Articles Posted in Medical Malpractice

A recent medical malpractice lawsuit stemming from a surgery performed at West Jefferson Medical Center defines your right to make an informed decision about the course of treatment you wish to take.  The patient in this case suffered from heavy menstrual bleeding primarily resulting from fibrin tumors in her uterus.  A General Practitioner previously prescribed the patient Depo-Provera, a steroid injection that alters hormone levels associated with the menstrual cycle.  The prescription had little effect treating the symptoms and caused the patient to gain over twenty-five pounds.  Unhappy with the treatment, the patient consulted her OBGYN, who recommended a hysterectomy to completely remove the tumored uterus.  The OBGYN recommended the operation two more times before the patient consented to the surgery, over two years after the initial consultation.  Unfortunately for everyone involved, the patient’s bowel was perforated during the surgery.  The patient subsequently sued, claiming that the OBGYN failed to inform her of all the potential treatment options before the operation and that she would never have gone through with the operation had she known of less risky treatments.

The doctrine of informed consent protects a patient’s right to choose which therapeutic or surgical treatment to pursue by requiring doctors to provide the patient with the information needed for that decision.  Exactly what information the doctor must disclose is the primary issue in this case.  The patient contends that all information pertaining to the associated risk and any potential treatment options should be disclosed while the doctors believe they must disclose only those risk and options that are feasible or appropriate given the patient’s unique circumstances.  The law favors the doctors.  In 2013, the Supreme Court of Louisiana, when faced with a similar question, decided that doctors must provide sufficient information and disclose reasonable alternatives rather than all information or all alternatives. See Snider v. La. Med. Mut. Ins. Co., 130 So. 3d 922 (La. 2013).  What constitutes “sufficient” information and “reasonable” alternatives changes depending largely on the medical history of the patient.  The doctor is given some discretion determining what is reasonable and sufficient, but he or she must adhere to the standard of the profession.  The doctor must do what most other doctors would have done in the same situation.

In this case, the OBGYN told the patient that her options were limited to a hysterectomy, a mastectomy, or continued injections of Depo-Provera.  She also told the patient that, as with any hysterectomy, there was a risk of bowel perforation during the surgery.  The patient signed an informed consent form stating that she was aware of the options and the risks; however, a couple of months after the surgery, and after the perforated bowel, the patient found an article published by the American Congress of Obstetricians and Gynecologists (ACOG article) that listed options beyond those disclosed by OBGYN.  One option in particular, Lupron, was an injection that has been shown to reduce the size of fibrin tumors.  In her suit, the patient specifically claims that had she known of Lupron, she would not have needed nor consented to a hysterectomy and that the OBGYN was liable for her injury for failing to inform her of the option.

With all of the advances in the field of medicine these days most people would probably think that a surgery to remove a person’s gallbladder would be considered fairly routine. However, when it comes to surgery, nothing can be taken for granted. A Louisiana resident, Richard Logan, and his doctor found this out the hard way during a surgery that was performed in August of 2010. That was when Mr. Logan underwent surgery to have his gallbladder removed, but the surgery was anything but routine.

During the surgery, the doctor, Dr. Donald Schwab, cut the wrong “duct,” believing it to be the correct one. However, the correct duct had been “obliterated” due to Mr. Logan’s medical condition. As soon as the mistake became evident, the doctor, who was a general surgeon, consulted with a specialist. It was then determined that Mr. Logan needed to be transferred, and subsequently the problem was corrected. A Medical Review Panel investigated the issue and determined that Dr. Schwab did not breach the appropriate standard of care. That, however, did not deter Mr. Logan, and he filed a lawsuit against Dr. Schwab in state court.

The case went all the way to a jury trial, which lasted for three days. In the end, the jury determined that Mr. Logan had failed to establish the appropriate standard of care for the surgery in question. On March 15, 2013, the trial court dismissed Mr. Logan’s claims. He appealed, claiming three sources of error. First, Mr. Logan claimed that the trial court judge had improperly influenced the jury. Second, he claimed that the testimony of a certain expert witness, as well as the admission of the opinion of the Medical Review Panel, were both in err. Lastly, Mr. Logan claimed that the jury’s finding was in err.

