Articles Posted in Medical Malpractice

healthcare-upclose-1322372-1024x768Because of the highly technical aspect of seeking relief from the court system, someone unfamiliar with the legal process can be confused and frustrated by the litigation process. This circumstance can be intensified by the harm done and the matter being litigated. Mr. William Matthews, the surviving husband of Mrs. Geranda Matthews, faced this exact problem when filing a medical malpractice claim against two of his wife’s physicians and Louisiana State University Health Systems.

In 2009, Mrs. Matthews went to the hospital complaining of pain. Unbeknownst to the Matthews at the time, the pain was caused by lung cancer. Allegedly, two physicians at Moss Regional Medical Center failed to properly diagnose and treat her cancer until April 2010. The plaintiff also alleged that, because of the physicians’ failure to properly diagnose and treat her, cancer attached to her spinal cord, which caused intense pain, eventually paralysis, and she later passed away.

A claim was submitted to a medical review board, which found that the physician breached the standard of care.  Subsequently, a medical malpractice lawsuit was filed with the Judicial District Court for the Parish of Calcasieu. Mr. Matthews also filed a motion for summary judgment on liability, causation, and damages. Louisiana State University Health Systems, the Defendant, opposed the motion asserting that there was a factual dispute over whether Ms. Matthews pre-existing condition contributed to her damages.  After a hearing, the District Court granted the motion for summary judgment on the issues of liability and causation, leaving calculating damages for another motion for summary judgment or trial. Louisiana State University Health Systems appealed the judgment to the Louisiana Third Circuit Court of Appeal.   

lab-work-1575843-683x1024Generally, claimants interested in bringing any cause of action are required to stick to certain procedures including filing the claim within a specified time period.  Medical malpractice claims are no different. Failure to file a claim within the statutorily imposed time frame will likely result in the dismissal of that claim.   Without even considering liability, a court will be forced to terminate a lawsuit merely because it was filed too late.   This, unfortunately, was the case for Linda Snavely in a recent case out of Lafayette.  

Linda Snavely brought a medical malpractice action on behalf of her deceased son, Brian Snavely, on June 24, 2014.   Brian was a patient of  Dr. Margaret Rice from November 2005 until his death on August 18, 2012.  Brian had been receiving treatment for injuries sustained in a series of serious accidents. Dr. Rice was familiar with Brian’s medical issues, which included chronic back pain, polycystic kidney disease, and a history of pulmonary emboli.  Brian sustained several injuries from a motorcycle accident and was expected to undergo surgery on August 1, 2012.  At the surgeon’s suggestion, Brian discontinued use of his chronic pain medication in anticipation of surgery.  Ms. Snavely noticed Brian was acting differently and potentially hallucinating and on July 30, 2012, took him to the emergency room.  Brian was diagnosed with drug withdrawal and admitted to Acadia Vermillion Hospital for controlled detoxification. On August 13, 2012, Brian met with Dr. Rice to discuss rescheduling his surgery.  During that visit, Dr. Rice prescribed Brian daily doses of Oxycodone, Soma, and Xanax.  Five days later Brian was dead. Brian’s cause of death was polydrug toxicity (an overdose).  

Dr. Rice filed an exception of prescription asking that the claim be dismissed because the claim was filed in an untimely matter. The Fifteenth Judicial Court for the Parish of Lafayette agreed with Dr. Rice that the claim was untimely filed.  Ms. Snavely appealed to the Louisiana Third Circuit Court of Appeal asserting that the claim was timely filed because it was filed within a year of her having discovered the alleged malpractice.  

stethoscope-2-1420449-1-1024x605Medical malpractice suits are notorious in the legal community as being difficult and expensive cases. One reason why these cases are so difficult is because lawyers must hire and rely on numerous experts to argue why a professional should, or should not be, liable. But what happens when a plaintiff in a medical malpractice suit cannot find an expert to support his or her claim? A recent medical malpractice case involving a gynecologist illustrates this exact problem.

