worthy of overturning the jury's findings.

With respect to Dr. Bride, even though he himself did not obtain consent from Mr. Price (aside from supposed verbal consent just prior to the procedure), under La.R.S. 40:1299.40(C) other forms of consent are allowed when the patient is provided with general information about a procedure and risks. Mr. Price received a handout indicating that if polyps were found they might be removed. In addition, Mr. Price was informed that if Dr. Humphries found polyps he would have Dr. Bride remove them. In addition, the wording of the second form signed by Mr. Price makes Dr. Bride an "authorized physician" to perform a polypectomy because Dr. Bride is an associate of Dr. Humphries who performed the additional procedure as necessary. As such, the jury did not manifestly err in concluding it was more likely than not that Mr. Price consented to the polypectomy being performed by Dr. Bride if polyps were found. As such, the Court of Appeals affirms the jury's findings in all respects.

For any medical procedure, a doctor or other practitioner is required to obtain "informed consent" from the patient. Essentially, this means that, except in certain emergency situations, a doctor is not permitted to perform any medical procedures that the patient has not authorized him to perform. Louisiana law outlines three ways for a doctor to get proper consent from a patient. First, the patient can acknowledge in a handwritten document that he or she had been informed of "The nature and purpose of the procedure" and of its "known risks," and that he or she had the opportunity to have any questions "answered in a satisfactory manner." La. R.S. 40:1299.40(A). Such consent is presumed under the law to be valid unless there is proof that the consent was given because the doctor misrepresented material facts.

The second option for obtaining consent requires the same elements as the first, with the exception that it does not have to be in writing. However, verbal consent is not given a presumption of valididty, but instead must be proved "according to the rules of evidence in ordinary cases." La. R.S. 40:1299.40(C). The third and final option requires a doctor to disclose to the patient the list of risks for the proposed treatment that is maintained by the Louisiana Medical Disclosure Panel (LMDP). "Consent to medical care that appears on the [LMDP's] list requiring disclosure shall be considered effective under [Louisiana law] if it is given in writing, [and] signed by the patient... and a competent witness. La. R.S. 40:1299.40(E). The LMDP offers a form for this purpose, the execution of which creates a "rebuttable presumption" that the consent is valid, provided that the doctor who will actually perform the treatment is the one who gives the required disclosure.

The issue of informed consent was at the center of the case Price v. ERBE USA, Inc., No. CA 09-1076 (La. Ct. App. 3d Cir, 2010). The plaintiff, James J. Price, visited the St. Patrick Hospital in Lake Charles on January 17, 2002, where he was scheduled for a colonoscopy procedure with Dr. Charles Humphries. During the procedure, Dr. Humphries found several polyps in Price's colon, at which point he brought in Dr. Francis Bride, a gastroenterologist, to remove them. Dr. Bride's surgical tool malfunctioned during the removal of one of the polyps, which resulted in an inadvertent burn to the wall of Price's colon. Dr. Bride conducted extensive tests to detect a colon perforation and concluded none had occurred. Still, Dr. Bride ordered Price to remain in the hospital for an extended period that day for more monitoring, after which he released Price to go home. The next day, Price began to experience symptoms of a perforation. He returned to the emergency room at St. Patrick's, and two days later underwent surgery to repair the perforation. Price later filed suit against Dr. Humphries and Dr. Bride, alleging a lack of consent for the polypectomy. At trial, a jury found for the doctors, and Price appealed.

The Court of Appeals reviewed the evidence presented at trial concerning Price's consent to the colonoscopy. It noted that on January 4, 2002, Price received a pamphlet from Dr. Humphries which included specific information that polyps could be removed if discovered during the colonoscopy procedure. The pamphlet further discussed that removal carried several risks, including perforation of the colon wall. Price also signed two forms, which were witnessed by a nurse, on the morning of the procedure certifying that he was aware of the risks. The court concluded based on this evidence that the jury did not err in determining that Dr. Humphries had obtained informed consent of the third type under Louisiana statute (per La. R.S. 40:1299.40(E)) from Price.

