Limitations on Medical Malpractice Lawsuits in Shreveport, Louisiana

bed-empty-equipments-floor-236380-1024x678Medical 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 Trial Court determined that Mr. Evans sustained an injury from an intentional tort because an order to keep the patient dry and clean does not constitute medical treatment and is not covered by medical malpractice laws. The Trial Court also dismissed the lawsuit as untimely.

According to the Louisiana Medical Malpractice Act (LMMA): (1) health care includes acts performed by a healthcare provider in treating a patient; (2) health care providers include people or places certified to provide health or professional services; (3) malpractice includes  unintentional torts arising from delivering healthcare services; and (4) tort includes negligent acts or omissions falling below the standard of care causing patient injuries. See La. R.S.40:1231.1(A). Negligent acts or omissions: (1) must be caused by a lack of professional skill; (2) must require expert testimony to determine the applicable standard of care; (3) require evaluation of the patient’s condition; and (4) must not have occurred if the patient did not seek treatment. See Coleman v. Deno, 813 So. 2d 303, 315 (La.Ct. App. 2002). An intentional tort is either: (1) a desire for the result caused by the act; or (2) knowing that the result will likely occur from the act. See White v. Glen Retirement Sys., 195 So. 3d 485, 492 (La. Ct. App. 2016).

The Plaintiff argued that changing a diaper is considered medical care. Changing a diaper could be considered medical treatment if a physician must evaluate the patient to determine the necessity and makes it a part of the patient’s treatment plan. Dr. Hernandez evaluated Mr. Evans and determined he required diaper changes to avoid developing bed sores due to his paralysis and confinement to his bed. Determining if the diaper changing was in accordance with physician’s orders requires medical evidence and an evaluation of the patient’s condition. Ms. Edwards, in trying to change Mr. Edward’s diaper, did so as part of his treatment plan. Because inadequate diaper changes could have led to sores, changing the patient’s diaper falls under the definition of medical treatment.

The Plaintiff argued that he sustained injuries from an intentional tort. An intentional tort requires an intent to bring about the consequences of the act. Ms. Edwards did not intend the injuries caused by her sudden reaction to the Plaintiff’s resistance to care. Even though Mr. Evans hit her, Ms. Edward’s behavior falls under gross negligence and may be evaluated as part of a medical malpractice suit. 

The Plaintiff argued that his medical malpractice suit is timely. A lawsuit against a physician or hospital must be filed within one year of the patient’s injury if caused during treatment. See La. R.S.9:5628(A). If a patient requests that a medical review panel evaluate his claim, the one-year deadline is suspended until ninety days after the panel issues an opinion. See La. R.S.40:1231.8. Mr. Evans filed a lawsuit against Heritage Manor within 90 days of the panel’s opinion. Therefore, the Court of Appeal determined the suit was timely.

The Court of Appeal reversed the decision of the Trial Court. The Court of Appeal also determined that Ms. Edwards was grossly negligent in providing medical treatment and her conduct may be evaluated as part of a medical malpractice claim against Heritage Manor. A good lawyer can help ensure your medical malpractice lawsuit stands up in the face of intricate rules and technicalities.  


WRITTEN BY Berniard Law Firm Editor: Mayra Roman


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