Articles Posted in Pain And Suffering Claims

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As we have explored in several prior posts on this blog, claims brought against healthcare providers under the Louisiana Medical Malpractice Act must be examined by medical review panel before proceeding to court. Just over a year ago, the First Circuit Court of Appeal issued guidance to plaintiffs on the procedure they must follow if they should uncover new claims of negligence after the medical panel has completed its review of the original claims and issued an opinion.

On September 14, 1998 Doris Abel underwent surgery at the North Oaks Medical Center (“NOMC”) in Hammond. She died a short time later from complications arising from the surgery. Her family (the “Plaintiffs”) submitted a malpractice complaint against NOMC to the medical review panel in September of 2003, which rendered a decision in favor of NOMC. Plaintiffs then filed suit against NOMC that led to a protracted period of pre-trial discovery. During that time, Plaintiffs discovered new claims of negligence against NOMC and petitioned the court to amend their complaint to include these claims. NOMC objected on the grounds that the medical review panel had not examined these new claims and requested a new trial. The trial court denied NOMC’s request and instead remanded the matter to the original medical review panel for the sole purpose of reviewing Plaintiffs’ new allegations. NOMC sought review by the First Circuit, urging that the there is no procedure in the Louisiana Medical Malpractice Act (the “Act”) for remanding a case back to a review panel once it has rendered its opinion and a suit has been filed.

The First Circuit began its analysis by noting that the Act’s language “must be strictly construed.” The court, in reiterating that the Act requires that “all malpractice claims against health care providers covered under the Act shall be reviewed by a medical review panel,” concluded that the “use of the term ‘shall’ in these statutory provisions indicates that these procedures are mandatory.” And, although the Act does not specifically address late-discovered claims, the court concluded that “the procedures the legislature mandates for filing a request for review by a medical review panel also encompass malpractice claims that are discovered after the panel has rendered an opinion and suit has been filed.” The court found additional support for this conclusion in the statutory language that describes the review panel’s duty 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.” The panel must be presented with all evidence in order to discharge this duty. Further, the court decreed that once a panel renders an opinion, its duty has been discharged. “Therefore, if additional malpractice claims are discovered… these new claims must be presented for review by a new medical review panel.” Accordingly, the court found that the trial court erred by remanding the matter back to the original medical review panel. It reversed the judgment and remanded the case back to the trial court so it could arrange for a new panel to review the Plaintiffs’ late-discovered claims before trial.

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The doctrine of res ipsa loquitur can be employed by a plaintiff to establish the defendant’s breach of duty in the absence of direct evidence of the defendant’s negligent conduct. However, use of the doctrine “does not relieve the plaintiff of the ultimate burden of proving by a preponderance of the evidence all of the elements necessary for recovery.” To prevail in a negligence claim based on the “ruin, vice, or defect in things,” the plaintiff must show that the defendant knew or should have known of the defect and that the harm to the plaintiff could have been prevented by the defendant’s reasonable care. See Cangelosi v. Our Lady of the Lake Medical Center.

As the plaintiff in Shuff v. Brookshire Grocery Co. learned, the doctrine cannot be invoked to circumvent this fundamental burden.

On October 15, 2006, Ashley Shuff entered the Super One Foods grocery store in Bastrop with her two children. Upon arrival, Shuff placed her 20-month-old daughter, Cloe, into the child seat that was built into one of the store’s shopping carts and fastened the seat belt. Shuff admitted that the belt mechanism appeared to be working properly when she buckled Cloe in. A short while later, Cloe fell from the seat to the store’s concrete floor and broke her arm. A store patron who observed the incident later inspected the seat and discovered that a prong on the belt’s snap was broken. Shuff sued the grocery store on behalf of her daughter on a negligence theory for damages caused by “ruin, vice, or defect in things.” In the trial court, the parties filed cross-motions for summary judgment. Shuff argued that the store’s liability for the incident was governed by the doctrine of res ipsa loquitur becuase it had responsibilty to maintain the seat and its safety belt. The court denied Shuff’s motion and dismissed her claims.

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In our last post, we explored the basic elements of class action certification, including the rules that guide a trial court’s decision on whether to grant the certification. Although the trial court is granted wide discretion on this question, it must reach its decision through serious analysis; the failure to substantiate its analysis can result in reversal by the appellate court as illustrated in the recent case, Madison v. Chalmette Refining LLC. On January 12, 2007, a group of students, teachers, and parent chaperones visited the Chalmette National Battlefield. During a historical reenactment, the nearby Chalmette Refinery released a significant amount of petroleum coke dust that was carried to the battlefield area. Five individuals (the “Plaintiffs”) filed suit in federal court against Chalmette Refining, demanding compensation for a variety of damages including “including personal injury, fear, anguish, discomfort, inconvenience, pain and suffering, emotional distress, psychiatric and psychological damages, evacuation, economic damages, and property damages.” The suit sought to represent all individuals who were exposed to the coke dust, specifically:

“all persons entities [sic] located at the Chalmette National Battlefield in St. Bernard Parish, Louisiana, in the early afternoon of Friday, January 12, 2007 and who sustained property damage, personal injuries, emotional, mental, or economic damages and/or inconvenience or evacuation as a result of the incident.”