As for whether Dr. Bride obtained the necessary consent, the court acknowledged that Dr. Bride certainly did not personally obtain consent from Price to perform a polypectomy, as he was uninvolved in the procedure until Dr. Humphries found the polyps. However, the court again turned to the pamphlet provided by Dr. Humphries on January 4, 2002, noting that it indicated polyps might be removed upon discovery as part of the colonoscopy procedure. Furthermore, Dr. Humphries testified at trial that he verbally informed Price on two occasions that if he discovered polyps during the procedure, he would bring in Dr. Bride to remove them. Finally, the court found that the consent form signed by Price permitted Dr. Bride to remove the polyps by its language because Dr. Bride was a physician "authorized" to perform the necessary procedure by Dr. Humphries. Accordingly, the court found no error on the part of the jury in concluding that Dr. Humphries obtained consent from Price for the polypectomy.

Although Price was not successful in his suit against Drs. Humphries and Bride, the case illustrates the importance that Louisiana law places on the obligation of doctors to obtain informed consent from their patients. The law seeks to protect patients from unnecessary or unwanted medical procedures, while permitting doctors to take action when needed to save a life or ease suffering. Ultimately, doctors have a responsibility to ensure their patients are knowledegable about and comfortable with any procedure they propose, and the failure to meet this responsibility can give rise to a negligence claim.

This case will be followed up with another analysis to help illustrate the specific technicalities involved in the matter, as well as how patients can best prevent getting a procedure they do not wish or can pursue litigation if a problem occurs.

When Kimberly Carter, a Little Rock, AR, resident, was visiting family in Louisiana in November of 2001, a misstep in a hole in the ground led to a legal battle that would not be resolved until 2010. After suffering an injury from the hole, Carter was transported to Women's and Children's Hospital in Lake Charles. Dr. Clark Gunderson, an orthopedic surgeon, viewed Carter's x-rays and determined she suffered a spiral fracture in her right tibia that would require surgery. Carter chose to stay in Louisiana to have Dr. Gunderson perform the surgery.

After the surgery and some time had passed, Carter would later sue Dr. Gunderson for medical malpractice when a mal-rotation in excess of fifteen degrees was discovered by Dr. Johannes Michael Gruenwald, a board-certified orthopaedic traumatologist at the University of Arkansas Medical Center. Dr. Gruenwald was providing Carter's post-operative care. In August of 2007, Carter filed a suit alleging malpractice by Dr. Gunderson. A three-day trial resulted in a jury verdict finding that Dr. Gunderson had not deviated from applicable standards. This judgment was affirmed on appeal.

According to the Supreme Court case Martin v. East Jefferson General Hospital

In a medical malpractice action against a physician, the plaintiff carries a two-fold burden of proof. The plaintiff must first establish by a preponderance of the evidence that the doctor's treatment fell below the ordinary standard of care expected of physicians in his medical specialty, and must then establish a causal relationship between the alleged negligent treatment and the injury sustained.

This ruling helps illustrate three components a potential plaintiff, and his or her attorney, must consider when determining the likelihood of a favorable ruling. First, it is important to determine the standard of care for not just medical practice in general, but for the specialty in question. Second, one must consider whether the care given fell below that standard. According to Charpentier v. Lammico Ins. Co., the law does not require perfection in medical diagnoses and treatment. Thus, a less-than-perfect result in a surgery such as this will not necessarily result in a favorable judgment for a plaintiff. Third, it must be established whether there is a causal connection between the failure to meet the standard and the increased damage suffered by the plaintiff (whether the failure actually caused some further injury to the patient). This means that even if there was a deviation from the applicable standard, if no harm was caused there will not be a successful claim. That is to say, if a patient suffers additional harm and there was a deviation in the standard, there still might not be a successful claim if it cannot be shown that the deviation caused the harm.

