Articles Posted in Litigation

Navigating any lawsuit can be challenging, especially when the initial trial gives rise to complicated appeals. In this instance, the plaintiff was left wondering how jury instruction impacted her medical malpractice lawsuit. 

Mrs. Sherry Wedgeworth filed a medical malpractice lawsuit against Dr. Tynes Mixon, an ear, nose, and throat (ENT) physician. Mrs. Wedgeworth start seeing Dr. Mixon in 2006 for recurring sinus infections. Dr. Mixon performed sinus surgery in 2009 and then a revision sinus surgery three years later in 2012. After this surgery, a pathologist examined the tissue that was removed and found a fragment of brain tissue. Dr. Mixon immediately advised Mrs. Wedgeworth and advised her to go to the hospital for a C.T. scan because of the risk for infection. Mrs. Wedgeworth declined this advice, but went to see Dr. Mixon the next day, where she again turned down hospital admission and a C.T. scan. Three days later, she was hospitalized, and another three days later she began to show symptoms of a brain infection. Mrs. Wedgeworth and her husband, Mr. Wedgeworth, then filed a malpractice claim.

The initial medical review panel held for Dr. Mixon. The Wedgeworths then petitioned for damages, claiming loss of consortium, services, and society. A civil jury ruled in favor of Dr. Mixon, dismissing all claims. The Wedgeworths filed a Motion for Judgment Notwithstanding Verdict or Alternatively New Trial. The trial court denied these motions, and the Wedgeworths appealed. The issues for the appellate court were whether the trial court erred by not instructing the jury that negligence equals malpractice and by improperly denying a new trial. 

Timing is everything, especially when it comes to lawsuits. If you delay too long in filing a medical malpractice lawsuit, then you – like Mr. Verbois – may be unable to recover for the alleged negligent acts.

In May 2011, Dr. Jonathan Taylor operated on Mr. David Verbois to repair a hernia resulting from an earlier coronary bypass surgery. After the surgery, Verbois experienced adverse symptoms including fever, vomiting, and abdominal pain. Verbois was readmitted to the hospital. In October 2011, Dr. Taylor removed Verbois’ gallbladder, and in December 2011, Dr. Taylor performed a third surgery on Verbois after a CT scan showed that there was a perforation in his stomach by the gastric sleeve he received during a gastric bypass surgery performed by a different doctor in 2009. Verbois was hospitalized again in January 2012. In March 2012, Verbois visited Dr. Taylor for the last time and terminated his services. Thereafter, Verbois returned to the doctor who had previously performed the gastric bypass. The old doctor removed Verbois’ entire stomach in September 2012.

On July 26, 2013, Verbois filed a complaint with the Division of Administration alleging malpractice against Dr. Taylor from May 2011 until March 2012. Verbois requested a medical review panel (“MRP” to review his claims against Dr. Taylor.

Often, in litigation – as in life generally – timing is everything. Courts and legislatures set certain time periods for each step in a legal proceeding to establish fairness and to impose reasonable order on the disposition of the case. Occasionally, these deadlines can be ambiguous or open to various interpretations. Louisiana’s Second Circuit Court of Appeal considered such a situation in a medical malpractice case.

In 2011, Francis Grayson was admitted as a patient at Northeast Louisiana Kidney Specialists in Monroe, Louisiana. After contracting an infection from a catheter used for his treatment, he underwent surgery that left him a quadriplegic. A medical review panel requested by Grayson found that his doctors and the medical facility adequately met the standard of care in his kidney treatments and surgery. In February 2015, Grayson initiated a lawsuit for medical malpractice against his physicians and the facility. The following month, the defendants filed a motion for summary judgment on the basis of the medical board’s decision. A hearing was set for August 17. On August 7, ten days prior to the scheduled hearing, Grayson served the defendants with a memorandum opposing summary judgment. The memorandum was accompanied by an affidavit from a medical expert who would testify on Grayson’s behalf about the medical errors that led to his initial infection. Grayson filed the motion with the court on August 10, seven days prior to the scheduled hearing. The defendants then argued that Grayson’s opposition memorandum and affidavit were invalid because they were filed with the court less than eight days before the hearing, as required by the district court rules. The trial court eventually granted the summary judgment in favor of the defendants and dismissed Grayson’s claims.

In 2015, when Grayson’s original petition was filed, Louisiana district court rules required that memoranda opposing summary judgment must be served on the opposing parties at least eight days prior to the hearing. La. Dist. Ct. R 9.9. The defendants, citing a number of cases, argued that the courts had routinely interpreted that the memoranda must also be filed with the court within that same eight-day period. However the Second Circuit noted that in each of the cases relied on by the defendants, the documents in opposition to summary judgment was either filed within an extremely short time—one even being minutes before the hearing—or had some other defect. The Second Circuit focused on the fact that Grayson had properly served the defendants with the memorandum and affidavit within the required time; that the motion was not filed with the court until some days later was not controlling. Therefore, the Court reversed the trial court’s granting of summary judgment in favor of the defendants and remanded the case for further proceedings.