Articles Posted in Medical Malpractice

boy-elastic-rope-exercise-equipment-176794-683x1024Typically, the scary aspect of surgery is over when the procedure ends and the person wakes up from the anesthesia. The last thing most people expect is to get injured after the surgery is already over. Unfortunately for one Iberia Parish woman, her troubles were only beginning even though she had a successful surgery. That being said, can you claim medical malpractice while you are recovering?

Mrs. Rachel Broussard underwent a surgery replacing her left knee, and was subsequently to be transferred to Lafayette Rehab following the surgery. A Lafayette Rehab employee arrived in a company van to transport her from the hospital, and Mrs. Broussard was loaded into the van in her wheelchair by the employee. On the ride to the rehabilitation center, the driver suddenly braked to avoid a car wreck, whereon Mrs. Broussard allegedly fell out of the wheelchair and on the floor of the vehicle, causing severe pain.

After the incident, Mrs. Broussard filed a lawsuit for the damages of the injury, naming Lafayette Rehab as defendant. Further, her husband, Mr. Broussard, sought money from loss of consortium. Lafayette Rehab responded with a Dilatory Exception of Prematurity, arguing that the lawsuit was filed too soon. Lafayette Rehand contended that the Broussards’ allegations had to be reviewed by a Medical Review Panel before they could bring the lawsuit, because they fell under the Louisiana Medical Malpractice Act.

2-picture-5-30-2019When you go to the hospital, you expect to be taken care of by a qualified physician who properly diagnoses you. If that doesn’t happen, tragedy can strike. And if tragedy strikes, you want the responsible partie(s) to be held responsible by being liable for damages. But does the Louisiana Medical Malpractice Act (MMA) limit liability in these cases?

Tragedy struck for the Billeaudaus, whose daughter Brandi suffered a stroke and ultimately died.  When Brandi Billeaudau collapsed, her parents transported her to Opelousas General Hospital in Opelousas. There, the emergency room doctor, who lacked the required experience and training required by the hospital, improperly diagnosed Brandi with a focal motor seizure instead of a stroke. Her parents knew better and requested a transfer to Our Lady of Lourdes Hospital (OLOL) in Lafayette, where she got the necessary treatment, but that was too little too late.

The Billeaudau’s brought a lawsuit against Opelousas General to hold them liable for giving credentials to the doctor. They contended that since granting credentials is an administrative rather than a medical decision, it should not be subject to the limits set in the MMA. In order to determine whether the wrong in this case was medical (and subject to limits in the MMA) or administrative (and not subject to the MMA), the court analyzed:

close-up-doctor-health-42273-1024x683Perhaps one of the biggest fears when going under anesthesia for a surgery is not waking up when the procedure is over. For a Louisiana man, this fear was realized when a trip to the emergency room for stomach pain resulted in him being woken up from an opiate overdose. So what happens when your doctor gives you an overdose of a medicine?

Donald Ray Seaux, Sr. went to Our Lady of Lourdes Regional Medical Center in July 2002 when he began experiencing stomach pain and vomiting. The doctor diagnosed him with a dysfunctional gallbladder and scheduled surgery to remove his gallbladder. When it came time for him to have surgery, his surgeon, Dr. Juan Paredes, chose to perform an “open cholecystectomy,” which is an invasive surgery requiring a large incision across the abdomen. In choosing this option, Dr. Paredes determined that the less-invasive laparoscopic surgery was not appropriate for Mr. Seaux.

Because the surgery chosen was more serious and would likely be more painful to recover from, the hospital anesthesiologist utilized a patient-controlled analgesic morphine pump (PCA), which was a device that delivered pain medication in timed doses. Two days after he entered the hospital and had the surgery, Mr. Seaux was found unresponsive, and was given the drug Narcan, which reverses opiates in the body. Mr. Seaux and his wife state that he was injured as a result of the overdose of morphine from the PCA.

