Articles Posted in Medical Malpractice

black-and-white-blood-pressure-blood-pressure-monitor-208556-1024x768When a loved one dies or suffers severe injuries from negligent medical care, the first thing a family wants is justice for that mistreatment. When a mother knows her son’s medical history is not conducive to a certain treatment, she may believe that malpractice is apparent. These lawsuits have a number of procedures meant to protect the profession, however. A lawsuit can be dismissed by summary judgment when there is no genuine issue as to a material fact. La. C.C.P. art. 966(B)(2). When the defendant requests summary judgment, she may win the summary judgment if the adverse party’s claim lacks factual support for the elements essential to the claim.

Breton Trotter, a 21-year-old, was transported to Baton Rouge General Medical Center (“BRGMC”) emergency room on November 5, 2011. On November 7, 2011, Dr. Zuckerman found that Mr. Trotter had no pulse and expired. In October 2012, Breton Trotter’s mother, Terrain Trotter, filed a medical malpractice claim with the Louisiana Patient’s Compensation Fund Oversight Board and requested a review by a medical review panel. On April 30, 2014, the panel issued an unanimous opinion that no medical malpractice exists. On August 28, 2014, Ms. Trotter filed a medical malpractice lawsuit in the 19th Judicial District Court against Dr. Zuckerman. After he timely filed an answer, Dr. Zuckerman filed a motion for summary judgment on the ground that Ms. Trotter had failed to obtain a medical expert to support her claims. The trial court granted summary judgment in favor of Dr. Zuckerman. Ms. Trotter appealed to the Louisiana First Circuit Court of Appeal (“the Court“) arguing that her familiarity with her son’s medical requirements made her fully capable of meeting the burden of proof.

All plaintiffs must establish three elements to file a medical malpractice lawsuit: (1) the standard of care applicable to the doctor; (2) a violation by the doctor of that standard of care; and (3) a causal connection between the doctor’s alleged negligence and the plaintiff’s injuries. La. R.S. 9:2794(A). Generally, expert testimony is required to establish the applicable standard of care and whether the standard was breached, unless the negligence is so obvious that an average person can infer a breach without the guidance of an expert. Samara v. Rau, 977 So.2d 880 (La. 2008)

bed-empty-floor-236380-1024x678After a long and emotional lawsuit following the death of a loved one, the last thing you may want to do is to return to the courtroom. However, if you fail to appeal an award of inadequate damages, you could be leaving money on the table. 

Mr. Roark and his wife had two children, Justin and Shelby Roark. Although there was no evidence of animosity, Mr. Roark and his wife divorced in 2000. In September 2001, the mother and children moved to Connecticut. The children agreed that Mr. Roark would enjoy full summer visitation. Instead of paying monthly child support, he would cover the children’s travel expenses. Mr. Roark also called his children on the telephone and sent gifts for holidays and other special occasions. One child, Dean, spent the summer of 2001 with his father, although the other child, Shelby, did not because she was too young to fly unattended. Both Dean and Shelby spent the summers of 2002, 2003, and 2004 with their father. 

In 2004, Mr. Roark injured his neck and head. He had to be hospitalized and was then treated outpatient. Following the accident, Mr. Roark’s contact with his children decreased. He also developed both bipolar disorder as well as adult schizophrenia. However, Mr. Roark did not tell his ex-wife or children about his diagnosis. 

12-Picture-05-22-2019-816x1024Medical malpractice cases often involve complicated medical issues that can require expert testimony in order to prevail in a lawsuit. Although it is easy to become confused or distracted by the complexity of the issues, it is essential to understand and provide the required expert testimony. 