This is not the end of the road for a court analysis or ruling as the analysis above takes place at the trial court level. Like Carter, some plaintiffs will not be successful at this level and will wish to appeal the decision. When a trial court has made reasonable fact findings regarding the components above, an appellate court will not overturn the decision unless there is manifest error. That a reviewing court would have come out differently does not necessarily mean a decision will be overturned; that decision must have been unreasonable given the circumstances.

A good lawyer can guide a potential malpractice plaintiff through these considerations. After suffering an initial injury or illness, plus added damages resulting from treatment, no patient wants to jump into an unsuccessful claim because of a lack of knowledge regarding the components of a malpractice claim. This is why hiring an attorney with your interests at heart, as well as a successful track record with malpractice claims, is very important.

In litigation, the term venue means "the location where an action or proceeding may properly be brought and tried under the rules regulating the subject." In other words, for each suit, there is a particular court where the plaintiff should file based on the situation's unique facts. The Louisiana Code of Civil Procedure's general rule of venue states that a defendant must be sued in the parish where he is domiciled (where he lives). LSA-C.C.P. Art. 42.

However, the Code also provides the following exception:

"An action for the recovery of damages for an offense ... may be brought in the parish where the wrongful conduct occurred, or in the parish where the damages were sustained." LSA-C.C.P. Art. 74.

Questions of venue frequently arise in lawsuits against corporations or businesses who may be headquartered (domiciled) in one parish but who engage in business in other parishes.

One case that illustrates the complexity of venue was Daniels v. Rachal, 610 So. 2d 967 (La. Ct. of App., 1st Cir. 1992). On February 21, 1989, Sheree Daniels visited the Eye Care and Surgery Center (the "Center") in Ascension Parish for an eye exam. Dr. Vincent Rachal performed the examination but failed to diagnose a brain tumor, which was discovered two months later. Daniels filed a medical malpractice suit against Rachal and the Center in Tangipahoa Parish, where she lived. The defendants filed a motion objecting to venue, which Daniels refuted by arguing that her "damages were sustained" in her domicile of Tangipahoa Parish because her illness progressed there. The trial court agreed with Daniels, and the defendants appealed immediately before the trial proceeded.

On appeal, The Court of Appeal considered a similar case involving a legal malpractice claim that had recently been decided by the Louisiana Supreme Court. In Chambers v. Leblanc, 598 So.2d 337 (La. 1992), the plaintiffs filed a suit in their parish of domicile, Livingston, against an attorney who was domiciled in Iberville Parish and practiced in Ascension Parish, for a mistake he made in a matter in East Baton Rouge Parish. The Court concluded that the harm occurred either in Ascension Parish or East Baton Rouge Parish, but clearly not in Livingston Parish; as a result, Livingston was not a parish of proper venue under the Code of Civil Procedure. Applying the reasoning of the Chambers case to Daniels's decision to file in Tangipahoa Parish, the Court of Appeal concluded, "it is clear that [Daniels] was damaged in Ascension Parish where the wrongful conduct occurred. Therefore Ascension Parish is the proper venue in this case." The court then noted that "When an action is brought in a court of improper venue, an appellate court has the discretion to dismiss the action or, in the interest of justice, transfer it to a court of proper venue." Luckily for Daniels, the court elected to transfer the suit to Ascension Parish rather than dismiss.

It is important to note that the Court of Appeal was not required by law to transfer Daniels's suit to the proper parish. Indeed, plaintiffs should never rely on a court to transfer an improperly filed lawsuit rather than dismiss it outright. For this reason, it is critical for a plaintiff to retain competent counsel who understands Louisiana's venue requirements to ensure that a procedural matter like venue does not result in a dismissal of the case before the jury can even hear the evidence.

Continue reading "Medical Malpractice Case Demonstrates the Importance of Proper Venue " »

Medical malpractice insurance is a big expense for health care providers. The average award in 2006 for medical malpractice claims was $521,560. To alleviate the financial burden on individual providers, the State of Louisiana created the Louisiana Patient's Compensation Fund.

