Medical Malpractice

January 1, 2020

How Do You Pass Summary Judgment in a Medical Malpractice Case?

blur-car-caution-dash-163945-1024x683 When a loved one is injured or dies at the hands of another, the fictitious reality that exists in movies and television often shows the protagonists immediately going to court to ensure justice is served. In real life, however, not everyone makes it to court, even when it seems like justice demands it. Sometimes parties settle, other times the case is dropped, and many times, it is decided that there just isn’t enough there to require a trial. This was the case for a 2015 medical malpractice lawsuit filed in the 19th Judicial District Court for the Parish of East Baton Rouge.

In May of 2010, MH—while pregnant with twins—was in a severe motor vehicle accident. She was first taken to a hospital from the scene of the accident. Tragically, MH died at the hospital on August 25, 2010. She was survived by her three minor children, RH, Jr., AH, and DH. On behalf of these three, their tutor, SS, filed a malpractice lawsuit on March 2, 2015 against the State of Louisiana, through the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College, doing business as Earl K. Long Medical Center.

The plaintiff claimed that Ms. MH died of an overdose of meperidine while at Earl K. Long Medical Center. On December 16, 2015, the defendant filed a motion for summary judgment—a motion for judgment as a matter of law rather than on the merits—and the District Court granted the motion and dismissed the case. The plaintiff appealed the ruling by the trial court.

December 17, 2019

Medical Malpractice Alleged after East Baton Rouge Hospital Patient Dropped on Floor During CT Scan

by Berniard Law Firm

Medical malpractice lawsuits concern a wide range of different types of injuries and even death. This Louisiana case involved a claim brought by a woman who believed that the hospital and its staff acted negligently, causing her to suffer a compression fracture of the lumbar spine. Both the district court and the appellate court ruled in favor of the hospital, finding that no medical malpractice had occurred because the women failed to provide enough evidence to prove that the hospital or the hospital staff acted negligently and breached the standard of care.

On December 2011, Jane H. Clattenberg was admitted into Our Lady of the Lake Regional Medical Center in Baton Rouge, Louisiana, because of her heart condition. During Clattenberg’s time at the hospital, she did not suffer a compression fracture of the lumbar spine. During an ordered CT scan, a hospital assistant dropped Clattenberg when they attempted to transport her from the stretcher to the CT scan table. Clattenberg alleged that the hospital assistant breached its standard of care when they were transporting her because the drop fractured her spine. The drop caused Clattenberg to extend her hospital stay along with pervasive mental and physical pain and suffering. After Clattenberg was discharged, she continued to suffer mental and physical pain and suffering. Clattenberg’s husband also claimed loss of consortium because of the hospital’s negligence.

Clattenberg brought a lawsuit against the hospital, alleging malpractice. The Medical Review Panel (“MRP”) did not find anything in the record that indicated that the hospital staff breached their standard of care when they transported Clattenberg to the CT scan table. Though MRP was doubtful of Clattenberg’s allegations, they concluded that even if Clattenberg’s statements were true, it is unlikely that the drop caused her spinal compression fracture.

November 26, 2019

Untimely Filing and Failure to Appeal Ends Lawsuit Against Kindred Hospital New Orleans

by Berniard Law Firm

68-1024x683 Timing 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.

November 24, 2019

Wrong Address on Lawsuit Leads to Dismissal of Malpractice Claim Against Medical Center

by Berniard Law Firm

35-753x1024 What 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).

November 16, 2019

How Does Jury Instruction Impact Medical Malpractice Cases?

by Berniard Law Firm

martha-dominguez-de-gouveia-nMyM7fxpokE-unsplash-1024x697 Navigating 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.

November 11, 2019

Court Affirms Dismissal of Medical Review Panel Complaint Because of Exception of Prescription

by Berniard Law Firm

7-Email-05-22-19-picture-1024x668 Timing 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.

October 31, 2019

Favorable Interpretation of Filing Deadline by Appellate Court Saves Monroe Medical Malpractice Petitioner from Summary Judgment

by Berniard Law Firm

adult-ambulance-care-263210-1024x802 Often, 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.

October 22, 2019

Baton Rouge Medical Malpractice Claim Dismissed Due to Lack of Expert Testimony

by Berniard Law Firm

black-and-white-blood-pressure-blood-pressure-monitor-208556-1024x768 When 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)

October 13, 2019

Court Increases Damages Award in Wrongful Death and Survival Action Lawsuit

by Berniard Law Firm

bed-empty-floor-236380-1024x678 After 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.

October 4, 2019

Medical Malpractice Case Dismissal Affirmed for Lack of Expert Testimony in Split Decision

by Berniard Law Firm

12-Picture-05-22-2019-816x1024 Medical 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.