Articles Posted in Medical Malpractice

74-Email-06_24_19-picture-1024x639The statute of limitations, by definition, is the timeframe set by a state or federal legislative body in the creation of a law which governs when a party must file a claim to enforce his or her right or seek redress after injury or damage. The statute of limitations on personal injury claims varies from state to state. The standard statute of limitations for personal injury cases is three years from the day the injury or damage, in which the claim arises, took place. Mr. Landis J. Camp’s appeal from the Twenty-Fourth Judicial District Court to the Fifth Circuit Court of Appeals for the State of Louisiana against Dr. Chris J. DiGrado and Lammico Insurance Company exemplifies the vital importance of filing a personal injury claim within the statutory period of a given state.

In 2002, Mr. Camp injured his shoulder while working on a job in Maryland. Although Mr. Camp immediately began compensation proceedings with the Maryland Workers’ Compensation Commission, he did not seek treatment from Dr. DiGrado until 2005. Dr. DiGrado performed two shoulder surgeries on Mr. Camp. The first surgery took place in January 2010, followed by a second surgery in March 2011. At this point, Mr. Camp had little improvement of his injuries and was aware that Dr. DiGrado performed his surgeries negligently. However, Mr. Camp did not file a lawsuit against Dr. DiGrado and the insurance company until 2015, after the statute of limitations had expired for his personal injury medical malpractice claim. Therefore, the district court dismissed Mr. Camp’s claims against Dr. DiGrado and the insurance company for failure to state a claim within the statutory period. Mr. Camp subsequently appealed to the Fifth Circuit Court of Louisiana, which ultimately affirmed the district court ruling and dismissed Mr. Camp’s claim because he did not file his claim more than three years after he ceased treatment with Dr. DiGrado. See Camp v. Digrado, 216 So. 3d 1055 (La. Ct. App. 2016).

 In Louisiana, La. R.S. 9:5628(A) sets the statute of limitations, or “prescriptive period,” for personal injury resulting from patient care, including medical malpractice claims. According to this Louisiana law, a personal injury claim arising from patient care must be filed “within one year from the date of the alleged act omission, or neglect; however…claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.”

bed-empty-equipments-floor-236380-1024x678Medical Malpractice lawsuits can be extremely complicated and fact-specific. The general Louisiana law requires claims to be brought within one year of treatment. The Louisiana law also distinguishes liability based on intentional actions from negligent actions. The following case illustrates how in-depth a medical malpractice claim can become.

The Plaintiff, Mr. John Mack Evans, appealed the dismissal of his medical malpractice suit against Heritage Manor Stratmore Nursing & Rehabilitation Center (Heritage Manor). Mr. Evans was admitted to Heritage Manor by his treating physician, Dr. Robert Hernandez, after suffering a stroke and becoming paralyzed on one side. Dr. Hernandez was the facility’s medical director and determined that Mr. Evans required changing often to avoid developing sores. Dr. Hernandez also ordered speech, physical and occupational therapy. Ms. Samantha Edwards, a Certified Nursing Assistant, administered care to Mr. Evans and struck him in the eye when his resistance led to him hitting her. Ms. Edwards was terminated immediately. Mr. Evans suffered bruises and bleeding around his eye and nose. When Mr. Evans became abusive, he was transferred to Brentwood Hospital to see a psychiatrist.

The Department of Health and Human Resources (DHH) determined that Heritage Manor hired Ms. Edwards despite a conviction for battery and without checking her references. A medical review panel determined that Heritage Manor was partly responsible for placing Ms. Edwards in the role that injured Mr. Evans. Mr. Evans filed a lawsuit for medical malpractice against Heritage Manor for (1) physical injuries; (2) breach of fiduciary duty; (3) failure to provide adequate care; and (4) failure to supervise and train employees. Because Mr. Evans filed his complaint two years after he sustained injuries, Heritage Manor argued that his lawsuit was untimely. Heritage Manor further argued that injuries from battery do not fall under medical malpractice protections.

action-adult-affection-eldery-339620-1024x576The already tragic loss of a parent is only made worse when you believe that the death should have been prevented. Such was the case for Chester Domingue when his ninety-four-year-old mother, Onelia, passed away as the result of a fall in her nursing home, Camelot. While a medical provider cannot anticipate every danger that a client could encounter, what reasonable precautions does Louisiana law require to prevent as many dangers as possible?

