Articles Posted in Medical Malpractice

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The Berniard Law Firm’s principal attorney, Jeffrey Berniard, recently taught an Introduction to Personal Injury course. Having been an active part of Continuing Legal Education (CLE), Mr. Berniard was selected to teach the topic due to the firm’s specialization in medical malpractice, first party insurance disputes, and premises liability claims. Some of the topics covered included: Personal Injury Protection and First Party Benefits in auto policies; medical records disclosure including mental health and substance abuse treatment records; recoverable personal injury damages.

Under many state’s no-fault insurance laws, a claimant’s insurance company will only pay for Personal Injury Protection, or the first $10,000 out-of-pocket expenses. The remainder of expenses must be recovered from the Defendant. Many auto insurance companies do offer First Party Benefits packages, an optional supplement that will cover all medical expenses in the event of an accident for the policyholder or anyone else listed on the plan. However, many auto insurance companies also use a computer program that performs a calculation to value the severity of a victim’s injury. The program does not take into consideration the stress, pain, inconvenience, loss of enjoyment of life that a victim may have suffered.

Medical records unrelated to a victim’s injury, but pertaining to his/her health, are discoverable if “good cause” can be shown. Both state law and the federal Health Insurance Portability and Accountability Act (HIPAA) apply to a consent for release of medical records. The consent must contain ten items, including a statement that the health care provider cannot condition treatment upon the signing of the consent for release. However, because of the broadness of the item language requirements, HIPAA, and state law, a health care provider may refuse to honor the consent. If a consent cannot be obtained from the patient, HIPAA continues to allow health care providers to release information with a court order or a subpoena. If an attorney issues a subpoena without a court order, the health care provider will not release information unless certain assurances are made.

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In Louisiana, an employee can only be compensated for a work related injury through workers’ compensation. This means that if an employee is negligently harmed during the course of work, the only remedy available is what is provided through the workers’ compensation act. This is true unless the injury was as a result of intentional conduct. In the business world, many general contractors contract out work to subcontractors. Legally the issue in such a case becomes how to define who the employee is employed by in case of an injury. In Louisiana, there is a doctrine called the two contract theory. The basic outline of this theory is that in a situation where there are three parties in a contract which includes a general contractor, subcontractor, and subcontractor’s employee, the subcontractor’s employee is considered an employee of the general contractor. This mean that if the subcontractor’s employee is injured while performing work for the general contractor, the employee will only be able to receive workers’ compensation, not any damages based on negligence or any other branch of tort law. This may, at first glance, seem like a harsh result. However, in the modern business world, there are so many employment contractual relationships that liability must be limited to what is reasonable under the circumstances. The two contract theory should not be viewed as a way to protect business, but rather as a means for the judicial system to not be able to overreach.

In a recent case, Mason v. Waste Management Inc. Et Al., the law concerning employee rights is discussed in such a circumstance. Lamare Kindle and Wallace Bradley, were employed by Waste Management Inc. Mr. Bradley was employed directly by Waste Management. Mr. Kindle was employed by CPST Inc. CPST was a subcontractor which had contractually agreed to supply Waste Management with employees in an effort to help Waste Management collect trash it was required to contractually pick up. Waste Management had agreed to pick up trash in a contract with the Morehouse Parish Police Jury. So the contractual relationships are broken down as follows: Morehouse Parish Police Jury needed a company to come pick up trash in its area. Waste Management agreed to pick up the trash and signed a contract with Morehouse Parish to do so. Mr. Bradley was employed by Waste Management. In an effort to fulfill its obligation to Morehouse Parish, Waste Management needed to hire temp workers. CPST contractually agreed to supply Waste Management with employees. Mr. Kindle was employed by CPST.

Mr. Bradley was driving a truck registered to Waste Management. Mr. Kindle was a passenger in the truck driven by Mr. Bradley. Upon coming to a train track Mr. Bradley made the tragic mistake of crossing over the tracks as a train passed the intersection. Both Mr. Bradley and Mr. Kindle was sadly killed as a result of the collision with the train. Mr. Kindle’s parents sued Waste Management alleging that it was liable for any negligence that was attributed to Mr. Bradley while he was driving the garbage truck. The police report stated that the accident was likely the result of Mr. Bradley’s inattentivness. Waste Management argued that under the two contract theory, Mr. Kindle was its employee and because there was negligence and not intentional conduct, the only remedy available was workers’ compensation. Because Waste Management held a position as a general contractor in relation to Morehouse Parish, and CPST held a relationship with Waste Management as a subcontractor, the circumstance of the contractual relationships fell under the definition of the two contract theory. Therefore, Mr. Kindle was considered an employee of Waste Management and the only remedy available was workers’ compensation.