Mr. Jason Kinch (the Plaintiff), a Lafayette Parish Deputy Sheriff, brought a medical malpractice lawsuit against Dr. Kenneth Godeaux and Our Lady of Lourdes Regional Medical Center, Lafayette Louisiana (the Defendants) for breach of standard of care and injuries caused to the Plaintiff due to the failure of the Defendants to accurately diagnose the Plaintiff’s medical condition. When Kinch first visited the hospital on October 7, 2010, he complained of fever, chills, nausea, vomiting and weakness. Dr. Godeaux told Kinch he had pulled a muscle and prescribed medications. Kinch returned to the emergency room on October 10, 2010, in a worse state. He was diagnosed with various conditions, including cellulitis, which required an eleven-day hospital stay and multiple surgeries. Kinch claimed that Dr. Godeaux failed to properly diagnose and appropriately treat this “obvious” infection during the October 7 visit.

The Defendants filed a motion for summary judgement urging the trial court to dismiss Kinch’s claims based on lack of expert medical testimony to establish the requisite standard of care. The court granted the defendants’ motion for summary judgment, dismissing Kinch’s claims with prejudice, finding that the Kinch had not provided adequate evidence to prove his claims. 

close-up-court-courthouse-534204-1024x569When a lawsuit fails, there are certain situations where the party who brought the failed lawsuit is responsible for the costs to the other party. Where that line is drawn is generally based on a judge’s discretion and views on the reasonability of those costs. Without excellent attorney work, procedural and legal roadblocks may make it impossible for a court to award the fees that a party should be entitled to. That was the case for three dentists after winning a lawsuit against a Baton Rouge plaintiff.

Tara Lorraine lost a lawsuit against three dentists she accused of malpractice. The jury found that she did not prove that her treatment breached dental treatment standards and her claim was dismissed with prejudice. When a claim is dismissed with prejudice, the dismissal was based on the merits and the facts of the case and it cannot be brought again by that plaintiff.

In response to their favorable verdict, the three dentists then asked the court to award them with the costs of the defense, totaling $9,555.14. This was asked to cover the costs of various things to prepare for trial, such as jury panels and expert witnesses. The Trial Court held a hearing and determined that Ms. Lorraine was liable to the dentists for the full amount requested. Ms. Lorraine then appealed.

check-up-dentist-doctors-1170979-1024x683Informed consent in medical situations ensures that a patient is aware of the risks associated with their upcoming medical procedure. This information is disclosed beforehand to serve two purposes: First, it gives the patient the information to make an educated decision on whether to go through with the procedure. Second, it gives the doctor legal protection against lawsuits from patients when those complications or issues the patient was warned could happen actually happen. This was the case for a Shreveport dentist who needed an excellent attorney after complications arose after a patient received a dental implant.

Wanda Magee sought treatment from dentist Dr. Charles Williams for a number of abscesses in 2008. In response, Dr. Williams removed two molars and advised Ms. Magee that in the future she may need up to three dental implants. In 2010, Ms. Magee returned with a request to receive the dental implants because she was having trouble eating. Dr. Williams discussed the implant procedure. Then, Ms. Magee underwent a CT scan to determine the proper place for implantation. Ms. Magee signed the treatment plan, which informed her she may need up to three implants and possibly a bone graft. The procedure was performed in February 2010, and only one implant was required.

Later that month, Ms. Magee returned with pain and nausea. Dr. Williams proposed “exposing” the implant to get a better sense of how the implant was doing. Prior to the procedure, Dr. Williams warned her of the risks with the procedure and Ms. Magee gave him oral consent to proceed but did not give her consent in writing. In regards to consent, Ms. Magee later testified that she wanted to keep the implant and wanted Dr. Williams to fix “whatever was wrong.” Dr. Williams cut the area and found that everything was holding up well. A CT scan confirmed that the implant was stable and Dr. Williams ordered Ms. Magee to take antibiotics and come back in one week. Ms. Magee did not return until June 2010, with complaints of an abscess in the affected area.

boy-elastic-rope-exercise-equipment-176794-683x1024Typically, the scary aspect of surgery is over when the procedure ends and the person wakes up from the anesthesia. The last thing most people expect is to get injured after the surgery is already over. Unfortunately for one Iberia Parish woman, her troubles were only beginning even though she had a successful surgery. That being said, can you claim medical malpractice while you are recovering?

