Articles Posted in Miscellaneous

As we have explored in numerous prior posts, a doctor or other healthcare provider owes his or her patient a duty to meet the standard of care applicable to the patient’s situation. The failure to follow the standard of care points to the doctor’s negligence which, in the case of the death of the patient, can give rise to a claim of “lost chance of survival” for the spouse or children of the deceased. In a lost chance of survival action, the plaintiff “does not have to shoulder the unreasonable burden of proving that the patient would have lived had proper treatment been

given.” Rather, the plaintiff must establish by a preponderance of the evidence that the doctor’s negligent conduct “denied the patient a chance of survival.” In other words, a lost chance of survival claim will not be successful if the patient would have died anyway due to causes unrelated to the doctor’s actions; the plaintiff must tie the doctor’s negligence to the death of the decedent. Whether a plaintiff carries this burden is a question of fact reserved for the jury.

Third Circuit Court of Appeal recently reviewed a jury verdict on this question in the case of Skinner v. Christus St. Francis Cabrini Hospital. Robert Skinner was admitted to Christus Hospital in Alexandria on August 17, 2000 for an elective hemorrhoidectomy and partial sphincterotomy. He died the following morning after spending the night in the hospital. His wife, Pamela Skinner, filed suit against the hospital and Stephen Ford, the nurse who had charge of Mr. Skinner from 7:00 PM to 7:00 AM during the night of his stay. At the trial, various witnesses from the hospital explained that the surgery had gone well. The only reason Mr. Skinner stayed overnight was because of his high level of anxiety over the procedure. Mr. Skinner had a history of mental and physical problems, and was taking numerous prescription medications to address his depression, high blood pressure, high cholesterol, and heart burn. Several members of the hospital staff reviewed Mr. Skinner’s medication list on separate occasions, and each time he neglected to mention that he had taken a particular antidepressant prior to coming to the hospital. In fact, the toxicology screening that was conducted as part of an autopsy revealed dangerously high levels of the drug in his system–a concentration which the medical experts in the case agreed was “known to kill.” Nevertheless, the jury found that the evidence supported the conclusion that the hospital and Nurse Ford failed to properly monitor Mr. Skinner after the surgery, Therefore, the defendants “deviated from the appropriate standard of care in the medical treatment of Mr. Skinner,” causing a lost chance of survival. The jury awarded Mrs. Skinner $250,000 in general damages. The defendants appealed, arguing that the jury erred in finding the plaintiff had carried her burden.

According to the Louisiana Code of Civil Procedure, a defendant can file an “exception of prematurity” to challenge whether the plaintiff’s cause of action has “matured to

the point where it is ripe for judicial determination.” A classic (mis)application of the exception is found in the 1999 case, Steed v. St. Paul’s United Methodist Church. In that case, the church’s choir director sued the minister for sexual harassment. The minister filed a counter-claim for defamation, arguing that the choir director’s false allegations damaged his reputation in the Monroe community. Before the appellate court, the choir director asserted that the minister’s defamation claim was premature because the trial court had not yet entered a judgment declaring that her harassment allegations were false (truth being an absolute defense to defamation). However, because the choir director never filed an exception of prematurity in the trial court, she could not raise the issue on appeal. This is because, as a “dilatory” exception, it is waived if not specifically pled and a court cannot “supply an exception of prematurity on its own motion.”

A similar failure to plead the exception plagued the plaintiff in the more recent case of Moreno v. Entergy Corp.. Daniel Moreno was badly shocked while working around overhead power lines in Jefferson Parish. Moreno sued Entergy Corporation, the owner of the power lines. Entergy filed a cross-claim against Moreno’s employer, Stewart Interior Contractors, LLC. Entergy argued that, if it were found liable for Moreno’s injuries, the Act would create a right of indemnity against Stewart because the contractor violated the Overhead Power Line Safety Act (the “Act”) by working near the power lines without first contacting the owner of the lines (Entergy) and making the necessary safety arrangements. The trial court ruled against Entergy, finding that the Act “does not create an independent right of indemnity for damages incurred as a result of injuries suffered by third parties.” When Entergy appealed this judgment, the Fifth Circuit Court of Appeal affirmed on the grounds of prematurity, though the exception had not been raised by any party. The Fifth Circuit declared that because no fault had yet been allocated to any party, no cause of action for indemnity had been created. The court entered an “exception of no cause of action on the basis of prematurity,” a judgment which had not been seen previously in Louisiana jurisprudence. Upon review, the Louisiana Supreme Court found that the Fifth Circuit erred as a matter of law in supplying the exception to prematurity on its own motion. “Although the court of appeal claimed it was entering an exception of no cause of action, the judgment was not truly based on the legal insufficiency of the allegations [for which it was permitted to raise an exception on its own accord]. It is clear that the court based its ruling solely on the theory that Entergy’s indemnity claim was not ripe for adjudication, which is properly raised only via dilatory exception.” Accordingly, the court reversed the Fifth Circuit and remanded the case.