Articles Posted in Medical Malpractice

need-a-pill-1057199-1024x768Medical malpractice lawsuits are filed for a wide range of injuries and even death. When a patient finds himself in a scenario where he believes a medical professional could have done more to prevent his injuries or cure his condition, he may decide to go through with a lawsuit. Medical malpractice lawsuits often require expert witnesses to succeed and proving damages in these cases where the patient enters a medical facility sick or injured can be a tough case to win. So, can you lose your medical malpractice case if you do not have enough evidence?

In July 2011, Nickol Bell (“Bell”) went to Baton Rouge General Medical Center’s (“Hospital”) emergency room because of nausea, vomiting, diarrhea, loss of consciousness, dizziness, and maroon-colored stools. Bell was discharged from the hospital and later suffered gastrointestinal bleeding and hemorrhaging. Just a few hours after he was released, Bell was put into intensive care, where he received a blood transfusion and other medical treatments.

Bell and his wife brought a lawsuit for damages, alleging medical malpractice by the hospital and the physician who treated him, Dr. JL. The Medical Review Panel (“MRP”) concluded that the standard of care as to Dr. JL had not been breached, because based on the information Dr. JL had at the time, the doctor had provided adequate medical care. The nursing staff failed to inform Dr. JL of the maroon-colored stool. Although the hospital failed to meet its standard of care, MRP concluded that the hospital’s conduct was not compensable.

56-1024x678Having surgery is always a stressful situation. Nobody wants to leave the hospital only to return a short time later from complications due to the first surgery. This is unfortunately what happened to Mr. James Nelson, who sued his surgeon, Dr. F, in East Baton Rouge Parish. So, what happens when you develop a new medical condition after your surgery?

In November 2009, Dr. F performed gallbladder removal surgery on Mr. Nelson. Several hours after Nelson was discharged from the hospital, he experienced pain in his lower abdomen, stomach, and sternum. Nelson returned to the hospital, where he was informed that he was suffering from pancreatitis. Nelson was admitted for care in conjunction with the pancreatitis and was released four days later.  

One year later, Nelson requested the formation of a medical review panel, claiming that Dr. F committed medical malpractice by allowing contrast dye to enter Nelson’s pancreatic duct during his gallbladder removal surgery. Nelson claims that this was the cause of his pancreatitis. Nelson also claims that he was never informed that pancreatitis is a possible outcome from the type of surgery performed.

pills-pills-pills-3-1326912-1024x683In the aftermath of suffering injuries from medical malpractice, filing a suit might not be at the top of your list. However, in order to maximize your chance of recovery, it is imperative that you timely file your claim without delay. So what happens when you do not file a suit quickly enough?

Brian Snavely was a patient of Dr. Rice and her affiliated entities. Snavely sought care from Dr. Rice for chronic pain that started with an industrial accident in 1999. That care included being prescribed narcotics. In 2010, Snavely was involved with an automobile accident with Kayse Vincent. Following this accident, Snavely received further treatment from Dr. Rice. While Snavely was seeking damages against Vincent for that accident, he died of a drug overdose. The plaintiff, Linda Snavely, was Brian Snavely’s mother. Ms. Snavely first filed a Request to Convene a Medical Review Panel, which is an initial malpractice hearing against qualified healthcare providers, against Dr. Rice and her entities under the Louisiana Medical Malpractice Act (LMMA), La.R.S. 40:1299.41-.49. Dr. Rice, as a licensed physician, could be subjected to a Medical Review Panel. However, her affiliated entities could not be. Dr. Rice responded to the Request to Convene a Medical Review Panel by filing an Exception of Prescription, which is a pleading seeking delay or dismissal of a lawsuit or other action because the time period to bring that action has expired. The exception and dismissal were subsequently granted. Ms. Snavely then sought damages against Dr. Rice’s entities as she alleged their treatment led to Brian’s death. The Rice entities filed an Exception of Prescription and it too was granted.