People trust doctors and hospitals to take care of their health issues.  When someone in the medical community makes a mistake, it can seriously affect a person’s quality of life.  In Louisiana, in order to sue for medical malpractice, a plaintiff must prove what standard of care should have been provided, that the doctor somehow violated that standard, and that by doing so, the doctor caused the plaintiff’s injuries. La.R.S.9:2794.  If the problem with the doctor’s care would not be obvious to the average person, the plaintiff must use an expert witness to prove the claim.  See Pfiffner v. Correa , 643 So.2d 1228

In order to prove a claim of medical malpractice, one generally needs the help of an expert.  A recent decision by the First Circuit Court of Appeals  provides some insight on how this should be done.  In late October 2010, Danny Penn went to a Dr. Luikart at Our Lady of the Lake Regional Medical Center to deal with fevers and other medical problems after a colonoscopy.  He was admitted to the hospital and sent home a few days later.  He was treated with strong antibiotics such as Gentamicin, and this treatment was to continue while he was at home.  A few weeks later he began to experience lengthy periods of dizziness and nausea.  Because of these issues, Mr. Penn was taken off the antibiotic.  Eventually he was diagnosed with Dandy’s Syndrome, a condition of the ear that causes severe issues with balance and often dizziness to the point of disability.   In 2011, Mr. Penn sued the medical services company that had provided the prescribed antibiotics through infusion at his home.  Around that time, a medical review board found no evidence that the doctor or the hospital had failed to provide the necessary care.

In 2013, Mr. Penn filled a petition adding the doctor and hospital to the lawsuit while alleging that he had been prescribed an overdose of the Gentamicin, causing his illness.  In response, the defendants filed a motion for summary judgment to end the case, arguing that Mr. Penn had failed to provide enough evidence to prove his claims.  In response, Mr. Penn argued that the doctors had indeed failed to provide the correct care, including as evidence affidavits from a different doctor and a pharmacist.  In opposition, defendants filed to have the court strike, or remove from the evidence, the affidavits, on the basis that the doctor that had made these claims was not qualified in that particular standard of care, being a cardiologist and not a hospital doctor.  They also argued that this was an argument not brought before the medical board and thus expanding the original claim.  The trial court agreed and struck out this evidence, thus making it impossible to carry on with this argument. As such, the defendants were awarded the summary judgment.  Mr. Penn appealed to the First Circuit Court of Appeals.

Karen and Joe LeBlanc brought a medical malpractice action against Dr. Rezaul Islam. A medical malpractice claim is a specific type of negligence claim in which the plaintiff alleges that a doctor or medical professional failed to act with the level of care they are duty-bound to provide, and that the plaintiff was harmed by the failure.

In July 2007, Karen told Dr. Islam of intermittent pain in her chest, progressively spreading down her arms. Dr. Islam ordered blood work and various tests, which indicated that Karen had a heart attack in the last two years. Dr. Islam recommended a surgical procedure on her left heart, as well as some exploratory surgery: a carotid angiogram and vertebral angiogram. He explained this to Karen, who agreed and signed the consent form. The consent form listed the carotid angiogram, but did not mention the vertebral angiogram. The form explained possible risks of the procedures, including stroke in rare cases.

After the carotid angiogram, Karen was nauseous and vomited. She said that she was alert, and she appeared to have full control over her limbs. Dr. Islam administered a drug for the vomiting. By 1:00 p.m., Karen said she felt better and was no longer nauseous. Her neurological exam indicated that she was normal. Dr. Islam declared her stable and sent her home, telling to return in the morning for follow-up, and to call anytime if there was a problem.

Prescription is a legal doctrine that serves to prevent people from filing lawsuits after a specified lapse of time has passed.  The public policy behind the idea of prescription is not to prevent people who have been harmed from receiving relief.  Instead, prescription is meant to allow someone who has caused harm piece of mind knowing that they cannot be sued after the passage of a certain period of time.  Prescription allows lawsuits to be brought up to a certain time after the events leading to a lawsuit have occurred.  These time limits are commonly specified in the specific texts of the laws they serve.  

Prescription is a doctrine that often comes into conflict between parties to a lawsuit when one side amends their original complaint after the designated time for prescription has already lapsed.  These amendments often include either new parties or claims.   The question that courts must decide is whether these amended complaints “relate back” to the original complaints in order for the amended complaint to move forward.  This question was central to the conflict in the case of Correro v. Caldwell, a medical malpractice lawsuit arising out of the Fourth Judicial District Court for the Parish of Ouachita.  

The facts of this case revolve around the plaintiff, Carolyn Correro.  On April 22, 2011, Correro fractured her left hip after a fall.  She was taken by ambulance to IASIS Glenwood Regional Medical Center, L.P. (“Glenwood”).  At the hospital, the fracture of her left hip was verified and she was scheduled for surgery to repair the fracture two days later.  During preparation for the surgery, her right hip was misidentified as the injured hip.  Correro was positioned on the wrong side when she was brought into the operating room.  As a result, a doctor began surgery on Correro’s right hip.  A few minutes into the surgery, after the doctor had made his incision, the surgical team realized they made a mistake.  The surgical team closed the incorrect incision and flipped Ms. Correro over onto her left side and the surgery continued on the injured left hip without further incident.