Medical Malpractice

July 11, 2016

Louisiana Lawsuit Illustrates the Importance of Timing for Medical Malpractice Claims

hourglass-1543596-1024x768 In initiating a lawsuit, timing is critical. In Louisiana, the doctrine of prescription bars a claimant’s legal right of recovery when he or she fails to exercise it within a given period of time. This doctrine functions somewhat similarly to what is known as the “statutes of limitations” in other U.S. states. However, certain statutory provisions “stop-the-clock” so to speak, and suspend the time within which a lawsuit must be brought. This entails precise timing calculations for determining prescriptive period or “deadline” for bringing a claim. Failure to comply with these deadlines means no recovery, as demonstrated by a recent opinion of Louisiana Fifth Circuit Court of Appeal in a lawsuit asserting medical malpractice claims.

On August 3, 2012, Mrs. ABC was admitted to a hospital in New Orleans (“Hospital”). Upon admission, Nurse Practitioner CP took ABCs’ intake history and performed a physical under the guidance of Dr. PP. Upon initial inspection ABC had no signs of bed sores when she entered the Hospital. However, she quickly developed bedsores during her stay at the hospital. Her skin condition gradually deteriorated, leading to her to expire on October 24, 2012.

On October 16, 2013, ABCs’ children – the plaintiff/appellants – Kathy Maestri and Kurt C. Burgenthal filed a claim with the fund in Louisiana that is set up to initially review medical malpractice cases (“LPCF”) claiming that ABCs’ bed sores and demise were caused by the by both the Hosptial, Dr. PP, and Nurse CP. On October 30, 2013 the LPCF notified Ms. Maestri and Mr. Burgenthal by letter that Nurse CP did not fit the definitions of a healthcare provider under the Louisiana Laws that govern medical malpractice claims (“LAMMA”). (See Louisiana Medical Malpractice Act Definitions)

January 16, 2014

Prescription an Integral Element of Lawsuits After Wrongful Death

by Berniard Law Firm

A few months after being in a car wreck, the unthinkable happens, and as a result of the accident, your loved one passes away. As you are mourning the loss, you also have to start thinking about your legal options that stem from the crash and the possible avenues you have as a “survivor” of your loved one in order to receive some damages from the liable person. While this seems somewhat callous to talk about, especially in light of the pain you are already in from losing someone close to you, it is necessary to begin thinking about this somewhat quickly if you are going to actually be able to bring a survival action.

First, though, what exactly is a survival action? In simple terms, a survival action is an action for damages (an award of money) for injuries incurred by the deceased right before dying. You can think of a survival action as a lawsuit for injuries incurred that the actual deceased would have been able to bring had he or she not passed away. Since the decedent is not able to bring the suit himself or herself, the decedent’s estate has to bring the suit. This is typically a child or other close relative. (States will specify exactly which family members are allowed to bring a survival action in that state.)

Along with deeming who can bring a survival action, states also specify during what timeframe individuals are allowed to bring such a lawsuit. This is not because the state or the courts do not want individuals to be able to recover, but rather because a timeframe has to be set so that the liable individual does not have an indefinite period of time during which to worry about the possibility of a lawsuit.

January 7, 2014

Louisiana Medical Malpractice Case Examines Federal Antidumping Laws

by Berniard Law Firm

A recent case arising from occurrences in West Carroll Hospital considers the Louisiana and federal antidumping laws. In addition, it also explains the requirements for a case under medical malpractice. Several hospitals were involved in the case, but only two were actually involved in the suit. A woman who had serious kidney and urinary problems was admitted to West Carroll Hospital; however, once the hospital realized that they did not have the specialized equipment to treat her, they desperately tried to find somewhere to transfer her that did have the ability to help her. After several days of miscommunications, the woman died because they could not transfer her fast enough to address her medical issues. Her six daughters then attempted to find some kind of remedy against the hospitals for the wrongful death of their mother.