The exception of prescription is laid out in La. C.C.P. art. 927. The burden of proof lies on the requesting party. When Appeals Courts review it, they use a manifest error standard of review, which means no deference is given to lower courts. The time limit for filing claims is one year; which means an Exception of Prescription is proper if a lawsuit or other action is filed after one year. La. R.S. 9:5628(A). However, that rule is only valid from when damages are immediately apparent. See In re Medical Review Panel for Claim of Moses, 788 So.2d 1173, 1178 (La. 2001).

https://www.louisianapersonalinjurylawyerblog.com/wp-content/uploads/sites/310/2019/05/3_26_19-20.-Thibodeaux-v.-Donnell-1024x683.jpgThe birth of a child is something many soon-to-be parents look forward to with both excitement and nervousness. Concern for the health and safety of both mother and child are common, and often, unnecessary. Sadly, this is not always true. In the case of one Terrebonne Parish family, the arrival of a baby girl was accompanied by an unfortunate medical mistake. The family’s medical malpractice claim raised important distinctions in assessing and apportioning damages as it moved into the Louisiana First Circuit Court of Appeal.

Following a high-risk pregnancy, Kimberly Thibodeaux gave birth to her daughter, Gabrielle, on November 20th, 2003. Dr. James Donnell performed the cesarean section that delivered Mrs. Thibodeaux’s fourth child. Complications arose from the c-section, including a severe laceration to Mrs. Thibodeaux’s bladder. Ultimately, Dr. Donnell performed an emergency hysterectomy and placed sutures into Mrs. Thibodeaux’s bladder without consulting a urologist before attempting to repair Mrs. Thibodeaux’s bladder himself. Mrs. Thibodeaux experienced extreme abdominal pain and discomfort following the delivery, eventually necessitating further treatment under the care of urologist Dr. Robert Alexander. Mrs. Thibodeaux’s abdomen was reopened, the sutures removed, stents and a catheter were placed into her bladder in an attempt to regain any functional use. Mrs. Thibodeaux continued her treatment with Dr. Alexander, who determined the damage to Mrs. Thibodeaux’s bladder was permanent in April 2007. Mrs. Thibodeaux continued to suffer from a range of painful symptoms, including frequent urination, leakage, pain during sex and urination, and abdominal spasms.

Mrs. Thibodeaux, along with her husband Todd and on behalf of their daughter, filed a medical malpractice suit against Dr. Donnell. In May 2014, the jury trial returned a verdict in the Thibodeauxs’ favor, finding that Dr. Donnell had breached the applicable standard of care in treating Mrs. Thibodeaux, and that his breach caused her injuries. The jury awarded $60,000 for Mrs. Thibodeaux’s medical expenses but did not award any general damages. Both the Thibodeauxs and Dr. Donnell filed motions challenging the damages award. The trial court denied both motions, and the Thibodeauxs filed an appeal in the First Circuit. After determining both motions were filed in an appropriate manner within the stated deadline, the court concluded the Thibodeauxs had cleared a path for their appeal concerning damages. See La. R.S. 13.850(A).

pills-1183584-1024x768When someone decides to have surgery, they do not typically anticipate a lawsuit arising out of that surgery. Typically, a headache is not a common side effect of getting a new joint implanted into a toe, but when issues of joinder and diversity jurisdiction complicate a lawsuit, a headache is what the patient gets. Unfortunately, that’s exactly what happened to a patient in eastern Louisiana. Kale Flagg had an unsuccessful toe-joint replacement surgery and filed a lawsuit in state court asserting medical malpractice claims against Dr. Denise Elliot and a product defect claim against both Stryker Corp. and Memometal Inc. USA.

When no plaintiff is a citizen from any state which a defendant is a citizen, jurisdiction issues may arise. If that condition is met, a lawsuit filed in state court may be removed to federal court. See 28 U.S.C. § 1332(a)(1). As out-of-state defendants, Stryker and Memometal removed the case to federal court. However, Mr. Flagg and Dr. Elliot are both citizens of Louisiana. Here, the District Court held that Mr. Flagg failed to exhaust all of his administrative remedies against Dr. Elliot, and therefore, naming Dr. Elliot as a defendant in the case was improper. Once Dr. Elliot was dismissed from the case by the District Court, diversity jurisdiction existed and the case could be heard in federal court.