In this case, Ms. Sabrina Lee filed a suit against Dr. George Bailey alleging that Dr. Bailey committed medical malpractice. In 2010, Dr. Bailey performed a hysterectomy on Ms. Lee. Shortly after the surgery, Ms. Lee began experiencing sporadic urine leakage. Ms. Lee, concerned about the leakage, scheduled multiple appointments with Dr. Bailey to address her concern. After multiple visits, and no improvement in her condition, Ms. Lee decided to visit another doctor, Dr. Charlie Bridges. Dr. Charlie Bridges, a urologist, determined that Ms. Lee had a ureterovaginal fistula. Following this determination, Dr. Bridges removed the ureterovaginal fistula. After the removal, Ms. Lee experienced no more leakage.

After the removal of the ureterovaginal fistula, Ms. Lee filed a lawsuit against Dr. Bailey. Dr. Bailey filed a motion for summary judgment. A motion for summary judgment is a procedural device used to “secure the just, speedy, and inexpensive determination of [] action[s].” La. C.C.P. art. 966 (2016). The party seeking summary judgment has the burden of proof and must show that there is no genuine issue as to material fact, and that the moving party is entitled to judgment as a matter of law. For Ms. Lee to successfully win her medical malpractice case, she must prove (1) the applicable standard of care; (2) a breach of the applicable standard of care; and (3) a causal connection between the breach and the resulting injury. La. R.S. 9:2794 (2016). Expert testimony is needed to prove the causal connection between the breach of the standard care and the injury.

chest-xray-1526779-1-1024x1004Medical malpractice can be a nuanced area of the law and good lawyers rely on the facts of a case coupled with their knowledge of the law and expert opinions to adequately perform their jobs. The following case illustrates that a competent legal team can make the most out of a tragic situation by obtaining some measure of justice and relief for a victim via compensation from the responsible parties.

This case centers on Pete Bush, an elderly man with heart problems who had a pacemaker placed in his chest. The hospital staff in Richmond, Virginia explained to Pete’s wife, Dina, how to properly use and interpret the alerts from the device. One month after the device was installed inside Pete, the manufacturer of the device issued an “Urgent Correction Notice” (the “Notice”).

The Notice stated that a particular pump in the device could wear out and if not replaced could result in death. The Notice further stated that damage to the device would not be visible, but could be detected by “transient alarms.” Although a nurse initially instructed the Bushes about the various alarms and warnings and the proper response to each, the hospital never informed the Bushes about the Notice.

injection-1323678-1024x873Ignoring instructions when assembling a coffee table, toys, or other household items may not, in the end, prove highly detrimental. In fact, such practices are commonplace.  However, failing to follow the correct procedural steps is ruinous in the world of lawsuits. Recently, the Louisiana Third Circuit Court of Appeal was forced to dismiss an appeal because of a plaintiff’s failure to follow the required procedural steps.

On June 20, 2011, Gloria Welch brought a medical malpractice action against Southwind Nursing and Rehabilitation Center. However, Southwind was never served with the lawsuit and did not make any appearances in the lawsuit.  On January 7, 2013, Ms. Welch filed a second lawsuit in the same venue against the same parties. Southwind appeared specifically in the case to file two exceptions.  First, Southwind filed an exception of lis pendens because the first lawsuit about the same matter as the second was still pending.  “Lis pendens” means “suit pending. ” Second, Southwind filed an exception based on Ms. Welch’s failure to serve Southwind in the second lawsuit.  Ms. Welch then voluntarily dismissed her first lawsuit.  

The Judicial District Court for the Parish of Acadia sustained Southwind’s exception of insufficient service of process and denied the lis pendens exception based on the voluntary dismissal.  At the hearing, the District Court issued a judgment specifically denying the lis pendens exception and finding the first lawsuit was abandoned rather than voluntarily dismissed.   

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.