Under Louisiana Revised Statutes 40:1299.44:

State health care providers are automatically entitled to be covered by the fund. Private health care providers are eligible for coverage as well. The liability of each qualified health care provider is limited to $100,000 plus interest, per patient, per incident. Any judgments, settlements, or arbitration orders in excess of $100,000 per provider are paid out of the Patient's Compensation Fund.

To illustrate how the fund works, we look at a 2003 Court of Appeals case involving the Southwestern Louisiana Hospital Association in DeRidder, Louisiana. Divorced parents brought individual actions against a doctor for his negligence in causing their son's death. The doctor admitted fault and paid $100,000, the maximum amount he is individually responsible for. The Compensation Fund then paid $250,000 to the father, and an additional $400,000 to the mother, bringing the total damages to $750,000.

The total amount awarded in this case actually exceeds the $500,000 maximum damages amount in a medical malpractice case. Section 1299.42 states:

The total amount recoverable for all malpractice claims for injuries to or death of a patient, exclusive of future medical care and related benefits as provided in R.S. 40:1299.43, shall not exceed five hundred thousand dollars plus interest and cost.

The single $500,000 cap applies collectively to all claims which flow from one act of malpractice resulting in a victim's injury or wrongful death. Future medical costs are paid as they are incurred from the Patient's Compensation Fund.

Because the $750,000 award in the above case was well beyond the limit, the damage award was reduced to reflect the $500,000 limit on medical malpractice damages. The mother's award was subsequently reduced from $400,000 to $150,000 to reflect the limit.

Louisiana Patient's Compensation Fund Recap:

(1) Medical Malpractice awards limited to $500,000
(2) $500,000 cap applies collectively to all claims which flow from one act malpractice
(3) $100,000 maximum liability for individual health care providers
(4) Future medical expenses are covered by the fund

More than 98,000 people are killed each year as a result of medical errors. The rights of the deceased are protected in court through what is called a survival action, which allows the relatives to file a claim in place of the deceased for conscious pain and suffering, damage to person/property, and medical expenses. Survival actions are commonplace where a doctor's negligence caused someone's death.

The law was unsettled, however, on whether parents could bring a survival action for an unborn/stillborn child. A 2010 Louisiana Court of Appeals case addressed this very issue:

Carli Long, 7 months pregnant, was injured in a car accident. She was pinned in her vehicle and was ultimately diagnosed with a hip fracture. She was admitted to the ER shortly after the accident where the attending nurse charted a fetal hart rate of 120. Two hours later, nurses were unable to detect a fetal heart rate. Long underwent a cesarian section to deliver the stillborn child. She subsequently filed a survival action on behalf of her unborn child.

Louisiana Civil Code article 26 provides that

An unborn child shall be considered as a natural person for whatever relates to its interests fro the moments of conception. If the child is born dead, it shall be considered never to have existed as a person, except for purposes of actions resulting from its wrongful death (does not include survival actions).

In 1997, a Louisiana court, addressing the issue of an unborn child's right, stated

A cause of action can be pursued only if the fetus is subsequently born alive. A survival action for damages suffered by a stillborn fetus clearly does not fit within this first exception because the stillborn fetus is not born alive. Because it is born dead, it is as though it had never existed and the cause of action it acquired became conditional on its live birth. (Wartelle v. Women's and Children's Hospital, Inc.)

A survival action is based on the victim's right to recovery being transferred upon the victim's death to the beneficiary. Therefore, a baby's rights transfer to the parents upon the child's death, if and only if the child was born alive. Under Louisiana law, a stillborn fetus cannot transfer any rights because it has acquired none. Rights are only acquired in a live birth.

Although Long was unable to recover for her survival action under Louisiana law because she delivered a stillborn child, it is important to pursue all possible options. Long may still have had a valid claim for negligence or wrongful death against her nurse or doctor.

Almost every person who is admitted at a hospital has had to deal with a nurse at some point. Nurses, like doctors, are responsible for providing medical care to patients and can be subject to liability if they deliver treatment that falls below the standard set forth by the law of proper care. A 2010 case centering around the Willis Knighton Medical Center in Bossier City, Louisiana, discusses the standards required of a nurse.

