Articles Posted in Medical Malpractice

Good medical treatment, even in a first-world country, can, unfortunately, be difficult to find.  Doctors make mistakes and sometimes even entire hospitals can be at fault.  In a recent case out of Ouachita Parish, a woman was delayed admission to a hospital for an extended period which ultimately led to her diminished chance of survival.  While relief under several theories of recovery was debated, her survivors were eventually compensated despite opposition from the Louisiana Patients’ Compensation Fund.  

injection-1-1323670-544x1024In November 2002, Ms. Annette Toston died at St. Francis Medical Center from complications from an underlying kidney infection.  Prior to her death, Ms. Toston was a patient at E.A. Conway Hospital where physicians determined she requested a surgical procedure only available at St. Francis.  Ms. Toston arrived at St. Francis on November 25, 2002, however, was not admitted until approximately fifteen hours after arrival.  Ms. Toston subsequently died during the operation.  Following the death of Ms. Toston, her seven children filed suit in the Fourth Judicial District Court.  On July 14, 2014, the Judge entered a judgment in favor of Ms. Toston’s seven children.  The written judgment assessed St. Francis with $100,000, damages and the Louisiana Patient’s Compensation Fund (“PCF”) with $400,000.  The PCF automatically covers all state healthcare providers and caps the recovery of damages against a qualified healthcare provider at $100,000, plus interest per patient per incident.  Any award in excess of the cap is paid directly by the PCF.  St. Francis entered into a settlement agreement with Ms. Toston’s family for the $100,000, under the conditions that it would be released from all liability, and reserving all rights to proceed against the PCF.  

The PCF appealed to the Louisiana Second Circuit Court of Appeal.   The PCF argued that the Trial Court erred in finding St. Francis liable in Ms. Toston’s death.  The PCF also argued that the Trial Court erred in finding that St. Francis breached the standard of care during Ms. Toston’s transfer to St. Francis. Additionally, the PCF challenged the damages award, arguing that Ms. Toston could not have had a close relationship with her children because of the ages and locations of her children.  

historical-medical-devices-3-1566087-1024x678Upon entering a facility for medical treatment, we all hope that we will be treated properly. However, what happens when a medical or health care professional deviates from the profession’s standards? What happens if there is a mistake in the diagnosis or treatment? Such victims certainly have an opportunity to seek redress however sometimes a jury verdict can prove disappointing.  This case out of Jefferson Parish demonstrates what happens when a trial court jury does not get the proper instructions necessary for deciding a complex medical malpractice claim in Louisiana.

Doris Greathouse was admitted to East Jefferson General Hospital on June 2, 2008 for elective heart surgery. Shortly after Dr. Cougle and CRNA Wilkinson intubated Mrs. Greathouse, she suffered cardiac arrest and her brain was deprived of oxygen. Mrs. Greathouse was transferred to the Intensive Care Unit with fatal brain damage until her family removed her life support. Mrs. Greathouse’s children then filed a wrongful death and survival action against Dr. Cougle and Ms. Wilkinson alleging that they committed medical malpractice resulting in their mother’s injuries and death.   

Pursuant to La. R.S. 40:1299.47(B)(1)(a)(i), health care providers in Louisiana cannot be sued for medical malpractice under the the Medical Malpractice Act (“MMA”) unless the plaintiff submits a complaint to a Medical Review Panel (“Panel”), composed of three healthcare providers and an attorney. The Panel’s sole duty is to express its expert opinion as to whether the evidence supports the conclusion that the defendants complied with the standards of care. See La. R.S. 40:1299.47(G). The Panel may not render an opinion on any disputed issue of material fact that does not require its medical expertise. See La. R.S. 40:1299.47(H).

doctor-1415837-683x1024In a medical malpractice case, often lawyers for either or both sides will hire what is called an expert witness.  These cases are complex and frequently require such experts to explain to the judge and jury the medical procedure at issue and what went wrong.  These necessary experts, however, are not inexpensive and the winning party in a lawsuit can often come out ahead but at a serious financial setback.  This is what happened in a recent case out of Ouachita.  And due to a lack of evidence on record in support of expert witness fees, the winning party had no chance of recovering these costs.     

