Articles Posted in Medical Malpractice

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With the vast criticisms that surround medical malpractice cases, it is no wonder why many keep a close eye on these types of cases. While it is very rare for an appellate court to do so, once in a blue moon an appellate decision will overturn a jury verdict of a medical malpractice judgment. Patten v. Gayle is one of those cases in which the plaintiff appeals the court’s verdict that malpractice occurred, but resulted in no injury and thus awarded no damages.

The plaintiff, Ms. Charlotte Patten, was the patient of her OB-GYN, Dr. Christopher Gayle, the defendant. Dr. Gayle had scheduled Ms. Patten for a laparoscopic evaluation after Ms. Patten complained of severe pain that was believed to be related to an abdominal hysterectomy she received from Dr. Gayle in 1997. In performing the procedure, Dr. Gayle placed multiple operative trocars (a medical instrument used to gain access into the abdominal cavity) throughout the abdominal area in order to insert a laparoscope, which enabled Dr. Gayle to see within Ms. Patten’s abdominal cavity. While performing the procedure, Dr. Gayle moved the trocars to gain better visibility of Ms. Patten’s abdominal cavity, and inadvertently punctured Ms. Patten’s abdomen. Initially, Dr. Gayle did not believe that the abdomen cavity had been compromised, but after further investigation later in the procedure, Dr. Gayle discovered that the trocars had penetrated through Ms. Patten’s small bowel. The result of the injury required Dr. Gayle to have the hospital’s general surgeon perform an emergency surgery on Ms. Patten to correct the error. In addition, feculent material was found to have leaked into Ms. Patten’s abdominal cavity a few days after the surgery had been completed, resulting in an abdominal infection known as peritonitis and pneumonia. After her recovery, Ms. Patten filed a medical malpractice suit against, among other individuals, Dr. Gayle. The jury determined that Dr. Gayle had in fact deviated from the required standard of care and had committed malpractice, but found that his actions did not result in the injuries sustained to Ms. Patten and awarded no damages. Ms. Patten appealed stating that the jury manifestly erred in finding a lack of causation between Ms. Patten’s injuries and Dr. Gayle’s malpractice.

In medical malpractice cases, the appellate courts apply the manifest error standard of review when ruling on issues of causation. The manifest error standard, as stated in Johnson v. Morehouse General Hospital, mandates that an appellate court may not overturn a trial court’s ruling, unless it is determined that the court’s factual determination is clearly wrong or manifestly erroneous. The court in Johnson states that it is not enough that the appellate court disagree with the trial court’s decision, it must find that there is no reasonable factual basis for the trial court’s conclusion. The court in Lovelace v. Giddens requires the appellate courts to pay close attention to medical malpractice cases when it comes to conclusions of causation, as great deference must be given when medical experts make differing conclusions as to medical causation.

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A lawsuit can be resolved in many ways. Prior to formal court proceedings, the suit may be dropped voluntarily for one reason or another, or the parties might come to an agreement in mediation. If the case goes to trial, it may be resolved with the judge or jury entering a verdict after a full trial. It may also be resolved before the close of proceedings by way of dismissal. If a case is dismissed it can have serious repercussions for a suit, and often destroys the likelihood of recovery if a dismissal is entered against a plaintiff. There are many types of possible dismissals that can end a proceeding including the involuntary dismissal of a claim.

Louisiana Code of Civil Procedure Article 1627 governs involuntary dismissal. The plaintiff presents their case first, and upon the completion of the presentation of the plaintiff’s case, the defendant may make a motion for involuntary dismissal. The judge then reviews the evidence presented. If he finds the plaintiff has shown no right to relief, he may grant the motion for involuntary dismissal. On a motion for involuntary dismissal, the plaintiff’s testimony should generally be accepted as true. So long as the plaintiff has presented enough evidence to establish his argument by a preponderance of the evidence, a fairly low burden of proof, the case should be allowed to proceed and the motion denied. If the motion is granted, the plaintiff can appeal the decision. A decision granting involuntary dismissal is difficult to overcome on appeal but it is not impossible. The 2011 case of Settle v. Paul illustrates what can happen where a plaintiff successfully appeals an involuntary dismissal.

