Articles Posted in Medical Malpractice

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.

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.