Mr. Reilly was admitted to the ER with multiple pelvic fractures after a horse had fallen on top of him at Louisiana Downs. After surgery, doctors inserted a catheter to alleviate bladder pressure. Reilly was cared for by several nurses in the following months who removed and reinserted additional catheters. Reilly alleged that on numerous occasions, the nurses were negligent in the removal and insertion process, leaving him impotent and in need of additional surgery to correct the damage that he had suffered from this process.

To file a medical malpractice claim against a nurse or doctor, you must establish the:

(1) standard of care applicable to the nurse/doctor
(2) that the nurse/doctor breached that standard of care, and
(3) that the nurse's/doctor's actions were causally related to the resulting injury

Standard of care is usually established with expert testimony; perhaps a nurse/doctor in a similar field that can show how an ordinary professional in that situation would have behaved. Showing that the nurse/doctor's actions deviated from the standard is less intensive and is typically established by a close examination of the facts.

More importantly, however, and the reason why Mr. Reilly ultimately lost his claim in the case mentioned above, is to show that the nurse's/doctor's negligence was the proximate (most direct) cause of the accident. Your claim cannot survive without this element. What this requires is demonstrating in court that but for the improper care demonstrated by the medical expert, your harm or damage would not have been suffered. Mr. Reilly was unable to prove that the catheter procedures were the specific reason for his damage.

While claims against the nurse or doctor may seem the most obvious path to take, another avenue of relief may be against the hospital itself. The doctrine of respondeat superior says that employers are responsible for the negligent acts of their employees if the act is performed during the normal course of duties. Liability for the nurse's behavior can be assigned to the medical facility and viewed in light of the employee's actions. Claims addressing respondeat superior are attractive to patients because the pocket of the medical facility is typically much larger than that of the individual nurse or doctor.

If you are a victim of nurse/doctor negligence, consider your options. Your choice of defendant may have a significant effect on the dollar amount of your recovery. Perhaps what is an even more important choice is the legal representation you select for your litigation. By carefully selecting an attorney with extensive experience in medical malpractice suits, settlements and trials, you can insure that you do not fall into the unfortunate class of people who never receive the justice they deserve.

A recent Louisiana Court of Appeals decision does a good job of explaining the elements of a medical malpractice claim and some pitfalls that might be encountered along the way.

In this

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A patient visiting Lake Charles Hospital, located in Calcasieu Parish, filed a lawsuit against his treating physician alleging the doctor was negligent while diagnosing his symptoms. After the patient was hospitalized, the doctor ordered a stress test. Just minutes after the start of the test, the patient began to suffer from an abnormally rapid heart rhythm. In the lawsuit, the patient argued the doctor should not have ordered the test in light of the patient's medical history.

All doctors owe their patients a certain level of care. When a physician breaches that level of care, they can be sued for medical malpractice. The Louisiana Revised Statute 9:2794(A) requires patients who believe they are victims of medical malpractice to establish three main elements. First, a patient must establish the standard of care of the doctor. Second, he/she must show that the defendant breached this standard of care. Lastly, a patient must prove "causation." Specifically, he/she must be able to show that there was a connection between the doctor's breach of his duty and the patient's resulting injury.

Establishing a Physician's Duty to His Patient

All physicians owe a duty to their patients. Each doctor is required to act as a reasonably prudent health care provider would act under the given circumstances. A Louisiana statute, La. R.S. 9:2794, specifies a doctor must possess and exercise knowledge or skill akin to that of doctors who practice in comparable Louisiana communities under similar circumstances. This is known as the ìsimilar locality rule.î

Proving the Doctor Breached the Duty Owed to His Patient

A patient can successfully show that that his/her doctor breached this duty if the doctor's actions fell below the standard of care. For example, if a patient goes to the hospital with all of the signs and symptoms of a broken leg but the doctor tells the patient to go home and "walk it off," the doctor's actions would be a breach of care if most doctors would have ordered an X-ray instead of sending the patient home. A breach of standard of care is often shown through medical testimony. Therefore, a patient may establish a breach of care by having another doctor testify that a majority doctors would have ordered an X-ray under the circumstances.