Doctors from St. Francis North Hospital, defended allegations of medical malpractice from plaintiffs William McDougald, Joey McDonald, and Tracy McDonald. The hospital was successful in their defense of the case, however the cost of hiring expert witness Dr. David Elizardi was calculated by the hospital at $34,064.41. After the jurors in the Ouachita, Louisiana Trial Court rejected all claims of medical practice, the prevailing defendants filed a motion to tax the defense’s costs against the unsuccessful plaintiffs for the $34,064.41 fee for Dr. Elizardi, plus other fees from defending the lawsuit. Dr. Elizardi had a letter that detailed all of the elements of the $34,064.41 fee, however, the letter was not placed into the record as evidence. The Trial Court assigned some of the costs and fees to the plaintiffs but excluded the $34,064.41 fee for Dr. Elizardi.

In Louisiana, the trial court has the power to set and assign costs and expert witness fees, as the trial court deems equitable and fair. La. C.C.P. art. 2088(A)(10). The party seeking to have their costs paid, as the Hospital and Insurer were seeking here, has the burden of proving the reasonable value of the expert’s out-of-court work. If the parties do not stipulate to the specifics and costs of the out-of-court work, then the expert must testify at the hearing determining costs. See Dakmak v. Baton Rouge City Police Dept., 153 So. 3d 511 (La Ct. App. 2014).  An expert witness is entitled to reasonable compensation for trial testimony and preparation for trial.  The trial court has great discretion in awarding and setting costs and expert witness fees and is not required to set the amount charged by the expert as the amount of the expert witness fee.  Only on a showing of an abuse of the trial court’s discretion can an appellate court reverse the charges and fees taxed as costs by the trial court.  However, the appellate court cannot review anything from the trial court that is not in the record nor can it receive any new evidence.   

phone-booth-1500964-1024x768Everyone has been in the awkward situation where, as soon as they leave the doctor’s office, a myriad of questions that they forgot to ask are suddenly recalled, leaving you with no choice but to call your physician and try to get some answers. Unfortunately, these calls are not always answered. Recently the Louisiana Fourth Circuit Court of Appeal found that if complications arise out of failing to answer or return the call, your doctor may actually be breaching the standard of care.

Mr. Henry Gaffney was diagnosed with an aneurysm of the aortic sinus in 1998 and began treatment with Dr. Thomas Giles through the Louisiana State University Medical Center and Health Sciences Center (LSU) in July 2000. On July 2001, Mr. Gaffney underwent surgery to treat his condition at University of Alabama-Birmingham School of Medicine. Mr. Gaffney’s surgeon, Dr. Albert D. Pacifico, informed him that although the procedure was a success, he would need to undergo Coumadin (a blood thinner) therapy managed by his cardiologist, Dr. Giles, for the remainder of his life.

Shortly after meeting Dr. Giles and getting all the information about his new therapy, Mr. Gaffney started suffering from temporary blindness and other ailments. Even though he tried contacting Dr. Giles multiple times, he never got a reply. Eventually, Mr. Gaffney had to be admitted into the East Jefferson General Hospital emergency room. His attending there, Dr. David Learned, informed him he was overdosing on Coumadin.

law-series-3-1467437-1-1024x769When representing a client, an attorney and law firm must do their due diligence and advocate for their client in the best way possible. An excellent attorney will put in countless hours for their client and will not stop working until the job is completed. Not all attorneys do this however, and when an attorney underperforms, the client has every right to seek a different lawyer for their services.