39-Email-04-02-19-picture-1024x683The death of a loved one is always a traumatic experience for family and friends, especially if the death could have been prevented or is at the fault of the hospital. When someone feels as if medical malpractice has occurred, Louisiana has strict guidelines regarding filing a medical malpractice lawsuit and someone unfamiliar with the legal process can easily be confused or frustrated by this complex process. For example, in Louisiana you have one year following a death to file a medical malpractice suit, however, is that filing due at by the close of business at the one year or is the filing due by midnight? The Louisiana Supreme Court recently consolidated two cases that answered such questions on when you have to file a medical malpractice lawsuit. 

The facts of these two cases are similar, which is exactly why the Louisiana Supreme Court decided to consolidate these cases. In the case of Rose Tillman, who sadly passed away on May 22, 2012, her surviving children’s request for a medical malpractice claim was sent to the Louisiana Division of Administration (DOA) on May 22, 2013 after 5 pm, after the DOA office had closed. As a result, the  DOA’s filing system received the request on the following business day, May 23. In the case of Peighton Miller she received a shoulder injury on April 4, 2012 while in the care of a hospital. Again, a malpractice claim was sent to the DOA on April 4, 2013 after the DOA’s 5pm closure. The facts in these cases are undisputed, and at trial, the 24th Judicial District Court for the Parish of Jefferson court ruled in favor of Tillman, and the Fifth Circuit Court of Appeals ruled in favor of Peighton Miller.

In response, Tulane Lakeside Hospital and Durga Ram Sure (the plaintiffs) appealed the decision. Per  La. C.C. art. 3492, defendants have one year to file a malpractice claim and that is one-year prescription begins the day the injury was received. In addition, La. R.S. 9:5628 describes how actions against healthcare providers must commence within 1 year of the sustainment or the discovery of the injury. Moreover, Section 1231.8(a)(2)(b) of the Medical Malpractice Act states how the request for a malpractice review “shall be deemed filed on the date of receipt of the request stamped and certified by the division of administration.” On appeal, the plaintiffs insisted the statute was too vague because it was the DOA’s understanding that a malpractice claim has not been received until it had been “stamped and certified,” which happens during the business day meaning any documents received after 5pm have technically not been received by the DOA until the following business day. However, according to La. C.C. art. 12 when the words of a law are ambiguous or confusing, the words should be evaluated to fit the purpose of the law.

40-Email-4_2_19-photo-1024x576When you are injured or ill and need treatment, you turn to a hospital and put your trust in the doctors and healthcare providers at that hospital. Normally, healthcare providers are diligent and provide top-notch care, however, occasionally a hospital fails to live up to the trust given to them by the patient. When this occurs, the Louisiana Medical Malpractice Act (“MMA”) protects the patient. Nonetheless, there are cases in which it is disputed whether or not the incident falls under the MMA – for example is the failure to clean surgical instruments an incident of malpractice? The Supreme Court of Louisiana recently decided such a case from the Parish of East Baton Rouge and upheld that the MMA is a wide umbrella that covers various types of claims.

On April 14, 2014, Richard Dupuy went to the Spine Hospital of Louisiana for a spine surgery. Following the operation, Dupuy developed a post-operative infection called osteomyelitis caused by mycobacterium fortuitum. Dupuy and his wife allege that he received this infection because the hospital failed to sterilize or clean surgical instruments properly and thoroughly. As a result, Dupuy and his wife sued the hospital for Richard Dupuy’s medical expenses, pain and suffering, mental anguish, loss of earnings capacity, disability, and loss of enjoyment of life. They also sued the hospital seeking damages for Mrs. Dupuy for she maintains a loss of society, support, and companionship.

The Hospital responded by filing an exception of prematurity (meaning the case had not evolved enough to need the court to step in) and asserting that the Dupuy’s have incorrectly gone about the situation. In support of this defense the hospital cites La. R.S. 40:1231.8 that states how Dupuy’s claims must first be presented to a medical review panel. Moreover, the hospital had the infectious disease specialist that treated Mr. Dupuy testify that she was unable to pinpoint specifically what caused the infection and she maintains there could have been many causes for the infection.

hospital-photo-1024x768The emergency room is supposed to provide lifesaving care, quickly, to those who need it the most. No one wants to wait around in the emergency room, especially when their life is in danger. Nonetheless, sometimes emergency rooms simply cannot operate as quickly as they should. In a lawsuit against Savoy Medical Center in Mamou, Mitch Benson challenged delays in critical care in emergency rooms answering the question: can you sue an emergency room for acting too slowly?