Showing Causation

The last element that a plaintiff must establish in a medical malpractice claim is causation. This means that a patient must show that the doctorís actions in breaching his duty caused the plaintiff's injury. In the hypothetical example mentioned above, a patient would likely be able to establish causation if the patient returns home and suffers further injury because he has been walking on a broken leg.

While the claimant in the above case was unsuccessful in court, the law favors those who have received negligent or improper care that comes about because of the failure of a doctor or hospital to execute its legal duty. If you have felt that your doctor has not been providing you with the quality treatment, you may be able to establish a medical malpractice claim.

Continue reading "Understanding a Hospital or Doctor's Duty of Care Requirements" »

Many people believe that the term "medical malpractice" means a doctor can be sued any time a doctor harms or makes a mistake while treating a patient. Like most states, Louisiana's Medical Malpractice Act protects doctors from frivolous, or meritless litigation, meaning incidental harm or minor mistakes made by a doctor will probably not result in a malpractice violation. The person bringing a malpractice claim against a doctor must prove certain elements exist, most commonly that: (1) the patient suffered a significant injury; (2) the doctor or hospital staff did not meet the standard of care typical of medical professionals; and (3) the medical mistake or lack of care was the direct cause of the patient's injury.

To help you understand, please consider the following examples:
(A) A patient comes into a doctor's office complaining of chest pains and indigestion. The doctor fails to make a diagnosis or provide treatment and sends the patient home. The patient suffers a heart attack the next day.
(B) A patient comes into a doctor's office complaining of chest pains and indigestion. The doctor fails to make a diagnosis or provide treatment and sends the patient home. The patient suffers a heart attack a year later.

In both examples, the patient suffered a significant injury-- a heart attack. However, only the patient in example (A) would potentially have a medical malpractice suit. Patient (A) might not have suffered a heart attack the next day if the doctor had run more tests, made a proper diagnosis, given the patient instructions on what to do if the symptoms persisted, or done anything else a doctor facing a similar situation might do. A jury could reasonably infer that the doctor's lack of care, by not providing a diagnosis or treatment, was the cause of the patient's heart attack. In example (B), the amount of time between the patient's visit to the doctor and the patient's heart attack is too long for causation [that the doctor's lack of care caused the patient's injury] to be proven.

Although the explanation above is pretty clear, most medical malpractice cases are not. Medical malpractice claims can be difficult to prove because it can be hard to draw the link between the patient's injury and the doctor's action or inaction measured by the medical profession's standard of care. Most of the time, you will need a medical professional to serve as an expert witness to explain how your doctor's mistake caused your injury.

If you believe you are the victim of medical malpractice, you should consult an attorney. The attorney can help you understand legal jargon like what constitutes a "significant" injury or how "causation" can be proved, both of which are more complicated than the above examples would lead you to believe. Attorneys can also find qualified medical experts to help explain your case to the court or to a jury, should your case get that far. Also keep in mind that most states have a statute of limitations on how long you have to file a medical malpractice claim from the date the alleged injury occurred. In Louisiana, medical malpractice claims must be filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect. La. Rev. Stat. Ann. § 9:5628 (West Supp. 1997).

Continue reading "Understanding the Term "Medical Malpractice"" »

Medical malpractice claims and recovery based on those claims are regulated by Louisiana statute. As such, the law places limits on the time an injured party has to file a claim. Once a claim is filed, the review process is subject to intermediate deadlines. As the following case demonstrates, a misstep in either the overall time limit or one of these intermediate points can be hazardous to a malpractice claim.

