Articles Posted in Medical Malpractice

Medical malpractice claims often present complicated issues involving hard to understand medical principles. Such lawsuits can become further complicated by questions of whether hospitals, in addition to the doctors themselves, can be held liable for a failure to act that results in a patient’s death. This is the question faced by parties in a lawsuit alleging medical malpractice and negligence that followed the death of a patient initially treated at the Richardson Medical Center Hospital (“RMC”) in Rayville, Louisiana. 

On the afternoon of May 28, 2011, Cleveland Coward was admitted to RMC for head injuries that resulted from a fight in which he was hit by his opponent several times with a steel pipe. Coward was examined by the attending emergency room doctor, Dr. David Lifshutz. After examining Coward, Dr. Lifshutz ordered a CT scan of Coward’s head. After being treated for a cut to his forehead and loss of consciousness, approximately 50 minutes after arriving at the emergency room, Coward underwent the CT scan. The images from the CT scan were sent to a radiologist located off-site. Coward subsequently underwent an alcohol screening that indicated that he was highly intoxicated. A few hours later, Coward was discharged and walked out of the emergency room under police custody. Coward’s discharge instructions did not mention the CT scan or any follow up procedures, but only told Coward to follow up with his primary care doctor in seven days, to change his wound dressings every 24 hours, and to take Tylenol as needed for pain. 

The radiologist who reviewed Coward’s CT scan found that there was some tissue swelling, but no evidence of acute traumatic brain injury or visible fractures. However, the radiologist concluded his report with the statement “Urgent Finding:  Pneumocephalus,” which refers to bubbles of gas or air within the cranial cavity. Neither Dr. Lifshutz nor another staff member communicated the results of the CT scan to Coward or the Richland Detention Center, where Coward was taken after his release from RMC.

Maybe you’ve been there. Lying on a cold surgical table. The anesthesiologist places the mask over your face and says to count backwards from one hundred. “100…99…98…” Most people don’t remember much after that. But imagine waking up from a procedure and discovering that you have no feeling in your arm. Unfortunately, that’s what happened to Jason Dunn, who underwent a hemorrhoidectomy at Christus St. Francis Cabrini Surgery Center in Alexandria, Louisiana in 2012. 

The anesthesia for Dunn’s operation was administered by Dr. Francis Robichaux. Dunn filed a medical malpractice action against Dr. Robichaux claiming that he suffered an injury to his left forearm and hand as a result of Dr. Robichaux’s failing to properly position his arm during the procedure. As a result of the injury, Dunn required corrective surgery for nerve damage. Dr. Robichaux filed a motion for summary judgment on the grounds that Dunn could not meet his burden of proof that Dr. Robichaux failed to meet the standard of care.

Dunn then filed a motion to continue so that he could depose Dr. Robichaux before responding to the motion for summary judgment. The trial court denied Dunn’s motion for a continuance and granted Dr. Robichaux’s motion for summary judgment. 

The 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.”

Medical 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.

The 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. 

Losing 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. 

Medical 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.