Mr. Benson was doing yardwork with his neighbor on October 21, 2017 when he began to suffer from chest pain. In response to his pain, Mr. Benson was then taken to the ER at Savoy Medical Center in Mamou. After arriving at 4:05pm, Mr. Benson was examined by Dr. Clifford Godfrey who confirmed that Mr. Benson had suffered a heart attack and as a result his right coronary artery was 100% blocked. At 5pm, Dr. Godfrey consulted the hospital’s interventional cardiologist, Dr. Charles Monier, who instructed Dr. Godfrey to go ahead and implement a thrombolytic agent that could possibly dissolve the clot. Dr. Monier was not an employee of Savoy Medical Center, but he was the director of Savoy’s catheterization laboratory. Dr. Monier also informed Dr. Godfrey that he would know within 20-25 minutes if the thrombolytic therapy was successful, however, if the therapy was not successful Dr. Godfrey would have to transfer Mr. Benson to a different hospital that had a cath lab open because Savoy’s was closed on the day of Mr. Benson’s procedure. Unfortunately, the thrombolytic therapy failed and at 7:02pm Savoy called Arcadian Ambulance to take Mr. Benson to the Heart Hospital of Louisiana where a cath procedure was successfully completed at 10:31pm that evening. Thankfully, Mr. Benson survived the heart attack. 

Following this incident, Mr. Benson filed suit against Savoy, Dr. Godfrey (as an employee of Savoy), and Dr. Monier. Once litigation began, Dr. Godfrey was shown to not have been employed by Savoy at the time. Moreover, Mr. Benson settled his claim against Savoy for less than $100,000 dismissing Savoy from the litigation. However, under the Louisiana Medical Malpractice Act Mr. Benson has the right to proceed litigation against the Louisiana Patient’s Fund Oversight Board (PCF) for damages. In this litigation, Mr. Benson asserted a claim against PCF damages in excess of $100,000 caused by Savoy’s negligence. 

There is nothing more frightening than going to the emergency room with no sense of what is happening to your body. We believe that the hospital is our safe haven; that the physicians are sincere and will provide us with the care we need to get us back on our feet. However, if something goes wrong, people want someone to blame, and naturally, the hospital or the doctors are the easiest to blame. But sometimes things are misunderstood, and no one is to blame. So, what is the difference between a miscommunication and fraud when it comes to medical malpractice?

On March 16, 2011, Robert Royer received treatment for his heart at Our Lady of the Lake Hospital, Inc. (“OLOL”) at which Royer appeared to be experiencing symptoms of an apparent heart attack. Royer’s doctor encouraged him to drive to OLOL’s emergency room. Within three hours of arriving to OLOL, two EKG tests were performed on Royer to determine his condition, x-rays were taken, and he was admitted to the treatment area where he received medication. Shortly thereafter, OLOL admitted Royer to the critical care unit where he underwent surgery for his heart condition. Two days later, Royer was discharged from the hospital. Royer presented claims of fraud and medical malpractice against the hospital and the doctors.

Royer claimed that the hospital falsely advertised and misrepresented their medical services and stated that the defendant’s intentional misrepresentations convinced him that his complaints about his heart condition would be treated with urgently and seriously at OLOL. He believed that OLOL’s advertisements such as, “completely committed to medical excellence”, and OLOL had earned the “highest level recognition for performance excellence” misled him of the hospital’s service.

need-a-pill-1057199-1024x768Medical malpractice lawsuits are filed for a wide range of injuries and even death. When a patient finds himself in a scenario where he believes a medical professional could have done more to prevent his injuries or cure his condition, he may decide to go through with a lawsuit. Medical malpractice lawsuits often require expert witnesses to succeed and proving damages in these cases where the patient enters a medical facility sick or injured can be a tough case to win. So, can you lose your medical malpractice case if you do not have enough evidence?