Mrs. Domingue, like most ninety-four-year-olds, fell a lot. To be exact, she fell at least twenty-seven times while a resident of Camelot. After many of those falls, the Camelot staff put in place different protocols and precautions. Since Mrs. Domingue used a wheelchair, many of these protocols centered around not letting her get in and out of the wheelchair alone, especially when she needed to go to the bathroom. Yet, she still sometimes tried to use the bathroom by herself. When she did so on April 17, 2014, she hit her head, fracturing her spine and giving her a concussion. Less than a month later, she passed away from those injuries.

In the aftermath, her son wondered why his mother was left by herself to go to the bathroom in the first place. He brought a lawsuit against Camelot alleging medical malpractice for their inattentiveness to his mother’s potential danger. Camelot petitioned to have the case dismissed via summary judgment. They believed that they didn’t break any laws in how they treated Mrs. Domingue. The Trial Court didn’t think that Mr. Domingue had shown that there was a real question of material fact as to if Camelot was negligent. As a result, the Trial Court granted Camelot summary judgment and dismissed the case. 

surgeons-performing-surgery-2324837-1024x683Losing a family member just a few shorts weeks after the family member was discharged from surgery can cause one to wonder if the death occurred due to medical malpractice. Providing expert medical testimony can often be essential to succeeding in a medical malpractice lawsuit, and certainly in the case of defending against a summary judgement motion due to failing to provide such an expert.

On June 14th, 2012, Dr. Surakanti performed an angioplasty surgery on Ms. Shepherd, who was 74 years old, diabetic, morbidly obese, and unable to walk at the time of the surgery. Three weeks after Ms. Shepherd was discharged from Our Lady of The Lake Regional Medical Center (“OLOL”), she passed away. The heirs of Ms. Shepherd (“Plaintiffs”), filed a lawsuit against Dr. Rodney, Dr, Surakanti, Baton Rouge Cardiology Center, and OLOL. The plaintiffs alleged in the lawsuit that the angioplasty performed on Ms. Shepherd by Dr. Surakanti was unnecessary, and that the procedure amounted to medical malpractice. The plaintiffs sought all general and special damages that they could legally recover in their lawsuit.  

In response to the lawsuit, Dr. Rodney, Dr. Surakanti, and Baton Rouge Cardiology Center filed motions for summary judgement. These three parties claimed that the plaintiffs were unable to provide evidence to support the claims of the medical malpractice lawsuit for three reasons. First, a Medical Review Panel had already determined that the standard of care provided to Ms. Shepherd was not breached. Second, the plaintiffs did not provide an expert witness to testify that the standard of care was breached. Third, lack of consent to the procedure could not be proven because such evidence had to come in the form of testimony from an expert witness. OLOL filed a separate summary judgement motion for the same reasons. 

bed-empty-equipments-floor-236380-1024x678Medical malpractice lawsuits have a one year deadline for a patient to bring a lawsuit. This is called the peremptory exception of prescription. This deadline attempts to provide the patient with enough time to figure out they have been wronged by a doctor, while also providing doctors with protection against claims several years old where the evidence can be less reliable. With the help of an excellent attorney, a New Orleans doctor was able to deal win a lawsuit that was brought over two years after a visit with a patient.

In May of 2013, Mario Hurst went to the emergency room at the University Medical Center in New Orleans. Mr. Hurst’s symptoms included a bad cough, bloody phlegm, loss of appetite, bloody stool, and pain in the left section of his chest. He was seen by two doctors, Dr. Heather Murphy Lavoie and Dr. Thomas Clay Crouch.  Dr. Lavoie initially saw Mr. Hurst but sent him to Dr. Crouch, who performed several tests. Along with routine testing, Dr. Crouch ordered a chest x-ray, blood work, urine and stool samples, and an EKG. As a result of the testing, Mr. Hurst was diagnosed with an upper respiratory infection and instructed to see his regular physician for a follow up appointment.