In 2009, James Settle sued Brenda Michelle Paul, his ex-girlfriend, in a dispute over the existence of a partnership agreement between the parties. Mr. Settle and Ms. Paul formed a construction company and took on several small projects in the company’s infancy. In 2003, Ms. Paul filed the necessary paperwork to have the company incorporated in Louisiana, forming the limited liability corporation Landmark Construction Company of Coushatta (Landmark). She was listed as the sole member of Landmark. Mr. Settle agreed that the parties decided Ms. Paul would be the sole member of the corporation because they wanted the company protected from seizure against Mr. Settle’s child support obligations. The company was profitable throughout the duration of its operation.

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Previously on this blog, we have explored a number of cases where a party has faced defeat in court because of the failure to follow a procedural rule in litigation. Louisiana’s rules of civil procedure are designed to require a timely commencement to a suit and to ensure that the suit is then adjudicated in an expedient manner. Similar rules apply to the procedure for summary judgments. Motions either for or in opposition to summary judgments may be accompanied by affidavits (in fact, in some cases, affidavits are required). An affidavit must be filed no later than eight days prior to the hearing on the motion. La. C.C.P. art. 966(B). A party’s failure to observe this time requirement will result in the court’s excluding the affidavit from consideration. As the plaintiff in Sims v. Hawkins-Sheppard learned, such a failure can result in a dismissal of the case when the affidavit is critical to opposing summary judgment.

On May 22, 2009, Rebecca Sims sued Dr. Tonya Hawkins-Sheppard alleging medical malpractice after Sims’s son was severely injured and disfigured during delivery at the Glenwood Regional Medical Center in Ouachita Parish. During the discovery phase, Hawkins-Sheppard requested the identity of any medical expert who could support Sims’s claim of malpractice. Sims responded that she had not consulted a medical expert, and Hawkins-Sheppard filed a motion for summary judgment. A hearing on the motion was set for May 4, 2010. Sims requested, and was granted, a continuance of the hearing until July 7, 2010. Sims then filed an opposition to summary judgment that included an unsigned physician’s affidavit. Sims’s lawyer stated that the unsigned affidavit would be replaced with a valid affidavit before the scheduled hearing on the motion. No such substitution was made. On the day of the hearing, Sims explained to the trial judge that she had fired her lawyer and was seeking new counsel. Sims suggested that she had been misled by her attorney. Refusing to permit further delay, the judge went ahead with the hearing and then granted Hawkins-Sheppard’s motion for summary judgment. Sims appealed. The Second Circuit found that the trial court had abused its discretion in failing to permit Sims a reasonable amount of time to find new counsel and to substitute the unsigned affidavit with a valid, signed version. Hawkins-Sheppard then appealed to the Supreme Court of Louisiana, which reached a different result. “[W]e find no abuse of the trial court’s discretion in this case,” the supreme court stated. “[Sims] failed to show ‘good cause’ under La. C.C.P. art. 966(B) why she should have been given additional time to file an opposing affidavit.” Consequently, the court concluded, there was no genuine

issue to the material fact that Sims was unable to prove that Hawkins-Sheppard breached the standard of care. A medical malpractice action is one that, on summary judgment, requires a valid affidavit containing a medical expert’s opinion on the issue of the doctor’s breach of duty. Had Sims’s motion been accompanied by a valid affidavit, she could have avoided the trial court’s grant of summary judgment. Thus, the court reversed the Court of Appeal and affirmed the trial court’s grant of summary judgment in favor of Hawkins-Sheppard.

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In order for a court to have jurisdiction over a person, proper service of process must be employed, giving legal notice to the party of the suit and enabling them to timely prepare in anticipation of the suit. If proper service is not performed, a court may not have jurisdiction over such person. In a recent Louisiana Supreme Court case, the requirements of proper service were explored in order to determine whether the proper steps were employed. proper service of process is one of the most important parts of a law suit, without proper service, the defendant may not be forced to participate in the case. Thus, the importance of proper service cannot be emphasized enough.

