Articles Posted in Negligence

Louisiana Woman’s

This latter part of the discussion regarding the McGlothlin v. Christus St. Patrick Hospital case is based upon the difference between issues of fact and law, and to who or whom such issues are to be determined. In this case, the issue gets blended with the difference between a lay person’s opinion and the opinion of an expert. This difference, though most commonly an issue during a jury trial, where the rules of evidence permit certain statements and opinions specific to either a lay person or an expert witness. A lay person may make statements as to observations based upon the common five senses (sight, sound, tough, taste, and smell) and may not make a statement as to one’s opinion regarding a material fact in question, that is the job of the jury. Similarly, an expert is permitted to make statements and observations based upon scientific, scholarly, or professional opinion regarding the facts, but as with lay person testimony, an expert may not make an opinion of the material fact in question, as it is the job of the jury. Thus, the job of the jury is to observe and digest the testimonies and facts presented, scrutinizing and determining whose is most credible, and thus determine, within the parameter of the law, the material fact or facts at issue.

Referencing back to the discussion in Part I regarding the medical review panel, the sole purpose of the medical review panel is to review all evidence and examinations of either party, and then “to express its expert opinion as to whether or not the evidence supports the conclusion that the defendant or defendants acted or failed to act within the appropriate standards of care.” Specifically, the doctors on the panel would determine whether, in their expert opinion as doctors in the field of medicine, and even more specifically orthopedics in this case, if the hospital, doctors, nurses, etc. failed to act according to the proper standard of care owed to patients. Here is where the blur between such an issue between fact and law arises. It appears that the doctors, in their expert opinions, are making a statement to the determination of a material issue of fact, which as discussed is reserved to the jury, however, statutorily, the medical review panel is given the purpose to determine this issue and make its opinion and give reasons, in short, according to whether the evidence supports or does not support the conclusion that the defendant(s) (hospital, etc.) failed to comply with or meet the applicable standard of care. This is very similar to the question a jury would be asked if determining whether a hospital or doctor, etc. committed medical malpractice.

Most people’s fear of hospitals is usually justified in that one does not usually go to a hospital unless there is something wrong, or something negative has occurred. Everyone who seeks medical treatment, whether in a hospital or private doctor’s office, is seeking an expert’s diagnosis and treatment to prevent future, or cure current, ailments, or to have one’s body ‘fixed’ in some way, as in a broken bone. Unfortunately, problems arise and the treatment one seeks does not always fully help, or even makes the issue worse. But sometimes, whose fault it is, that the problem does not subside, or that the problem only gets worse, is up for debate. That is where a medical malpractice issue arises, and the topic that shall be explored here.

The factual and legal basis of this discussion comes from the Louisiana Supreme Court case McGlothlin v. Christus St. Patrick Hospital, decided July 1, 2011. The issue in this case is, “whether [the Louisiana statute in question] mandates the admission of a medical review panel opinion when the panel exceeds its statutory authority and renders an opinion based on its determination of plaintiffs’ credibility, not on the medical standard.” The following questions must be asked first to clarify the terms and substance of this discussion: What is ‘medical malpractice’? And what is a ‘medical review panel?’

The term ‘medical malpractice’ gets thrown around more than it should. It is a specific legal negligence term devised to describe a cause of action that may be brought by a patient of a doctor and/or hospital claiming that the doctors, nurses, and anyone involved with the care and safety of the patient was negligent, and through this negligence, that a harm came to the patient that otherwise would not have occurred. More specifically, 1) a duty of care exists in which those that are employed to care for a patient must maintain the proper diligence in their medical and professional duties, 2) a doctor or nurse, or other individual employed in a professional and medical sense has breached this duty of care through his or her actions, or in the case of a hospital’s negligence, through that actions of its employees (doctors, nurses, etc.), 3) that this breach of duty is the cause of the resulting harm to the patient, a harm that otherwise would not have happened and can be linked to the action(s) or inaction(s), of those who owe a duty of care to the patient, and 4) that a harm is the result of that breach that would otherwise not have occurred, and is something not reasonably foreseen so that there is no other cause than the breach of the proper duty of care owed to the patient.