Medical Malpractice

March 19, 2011

Court Throws Out Medical Malpractice Case Because the Case Was Not Timely Filed

In Louisiana, a general tort claim has a prescriptive period of one year. This means that the plaintiff must file a claim within one year of the injury bringing about the claim. The prescriptive period has been implemented by the Louisiana legislature in LSA-C.C. art 3492 and a brief summary gives us the following guidelines:

These actions must be filed within one year. The year mark starts on the day that the injury or damage occurs on however, there are some exceptions to this rule of one year. The exceptions would be in the individual is a minor or actions involving individuals with permanent disability, brought under the Louisiana Products Liability Act or the law of the state which governs actions of product liability at the time the injury or damage has occurred.

Thus, no one except a child or interdict can complain of the prescriptive period because it is clearly established by law. All attorneys are aware of this period and any action, in order to be timely, must be filed within the one year period. However, Louisiana law also states that this period can be altered by legislation. This means that article 3492 is a fall back provision for cases where the legislature has not created another sort of prescriptive period. Different prescriptive periods are implemented due to the nature of the injury or damage. For example, medical malpractice claims also have a general one year prescriptive period, but the legislation creates leeway to bring a claim past the one year prescriptive period. The prescriptive period for a survival claim based on medical malpractice is implemented by LSA-R.S.9:5828 as follows:

March 15, 2011

Medical Malpractice Claims Against Public Sector Health Providers Must Be Submitted to a Medical Review Panel

by Berniard Law Firm

Medical Malpractice Claims Against Public Sector Health Providers Must Be Submitted to a Medical Review Panel

The State of Louisiana Division of Administration, headquartered in Baton Rouge, requires that that medical malpractice claims against public sector health care providers must be processed through its administrative procedure, starting with the submission of the claim to the Commissioner of Administration.

A request for a Medical Review Panel must be in writing and contain:

March 13, 2011

Medical Malpractice Suit for Wrongful Death Action of Unborn Child

by Berniard Law Firm

Medical malpractice can be a serious issue that involves very unfortunate circumstances and strong feelings. One such case, analyzed below, examines the parameters of such a matter and how they are handled. Because of the sensitive nature of this case, names will not be used and, instead, the individuals involved will be referred to as doctor, plaintiff, etc. The issue in the case is whether the plaintiff, without presentation of any expert testimony, should be able to sustain her case of proving at trial that the defendant’s (doctor’s) conduct constituted a breach in the appropriate standard of care and this breach resulted in the wrongful death of the unborn child.

The unfortunate plaintiff in this case came to see defendant doctor complaining of cramps and missing menstrual cycle; she was 28.4 weeks pregnant at the time. The doctor, determining that she needed a higher level of neonatal care due to complications during labor, transferred the patient to Rapides Women’s and Children’s Hospital “RWCH” (Parish of Rapides). The doctor’s order showed that the pregnant woman was suffering from placental tear and an obstetrician-gynecologist at RWCH accepted this transfer. Upon the plaintiff’s arrival, fetal heart rates were no longer detectable; after a C section, doctor delivered a still-born fetus.

The plaintiff claims that it was primarily due to the doctor’s negligence in failing to meet the applicable standard of care during the medical procedure that the fetus was still-born. The defendant doctor, on the other hand, argues that his actions did not fall below the appropriate standard of care.

March 4, 2011

Duty of Care Doctors Owe their Patients and Medical Malpractice

by Berniard Law Firm

The level of care required of medical practitioners is very high. This is because people put their trust, and sometimes their lives and well being in the hands of a doctor or surgeon. The level of care is high because we must attain the very best from the people who perform the most delicate and important tasks the affect our lives. This is true of doctors, lawyers, and anyone else who has the position of a fiduciary. When the level of care falls below the bare minimum, the result can be disastrous. In a recent case, Ronald and Peggy Bianchi v. Dr. Ernesto Kufoy, the Third Circuit Louisiana Court of Appeal had to decide whether damages done to a patient were a result of the doctor’s negligence or were an acceptable outcome of the procedure.

On October 30, 2002, Mr. Bianchi went to Dr. Kufoy for a cataract surgery and the implantation of an artificial lens in the right eye. The lining of the old lens was to remain intact so as to allow the placement of the new artificial lens on that lining. However, during the surgery, the old lining was torn out. It was found that this could occur without any negligence. Another artificial lens was used due to this complication, and it was not argued that anything had occurred during this setback that amounted to medical negligence. When Mr. Bianchi returned for his post surgery check-up, he complained of pain in his right eye. Dr. Kufoy checked the eye, but did not investigate the cause of the pain and the resulting loss of eye sight. Over the course of the next few days, Mr. Bianchi’s eye pain increased. When he came to see Dr. Kufoy next, Dr. Kufoy diagnosed him with a form of glaucoma and referred him to a specialist. By the time he went to the first specialist, Dr. Jeff Lanier, Biachi had only light perception in his right eye. This was one step above total blindness. Dr. Lanier disagreed with Dr. Kufoy’s glaucoma diagnosis, and found that there was a hemorrhage in the choroid, which likely began during the initial surgery. The second specialist drained the hemorrhage.

