Articles Posted in Wrongful Death

The biggest obstacle to any plaintiff in a medical malpractice case is prescription, but what is that? In the state of Louisiana, prescription is a peremptory exception that can be claimed by defendants. Prescription can be thought of as a privilege for medical professionals which exempts them from malpractice cases so long as they are working within the scope of their employment. It is typically difficult to overcome a prescription exception unless a plaintiff has solid proof of negligence. The following case is no exception. 

Caddo Parrish resident Karla Breland’s tragic story began on June 19, 2014. Her husband, Ray Breland, had a medical condition that caused his body’s ammonia levels to rise, and thus he was prescribed Lactulose. Mr. Breland developed liver complications and a recurring hernia, for which surgery was performed by Dr. Zabari. Mr. Breland was discharged eight days later, on June 27th, only to return one month later for severe abdominal pain.

 The Brelands went to the emergency room. Mrs. Breland informed several staff members throughout their visit of Mr. Breland’s need for Lactulose, yet he was only given medication for nausea and pain. The next day, Dr. Zibari  fixed the hernia without surgery and said Mr. Breland should be discharged the following day. Again, Mrs. Breland informed the nurse on duty and one of the named defendants, Nurse Vierra, that Mr. Breland needed Lactulose, but he still did not receive it. Another doctor, Dr. Jones, another named defendant, checked on Mr. Breland and advised the nurse to administer Lactulose, but when Mrs. Breland reminded Nurse Vierra of this, the nurse said that she did not have a written order for the Lactulose. The next on-duty nurse, Nurse Hayes, was informed of the same situation but again told Mrs. Breland that there was no written order for it. 

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)

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. 

When 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:

The 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.