Articles Posted in Medical Malpractice

In litigation, the term venue means “the location where an action or proceeding may properly be brought and tried under the rules regulating the subject.” In other words, for each suit, there is a particular court where the plaintiff should file based on the situation’s unique facts. The Louisiana Code of Civil Procedure’s general rule of venue states that a defendant must be sued in the parish where he is domiciled (where he lives). LSA-C.C.P. Art. 42.

However, the Code also provides the following exception:

“An action for the recovery of damages for an offense … may be brought in the parish where the wrongful conduct occurred, or in the parish where the damages were sustained.” LSA-C.C.P. Art. 74.

A recent Louisiana Court of Appeals decision does a good job of explaining the elements of a medical malpractice claim and some pitfalls that might be encountered along the way.

In this case, Jessica Parker of Beau Bridge filed a suit against University Medical Center after she underwent two gall bladder surgeries at the Lafayette hospital in 2002 and 2003. The first surgery was for the removal of Parker’s gall bladder and stones in her common bile duct in November of 2002. In January of 2003 she returned to the hospital complaining of four days of flank pain, nausea, vomiting, and a “foreign body” around the incision site. She was admitted and a second surgery was performed to remove several small stones.

As required by Louisiana law before a medical malpractice case can be filed, Parker requested the formation of a medical review panel, complaining her surgery was botched and two metal clips were left inside her bile duct and caused an obstruction. In June 2005 the panel entered an opinion in favor of the hospital finding the appropriate standard of care was not breached. Following the unfavorable panel decision, Parker filed a lawsuit. The hospital moved for summary judgment and argued that because of the panel opinion and the fact that Parker did not use an expert witness to prove the applicable standard of care and breach there was no issue of material fact as to whether they were entitled to judgment as a matter of law. In opposition, Parker submitted uncertified and incomplete copies of her medical records. Following a hearing the motion for summary judgment was denied but the court instructed Parker that if no evidence was submitted they would dismiss the case. Parker did not appear at a re-hearing in September 2009 and her claims were dismissed and the hospital’s motion was granted. The Court of Appeals affirmed the trial court decision.

A patient visiting Lake Charles Hospital, located in Calcasieu Parish, filed a lawsuit against his treating physician alleging the doctor was negligent while diagnosing his symptoms. After the patient was hospitalized, the doctor ordered a stress test. Just minutes after the start of the test, the patient began to suffer from an abnormally rapid heart rhythm. In the lawsuit, the patient argued the doctor should not have ordered the test in light of the patient’s medical history.

All doctors owe their patients a certain level of care. When a physician breaches that level of care, they can be sued for medical malpractice. The Louisiana Revised Statute 9:2794(A) requires patients who believe they are victims of medical malpractice to establish three main elements. First, a patient must establish the standard of care of the doctor. Second, he/she must show that the defendant breached this standard of care. Lastly, a patient must prove “causation.” Specifically, he/she must be able to show that there was a connection between the doctor’s breach of his duty and the patient’s resulting injury.

Establishing a Physician’s Duty to His Patient

Many people believe that the term “medical malpractice” means a doctor can be sued any time a doctor harms or makes a mistake while treating a patient. Like most states, Louisiana’s Medical Malpractice Act protects doctors from frivolous, or meritless litigation, meaning incidental harm or minor mistakes made by a doctor will probably not result in a malpractice violation. The person bringing a malpractice claim against a doctor must prove certain elements exist, most commonly that: (1) the patient suffered a significant injury; (2) the doctor or hospital staff did not meet the standard of care typical of medical professionals; and (3) the medical mistake or lack of care was the direct cause of the patient’s injury.

To help you understand, please consider the following examples:

(A) A patient comes into a doctor’s office complaining of chest pains and indigestion. The doctor fails to make a diagnosis or provide treatment and sends the patient home. The patient suffers a heart attack the next day.

Medical malpractice claims and recovery based on those claims are regulated by Louisiana statute. As such, the law places limits on the time an injured party has to file a claim. Once a claim is filed, the review process is subject to intermediate deadlines. As the following case demonstrates, a misstep in either the overall time limit or one of these intermediate points can be hazardous to a malpractice claim.

The case of Carter v. Ochsner Clinic Foundation, 978 So.2d 562 (La. Ct. App. 2008), involved a plaintiff, Janet Carter, whose mother died because of an improperly placed catheter. Ms. Carter sued both the doctor and the clinic involved in her mother’s treatment. Unfortunately for Ms. Carter, her attorneys’ work also proved to be a little sloppy.

Ms. Carter’s mother passed away on July 14, 2005. Under Louisiana law, a claim for a wrongful death resulting from medical malpractice must be filed within one year of the death (La. Rev. Stat. Ann. § 9:5628). Technically, the law requires a plaintiff to file a claim within one year of the malpractice or one year of discovering malpractice. However, the Louisiana courts have reasoned that when a person dies, the potential malpractice is readily evident. Thus, the statute of limitations begins to run on the date of death.

A 2004 Louisiana Supreme Court case provides a good explanation of the difference between Medical Malpractice and ordinary negligence. Not every negligent act of a qualified health care provider falls within the Medical Malpractice Act (MMA), La.Rev.Stat. 40:1299.41(1).

In Williams v. Hospital Service of Jefferson, the plaintiff was injured as she was pushed in a wheelchair by an employee of West Jefferson Medical Center in Marrero, Louisiana. A wheel on the chair came off, she fell, and she was injured. She sued the hospital for negligent failure to repair the wheelchair and failure to insure that the wheelchair was in proper working condition. The sole issue the Supreme Court considered was whether the alleged negligence fell under the MMA. The Supreme Court of Louisiana determined it did not and sent the case back to the district court for further proceedings.

The Louisiana State Legislature enacted the MMA in 1975. One reason for the law was to provide health care providers with some advantages in actions against them for malpractice by limiting the damages that can be collected and requiring that each claim first be reviewed by a medical panel. The MMA only applies to claims “arising from medical malpractice” under La.Rev.Stat. 40:1299.41(1). Negligent behavior of health care providers that does not fit in the medical malpractice definition are governed by traditional tort principles. Courts have construed the coverage of the MMA strictly.

In October 2009, as Congress was caught up in the health care reform debate that is still raging on Capitol Hill, Merlyna Adams of LaPlace took a trip to Washington, D.C. to show legislators that she is not frivolous. Worried about proposals to limit patients rights in health care, Merlyna met with several other families at Washington to ensure that their stories were told. As reported by Public Citizen on their website,

Meryna met with members of Congress to express the difficulties she has encountered due to medical malpractice in the treatment of a kidney stone she had in 2007. Negligent treatment resulted in heart, renal, and pulmonary complications for Meryna as well as amputation of both her hands and legs below her knee. She shared with Congress how everyday activities are difficult, especially in her employment as a school principal.  Kidney stone treatment is not supposed to end in an intensive care unit with more removed then a kidney stone.

Stories like Merlyna’s show how devastating medical malpractice can be. Surviving medical malpractice is usually just the beginning, often due  to victims having to care for injuries that may be with them for the rest of their lives.  And many victims don’t make it. According to the Institute of Medicine, almost one hundred thousand Americans die each year from injuries that could have been prevented. In considering healthcare reform proposals, Members of Congress should focus on patient safety and reject legislation that takes the teeth out of recovery for medical malpractice.