At trial, the jury found that Dr. Kufoy’s actions were lower than the level of care required by his profession. The jury also found that there were clear damages to Mr. and Mrs. Bianchi. In a medical malpractice case, the plaintiff has two levels of burden. First, plaintiff must prove by preponderance of the evidence that the doctor’s treatment fell below the standard of care required for the profession. Second, the plaintiff must prove that the sub-par standard of care resulted in the injury. The jury based its determination that there was no causation shown on the fact that there was contradicting evidence. The Appellate Court cited to the standards it was using to judge the jury’s determination:

February 27, 2011

Court Discusses Prescriptive Period in Medical Malpractice Case

by Berniard Law Firm

Regular readers of this blog are no doubt aware that the Louisiana Medical Malpractice Act requires that all “claims against healthcare providers be reviewed or ‘filtered’ through a medical review panel before proceeding to any other court.” Also, medical malpractice suits are subject to a period of prescription — that is, the action must be filed within a certain period of time following the incident. La. R.S. 9:5628 establishes that this time period is one year from the negligent act or the date of its discovery, with the added limitation that the discovery extension is inapplicable after three years. State statute also specifically addresses how the medical review panel’s review of the case affects the prescriptive period. According to La. R.S. 40:1299.47(B), the running of the prescriptive period is suspended by the medical review panel’s proceedings until the panel’s decision is communicated to the plaintiff. In effect, the time required by the panel to review the case and issue a finding does not “count against” the plaintiff when determining the latest point at which the law permits him or her to file suit.

The plaintiff in the recent case of Blake v. Maley saw the dismissal of her suit due to her failure to file the action before the prescription period expired. Beverly Blake filed a request for a medical review panel on June 2, 2004. The request alleged medical malpractice against Dr. Warren Maley and the Willis Knighton Medical Center in Dr. Maley’s misdiagnosis of a fatal drug reaction suffered by her husband, Barry, who died on January 31, 2004. The medical review panel rendered a unanimous decision in favor of the defendants on May 15, 2007 and mailed the decision letter to Blake on May 25, 2007. Blake filed suit on November 3, 2009. In response to Dr. Maley’s subsequently filing an exception of prescription due to the delay, Blake responded that she was mentally incapable of filing the claim in a timely manner because she was severely depressed during the month of July, 2009. The trial court granted Dr. Maley’s exception and dismissed Blake’s suit. On appeal, the Second Circuit noted that Blake “concede[d] that the date of the alleged malpractice occurred on June 22, 2003, when Barry Blake received the drug” that caused the fatal reaction. Thus, Blake’s request for medical review by the panel was timely, and her “cause of action was suspended by the medical review panel proceedings until the mailing of the opinion on May 27, 2007.” After that date, the court calculated, Blake had 90 days plus the additional 20 days left on her original one-year period to file her suit. Yet, Blake filed her suit on November 3, 2009, “nearly two years after the prescriptive period for filing suit had tolled and more than six years after Blake’s stated date of the act of malpractice.” Blake’s argument for additional tolling due to her mental condition did not move the court. Observing that Civil Code Article 3468 provides that “[p]rescription runs against absent persons and incompetents, including minors and interdicts, unless exception is established by legislation,” the court determined that no statutory exception was available and that, accordingly, Blake’s “claims have clearly prescribed.”

The Blake case demonstrates the courts’ strict adherence to the timing requirements contained in Louisiana’s prescription statutes. While a widow’s state of depression following the death of her spouse is entirely understandable, it is critical to remember that the law demands swift action on the part of plaintiffs to initiate a lawsuit in medical malpractice cases.

February 26, 2011

Court Dissects Nursing Home Wrongful Death Case

by Berniard Law Firm

Many families in America have had to move their loved ones into a nursing home. Whether the reason is that they don’t have the room to care for the elder, they don’t have the time or money to provide adequate care, or their elder wishes to be in the nursing home, the decision to send them to a nursing home is a difficult one. Families may be concerned about the level and amount of care their elders receive at the nursing home. Continuous stories of abuse at nursing homes may also be a cause of concern for families. Nursing homes are given a high level of trust in the care of their patrons. When this level of trust is broken, the results can be horrific and unacceptable. The law provides for levels of care that nursing homes and medical practitioners have to live by. Once these levels of care are ignored, the law steps in to provide relief for families.