After his symptoms continued for two years, on July 13, 2015, Mr. Hurst brought a lawsuit for medical malpractice against Dr. Lavoie. Dr. Lavoie responded by invoking an exception of prescription because there is a one year deadline on medical malpractice cases. Since the initial visit was May, 21, 2013 and the lawsuit was not filed until July, 13, 2015, the Trial Court agreed and ruled in favor of Dr. Lavoie. Mr. Hurst then appealed.

blue-and-silver-stetoscope-40568-1024x683The biggest obstacle to any plaintiff in a medical malpractice case is prescription, but what is that? In the state of Louisiana, prescription is a peremptory exception that can be claimed by defendants. Prescription can be thought of as a privilege for medical professionals which exempts them from malpractice cases so long as they are working within the scope of their employment. It is typically difficult to overcome a prescription exception unless a plaintiff has solid proof of negligence. The following case is no exception. 

Caddo Parrish resident Karla Breland’s tragic story began on June 19, 2014. Her husband, Ray Breland, had a medical condition that caused his body’s ammonia levels to rise, and thus he was prescribed Lactulose. Mr. Breland developed liver complications and a recurring hernia, for which surgery was performed by Dr. Zabari. Mr. Breland was discharged eight days later, on June 27th, only to return one month later for severe abdominal pain.

 The Brelands went to the emergency room. Mrs. Breland informed several staff members throughout their visit of Mr. Breland’s need for Lactulose, yet he was only given medication for nausea and pain. The next day, Dr. Zibari  fixed the hernia without surgery and said Mr. Breland should be discharged the following day. Again, Mrs. Breland informed the nurse on duty and one of the named defendants, Nurse Vierra, that Mr. Breland needed Lactulose, but he still did not receive it. Another doctor, Dr. Jones, another named defendant, checked on Mr. Breland and advised the nurse to administer Lactulose, but when Mrs. Breland reminded Nurse Vierra of this, the nurse said that she did not have a written order for the Lactulose. The next on-duty nurse, Nurse Hayes, was informed of the same situation but again told Mrs. Breland that there was no written order for it. 

blur-car-caution-dash-163945-1024x683When a loved one is injured or dies at the hands of another, the fictitious reality that exists in movies and television often shows the protagonists immediately going to court to ensure justice is served. In real life, however, not everyone makes it to court, even when it seems like justice demands it. Sometimes parties settle, other times the case is dropped, and many times, it is decided that there just isn’t enough there to require a trial.  This was the case for a 2015 medical malpractice lawsuit filed in the 19th Judicial District Court for the Parish of East Baton Rouge. 

In May of 2010, MH—while pregnant with twins—was in a severe motor vehicle accident. She was first taken to a hospital from the scene of the accident. Tragically, MH died at the hospital on August 25, 2010. She was survived by her three minor children, RH, Jr., AH, and DH. On behalf of these three, their tutor, SS, filed a malpractice lawsuit on March 2, 2015 against the State of Louisiana, through the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College, doing business as Earl K. Long Medical Center.

The plaintiff claimed that Ms. MH died of an overdose of meperidine while at Earl K. Long Medical Center. On December 16, 2015, the defendant filed a motion for summary judgment—a motion for judgment as a matter of law rather than on the merits—and the District Court granted the motion and dismissed the case. The plaintiff appealed the ruling by the trial court.

63Medical malpractice lawsuits concern a wide range of different types of injuries and even death. This Louisiana case involved a claim brought by a woman who believed that the hospital and its staff acted negligently, causing her to suffer a compression fracture of the lumbar spine. Both the district court and the appellate court ruled in favor of the hospital, finding that no medical malpractice had occurred because the women failed to provide enough evidence to prove that the hospital or the hospital staff acted negligently and breached the standard of care.

On December 2011, Jane H. Clattenberg was admitted into Our Lady of the Lake Regional Medical Center in Baton Rouge, Louisiana, because of her heart condition. During Clattenberg’s time at the hospital, she did not suffer a compression fracture of the lumbar spine. During an ordered CT scan, a hospital assistant dropped Clattenberg when they attempted to transport her from the stretcher to the CT scan table. Clattenberg alleged that the hospital assistant breached its standard of care when they were transporting her because the drop fractured her spine. The drop caused Clattenberg to extend her hospital stay along with pervasive mental and physical pain and suffering. After Clattenberg was discharged, she continued to suffer mental and physical pain and suffering. Clattenberg’s husband also claimed loss of consortium because of the hospital’s negligence. 