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The Berniard Law Firm is proud to be a New Orleans-based organization and nothing says NOLA better than Mardi Gras!

We wish all of our readers a happy, and safe, Mardi Gras holiday!

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A recent case within the Kentucky Court of Appeals demonstrates very extremely the need for quality counsel in all court proceedings. Regardless the subject or reasons you may find yourself in court, it is important that the lawyer you hire is not only able to represent you well in the courtroom and past it. While you would like to think the courts have the rule of law well established in the minds of their judges, a qualified attorney will also review the matters at hand to make sure all ‘facts’ are correct in the proceedings.

In the case of Bramer Crane Servs., LLC v. Structure Builders & Riggers Mach. Moving Div., LLC, a lien issue was reviewed by the superior court of the state. While the actual facts of the case are not important for this post, what is important is that the findings of the court were inherently flawed. Cited in the case was a fact that was severely outdated, as much as 20+ years and two revisions.

As the blog Zlien notes, instead of a clean finding, the court had lapsed in its research and failed to note updated law. The issue was that the ruling relied on judicial precedence rather than a review of legislation passed during this time. While one would like to consider the issue a simple lapse in judicial research, the fact remains that this unpublished decision could very easily have gone unnoticed without people stepping up.

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In a semi-recent Third Circuit Court of Appeal decision, the Louisiana Medical Malpractice Act was explored in order to determine whether the lower Vernon Parish District Court’s decision was appropriate. Despite the sad facts of the case, the appellate court may only overturn a trial court’s decision if there was clearly an error in the record. The appellate court analyzed the necessary requirements of the Louisiana Medical Malpractice Act in order to decide whether or not a doctor’s actions met the standard of care in treating a seriously injured young man. Medical Malpractice requires numerous steps for claimants to take before even reaching the court room. For instance, a person with a claim against a doctor, hospital staff, or the hospital itself has to first submit the claim to a medical review panel. This medical review panel was the primary focus for the appellate court, who had to establish whether or not the panel’s ultimate decision regarding a surgeon’s actions lived up the the applicable standard of care.

The underlying facts giving rise to the case occurred on August 11, 2002, when a young man entered the emergency room at Byrd regional Hospital in Leesville, Louisiana, after suffering a two and one-half centimeter knife wound to the left side of his chest. The emergency room staff noticed that the young man appeared alert despite his labored breathing and low blood pressure. The emergency room physician on duty suspected that the young man was suffering from the presence of air between the lung and the wall of the chest. A chest x-ray, an electrocardiogram (EKG) lab work, and an IV infusion of saline were ordered, and as such procedures were being performed on the young man, the emergency room doctor decided to telephone a general surgeon in private practice in Leesville, asking for his assistance. The general surgeon arrived at the emergency room and ordered a second x-ray in order to determine if there was any other issues involved with the young man’s condition. Throughout this time period, the young man’s blood pressure continued to decrease and his condition worsened. Over one hour later, the general surgeon determined that a large amount of blood had collected in the young man’s chest cavity, but he failed to confirm the emergency room doctor’s determination of a cardiac injury because the young man’s heart sounds were still normal and there was no swelling in the neck vein. The general surgeon then decided that the young man had to undergo surgery to repair what appeared to be a large hole in the left ventricle of the young man’s heart. However, at this point, the young man’s blood pressure plummeted, despite the doctor’s attempts at ordering blood transfusions. Within ten minutes after the young man’s third blood transfusion, the general surgeon made an incision into the left side of the chest cavity, he attempted to repair the laceration with sutures, but the young man continued to bleed at the point of injury. The young man went into ventricular fibrillation and as a result, passed away on the operating table. The young man’s parents sued the general surgeon, asserting that his failure to transfer their son to a hospital with a heart bypass capabilities and staffed with a cardiovascular surgeon constituted malpractice. Following the bench trial, the trial court ruled in favor of the general surgeon, relying on the Louisiana Medical Malpractice Act in order to support their decision.