In July 2011, Nickol Bell (“Bell”) went to Baton Rouge General Medical Center’s (“Hospital”) emergency room because of nausea, vomiting, diarrhea, loss of consciousness, dizziness, and maroon-colored stools. Bell was discharged from the hospital and later suffered gastrointestinal bleeding and hemorrhaging. Just a few hours after he was released, Bell was put into intensive care, where he received a blood transfusion and other medical treatments.

Bell and his wife brought a lawsuit for damages, alleging medical malpractice by the hospital and the physician who treated him, Dr. JL. The Medical Review Panel (“MRP”) concluded that the standard of care as to Dr. JL had not been breached, because based on the information Dr. JL had at the time, the doctor had provided adequate medical care. The nursing staff failed to inform Dr. JL of the maroon-colored stool. Although the hospital failed to meet its standard of care, MRP concluded that the hospital’s conduct was not compensable.

56-1024x678Having surgery is always a stressful situation. Nobody wants to leave the hospital only to return a short time later from complications due to the first surgery. This is unfortunately what happened to Mr. James Nelson, who sued his surgeon, Dr. F, in East Baton Rouge Parish. So, what happens when you develop a new medical condition after your surgery?

In November 2009, Dr. F performed gallbladder removal surgery on Mr. Nelson. Several hours after Nelson was discharged from the hospital, he experienced pain in his lower abdomen, stomach, and sternum. Nelson returned to the hospital, where he was informed that he was suffering from pancreatitis. Nelson was admitted for care in conjunction with the pancreatitis and was released four days later.  

One year later, Nelson requested the formation of a medical review panel, claiming that Dr. F committed medical malpractice by allowing contrast dye to enter Nelson’s pancreatic duct during his gallbladder removal surgery. Nelson claims that this was the cause of his pancreatitis. Nelson also claims that he was never informed that pancreatitis is a possible outcome from the type of surgery performed.

pills-pills-pills-3-1326912-1024x683In the aftermath of suffering injuries from medical malpractice, filing a suit might not be at the top of your list. However, in order to maximize your chance of recovery, it is imperative that you timely file your claim without delay. So what happens when you do not file a suit quickly enough?

Brian Snavely was a patient of Dr. Rice and her affiliated entities. Snavely sought care from Dr. Rice for chronic pain that started with an industrial accident in 1999. That care included being prescribed narcotics. In 2010, Snavely was involved with an automobile accident with Kayse Vincent. Following this accident, Snavely received further treatment from Dr. Rice. While Snavely was seeking damages against Vincent for that accident, he died of a drug overdose. The plaintiff, Linda Snavely, was Brian Snavely’s mother. Ms. Snavely first filed a Request to Convene a Medical Review Panel, which is an initial malpractice hearing against qualified healthcare providers, against Dr. Rice and her entities under the Louisiana Medical Malpractice Act (LMMA), La.R.S. 40:1299.41-.49. Dr. Rice, as a licensed physician, could be subjected to a Medical Review Panel. However, her affiliated entities could not be. Dr. Rice responded to the Request to Convene a Medical Review Panel by filing an Exception of Prescription, which is a pleading seeking delay or dismissal of a lawsuit or other action because the time period to bring that action has expired. The exception and dismissal were subsequently granted. Ms. Snavely then sought damages against Dr. Rice’s entities as she alleged their treatment led to Brian’s death. The Rice entities filed an Exception of Prescription and it too was granted.

The exception of prescription is laid out in La. C.C.P. art. 927. The burden of proof lies on the requesting party. When Appeals Courts review it, they use a manifest error standard of review, which means no deference is given to lower courts. The time limit for filing claims is one year; which means an Exception of Prescription is proper if a lawsuit or other action is filed after one year. La. R.S. 9:5628(A). However, that rule is only valid from when damages are immediately apparent. See In re Medical Review Panel for Claim of Moses, 788 So.2d 1173, 1178 (La. 2001).

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