Louisiana Woman’s Knee Replacement Leads to ‘He Said, She Said’ Confrontation (Part I)

Most people’s fear of hospitals is usually justified in that one does not usually go to a hospital unless there is something wrong, or something negative has occurred. Everyone who seeks medical treatment, whether in a hospital or private doctor’s office, is seeking an expert’s diagnosis and treatment to prevent future, or cure current, ailments, or to have one’s body ‘fixed’ in some way, as in a broken bone. Unfortunately, problems arise and the treatment one seeks does not always fully help, or even makes the issue worse. But sometimes, whose fault it is, that the problem does not subside, or that the problem only gets worse, is up for debate. That is where a medical malpractice issue arises, and the topic that shall be explored here.

The factual and legal basis of this discussion comes from the Louisiana Supreme Court case McGlothlin v. Christus St. Patrick Hospital, decided July 1, 2011. The issue in this case is, “whether [the Louisiana statute in question] mandates the admission of a medical review panel opinion when the panel exceeds its statutory authority and renders an opinion based on its determination of plaintiffs’ credibility, not on the medical standard.” The following questions must be asked first to clarify the terms and substance of this discussion: What is ‘medical malpractice’? And what is a ‘medical review panel?’
The term ‘medical malpractice’ gets thrown around more than it should. It is a specific legal negligence term devised to describe a cause of action that may be brought by a patient of a doctor and/or hospital claiming that the doctors, nurses, and anyone involved with the care and safety of the patient was negligent, and through this negligence, that a harm came to the patient that otherwise would not have occurred. More specifically, 1) a duty of care exists in which those that are employed to care for a patient must maintain the proper diligence in their medical and professional duties, 2) a doctor or nurse, or other individual employed in a professional and medical sense has breached this duty of care through his or her actions, or in the case of a hospital’s negligence, through that actions of its employees (doctors, nurses, etc.), 3) that this breach of duty is the cause of the resulting harm to the patient, a harm that otherwise would not have happened and can be linked to the action(s) or inaction(s), of those who owe a duty of care to the patient, and 4) that a harm is the result of that breach that would otherwise not have occurred, and is something not reasonably foreseen so that there is no other cause than the breach of the proper duty of care owed to the patient.

A medical review panel is made up of three doctors and an attorney to hear a claim of medical malpractice in an attempt to curb costs of litigation for both parties involved, patients and hospitals, and more specifically, to curb health insurance costs. The statutory creation of the medical review panel prevents any litigation in matters of medical malpractice unless the complaint was initially submitted to the panel. It is the medical review panel’s purpose to hear both sides’ case, and issue its expert opinion as to whether it is an instance of medical malpractice. The hope here, is that the medical review panel will filter frivolous claims and potentially foreshadow successes or failures in litigation and lead to settlements outside of court. The sole purpose of the medical review panel is to review all evidence and examinations of either party, and then “to express its expert opinion as to whether or not the evidence supports the conclusion that the defendant or defendants acted or failed to act within the appropriate standards of care.”

What will be further explored, and what is the major issue in this case, is what is the authority of this medical review panel and what happens if and when the panelists overstep their authority and begin to make judgments of fact, stepping into the realm of the juror. This will be discussed in Part II.

If, however, you feel as though you have read all you need and you want or need expert advice in a potential medical malpractice situation of your own, then do not hesitate to contact the Berniard Law Firm.

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