Mrs. Rachel Broussard underwent a surgery replacing her left knee, and was subsequently to be transferred to Lafayette Rehab following the surgery. A Lafayette Rehab employee arrived in a company van to transport her from the hospital, and Mrs. Broussard was loaded into the van in her wheelchair by the employee. On the ride to the rehabilitation center, the driver suddenly braked to avoid a car wreck, whereon Mrs. Broussard allegedly fell out of the wheelchair and on the floor of the vehicle, causing severe pain.

After the incident, Mrs. Broussard filed a lawsuit for the damages of the injury, naming Lafayette Rehab as defendant. Further, her husband, Mr. Broussard, sought money from loss of consortium. Lafayette Rehab responded with a Dilatory Exception of Prematurity, arguing that the lawsuit was filed too soon. Lafayette Rehand contended that the Broussards’ allegations had to be reviewed by a Medical Review Panel before they could bring the lawsuit, because they fell under the Louisiana Medical Malpractice Act.

2-picture-5-30-2019When you go to the hospital, you expect to be taken care of by a qualified physician who properly diagnoses you. If that doesn’t happen, tragedy can strike. And if tragedy strikes, you want the responsible partie(s) to be held responsible by being liable for damages. But does the Louisiana Medical Malpractice Act (MMA) limit liability in these cases?

Tragedy struck for the Billeaudaus, whose daughter Brandi suffered a stroke and ultimately died.  When Brandi Billeaudau collapsed, her parents transported her to Opelousas General Hospital in Opelousas. There, the emergency room doctor, who lacked the required experience and training required by the hospital, improperly diagnosed Brandi with a focal motor seizure instead of a stroke. Her parents knew better and requested a transfer to Our Lady of Lourdes Hospital (OLOL) in Lafayette, where she got the necessary treatment, but that was too little too late.

The Billeaudau’s brought a lawsuit against Opelousas General to hold them liable for giving credentials to the doctor. They contended that since granting credentials is an administrative rather than a medical decision, it should not be subject to the limits set in the MMA. In order to determine whether the wrong in this case was medical (and subject to limits in the MMA) or administrative (and not subject to the MMA), the court analyzed:

close-up-doctor-health-42273-1024x683Perhaps one of the biggest fears when going under anesthesia for a surgery is not waking up when the procedure is over. For a Louisiana man, this fear was realized when a trip to the emergency room for stomach pain resulted in him being woken up from an opiate overdose. So what happens when your doctor gives you an overdose of a medicine?

Donald Ray Seaux, Sr. went to Our Lady of Lourdes Regional Medical Center in July 2002 when he began experiencing stomach pain and vomiting. The doctor diagnosed him with a dysfunctional gallbladder and scheduled surgery to remove his gallbladder. When it came time for him to have surgery, his surgeon, Dr. Juan Paredes, chose to perform an “open cholecystectomy,” which is an invasive surgery requiring a large incision across the abdomen. In choosing this option, Dr. Paredes determined that the less-invasive laparoscopic surgery was not appropriate for Mr. Seaux.

Because the surgery chosen was more serious and would likely be more painful to recover from, the hospital anesthesiologist utilized a patient-controlled analgesic morphine pump (PCA), which was a device that delivered pain medication in timed doses. Two days after he entered the hospital and had the surgery, Mr. Seaux was found unresponsive, and was given the drug Narcan, which reverses opiates in the body. Mr. Seaux and his wife state that he was injured as a result of the overdose of morphine from the PCA.

