Case Illustrates the Issues Surrounding Medical Malpractice Exceptions

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.

If you believe that you have been the victim of medical malpractice, call the Berniard Law Firm today toll-free at 1-866-574-8005 and speak with a lawyer who can help you.

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