Mr. Flagg appealed the judgment of the District Court dismissing the doctor from the case. The Court of Appeals affirmed the District Court’s decision. In determining that the doctor was improperly joined to the case, the court looked at whether Mr. Flagg would be able to recover against the doctor in state court.

emergency-hospital-sign-1024x683Deadlines matter. They matter in all areas of life, but in the legal world, missing a deadline can determine whether legal action will move forward or not. With every cause of action, there are time frames for filing claims and appeals and oftentimes—even in situations where recovery seems necessary or deserved—courts will dismiss cases filed outside these time frames. In a lawsuit against Rapides Regional Medical Center (Rapides Regional), Mrs. Susanna Duckering learned this lesson the hard way.

After being treated at Rapides Regional in August of 2011, Mrs. Duckering filed a complaint for medical malpractice. In response, Rapides Regional filed a Motion for Summary Judgment, a motion for judgment as a matter of law rather than on the merits. The basis for this motion was that Mrs. Duckering did not have any evidence that Rapides Regional diverted from the standard of care or caused her injury. The medical review panel for Rapides Regional supported this by stating there was no evidence of a breach to the applicable standard of care. Mrs. Duckering did not oppose this motion, did not provide evidence that opposed the motion, and did not come to the hearing. After the hearing, Ninth Judicial District Court for the Parish of Rapides granted the Motion for Summary Judgement and on February 9, 2015, Mrs. Duckering’s lawsuit was dismissed.

In response, Mrs. Duckering filed a Motion for a New Trial, believing a new trial was necessary since the Motion for Summary Judgement was granted by default all because her counsel did not have the hearing scheduled on his calendar, and missed the hearing due to this mistake. After a hearing on March 23, 2015, the Trial Court denied the Motion for a New Trial and Mrs. Duckering appealed this to the Court of Appeal for the Third Circuit.

marcelo-leal-664865-unsplash-1024x683Every medical professional has a standard of care he or she must adhere to. No one wants to deal with the failure to meet this standard of care, but oftentimes, life puts us in unfortunate situations. When we suffer injuries—or worse—at the hands of those who are supposed to treat, heal, or diagnose us, medical malpractice can help provide compensation. In a recent case appealed to the Court of Appeal for the Third Circuit of Louisiana, a medical malpractice claim was made against the Louisiana State University Health Systems Moss Regional Medical Center (“Moss Regional”).

On July 13, 2009, Geranda Matthews went to Moss Regional where she underwent tests that revealed a mass in the right upper lobe of her right lung. Physicians Dr. Arnold Kent Seale and Dr. Ping Kok Lie ordered a biopsy to see if the mass was cancerous. The biopsy was performed on July 15, 2009, but there insufficient tissue for a diagnosis, so a second biopsy was performed that October. Like the first biopsy, it did not have enough tissue for the pathologist and so Mrs. Matthews was not diagnosed or treated for cancer at Moss Regional. Unfortunately, in April of 2009, Mrs. Matthews was admitted to Our Lady of Lourdes Hospital as the mass in her lung was cancerous, had spread, and was causing pain and paraplegia. Though she was treated for cancer, Mrs. Matthews passed away.

Her husband, William Matthews, filed a medical malpractice claim against Rapides Regional, claiming that the doctors failed to diagnose her cancer, therefore decreasing her chance of receiving successful treatment. Mr. Matthews filed a motion for summary judgement—a motion for judgment as a matter of law rather than on the facts—claiming it was appropriate because the damages Mrs. Matthews suffered were greater than the $500,000.00 cap for medical malpractice. La. C.C.P. art. 966(B)(2).

hospital-02-1505482-1-1024x768When we think of the practice of law, we may think of flashy lawyers in the courtroom arguing against one another with impassioned rhetoric. In reality, the law practice is not that glamorous. In many cases, there are no trials, and a judge simply hands down a judgment without any theatrics. Summary judgment is an example. Summary judgments occur when there are no factual disputes between parties, thus forgoing the need for a trial. However, to obtain summary judgment, a party must file a motion for summary judgment. In the case below, we will see how a Louisiana Appellate Court decided that the District Court erred in granting a motion for summary judgment.

Carolyn C. Harris had terrible stomach pains and went to Our Lady of the Lake Regional Medical Center to receive treatment. Her first doctor, Dr. B, examined her on December 29, 2008, and scheduled a colonoscopy the next day. However, due to unanticipated conflicts, the colonoscopy was rescheduled for January 5. In the meanwhile, Harris began to suffer from a respiratory illness and was moved to the ICU. On January 5, 2009, her second doctor, Dr. C, performed the delayed colonoscopy. During the colonoscopy, Harris’s colon was perforated. She began to vomit, and soon after, she went into cardiac arrest and died. Harris’s representatives sued the doctors for medical malpractice, but the doctors responded with a motion for summary judgment, which the District Court granted. Harris’s representatives appealed.