In Louisiana, La. R.S. 40:2113.4-2113.6, the “antidumping law,” requires hospitals to take patients who need emergency services and live in the territorial area regardless of whether they are able to pay for their care or if they have insurance. Federal law has the same type of requirement under the Emergency Medical Treatment and Active Labor Act. The Emergency Medical Treatment and Active Labor Act even specifies that hospitals cannot turn away patients who have Medicare or Medicaid, and hospitals cannot discriminate based on race, religion, economic status, or national ancestry.

The Emergency Medical Treatment and Active Labor Act further defines “emergency” as a “physical condition which the person in imminent danger of death or permanent disability.” The definition of “emergency services,” then, is “those services which are available in the emergency room and surgical units in order to sustain the person’s life and prevent disablement until the person is in a condition to travel.” Louisiana law requires that the patient be stabilized before they are moved to another facility. However, the Louisiana antidumping law does not permit a private cause of action. That is, an individual cannot sue the hospital for a violation of this law. Even if they could, however, the first hospital, West Carroll, admitted her without incident, so there would be no claim under the antidumping law.

January 3, 2014

Medical Malpractice Subject to Prescription Limits

by Berniard Law Firm

Doctors at the Women and Children’s Hospital in Lake Charles, Louisiana, botched Beverly Lebouef’s surgery in 2003. Eventually Lebouef sought legal advice and brought action against her surgeon. Much later in the pre-trial phase, arguably over a year later, she added a new doctor to his lawsuit who had helped perform one of the surgeries. The question is not about prescribed medication, but “prescription periods” and the accompanying rules.

In Louisiana, no action for damages for injury against any physician or hospital shall be brought unless filed within one year from the fate of the alleged act or negligence or within one year from the date of discovery of the alleged act or negligence. This period is considered a prescriptive period. Prescription begins when a plaintiff becomes aware of facts that would suggest to a reasonable person that he or she suffered injury that could be remedied by law. Prescription starts even if the plaintiff does not have actual knowledge, but constructive knowledge, which is the minimum amount of notice required to make the injured plaintiff aware and allow for the injured plaintiff to inquire further. If the notice is enough to make reasonable victim aware, then prescription has begun.

A plaintiff’s apprehension that something is wrong does not start prescription except when the plaintiff knew or should have known through reasonable diligence that the plaintiff’s issues may have resulted from medical malpractice. The crucial issue is the plaintiff’s reasonableness in taking action or not acting, which considers the plaintiff’s education, intelligence, symptom severity and the defendant’s conduct.

December 24, 2013

Medical Malpractice Ruling Awards Wrongful Death Damages

by Berniard Law Firm

Imagine taking your mother to the emergency room for abdominal pain and vomiting. A CT scan and x-ray do not reveal any serious medical issues, and blood work merely shows that her potassium level is low. But within a few hours, she is dead. Now imagine witnessing her death – seeing her break out in convulsions, foam at the mouth, gasp for breath, and lose consciousness.

Such was the experience of one of Virginia Martin’s thirteen adult children. Ms. Martin’s daughter, Betty Farmer, brought her to the emergency room after Ms. Martin complained of abdominal pain, vomiting, and diarrhea. Ms. Martin was 69 years old, and she was otherwise in very good health at the time of her hospital visit. She did not have any heart problems or other serious health-related issues.

The ER physician determined that she suffered from simple gastroenteritis. A chest x-ray came back normal. Ms. Martin began to receive pain medication via an IV, and her blood work revealed that her potassium was low. A CT was performed and showed that there were no abdominal abnormalities that could have caused her gastric distress. Ms. Martin returned from the CT scan to the ER at 9:35 p.m. By 9:44, Ms. Martin started convulsing, her face turned red, she began to foam at the mouth, and her eyes rolled into the back of her head. She lost consciousness, and efforts to resuscitate her failed. Her cause of death was listed as acute cardiac arrhythmia and arteriosclerotic heart disease.

