Is the Failure to Observe a “Do-Not-Resuscitate” Order Medical Malpractice?
A common element in medical malpractice cases we have previously examined on this blog is the role of Louisiana’s medical review panel. As a brief review, claims brought against healthcare providers under Louisiana’s Medical Malpractice Act (“MMA”) must be reviewed by a medical review panel before proceeding to court. The panel’s purpose is limited to determining whether the evidence supports the plaintiff’s allegation that the healthcare provider failed to observe the appropriate standard of care. If the board determines the standard was not met, it must then decide whether that failure contributed to the plaintiff’s injury. The panel’s report, though not conclusive, is admissible in any subsequent litigation.
A plaintiff who believes he has been a victim of medical malpractice must first determine whether a particular claim is even subject to the MMA, and therefore whether it must be submitted to a medical review panel prior to litigation. This is an important matter, because a medical malpractice claim against a health care provider is “subject to dismissal on an exception of prematurity if such claim has not first been presented to a medical review panel.” The Louisiana Supreme Court, in the case of Coleman v. Deno, identified six factors which are to be considered when determining whether a claim falls under the medical malpractice umbrella. But even with these factors as a guide, the decision may not necessarily be straightforward. A recent case that demonstrates the “grey area” of medical malpractice claims involved a hospital’s ignoring a patient’s Do-Not-Resuscitate Order (“DNR”). Agnes Liles was admitted to the Northern Louisiana Medical Center (“NLMC”) in Ruston on July 10, 2009. A few days later, he went into cardiac arrest. Despite NLMC’s knowledge of Liles’s DNR, hospital employees resuscitated Liles. The process left him with physical disabilities until his death two months later. Liles’s two daughters filed suit against NLMC for recovery of the medical expenses attributable to Liles’s post-resuscitation care as well as physical and mental pain and suffering, loss of enjoyment of life, and cognitive decline. They also asserted a claim for bystander recovery. NLMC filed an exception of prematurity in the trial court arguing that the plaintiffs’ claims must be reviewed by a medical review panel prior to litigation. The trial judge overruled the exception after a hearing and NMLC filed for supervisory review of the judgment with the Second Circuit Court of Appeal. The court relied primarily on two cases to ultimately conclude that “the actions by the nursing personnel in failing to honor the DNR order were not covered under the MMA as medical malpractice, but instead should be governed by Louisiana negligence principles of law.” The first case contained the Louisiana Supreme Court’s pronouncement that
“While clearly an act of malpractice can occur in the
rendition of professional services, the patient must still be in the process of receiving ‘health care’ from the doctor or hospital when the negligent rendition of professional services
occurs. This means that the act or omission must have occurred ‘during the patient’s medical care, treatment or confinement.’” Richard v. Louisiana Extended Care Centers, Inc.
The other case was the Second Circuit’s own prior decision involving an ignored DNR in which it concluded that
“the problems [the deceased] experienced were not ‘treatment related’ because the problems came as a result of [the nursing home’s] failure to abide by [the deceased’s] wishes not to be resuscitated by CPR. The fact that they ‘treated’ her after they negligently acted does not bring this case under the MMA.” Terry v. Red River Center Corp.
Accordingly, the court found that the plaintiffs’ “lawsuit was not premature, and the trial court was not in error in so finding.”
This case shows, once again, the complexity of medical malpractice litigation and makes clear the need for a plaintiff to obtain counsel from an experienced attorney.
If you have been injured by a doctor or other healthcare provider, contact the Berniard Law Firm today at 504-521-6000 and speak with a lawyer who can help you get the recovery you deserve.