In April 1996, Stephen Phares (“Mr. Phares”) went to the emergency room of Christus Schumpert Medical Center in Shreveport, Louisiana. Mr. Phares complained that he had back pain, and the next day had back surgery. Shortly thereafter, Mr. Phares consulted with Carl Reynolds (“Mr. Reynolds”) of the Reynolds law firm in Georgia, because he believed he had a medical malpractice claim. Seven months later on November 14, 1996, Mr. Phares and his wife signed a medical negligence employment contract and hired the Reynolds firm to represent them in their case. Because the Reynolds firm was based in Georgia, the firm needed to bring on a second firm that practiced in Louisiana. In January 1997, the Reynolds firm hired the McKeithen law firm to act as local counsel on the malpractice claim. The two firms had an oral agreement that ultimately led to a fifty-fifty arrangement regarding attorney fees.

The Phareses filed a lawsuit and a jury trial was scheduled for September 18, 2006. Before the trial, the two firms agreed to submit the malpractice claim to mediation, and as a result, a settlement was entered in which one health care provider would pay $100,000 to the Phareses and a second provider would pay $60,000. The attorney fee ended up being $72,000, however, the Reynolds firm received 60 percent and the McKeithen firm received 40 percent. Shortly after the mediation, the Phareses filed a claim against the Louisiana Patient’s Compensation Fund (PCF). The Phareses then terminated the Reynolds firm from the case and hired Martin Bohman of the McKeithen firm. A contingency fee contract between the Phareses and Mr. Bohman established that the attorney fee would be 40 percent. In August 2006, the Phareses settled their claim against the PCF for $600,000 and the McKeithen firm received $240,000 as a contingency fee.

abandoned-hospital-1-1227909-1-1024x683Families depend on nursing home staff to adequately care for loved ones. When loved ones suffer due to the negligence of nursing home staff, a medical malpractice suit can arise.

Recently, in Johnson v. CLVD, Inc D/B/A Green Meadow, the beginning injury arose on November 11, 2008, when Mr. Johnson’s catheter was removed, possibly by himself. The nursing staff left the catheter out due to a hospital policy that prohibited them from replacing it. On November 15, Mr. Johnson was unresponsive and taken to the hospital, where a catheter was reinserted. As a result, Mr. Johnson had more than three times the normal amount of urine in his system causing him to develop a urinary tract infection. This infection progressed into severe sepsis, septic shock, and several secondary infections. On December 15, he was admitted to Minden Medical Center with a fever, UTI, altered mental status, and worsening renal insufficiency. His condition worsened, and he died on December 25, 2008.

Mr. Johnson’s family filed a malpractice complaint against the hospital and a medical panel of three doctors reviewed it. Two of the doctors concluded that, by failing to reinsert the catheter or consult with Mr. Johnson’s treating physician, the nursing home staff failed to provide Mr. Johnson with appropriate care. This lack of care led to a chain of events resulting in Mr. Johnson’s death.  The third-panel member disagreed based on Mr. Johnson’s age and medical problems.

hospital-1236398-1024x915Imagine that your mother, a friend, or someone else you love dearly suffers from numerous health problems. In a terrible twist of fate, your loved one falls, worsening their current condition and making life more painful and difficult than it already is. To top it all off, what would already be considered a trying process is exacerbated because you feel like the doctors who are caring for your loved one aren’t listening to your input or concerns. After many visits to the emergency room and overnight hospital stays, your loved one passes away. Despite the health conditions before the fall, you feel like something wrong occurred during your loved one’s treatment and someone should be held responsible. This was exactly the scenario for the loved ones of Ms. Mary LeBoeuf. Five individuals, including her son and long-time partner, filed a lawsuit against her doctor, the hospital, and the orthopedic clinic on her behalf.

Ms. Mary LeBoeuf was a sixty-five-year-old woman who suffered from many health conditions including diabetes mellitus, peripheral vascular disease, cardiomyopathy, coronary artery disease, atrial fibrillation, end-stage renal failures, osteopenia, hypertension, and chronic obstructive pulmonary disease. Despite her poor health, Ms. LeBoeuf continued to smoke one to two packs of cigarettes a day.