In Braud v. Woodland Village, LLC, the issue was whether the trial court instructed the jury to view the case under the right legal standard. Mr. Braud was diagnosed with Alzheimer’s disease and Pick’s dementia. This combination of diseases left Mr. Braud with many issues including an eating disorder and a higher chance of heart attack. Mr. Braud was moved to Woodland Village nursing home (Woodland). After his arrival at Woodland, Mr. Braud began showing signs of aggression towards staff. He was prescribed anti-psychotic medication as part of his treatment. After some time, Mrs. Braud reported to her husband’s physician that Mr. Braud seemed very zombie-like. The physician instructed the Woodland staff that they were to check on Mr. Braud every 15 minutes for signs of distress. This was carried on for some time. The method used to check on Mr. Braud was to look through the window into his room to observe whether he was under any distress. The Woodland staff were never instructed to enter the room to check close-up. On September 2, 2004, after a 45 minute period of no Woodland staff checking on Mr. Braud, he was found to be unresponsive. Woodland staff called paramedics who arrived to the scene to find that Mr. Braud was likely dead for at least an hour before their arrival from a heart attack. At no point did any member of the Woodland staff attempt CPR on Mr. Braud. Mr. Braud’s family (collectively “plaintiff”) filed suit against Woodland for wrongful death and were awarded an amount of $1,650,000. After trial, defendants argued that (1) there was no harm from alleged medication errors (2) there was no evidence that Mr. Braud could be resuscitated (3) the award of $1,650,000 was far above the $500,000 statutory amount (4) there was no evidence that Woodland caused the heart attack and (5) evidence presented proved, at most, that there was a loss of chance of life, not that there was wrongful death. Woodland lost on all of these claims except that the amount of damages was reduced to $500,000. Woodland appealed the decision stating that the trial court’s refusal to include jury instructions for the “loss of a chance of survival” claim was a grounds to reverse the jury decision. The plaintiff appealed the decision to reduce the damages to $500,000.

In Louisiana, pursuant to LA.Rev. Stat. Section 9:2794(A), to find medical malpractice, the plaintiff must establish the standard of care applicable to the charged physician, a violation by the physician of that standard of care, and a causal connection between the physician’s alleged negligence and the plaintiff’s injuries resulting therefrom. The standard attributed to the physician is the standard used in Louisiana, based on the type of field, locale, and community in which the physician or medical practitioner practices. Further, in order for an appellate court to overturn a fact-finder’s decision, a two-prong test is used to analyze the result. First, the appellate court must find from the record that a reasonable factual basis does not exist for the finding in the trial court. Second, the court must further determine that the record established that the finding is manifestly erroneous.

February 25, 2011

First Circuit of Louisiana Allows Lost Chance of Survival Tort Case to Go Forward and Specifies Burden of Proof

by Berniard Law Firm

In June 2010, the First Circuit of the State of Louisiana Court of Appeal reversed and remanded the case of Lena Hebert et al. v. Plaquemine Caring, L.L.C. due to a legal error committed by the Eighteenth Judicial District Court for Iberville Parish. This legal error proved to be a compelling element to the case and demonstrates why a competent attorney is highly important, especially in the case of a loss of a family member or other personal injury element.

The plaintiffs in this case are the survivors of the deceased, Mr. Morgan Hebert. He suffered a fractured hip from falling, but had a heart attack before he was able to undergo surgery. Upon leaving the hospital, Mr. Hebert was discharged to a long-term skilled nursing facility owned by the defendants, Plaquemine Caring, L.L.C. At the time Mr. Hebert was admitted to the nursing facility, he had been diagnosed with several serious conditions, which required him to be dependent upon a ventilator. On October 19, 2001, his family members found him cold and nonresponsive. They notified the staff at once and Mr. Hebert was pronounced dead from respiratory failure, cerebrovascular accident, and cervical neuropathy.

Mr. Hebert’s surviving spouse and children alleged that the defendants’ fault and negligence caused Mr. Hebert’s loss of a chance of survival. After a bench trial, the judge granted the defendant’s oral motion for involuntary dismissal, finding that plaintiffs had not established that a breach of the standard of care was a cause of Mr. Hebert’s death. The First Circuit Court of Appeal reversed and remanded because the trial court used the incorrect legal standard in granting defendant’s motion.

February 23, 2011

Disastrous Results for Plaintiffs that Wait Too Long to File Suit

by Berniard Law Firm

In Louisiana, there are certain steps that need to be taken in order to file a case for medical malpractice. In order to get a case to trial, a plaintiff must first submit a malpractice petition to a medical review board. The board reviews the facts surrounding a case and compares health care providers with a basic standard of care required for those practitioners in the locale in which they practice. If the board decides in favor of the defendants, the plaintiff can take the case to a judicial proceeding. A civil case in Louisiana must be filed or settled within a year.