December 21, 2013

Medical Malpractice Claims Rely Heavily Upon Prescriptive Period

by Berniard Law Firm

In Louisiana, a civil law doctrine known as “prescription” limits the amount of time that may pass before someone files a lawsuit. Prescription is the extinction of a right of recovery and occurs due to a failure to exercise that right over a period of time. In other states, this doctrine may be referred to as a statute of limitations or a statute of repose. Louisiana’s prescription period for filing a lawsuit based upon personal injury is one year. Often this doctrine is not an issue in litigation, but in a recent case in St. Tammany Parish, one doctor’s objection of prescription has fundamentally altered the life of a woman, alleging to have suffered from medical malpractice.

On November 21, 2008, Glenda DeBram was hospitalized by her attending physician, Dr. Keshelava, after complaining of painful urination, fever, and cough. On October 15, 2009, pursuant to LSA-R.S. 40:1299.47(A)(2)(a), Ms. DeBram filed a request for a medical review panel with the Patient’s Compensation Fund. According to her request, Ms. DeBram alleged that St. Tammany Parish Hospital and Dr. Keshelava fell below the standard of care owed to her between November 21, 2008 and October 20, 2009. Subsequently, Dr. Keshelava filed a peremptory exception raising the objection of prescription, arguing that Ms. DeBram’s complaint was prescribed on its face as it was filed on January 29, 2010, which was more than one year following her discharge from the hospital stay during which she claims Dr. Keshelava and the hospital breached the standard of care. As such, on September 16, 2010, the trial court sustained the exception and dismissed Ms. DeBram’s medical malpractice claims.

The prescriptive period for a medical malpractice claim is contained in LSA-R.S. 9:5628A. Any action seeking damages, regardless of whether for a fatality or the severity of injuries, and whether against a doctor, nurse, or the hospital within which they work, may be brought unless the action is brought within 365 days (1 year) from when the incident or injury occurred or was found to have occurred, regardless of whether the act was that of unintentional or intentional neglect, omission or some other form of injury. Even with claims filed within the time limit, the law suit must be filed within three years of the incident’s occurrence, regardless of discovery

December 2, 2013

Court Throws Out Lafayette Parish Case As Plaintiff Fails To Deliver Service of Process Before Deadline

by Berniard Law Firm

It is vital to know proper court procedures at the outset of litigation or else an otherwise valid claim might be thrown out of court without ever being heard. One prime example is the need to send initial court documents to a defendant within a set deadline (sending such documents, such as a citation or summons, is known as service of process). Case in point, the Lafayette Parish Court of Appeal, in Boka v. Oller, recently upheld the dismissal of a claim without even considering the merits because service of process was delivered too late. Therefore, it is important to know the rules before bringing a lawsuit or a good claim might be lost due to a mere technicality, such as delivering papers too late. For a non-lawyer, an attorney can be instrumental in making sure proper procedures are followed so that the party has a chance to present their case in court.

In Lafayette Parish, Louisiana Code of Civil Procedure Article 1201 requires that service of the citation must be requested within a deadline of ninety days from commencement of the action. Article 1201 also notes that service of process on defendants is “essential” and “without them all proceedings are absolutely null.” The deadline for service is to ensure that defendants are aware of an action and have enough to prepare. Therefore, as a delay in service is deemed unfair to the defendant, a court may dismiss a claim if service of process is sent too late.

There are some limited exceptions to the rule, but, due to the risks involved in these exceptions, generally a party should attempt to serve process on time. For example, one exception permits late service if there is good cause for the delay. However, as the court is unlikely to accept run-of-the-mill excuses for delays, proving a good cause for failure to serve process on time can be difficult. As noted below, the court in Lafayette Parish found that there was no good cause for late service as the plaintiff knew the defendant’s address.