39-Email-04-02-19-picture-1024x683The death of a loved one is always a traumatic experience for family and friends, especially if the death could have been prevented or is at the fault of the hospital. When someone feels as if medical malpractice has occurred, Louisiana has strict guidelines regarding filing a medical malpractice lawsuit and someone unfamiliar with the legal process can easily be confused or frustrated by this complex process. For example, in Louisiana you have one year following a death to file a medical malpractice suit, however, is that filing due at by the close of business at the one year or is the filing due by midnight? The Louisiana Supreme Court recently consolidated two cases that answered such questions on when you have to file a medical malpractice lawsuit. 

The facts of these two cases are similar, which is exactly why the Louisiana Supreme Court decided to consolidate these cases. In the case of Rose Tillman, who sadly passed away on May 22, 2012, her surviving children’s request for a medical malpractice claim was sent to the Louisiana Division of Administration (DOA) on May 22, 2013 after 5 pm, after the DOA office had closed. As a result, the  DOA’s filing system received the request on the following business day, May 23. In the case of Peighton Miller she received a shoulder injury on April 4, 2012 while in the care of a hospital. Again, a malpractice claim was sent to the DOA on April 4, 2013 after the DOA’s 5pm closure. The facts in these cases are undisputed, and at trial, the 24th Judicial District Court for the Parish of Jefferson court ruled in favor of Tillman, and the Fifth Circuit Court of Appeals ruled in favor of Peighton Miller.

In response, Tulane Lakeside Hospital and Durga Ram Sure (the plaintiffs) appealed the decision. Per  La. C.C. art. 3492, defendants have one year to file a malpractice claim and that is one-year prescription begins the day the injury was received. In addition, La. R.S. 9:5628 describes how actions against healthcare providers must commence within 1 year of the sustainment or the discovery of the injury. Moreover, Section 1231.8(a)(2)(b) of the Medical Malpractice Act states how the request for a malpractice review “shall be deemed filed on the date of receipt of the request stamped and certified by the division of administration.” On appeal, the plaintiffs insisted the statute was too vague because it was the DOA’s understanding that a malpractice claim has not been received until it had been “stamped and certified,” which happens during the business day meaning any documents received after 5pm have technically not been received by the DOA until the following business day. However, according to La. C.C. art. 12 when the words of a law are ambiguous or confusing, the words should be evaluated to fit the purpose of the law.

40-Email-4_2_19-photo-1024x576When you are injured or ill and need treatment, you turn to a hospital and put your trust in the doctors and healthcare providers at that hospital. Normally, healthcare providers are diligent and provide top-notch care, however, occasionally a hospital fails to live up to the trust given to them by the patient. When this occurs, the Louisiana Medical Malpractice Act (“MMA”) protects the patient. Nonetheless, there are cases in which it is disputed whether or not the incident falls under the MMA – for example is the failure to clean surgical instruments an incident of malpractice? The Supreme Court of Louisiana recently decided such a case from the Parish of East Baton Rouge and upheld that the MMA is a wide umbrella that covers various types of claims.

On April 14, 2014, Richard Dupuy went to the Spine Hospital of Louisiana for a spine surgery. Following the operation, Dupuy developed a post-operative infection called osteomyelitis caused by mycobacterium fortuitum. Dupuy and his wife allege that he received this infection because the hospital failed to sterilize or clean surgical instruments properly and thoroughly. As a result, Dupuy and his wife sued the hospital for Richard Dupuy’s medical expenses, pain and suffering, mental anguish, loss of earnings capacity, disability, and loss of enjoyment of life. They also sued the hospital seeking damages for Mrs. Dupuy for she maintains a loss of society, support, and companionship.

The Hospital responded by filing an exception of prematurity (meaning the case had not evolved enough to need the court to step in) and asserting that the Dupuy’s have incorrectly gone about the situation. In support of this defense the hospital cites La. R.S. 40:1231.8 that states how Dupuy’s claims must first be presented to a medical review panel. Moreover, the hospital had the infectious disease specialist that treated Mr. Dupuy testify that she was unable to pinpoint specifically what caused the infection and she maintains there could have been many causes for the infection.