The case at issue involves the plaintiff, who fax-filed suit against several defendants, including the State of Louisiana, through the Department of Transportation and Development (DOTD), seeking to recover damages arising from an automobile accident. In the plaintiffs petition, requested service on DOTD though the attorney general was made. The issue became whether the plaintiff’s service of process was insufficient based on the fact that he did not request service on the secretary of DOTD. Citing to Louisiana Revised Statute 13:5107(A) which provides in part:

“In all suits filed against the state of Louisiana or a state agency, citation and service may be obtained by citation and service on the attorney general of Louisiana, or on any employee in his office above the age of sixteen years, or any other proper officer or person, depending upon the identity of the named defendant and in accordance with the laws of this state, and on the department, board, commission, or agency head or person…”

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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.

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The ABA (American Bar Association) has called upon lawyers and non-lawyers alike to submit blogs from across the internet as exceptional examples of legal advice and content. With content about the law ranging widely across the internet, the ABA recognizes the value of those blogs that wish to educate the public about a wide range of issues as examples of how attorneys can help bring an understanding of public policy to the masses.

Through a form, located here, ABA members and/or the public can nominate the efforts of attorneys whose work helps explain the complexities that the law has to offer. While the competition prevents bloggers from nominating themselves, the ABA has requested that the work of their peers be showcased. Due by September 9th, blog suggestions can cover any topic of the law, whether maritime, personal injury, civil or criminal in nature. This possibility of diversity makes the Top 100 list all the more interesting because of the wide variety of content the selected are sure to cover.

If you know of a blog that wishes to discuss legal issues of interest to lawyers (and perhaps those outside of the field), click here to fill out the ABA’s form. Limited to 500 words, nominations should explain why the blog, obviously, deserves to be included in the list as well as its value as a whole. Nominated sites should avoid the regurgitation of content from other sites (copy and pasted quotes of news items, etc.), showing that the main focus of the content is original discussion of those issues of law that affect professionals as well as the public.

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When you have kids, you know how painful it is to watch when they are sick, to worry about every scratch, every bite. What is worse is when one child is sick, but another’s pain and suffering could have been prevented or alleviated with proper notice and tests. This is precisely what happened to Mickey and Amy Atkinson who consulted Dr. Young for treatment of their son Gabriel’s deep-skin pigmentation condition.

During the visit, Dr. Young diagnosed Gabriel with idiopathic Addison’s Disease but failed to test him to determine the cause of the disease, and this turned out to have reprecussions for the family. When Gabriel did not feel better, the Atkinsons sought a second opinion from another doctor, Dr. Janna Flint. To the family’s great dismay, Gabriel tested positive for a potentially fatal case of Addison’s Disease, which if left untreated, would result in death by age thirteen.

Upon finding this out, Dr. Flint recommended that the Atkinson’s other two sons get tested for this disease. As a result of Dr. Young’s failure to test the other sons, Evan and Luke, the Atkinsons filed suit alleging Dr. Young’s failure to test and sought damages. The doctor, however, stated that this case falls into an exception set out by the Louisiana Patient’s Fund Compensation Oversight Board because Luke was not a patient as defined within the meaning of the MMA (The Louisiana Medical Malpractice Act). Because of this exception, the claim is not subject to review by the medical review panel. Fortunately, the trial court heard the case and found that through Gabriel, Luke was a patient. Not only was the family dealing with the stress of two sick children, they were now preoccupied with the next steps to take in this matter.

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Hospitals, their staff, and doctors must treat patients in accordance with an established “standard of care.” A standard of care is generally the amount of care a reasonable person would exercise in a particular situation. For doctors and nurses this means that they must act in a manner similar to a reasonable person with similar training and skills in that profession. They must conform their conduct to the customs of their profession.

In the seminal case, Belinda and Jonathon Johnson (“the plaintiffs”) filed a lawsuit against Morehouse General Hospital and Ms. Johnson’s treating doctor. The plaintiffs alleged that the negligent care provided by the treating doctor and the hospital staff to Ms. Johnson resulted in injuries to plaintiffs’ son.

Belinda Johnson is an insulin-dependent diabetic and, because of this condition, her pregnancy was considered high-risk. In such high-risk pregnancies, delivery is usually accomplished through a C-section once the baby’s lungs have sufficiently developed. When Ms. Johnson was approximately 36 1/2 weeks pregnant, she made an appointment with her treating doctor because she had become concerned about the baby’s health. Over the course of the next four days, Ms. Johnson received care from Morehouse Hospital staff and her treating doctor because of continuing concerns regarding the Ms. Johnson’s baby. According to the trial court jury findings, both the Morehouse Hospital staff and the treating doctor were negligent in their care of Ms. Johnson. Ms. Johnson’s son was born with brain damage and cerebral palsy which were caused by lack of oxygen to the brain during the delivery process.

