Numerous prior posts on this blog have examined Louisiana’s system for helping plaintiffs who have been the victim of medical malpractice. Although the state’s medical review panel is in place to screen potential claims before they get to court, a plaintiff must still rely on competent legal counsel to see the case to resolution. So important is the lawyer’s role that the courts have consistently held that when a litigant loses his day in court solely due to his attorney’s negligence, strictly enforcing a technical rule should not result in the miscarriage of justice. This principle was recently relied upon by the Second Circuit Court of Appeal in the case of Sims v. Hawkins-Sheppard to avoid an unjust outcome for the plaintiff.
Rebecca Sims was admitted to the maternity ward of the Glenwood Regional Medical Center in Ouachita Parish on April 2, 2007 for the delivery of her baby. She requested a delivery by Caesarean section due to complications she experienced with her first child. Sims’s doctor, Tonya Hawkins-Sheppard, nevertheless decided to perform a surgical vaginal delivery
with the use of forceps. Sims’s baby suffered permanent eye injuries from the use of the forceps, and Sims herself suffered injuries that required a hysterectomy. Sims submitted her claim to the state’s medical review panel. She alleged that she was heavily medicated and in great pain, and therefore did not give consent for the delivery as performed by Dr. Hawkins-Sheppard; further, Sims asserted that Dr. Hawkins-Sheppard breached the applicable standard of care in the delivery of her baby. After receiving the review panel’s opinion that Dr. Hawkins-Sheppard did meet the standard of care, Sims filed a lawsuit. Dr. Hawkins-Sheppard filed a motion for summary judgment when Sims’s counsel responded to discovery requests with a statement that Sims did not have a medical expert who could offer an opinion. Sims’s counsel then filed a memorandum in opposition to the motion for summary judgment which contained an unsigned physician’s affidavit. Sims’s lawyer assured both Sims and the court that the unsigned affidavit would be replaced with a valid affidavit before the scheduled hearing on the motion. But Sims’s lawyer failed to obtain the signed affidavit because he did not present it to the physician, Dr. Kimberly Hess, before she left for vacation out of state. Sims learned of this only the day before the hearing, at which time she fired her attorney. At the hearing, Sims explained the situation to the court but the judge refused to grant a continuance so she could obtain new counsel. Instead, the court granted the motion for summary judgment. Sims found new counsel about a month later, who immediately filed an appeal of the court’s granting of summary judgment for Dr. Hawkins-Sheppard.
The Second Circuit noted that under La. C.C.P. art. 966(B), affidavits to oppose a motion for summary judgment must be filed eight days prior to the hearing on the motion, which Sims’s original counsel clearly failed to do. However, “the trial judge retains great discretion regarding the time of filing. The court shall give the adverse party additional time to file a response, including opposing affidavits, if good cause is shown.” Furthermore, it is entirely within the trial judge’s discretion to “continue the hearing to enable compliance with the eight day filing requirement.” Citing the principle for ensuring the proper carriage of justice, the court noted that Sims was not aware of her attorney’s failure to obtain a valid affidavit and that, even though the doctor would have been able to correct the problem simply by signing the affidavit, the trial court “rendered judgment…, closing its doors to a trial on the merits of [Sims’s] case.” Yet, it is the court’s duty “to permit litigants all reasonable opportunity to place before a court all facts bearing on the issues involved.” The court concluded:
“When weighing the options of giving a litigant, who was misled by her attorney, more time to obtain the necessary documents that are, based on the record, easily attainable versus shutting the doors to litigation, we find that the trial court abused [its] discretion… The trial court should have allowed [Sims] a reasonable amount of time to obtain new counsel and secure the signature of Dr. Hess rather than cutting off [Sims] at the summary judgment phase, which was a clear and direct result of her being misled and deceived by her former counsel.”
Thus, the court reversed the trial judge’s grant of summary judgment and remanded the case to the trial court for further proceedings.
One cannot help but sympathize with a plaintiff whose physician inflicts serious injuries to her and her baby and who then encounters an astonishingly ineffective lawyer. Although Sims presumably will have her day in court following the Second Circuit’s decision, other plaintiffs may not be so fortunate if they put their trust in an attorney who is not experienced in medical malpractice litigation.
If you have been injured due to a doctor’s negligence, call the Berniard Law Firm at 504-521-6000 and speak with a seasoned medical malpractice expert who can help you get the recovery you deserve.