The Medical Malpractice Act requires a number of steps to be followed in order for a claim to move forward for trial. Importantly, when exploring a medical malpractice issue, La. R.S. 40:1299 states, “[a]ny report of the expert opinion reached by the medical review panel shall be admissible as evidence in any action subsequently brought by the claimant in a court of law.” Thus, the first argument the plaintiff’s allege as error on the trial court’s part may have been in vain. They alleged that the trial court erred in admitting the medical review panel opinion into evidence and that this error requires the appellate court to undergo a new factual finding of the trial court’s decision. Following the Louisiana statute’s language, the opinions of medical review panels may be utilized by the trial court in handling a medical malpractice case. In fact, medical review panels are designed to review the evidence after any examination of the panel and conclude that either:

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The civil justice system has a few bare minimum requirements that must be met before a party can be successful in any given litigation. In order for a party to be successful in a civil action, that party’s case must make sense to the court in terms of the party accused, injury presented, etc. Initiating action against the correct defendant seems like it would be a given, however that is not always the case. Ms. Charise Thomas was injured in a particular location, eventually suing the owner of the location, Mr. Antonio Harris, due to the incident. Ms. Thomas also sued that man’s father, Mr. Aaron Harris. Unfortunately for Ms. Thomas, she did not initiate action against the estate of one Mr. Thirkield J. Smith, the owner of the property on the date of her accident.

The trial court granted Aaron Harris a peremptory exception of prescription and Antonio Harrris a summary judgment. These two different types of relief are granted for different reasons, having similar results but different standards of review on appeal. Each requires different elements in order to be granted to the moving party. In this case, they were also both upheld by the appellate court.

An exception of prescription is granted by a trial court when a certain time period has elapsed between the incident giving rise to a particular suit and the filing of that suit. Since Ms. Thomas never ended up filing against the appropriate party, Aaron Harris’ peremptory exception of prescription was granted and upheld on appeal. The trial court’s decision is given a fairly high amount of deference on appeal and is reviewed under the manifest error standard. If the trial court is found not to have abused its discretion, its decision will not be overturned.

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On February 24, 2003, D H visited the North Monroe Medical Center to have a benign tumor removed from her breast. The procedure was performed by Doctor A, a general surgeon, and Doctor B, a radiologist. The procedure involved inserting a metal wire, guided by x-ray, into the breast and “hooking” the tumor. Once Doctor A removed the mass of tissue, Doctor B compared pre- and post-operation images and confirmed that the tumor had been taken out. The tissue was sent for pathological analysis, which revealed that it was not the intended tumor, but rather normal breast tissue. A mammogram several months later revealed that a section of the wire hook and the tumor remained in H’s breast. Doctor A, therefore, performed another procedure in which he successfully removed the wire fragment and the tumor.

H filed a medical review panel complaint against Doctor A and the North Monroe Medical Center. The panel found in favor of the defendants, and H filed a medical malpractice suit on January 19, 2007. She amended the complaint to include Doctor B on October 30, 2008. In February, 2011, following the completion of H’s case, the defendants moved for directed verdicts, which the trial court granted. H appealed the trial court’s granting of directed verdicts in favor of Doctor A and Doctor B. Under Louisiana law, a directed verdict should be granted when, after considering all the evidence, it is clear to the court that the “facts and inferences so overwhelmingly favor a verdict for the movant, that reasonable jurors could not have arrived at a contrary conclusion.” This, naturally, in the case of a defendant’s petition for a directed verdict, requires that all of the plaintiff’s evidence be properly before the court. Expert testimony is not absolutely required in order for the plaintiff to overcome the burden to show that the defendant was negligent. In fact, on appeal to the Second Circuit Court of Appeal, H argued that expert testimony was not necessary to establish malpractice, as the actions that led to her injury were “obviously careless acts” and, as such, negligence could be inferred. The court disagreed, offering that “although the procedure itself may be considered routine, considering the procedure as a whole, specifically the judgment calls required of Drs. A & B, it is clear that this is not a scenario from which lay persons could infer negligence.”

This conclusion led to the analysis of the trial court’s refusal to certify Dr. Roderick Boyd, H’s witness during the trial, as an expert in radiology. As a result of Dr. Boyd’s being certified in general surgery only, he was unable to comment on most of Doctor B’s involvement in H’s procedure during his testimony. The court’s review of the record of Dr. Boyd’s voir dire revealed that “Dr. Boyd had performed several hundred needle localization breast biopsies. He does regularly review radiographic images as a function of his occupation as a general surgeon and in connection with biopsies such as the one performed in this case.” Therefore, the court’s “not accept[ing] Dr. Boyd as an expert in this type of procedure to include a reading of the radiographic images was clear error. The court concluded, “We cannot speculate on Dr. Boyd’s opinion or its impact on the jury’s decision. Nonetheless, … we must reverse the trial court’s grant of both defendants’ motions for directed verdict, and remand for further proceedings.”