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After filing a lawsuit, plaintiffs are required to notify defendants of the impending suit so that they may defend and respond to the claim. Without notice that a lawsuit has been filed against them, defendants’ due process rights may be violated if an unfavorable judgment is entered or rendered without their knowledge. The time frame for this requirement – commonly known as “service of process” – varies among state and federal jurisdictions. In Louisiana, plaintiffs have ninety days from filing a lawsuit to request service of process, which is known in Louisiana as “citation and service.” The lawsuit officially begins once a defendant receives citation and service because only then will a court have jurisdiction over all of the parties. If service is not completed within the statutory period, defendants may justifiably make a motion to dismiss the case. Plaintiffs, however, may be able to defeat a motion to dismiss if they can show good cause for being untimely with the requirement. This issue was recently before the Supreme Court of Louisiana in George Igbinoghene and Sebastian Busari v. St. Paul Travelers Ins. Co.

In the seminal case, Igbinoghene and Busari (hereinafter “plaintiffs”) filed their petition in the parish of Orleans on May 18, 2007, but failed to request service within ninety days of the filing date. St. Paul Travelers Insurance Company (hereinafter “St. Paul”) filed a motion to dismiss for insufficient service of process. The district court denied the motion and St. Paul appealed.

On appeal, the plaintiffs argued that denying the motion to dismiss was proper because good cause was shown for being untimely since they agreed to St. Paul’s request to extend the time to file responsive pleadings. The Supreme Court found this argument unpersuasive given that such events occurred in 2008 and 2009, which were outside of the relevant period. Moreover, the Supreme Court stated that requesting an extension to file pleadings did not act as an express, written waiver of citation and service. In addition, the Supreme Court declared that St. Paul’s knowledge of the suit did not make citation and service unnecessary. To support this assertion, the Supreme Court relied on Naquin v. Titan Indemnity Co., a Louisiana Fourth Circuit Court of Appeals case, which held that “defendant’s actual knowledge of a legal action cannot supply the want of citation because proper citation is the foundation of all actions.”

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Gleason v. Louisiana Dept. of Health and Hospitals is a Medical Malpractice case arising out of the unfortunate death of a 47-year-old severely mentally challenged man, Donnie Gleason. Donnie had been a resident of Northwest since December of 1974 and was nonverbal and incapable of self-medicating, arranging or monitoring his own medical assistance. On December 23, 2002, after two earlier unsuccessful attempts, Donnie was transported to Willis Knighton Medical Center (“Willis Knighton”) in Bossier City, to undergo a routine CT scan and EEG after he suffered a seizure. When Donnie returned, he was lethargic and placed in the infirmary.

The documentation of his treatment there showed that Donnie had ingested a foreign object which caused a bowel impaction that precipitated Donnie’s fecal vomiting. Presumably due to his condition, Donnie was unable to expel the vomit and breathed some of the gastric content into his respiratory tract. At Willis Knighton, Donnie was placed on a ventilator in the intensive care unit and diagnosed with bowel obstruction, respiratory failure and aspiration pneumonia relating to the vomit aspiration. After a brief recovery, Donnie once again went into respiratory distressed, was placed on a ventilator, and passed. The staff were unable to revive him.

In Louisiana, medical malpractice complaints must first be filed with the Louisiana Patient’s Compensation Fund before a lawsuit may be commenced. That organization’s medical review panel ruled for the defendants in this action – Northwest (intermediate care facility) and Willis Knighton (hospital) and their doctors and physician’s assistants individually. The panel concluded that the evidence did not support the conclusion that Northwest failed to comply with the appropriate standard of care because they found no evidence that Donnie ingested a foreign object while there. After the panel ruling, Donnie’s family filed suit against Northwest and Willis Knighton. They alleged, among other things, that Northwest’s failure to properly supervise Donnie and his treatment and its failure to recognize the seriousness of his condition and the inadequacy of the monitoring of Donnie’s respiratory status.

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