Articles Posted in Medical Malpractice

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).

martha-dominguez-de-gouveia-nMyM7fxpokE-unsplash-1024x697Navigating any lawsuit can be challenging, especially when the initial trial gives rise to complicated appeals. In this instance, the plaintiff was left wondering how jury instruction impacted her medical malpractice lawsuit. 

Mrs. Sherry Wedgeworth filed a medical malpractice lawsuit against Dr. Tynes Mixon, an ear, nose, and throat (ENT) physician. Mrs. Wedgeworth start seeing Dr. Mixon in 2006 for recurring sinus infections. Dr. Mixon performed sinus surgery in 2009 and then a revision sinus surgery three years later in 2012. After this surgery, a pathologist examined the tissue that was removed and found a fragment of brain tissue. Dr. Mixon immediately advised Mrs. Wedgeworth and advised her to go to the hospital for a C.T. scan because of the risk for infection. Mrs. Wedgeworth declined this advice, but went to see Dr. Mixon the next day, where she again turned down hospital admission and a C.T. scan. Three days later, she was hospitalized, and another three days later she began to show symptoms of a brain infection. Mrs. Wedgeworth and her husband, Mr. Wedgeworth, then filed a malpractice claim.

The initial medical review panel held for Dr. Mixon. The Wedgeworths then petitioned for damages, claiming loss of consortium, services, and society. A civil jury ruled in favor of Dr. Mixon, dismissing all claims. The Wedgeworths filed a Motion for Judgment Notwithstanding Verdict or Alternatively New Trial. The trial court denied these motions, and the Wedgeworths appealed. The issues for the appellate court were whether the trial court erred by not instructing the jury that negligence equals malpractice and by improperly denying a new trial. 

7-Email-05-22-19-picture-1024x668Timing is everything, especially when it comes to lawsuits. If you delay too long in filing a medical malpractice lawsuit, then you – like Mr. Verbois – may be unable to recover for the alleged negligent acts.

In May 2011, Dr. Jonathan Taylor operated on Mr. David Verbois to repair a hernia resulting from an earlier coronary bypass surgery. After the surgery, Verbois experienced adverse symptoms including fever, vomiting, and abdominal pain. Verbois was readmitted to the hospital. In October 2011, Dr. Taylor removed Verbois’ gallbladder, and in December 2011, Dr. Taylor performed a third surgery on Verbois after a CT scan showed that there was a perforation in his stomach by the gastric sleeve he received during a gastric bypass surgery performed by a different doctor in 2009. Verbois was hospitalized again in January 2012. In March 2012, Verbois visited Dr. Taylor for the last time and terminated his services. Thereafter, Verbois returned to the doctor who had previously performed the gastric bypass. The old doctor removed Verbois’ entire stomach in September 2012.

On July 26, 2013, Verbois filed a complaint with the Division of Administration alleging malpractice against Dr. Taylor from May 2011 until March 2012. Verbois requested a medical review panel (“MRP” to review his claims against Dr. Taylor.

adult-ambulance-care-263210-1024x802Often, in litigation – as in life generally – timing is everything. Courts and legislatures set certain time periods for each step in a legal proceeding to establish fairness and to impose reasonable order on the disposition of the case. Occasionally, these deadlines can be ambiguous or open to various interpretations. Louisiana’s Second Circuit Court of Appeal considered such a situation in a medical malpractice case.

In 2011, Francis Grayson was admitted as a patient at Northeast Louisiana Kidney Specialists in Monroe, Louisiana. After contracting an infection from a catheter used for his treatment, he underwent surgery that left him a quadriplegic. A medical review panel requested by Grayson found that his doctors and the medical facility adequately met the standard of care in his kidney treatments and surgery. In February 2015, Grayson initiated a lawsuit for medical malpractice against his physicians and the facility. The following month, the defendants filed a motion for summary judgment on the basis of the medical board’s decision. A hearing was set for August 17. On August 7, ten days prior to the scheduled hearing, Grayson served the defendants with a memorandum opposing summary judgment. The memorandum was accompanied by an affidavit from a medical expert who would testify on Grayson’s behalf about the medical errors that led to his initial infection. Grayson filed the motion with the court on August 10, seven days prior to the scheduled hearing. The defendants then argued that Grayson’s opposition memorandum and affidavit were invalid because they were filed with the court less than eight days before the hearing, as required by the district court rules. The trial court eventually granted the summary judgment in favor of the defendants and dismissed Grayson’s claims.

In 2015, when Grayson’s original petition was filed, Louisiana district court rules required that memoranda opposing summary judgment must be served on the opposing parties at least eight days prior to the hearing. La. Dist. Ct. R 9.9. The defendants, citing a number of cases, argued that the courts had routinely interpreted that the memoranda must also be filed with the court within that same eight-day period. However the Second Circuit noted that in each of the cases relied on by the defendants, the documents in opposition to summary judgment was either filed within an extremely short time—one even being minutes before the hearing—or had some other defect. The Second Circuit focused on the fact that Grayson had properly served the defendants with the memorandum and affidavit within the required time; that the motion was not filed with the court until some days later was not controlling. Therefore, the Court reversed the trial court’s granting of summary judgment in favor of the defendants and remanded the case for further proceedings.  

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.