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As you may know, different states have sometimes very different laws. Laws are overall somewhat similar, but small discrepancies between state laws will matter a great deal in a lawsuit. The most common example of this type of conflict occurs when an individual has been injured in one state, usually while traveling, and actually lives in another state. Whose law applies in that situation? Naturally, the states have come up with a generalized test for the court to consider.

The test is usually referred to as the “significant relationship” test. The court will determine which state has the strongest connection to the lawsuit. It will consider factors such as where the injured party lives, where the injury occurred, who caused the injury, and where the causing party lives. Where the injury actually occurred is important because witnesses and evidence will be gathered from the scene. If those witnesses and evidence have to be transferred to another state, then the trial may become a lot more time consuming and expensive for both parties. In order to maintain efficiency, the court will weigh the location of the incident heavily.

In February of this year, the Fifth Circuit Court of Appeals considered a case where choice of law was a major issue. In this case, an individual was killed as he was being transported in a helicopter to an oilrig in international waters off the coast of Louisiana for employment purposes. The helicopter hit a bird and went down, killing eight of the nine people that were in it. The crash was attributed to a product defect.

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When a court award damages, the judges commonly look to whether or not that pain and suffering can be attributed to the defending party, the amount of time a victim suffered, and how much pain and suffering occurred. The cause is perhaps the most important aspect of whether or not a party will be awarded damages. It makes little sense for a defendant to have to pay for pain and suffering to the plaintiff if the defendant’s actions did not cause that pain and suffering. Then, the length and intensity of the suffering will help determine how much money will be awarded.

In a recent case, the plaintiff appealed from the Parish of Lafayette to the State of Louisiana Court of Appeal for the Third Circuit based on the issue of damages. In this case, the plaintiff was in a car accident where she suffered significant damage to her back. As a result of this injury, she spent approximately twenty-eight months with the chiropractor attempting to correct the damage sustained to her lower back.

Although the victim visited the chiropractor before the accident occurred, the doctor recorded the services rendered before and after the accident. The doctor stated that the victim’s injuries worsened and the accident definitely caused the worsened condition. The lower court awarded general damages and medical fees, but it only ordered enough general damages that would cover seven months after the accident. It explained that the victim was already seeing the chiropractor; therefore, the services she received after the accident were only relating to a condition that was already present before the accident.

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A do-not-resuscitate order (“DNR”) is a formalized direction to medical personnel that they are forbidden from performing life-saving efforts on an individual who is in need of care. In Jones v. Ruston Louisiana Hospital Company, the decedent filed a DNR, which was kept on record,  with the Northern Louisiana Medical Center (“NLMC”) in Ruston, Louisiana. In July of 2009, the decedent was admitted to the NLMC for medical treatment; and six days later, despite the very clear instructions of the DNR, NLMC employees resuscitated him when he went into cardiac arrest. Thereafter, the decedent suffered unnecessary and extensive physical disabilities, requiring rehabilitative treatment for two months until his death.

The decedent’s family members (the “Plaintiffs”) posthumously brought suit against NLMC for the following four claims: (1) reimbursement for medical expenses in connection with his rehabilitation care; (2) physical and mental pain and suffering; (3) loss of enjoyment of life and cognitive decline; and (4) bystander recovery. However, the NLMC fired back with a procedural defect argument that the Plaintiffs skipped a crucial step in bringing the lawsuit. An “exception of prematurity” was filed based on the Louisiana Medical Malpractice Act (“LMMA”), which requires that a case be brought before a medical review panel prior to claims being filed in court when the defendant is a qualified healthcare provider. This exception applies when the underlying alleged conduct of the defendant exists under the LMMA umbrella. Specifically, and most importantly in this case, the claim must be for medical malpractice claim and not general tort liability.

The issue at hand was whether the Plaintiffs’ claims were based on medical malpractice or general tort law. In order to resolve this issue, the court relied on Coleman v. Deno (2002), which established the following six factors: (1) whether the wrong is “treatment related” or caused by  failure to exercise professional judgement; (2) whether the wrong requires expert medical evidence to determine whether a standard of care was breached; (3) whether the patient’s condition was assessed; (4) whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities that a hospital is licensed to perform; (5) whether the treatment caused the injury or would have happened without medical care;  and (6) whether it was an intentional tort.

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