The case of Carter v. Ochsner Clinic Foundation, 978 So.2d 562 (La. Ct. App. 2008), involved a plaintiff, Janet Carter, whose mother died because of an improperly placed catheter. Ms. Carter sued both the doctor and the clinic involved in her mother’s treatment. Unfortunately for Ms. Carter, her attorneys’ work also proved to be a little sloppy.

Ms. Carter’s mother passed away on July 14, 2005. Under Louisiana law, a claim for a wrongful death resulting from medical malpractice must be filed within one year of the death (La. Rev. Stat. Ann. § 9:5628). Technically, the law requires a plaintiff to file a claim within one year of the malpractice or one year of discovering malpractice. However, the Louisiana courts have reasoned that when a person dies, the potential malpractice is readily evident. Thus, the statute of limitations begins to run on the date of death.

Ms. Carter’s attorneys lodged a complaint with the appropriate authorities on April 17, 2006, well within a year from the alleged malpractice. However, they failed to pay fees that the panel (called the Patient’s Compensation Fund Oversight Board, or the PCF) requires plaintiffs to submit. Because those fees were not paid, the PCF ruled the April complaint was invalid.

Later, in September of 2006, Ms. Carter’s attorneys submitted the claim again, this time with the required fees. However, the defendants – the doctor and the clinic – argued that the one year time period to file the claim had elapsed. They cited the rule mentioned in the third paragraph above, that the time period begins when a patient dies. Thus, Ms. Carter’s claim was now barred by another missed deadline.

Carter’s attorneys attempted to recover, but the court remained unconvinced. The attorneys argued, among other things, that it was not until March of 2006 that they received a report indicating that medical malpractice led to Carter’s mother’s death. They contended that the statute allows them one year from that point to file a claim. However, the court reiterated the rule established in Louisiana case law - when a person dies as a result of malpractice, "the damage resulting from the alleged malpractice is readily apparent" upon the victim’s death. Because that time period had elapsed, the court dismissed Ms. Carter’s claim.

Unfortunately for Ms. Carter, these missed deadlines eliminated her malpractice claim. This case illustrates the importance of finding a qualified attorney whom you trust to help protect your rights. It also demonstrates that time is of the essence. If you believe you or a loved one has been the victim of medical malpractice, do not wait! Contact an attorney so they can help you proceed in a timely manner.

Continue reading "Port Allen Case Shows that Deadlines Can Invalidate a Medical Malpractice Claim" »

A 2004 Louisiana Supreme Court case provides a good explanation of the difference between Medical Malpractice and ordinary negligence. Not every negligent act of a qualified health care provider falls within the Medical Malpractice Act (MMA), La.Rev.Stat. 40:1299.41(1).

In Williams v. Hospital Service of Jefferson, the plaintiff was injured as she was pushed in a wheelchair by an employee of West Jefferson Medical Center in Marrero, Louisiana. A wheel on the chair came off, she fell, and she was injured. She sued the hospital for negligent failure to repair the wheelchair and failure to insure that the wheelchair was in proper working condition. The sole issue the Supreme Court considered was whether the alleged negligence fell under the MMA. The Supreme Court of Louisiana determined it did not and sent the case back to the district court for further proceedings.

The Louisiana State Legislature enacted the MMA in 1975. One reason for the law was to provide health care providers with some advantages in actions against them for malpractice by limiting the damages that can be collected and requiring that each claim first be reviewed by a medical panel. The MMA only applies to claims "arising from medical malpractice" under La.Rev.Stat. 40:1299.41(1). Negligent behavior of health care providers that does not fit in the medical malpractice definition are governed by traditional tort principles. Courts have construed the coverage of the MMA strictly. The law defines Malpractice as :

Any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely and the handling of a patient, including loading and unloading of a patient, and also includes all legal responsibility of a health care provider arising from defects in blood, tissue, transplants, drugs and medicines, or from defects in or failures of prosthetic devices, implanted in or used on or in the person of a patient.

To further clarify the definition, in Coleman v. Deno the Supreme Court provided six factors to be considered in determining whether malpractice is present:

First, was the wrong treatment related? Was it caused by a failure in professional skill?

