Court of Appeals Decision Shows How to Prove Medical Malpractice in Louisiana (and how not to)

A recent Louisiana Court of Appeals decision does a good job of explaining the elements of a medical malpractice claim and some pitfalls that might be encountered along the way.

In this case, Jessica Parker of Beau Bridge filed a suit against University Medical Center after she underwent two gall bladder surgeries at the Lafayette hospital in 2002 and 2003. The first surgery was for the removal of Parker’s gall bladder and stones in her common bile duct in November of 2002. In January of 2003 she returned to the hospital complaining of four days of flank pain, nausea, vomiting, and a “foreign body” around the incision site. She was admitted and a second surgery was performed to remove several small stones.

As required by Louisiana law before a medical malpractice case can be filed, Parker requested the formation of a medical review panel, complaining her surgery was botched and two metal clips were left inside her bile duct and caused an obstruction. In June 2005 the panel entered an opinion in favor of the hospital finding the appropriate standard of care was not breached. Following the unfavorable panel decision, Parker filed a lawsuit. The hospital moved for summary judgment and argued that because of the panel opinion and the fact that Parker did not use an expert witness to prove the applicable standard of care and breach there was no issue of material fact as to whether they were entitled to judgment as a matter of law. In opposition, Parker submitted uncertified and incomplete copies of her medical records. Following a hearing the motion for summary judgment was denied but the court instructed Parker that if no evidence was submitted they would dismiss the case. Parker did not appear at a re-hearing in September 2009 and her claims were dismissed and the hospital’s motion was granted. The Court of Appeals affirmed the trial court decision.

Under Louisiana Revised State 9:2794, the burden of proof for a plaintiff in a medical malpractice case such as this one is set out in full. The following elements must be established by a preponderance of the evidence (the more likely than not standard):

1.The standard of care applicable to the defendant
2. The defendant breached the standard of care
3. There was a causal connection between the breach and the injury

Ms. Parker may have erred in a couple of respects in her lawsuit. First, she did not utilize expert witness testimony, which is typically required to establish the applicable standard of care and whether that that standard was breached (there is an exception to this requirement if the negligence of the medical personnel is so obvious it can be inferred). Second, while Parker complained she was not allowed to conduct sufficient discovery in the case, the Court indicated that her Motion to Compel Discovery was not processed because a deposit was needed. In addition, Parker failed to appear at her second hearing and did not submit accurate and sufficient copies of medical records to the court. Despite being granted an additional three months to complete discovery, over four years total, Parker still wasn’t able to get the information necessary to prove her claim or even get the case to trial.

This case shows the difficult uphill battle that must be fought in order to be successful in a medical malpractice case. Each element of the claim must be proven and often complex court rules must be complied with. Litigants who take on the process on their own may be fighting a losing battle. An experienced medical malpractice attorney can make sure experts are hired to provide necessary testimony and that discovery takes place in order that the myriad of facts that may be surrounding the incidence of injury are brought forward. If you have been injured and feel that a health care provider is to blame make sure you have an attorney on your side who will fight for you.

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