This is the basic fall-back provision of how long a case can remain in effect. The legislature has the authority to add to this period for certain causes of action, in certain circumstances. For example, a medical malpractice claim must usually be filed within one year from the negligent treatment. However, if the plaintiff did not know that the medical malpractice occurred, the plaintiff can file within one year of discovering the malpractice. In any case, no claim can be filed more than three years after the alleged negligent treatment. Thus, even if the negligent treatment is not discoverable until four years have gone by, the plaintiff will be out of luck and the time for filing the suit will have expired.

The medical review board takes a great deal of time to make a decision. Thus, while the review board is making a determination, the one year prescription period is stopped to allow the board to make its decision without taking away the plaintiff’s time to bring a case. However, once the review board has made a decision, the plaintiff only has 90 days plus any additional time left over from the one year prescription period to file a claim.

February 22, 2011

Understanding Medical Malpractice and Legal Caps to Awards

by Berniard Law Firm

The Court of Appeals of Louisiana, Third Circuit, recently held the Medical Malpractice Act’s (MMA) award limitation unconstitutional when applied in violation of the Equal Protection clause of the 1974 Louisiana State Constitution. In Oliver v. Magnolia Clinic, a minor child was treated by a nurse practitioner who failed to identify tell-tale signs of neuroblastoma, a form of childhood cancer originating in the nerve tissue, and failed to refer the child for more specialized care in a timely manner. The matter was originally tried before a jury, which returned a verdict against the nurse practitioner in favor of the child’s family, for $6,000,000.00 in general damages. The MMA’s $500,000.00 award cap would have severely limited this verdict, to one-twelfth of the jury’s award. Plaintiffs filed a Petition for Declaratory Relief asserting the MMA is unconstitutional. The plaintiffs made a number of claims that the MMA cap violates the Louisiana State Constitution, including an argument based on the equal protection guarantee of La.Const. art. I, § 3. Because the court found the “equal protection” argument had merit, it did not address the other constitutional challenges raised by the plaintiffs.

The Louisiana Supreme Court made clear in Everett v. Goldman that unless a fundamental right is impacted or a separate or suspect classification is created, the legislature is constitutionally free to limit damage recoveries or to grant immunities from suit so long as it articulates a rational basis for the discriminatory treatment reasonably related to the governmental interest sought to be advanced. The Supreme Court has also held that the right of malpractice victims to sue for damages caused them by medical professionals does not involve a fundamental constitutional right, and requires only rational basis review. However, because the MMA, on its face, discriminates between classes of people based on physical attributes, the Louisiana Supreme Court held in Sibley II that the State must articulate more than a “rational basis” for the cap in cases involving severely or catastrophically injured victims of malpractice to avoid Article 1, §3’s constitutional bar to its enforcement.

In this case, the minor child is a severely injured victim of malpractice. She was injured as a baby and she will endure a lifetime of devastating and debilitating effects on her capacity to perform even basic human functions. The State failed to present evidence to the contrary. Thus, on appeal, the Court decided that “there simply is no rational reason why the most severely injured malpractice victims should be singled out to pay for special relief for a nurse practitioner who operated in derogation of her statutorily mandated duties.” The Court also concluded that “the cap, to the extent it includes nurse practitioners within its ambit, violates the equal protection guarantees of the Louisiana Constitution and La.R.S. 40:1299.41(A)(1), and, thus, is unconstitutional.” The Court reinstated the jury’s award of damages to the plaintiffs.

February 21, 2011

Transferable Rights and How They Pertain to a Lost Pregnancy

by Berniard Law Firm

Certain legal rights are transferable. If you owe a debt to some entity, upon your death, there is a chance that the entity will have some rights to your estate in order to satisfy your debt. Another example of a transferable right is a right of survival. If the victim in any circumstance has this right, upon the victim’s death, the right would be transferable to the victim’s family. The concept is relatively easy to understand but the situation gets complicated when the potential rights belong to an unborn fetus.

Throughout the country, different states have different interpretations of when a fetus becomes a person, and this has a big impact on what rights attach to protect the fetus. In Louisiana, the legislature has decided that an unborn fetus can in fact have rights against other persons or entities. However, Louisiana Civil Code article 26, which discusses a fetus’ rights, has some important limitations:

An unborn child shall be considered as a natural person for whatever relates to its interests from the moment of conception. If the child is born dead, it shall be considered never to have existed as a person, except for actions resulting from its wrongful death.