November 22, 2013

Injured Ouachita Patient Fails to Meet Burden of Proof in Medical Malpractice Action

by Berniard Law Firm

When treatment provided by a health care professional falls below the accepted standard of practice in the medical community and causes injury or death to a patient, it is said that medical negligence or medical malpractice has occurred. To establish a claim for medical malpractice, a plaintiff must prove: (1) the standard of care applicable to the defendant; (2) that the defendant breached that standard of care; and (3) that there was a causal connection between the breach and the resulting injury. These three elements must be proven by a preponderance of the evidence, which is the requirement that more than fifty percent of the evidence be in the plaintiff’s favor.

Nearly a month after surgery, it was discovered that John Roberts had been suffering from a staph infection after having a vasectomy performed by, urologist, Dr. Don Marx. On November 17, 2010, Mr. Roberts filed a lawsuit against Dr. Marx seeking damages for allegedly failing to provide appropriate medical care and treatment and diagnosis of the surgery’s complications. In addition to those allegations, Mr. Roberts’ complains that Dr. Marx failed to inform him that just days before performing Mr. Roberts’ vasectomy procedure, the doctor himself had undergone eye surgery after losing part of his vision in his right eye.

After the filing of the initial complaint, Dr. Marx moved for judgement as a matter of law and argued that Mr. Roberts would be unable to adequately prove his case at trial due to the lack of expert testimony to establish a breach of duty by the Dr. Marx. Accordingly, the trial court agreed with Dr. Marx determined that no genuine issue of material fact existed and granted summary judgment against Mr. Roberts.

November 11, 2013

Employer Had No Duty to Prevent Caregiver’s Lifting Injury

by Berniard Law Firm

To a certain extent, employers are legally required to guard their employees against the risk of on-the-job injuries. But for an injured employee to prevail in a lawsuit against the employer, the employee must be able to prove that the employer owed him or her a duty to prevent the particular accident that occurred. The Louisiana Third Circuit Court of Appeal recently affirmed this rule in the recent case of Chaisson v. Drake.

Mary Elizabeth Chaisson was working as a private caregiver for Dr. Winbourne Macgruder Drake. She had been helping him get in and out of his wheelchair for three years when one day something went wrong.

Chaisson was attempting to transfer Drake from a lift chair to his wheelchair when he suddenly began to fall forward. When Chaisson grabbed him to prevent the fall, she pulled muscles in her neck and back.

November 9, 2013

Nursing Home Injury Leads to Medical Malpractice Claim

by Berniard Law Firm

Recently, an individual from the Parish of St. Tammany was injured as she was transported from a nursing home to another health-care facility. She fell from her wheelchair when the driver had to slam on his brakes. The wheelchair had neither a seatbelt, nor was the wheelchair strapped down in the van. The individual sued her nursing home based on the failure to adequately secure her for her journey. Questions regarding the Louisiana Medical Malpractice Act arose that considered whether the nursing home was a healthcare provider and whether her injury constituted medical malpractice.

The Louisiana Medical Malpractice Act (“Act”) requires that individuals take their medical malpractice complaints against qualified health care providers to a medical review board before taking the claim to a court. The State of Louisiana employs this administrative process because the state is self-insured, and it covers some health-care providers. They want to be sure that a medical malpractice claim exists before it gets into the courtroom. The medical review board generally consists of two healthcare professionals and one attorney. Generally, the healthcare professionals are in the same field as the doctor accused of malpractice. For more information on the medical review panel, see http://www.doa.louisiana.gov/MedReview/index.htm.

If a claimant does not use the medical review panel and tries to take their claim directly to court, then it will be dismissed because it is premature. Dismissing for prematurity is a dilatory exception, which means that it only delays the progress of a lawsuit, but does not defeat the action. In medical malpractice suits, the defendant has the burden of proving that he is entitled to a medical review panel, which only applies to only malpractice, not other tort actions, and that he or she is a qualified medical provider.