On October 11, 2008, Ms. LeBoeuf fell and fractured her leg, but because of her preexisting health conditions, surgery was not an option. Dr. Casey, the orthopedic surgeon treating Ms. LeBoeuf, determined a cast would be the best treatment option for her. Nine days after she was released from the hospital, Ms. LeBoeuf returned with purple toes and a blister on her left foot. Her family was insistent on the cast being permanently removed. Dr. LaSalle, a fellow orthopedic surgeon, removed the cast to examine the area for more blisters, took more x-rays, and reapplied a new cast of which her family disapproved.

ambulance-1440939-685x1024Nursing homes have become an integral part of our society due to America’s aging population. Families need nursing homes to help them care for elderly parents and relatives, disabled individuals, and other people requiring increased care. Most nursing homes treat their residents with industry-standard care; but what if you discovered that someone you love had been mistreated, or even abused, by the nursing home you trusted to care for them? This is what happened with the family of Ms. Lessie Porter.

Lessie Porter lived in a nursing home because she had various mental and physical illnesses. She tried to escape the nursing home facilities many times and had to be subdued by medical staff. On the instance which sparked this lawsuit, Ms. Porter tried to escape but only made it to the doorway of her room. She was subsequently injected with a tranquilizer, dragged to her room so that her stomach and elbows were scratched, injected with another tranquilizer, and left on the floor for fifteen minutes in her soiled diaper.

Ms. Porter filed for a medical review panel with the Patient’s Compensation Fund (PCF) but the PCF determined that her allegations were not within the scope of medical malpractice. She then filed a lawsuit alleging Southern Oaks failed to meet her needs, abused her, and was negligent toward her; also, she claimed damages for breach of contract, breach of the Nursing Home Residents’ Bill of Rights, and breach of the standard of care.

medicine-5-1544051-1024x768It is no secret that a lawsuit has the potential to become a tangled web of procedural issues. This is why it is always a good idea to secure a good attorney with experience in dealing with the court system. Perhaps less common is the situation where the judge, the party responsible for ensuring an efficient and timely resolution of the dispute, gets tripped up in this procedural web. This is exactly the situation below.

The dispute centers on a medical malpractice claim. Ms. Johnson showed up to Tulane University Hospital and Clinic (Hospital) one evening suffering from a severe headache and double vision. The Hospital staff administered an IV in Johnson’s arm, which later became infected. The Hospital discharged her with some antibiotics and told her to follow up with her primary care physician. Ultimately, the infection worsened and required a more serious antibiotic treatment and even surgery. Johnson sued the Hospital and the nursing staff.

Johnson alleged six total negligence claims against the Hospital and the nurses. Pursuant to the Hospital’s summary judgment motion, the Trial Court dismissed all five allegations against the nursing staff but allowed one claim to proceed against the Hospital. That one claim pertained to the antibiotic dosage the Hospital prescribed to Johnson after her initial visit.

abandoned-mental-hospital-1543214-1024x766In November 2008, in Claiborne Parish, Mr. Fields went to Willis Knighton Claiborne Regional Health Center for complaints of diarrhea. Mr. Fields also had an extended history of medical issues, including hypertension and a kidney transplant. He saw a nurse practitioner, who consulted with a doctor and gave him a prescription for a generic antibacterial, which he took as directed. About a week later, he called his doctor’s office complaining that the medicine was making him feel worse. He alleged that he was instructed to continue taking the medicine as originally directed.

The next day, he collapsed at home and died soon after. The cause of death on his death certificate was listed as an acute cardiovascular attempt, which related to his past medical conditions. His children petitioned the Medical Review Panel (“MRP”) alleging malpractice by the hospital and its medical professionals. But the MRP concluded that the standard of care had not been breached, partly because Mr. Fields had never come back in for a follow-up. Mr. Fields’ children then filed a lawsuit against the hospital and Mr. Fields’ doctor and nurse as its employees.

The hospital filed a motion for summary judgment, arguing that the case should be dismissed because there were no genuine issues of material fact. The hospital supported its motion with the MRP’s findings of no breach of care and no causation. Opposing the motion, Mr. Fields’ children supported their allegations with a statement from Dr. Blanche Borzelle, a board-certified physician stating that the nurse and doctor involved had breached the standard of care and concluding that the breach led to Mr. Fields’ death.