Second, is expert medical evidence needed to determine whether the appropriate standard of care was breached?

Third, did the wrong involve assessment of the patient's condition?

Fourth, did the wrong occur in the context of a physician-patient relationship? Was it within the scope of an activity the hospital is licensed to perform?

Fifth, would the injury have occurred if the patient did not seek treatment?

and Sixth, was the alleged wrong intentional?

The Supreme Court applied these tests to this case and found that the alleged wrong, the failure of the hospital to keep a wheelchair in proper working condition, was not sufficiently related to health care or professional services to fall within the MMA.

When an injured party seeks the help of an attorney in bringing a liability claim it is the attorney’s job to decide what type of claim should be brought. As here, just because the injury may have occurred to a patient in a hospital due to negligent behavior of a hospital employee does not necessarily make the case medical malpractice. Medical malpractice may not be the best legal theory to base a case on. A traditional negligence claim does not face the same damage limitations or medical review panel approval requirements as a medical malpractice claim.

Continue reading "The Difference between Medical Malpractice v. Ordinary Negligence" »

In October 2009, as Congress was caught up in the health care reform debate that is still raging on Capitol Hill, Merlyna Adams of LaPlace took a trip to Washington, D.C. to show legislators that she is not frivolous. Worried about proposals to limit patients rights in health care, Merlyna and eight other families who have been victims of medical malpractice wanted to be sure their stories were told.

As reported by Public Citizen on their website,

Merlyna is a school principal whose medical treatment for a kidney stone in 2007 led to a lengthy stay in a hospital’s intensive care unit, congestive heart failure, renal failure, pulmonary failure and amputation of both her hands and her legs below the knee. All of this was preventable. She told her story frankly and eloquently to the news media, and again in meetings with her state’s members of Congress. The everyday tasks that so many people take for granted, like brushing their teeth or eating, she no longer can do on her own, she said.

Stories like Merlyna’s show how devastating medical malpractice can be. Most victims (who survive) suffer serious injuries and require lifelong care. And many victims don’t make it. According to the Institute of Medicine, as many as 98,000 Americans die each year from preventable errors. In considering healthcare reform proposals, Members of Congress should focus on patient safety and reject legislation that strips patients of their rights.

Medical malpractice occurs when a health care provider violates the appropriate standard of care when treating a patient, leading to the patient’s injury. Medical malpractice can result from either action or lack of action. Some examples include misdiagnosis, inappropriate treatment, or unreasonable delay in treating a condition. A medical malpractice claim can be brought by an injured patient against any responsible licensed health care provider but must be brought within one year of the when the act or omission occurred (or one year from the discovery of the problem, but no longer than three years from when the act or omission occurred).

In Louisiana medical malpractice damages are limited to $500,000, excluding future medical care. Liability is limited to $100,000 per health care provider and awards between $100,000 and $500,000 are paid out of the patient compensation fund. Before a medical malpractice suit may be filed, the party filing the claim must submit the case to a medical review panel. The findings of the panel are admissible as evidence if the case later goes to trial.

Medical malpractice cases often deal with technical subject matter and require the testimony of medical expert witnesses. Under Louisiana law a medical expert witness must be a licensed physical trained in the speciality at issue with knowledge of the applicable standard of care for treatment.

Sometimes medical malpractice claims involve multiple defendants because it is difficult to pinpoint which medical provider’s action caused an injury. When multiple parties are found to be at fault for injuries Louisiana follows a traditional rule of joint and several liability. This means that each defendant is individually liable for the entire amount of the judgment. As such if one defendant is unable to pay the plaintiff may go after other defendants until the entire amount is recovered.

Medical malpractice lawsuits are complicated and robustly defended. If you or a family member have been injured, and you think a health care provider may have been to blame, it is very important that you have dedicated experienced counsel on your side.

Continue reading "LaPlace Victim of Medical Malpractice Goes to Congress, Urges Protection of Patients’ Rights" »