Clattenberg brought a lawsuit against the hospital, alleging malpractice. The Medical Review Panel (“MRP”) did not find anything in the record that indicated that the hospital staff breached their standard of care when they transported Clattenberg to the CT scan table. Though MRP was doubtful of Clattenberg’s allegations, they concluded that even if Clattenberg’s statements were true, it is unlikely that the drop caused her spinal compression fracture. 

68-1024x683Timing and deadlines are important aspects of the judicial system. However, these specific guidelines are not familiar to most non-lawyers, which underscores the importance of having an excellent attorney represent you. The lack of an attorney can immediately put an individual at a disadvantage, as it did in one New Orleans woman’s case.

 Ms. Scott decided to represent herself in her case against Kindred Hospital New Orleans (Kindred). She alleged that Kindred Hospital violated the standard of care she should have been afforded by allowing a hospital employee to sexually batter her while she was a patient there from May 16 to July 31, 2013. Additionally, she argued that the hospital failed to properly investigate the sexual battery.

 Ms. Scott first brought the lawsuit against Kindred on May 5, 2014. Kindred argued that the claim must be submitted to a medical review panel since it was a medical negligence case.  Kindred also filed an exception of prematurity to the trial court. The trial judge granted the exception of prematurity and dismissed the case.

35-753x1024What does the common phrase “you got served” mean? You may have heard it in movies, or read it in books, and it is usually associated with the situation where someone shows up to a person’s house to hand them papers that give legal notice of a hearing. In fact, the United States Constitution requires proper service in order to guarantee fair due process. In the case of Brian Lewis versus the Baton Rouge General Medical Center (“BRGMC”), the notice procedure was complicated by the fact that Mr. Lewis failed to provide his current physical address. Mr. Lewis decided to bring a lawsuit pro se, which means that he represented himself instead of hiring an attorney. This is generally inadvisable, as Mr. Lewis proved, because it can result in not following the correct protocols, such as including his physical address

Mr. Lewis filed a medical malpractice lawsuit against BRGMC, alleging a number of claims including physician negligence and not proving him with proper medical care after blood was found in his urine. In the lawsuit, Mr. Lewis provided his P.O. box to BRGMC instead of his physical address, causing him to not be properly notified.  In the initial hearing at the 19th Judicial District Court of Louisiana, the trial court dismissed Mr. Lewis’ claims because he had failed to provide a valid address to receive notice. The official language the court used was that the malpractice lawsuit was dismissed due to “a dilatory exception raising the objection of prematurity and a peremptory exception raising the objection of no cause of action,” which is a complicated way of saying that Mr. Lewis failed to provide a valid physical address. From this judgement Mr. Lewis appealed.

On appeal to the State of Louisiana First Circuit Court of Appeal, Mr. Lewis did not state any errors from the District Court ruling, but due to his pro se status, the Court used its discretion from Putman v. Quality Distribution, Inc., 77 So.3d 318, 320 (La. Ct. App. 2011) to determine if the dismissal was valid. La. C.C.P. article 891(A) requires a petitioner to file a claim with a valid physical address and not a P.O. box. Service is typically made by a sheriff at a person’s physical address, but if a plaintiff fails to provide a physical address, then service could be made either via registered or certified mail under La. C.C.P. art. 1313(C), or to the plaintiffs last known address under La. C.C.P. art. 1571(B). Further, for plaintiffs who bring suit pro se, La. C.C.P. art. 1314(A)(2)(a) allows for service to the clerk of court instead of directly to the plaintiffs address. The Court noted that the purpose of the provisions under 1313 and 1314 is to allow for full constitutional due process notice to take place. Adair Asset Management, LLC/US Bank v. Honey Bear Lodge, Inc., 138 So.3d. 6, 11 (La. Ct. App. 2011).