In Louisiana, summary judgment is applicable only when there are no factual disputes between the parties according to the evidence submitted. Also, the person filing the motion for summary judgment must be able to obtain a judgment under the applicable law. La. C.C.P. art. 966(B)(2). The applicable law, in this case, is the list of requirements for a plaintiff to file a claim for medical malpractice. A plaintiff suing for medical malpractice must show by a preponderance of the evidence that there was a standard of care applicable to the defendant, that the defendant failed to meet that care, and the failure to meet that care led to the injury or death. La. R.S. 9:2794. For a defendant to succeed in a summary judgment motion in a medical malpractice case, the defendant has to show that the plaintiff cannot show at trial at least one of the above through the preponderance of evidence.

hospital-bc-laboratory-form-with-syringe-2-1315572-1024x768Time governs our lives. It also governs the law. If you have been injured and decide to file a claim, there is generally a time limit to do so. If you do not file within this time, you may never get your claim heard. The case below is an example.

Anthony Williams arrived at Christus Schumpert Hospital (“Hospital”) with complaints of nausea, vomiting, and abdominal pain. He also had a history of schizophrenia. Though Williams was supposedly watched closely by nursing staff, Williams managed to leave the hospital. An alert was issued. Unfortunately, Williams was found less than an hour later without a pulse. He died on November 1, 2011. His mother, the plaintiff, filed a medical malpractice complaint only against the Hospital on November 1, 2012. Because Louisiana law requires a medical review panel to review a medical malpractice claim, she waited to file a claim in the District Court. Once the panel’s decision was released on April 23, 2014, the plaintiff filed a claim in the District Court on July 9, 2014. In this claim, however, the plaintiff added one of the doctors of the Hospital, Dr. Davis, as a defendant. Dr. Davis responded to the claim by arguing that too much time had passed since Williams’s death, and therefore, under the legal doctrine of prescription, he could not be named as a defendant. Prescription simply means that a legal claim must be brought within a certain amount of time to be valid. The District Court agreed with Dr. Davis that he was prescribed from being a defendant.

Louisiana law states that a medical malpractice claim must be filed within a year from the alleged malpractice or within a year from the date of discovery of the alleged malpractice. La. R.S.9:5628(A). For a claim under the latter, it must still be filed within three years from the date of the alleged malpractice. However, the time to file can be extended under certain situations. For instance, if a plaintiff could not have filed a claim because of reasonable ignorance of relevant facts, the time to file begins when the plaintiff discovers or should have discovered the relevant facts to file a claim. Davis v. Johnson, 36 So.3d 439, 442 (La. Ct. App. 2010). Louisiana courts determine that a plaintiff should have discovered the relevant facts if he or she had sufficient information to seek inquiry. Abbott v. Louisiana State University Medical Center-Shreveport, 811 So. 2d 1107.

heart-1634235-671x1024When you suspect a doctor has provided substandard care for a medical issue, it is important to immediately retain the services of a qualified medical malpractice attorney. Quick action is important because time is not on your side when considering a lawsuit. Here is but one example of how waiting can be detrimental to the plaintiff’s case.

In May 2011, Baton Rouge physician Dr. T  performed surgery to repair a ventral hernia David Verbois suffered following coronary artery bypass surgery. After the procedure, Mr. Verbois experienced nausea, vomiting, diarrhea, fever, chills, and abdominal pain. In June 2011, Mr. Verbois was readmitted to the hospital where a CT scan revealed an abnormal fluid collection. Dr. T dismissed this condition as benign and offered Mr. Verbois no treatment.

Mr. Verbois’s symptoms continued. In October, 2011, Dr. T performed surgery to remove Mr. Verbois’ gallbladder. The procedure was done even though there was no abnormal appearance of the gallbladder other than a single, small, calcified stone. Mr. Verbois’s condition did not improve and he underwent another CT scan in December, 2011. This CT scan revealed a perforation of the stomach at the site of an appliance placed during previous gastric bypass surgery performed by a different doctor.