The district court allowed the parties to conduct discovery on the issue of class certification. Chalmette Refining took the deposition of each of the five named class representatives, yet the Plaintiffs conducted no discovery at all. At the hearing on the motion to certify the class, no evidence was introduced; at the conclusion, the district court orally granted the Plaintiffs’ motion for class certification.

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In this post, we will explore the basic concepts of a class action lawsuit. In particular, we will examine the rules that govern the process by which the court decides whether to recognize a class and permit a group of plaintiffs to litigate under one single action. In a subsequent post, we will examine a recent case from the Fifth Circuit Court of Appeals in which the defendant, a petroleum refinery, challenged the district court’s certification of a class of plaintiffs following a chemical release in Chalmette, Louisiana.

A class action is appropriate when numerous plaintiffs who have experienced similar harm collectively bring a suit against the defendant. For actions filed in federal court, Rule 23 of the Federal Rules of Civil Procedure sets out the requirements for a court to certify, or recognize, a class in a particular case. The four central prerequisites include:

(1) numerosity–a sufficient number of plaintiffs that for each to bring a unique suit is impracticable; (2) commonality–questions of law or fact are common to each plaintiff; (3) typicality–the named parties’ claims are representative of those of all plaintiffs; and (4) adequacy of representation–the class representatives will fairly and adequately protect the interests of all plaintiffs.

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According to Louisiana law, a landowner “owes a duty to a plaintiff to discover any unreasonably dangerous condition, and either to correct the condition or warn of its existence.” However, the courts have consistently held that landowners generally have no duty to protect against “open and obvious” hazards. If the facts show that the condition that caused a plaintiff’s injury should be “obvious to all,” the condition is less likely to be considered unreasonably dangerous; in such a situation, the landowner may owe no duty at all to the injured plaintiff. The determination of whether a crack in a Shreveport sidewalk was unreasonably dangerous was at the center of the recent case of Williams v. Rubens Residential Properties, LLC.

On the morning of May 4, 2006, Marion Williams was walking with her friend on Line Avenue in the Cedar Grove neighborhood. Williams tripped on a buckle in the concrete sidewalk, fall forward, and shattered her right wrist. After seeking immediate medical attention, Williams returned to the scene and took several photographs of the buckle. Over the next several months, she required several significant surgeries which left her with pins in her wrist and lingering pain which is expected to get worse over time.

Williams sued the City of Shreveport, which filed a motion for summary judgment in which it argued that it was obligated to provide a sidewalk in reasonably safe, but not perfect, condition and that it was not liable for the “open and obvious hazard which should have been observed by anyone in the exercise of reasonable care.” The City relied on the deposition testimony of its Superintendent of Streets and Drainage, Ernie Negrete, who explained that the City does not perform routine inspections of all its sidewalks because doing so would be too costly. Instead, the City takes corrective action based on the roughly 6,000 calls it receives from citizens each year to report problems. The City had no record of any calls about the particular location where Williams fell. Williams’s cross-motion urged that the sidewalk posed an “unreasonable risk of harm” of which the City did have notice, given that the buckle apparently had existed for over 15 years. The trial court denied the City’s motion and the matter went to a bench trial in February, 2010. The trial judge found Williams’s testimony and the testimony of her friend and husband “extremely credible” and accepted her assertion that she simply could not see the buckle in the sidewalk. The court awarded Williams almost $340,000 in damages including lost wages and medical expenses. In its appeal, the City argued that the trial court committed manifest error in failing to find that the defect in the sidewalk was open and obvious. The Second Circuit noted that the trial court’s decision was based on the testimony of three witnesses who claimed that from the pedestrian’s vantage point, the buckle was not apparent. Also, the City did not put on any evidence as to the height of the buckle or whether it was obvious to a pedestrian. Thus, the court concluded that the trial judge “was entitled to find that the condition was not open and obvious to a person walking straight down the sidewalk in the exercise of reasonable care.” Finding no manifest error, the court affirmed the trialc court’s judgment for Williams.

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The primary duty of the Louisiana Department of Transportation and Development (DOTD) is to “continually maintain the public roadways in a condition that is reasonably safe and does not present an unreasonable risk of harm to the motoring public exercising ordinary care and reasonable prudence.” In a recent post, we explored the elements that a plaintiff must prove in order to find the DOTD liable for damages arising out of a highway accident. By placing this burden on a plaintiff, state law attempts to balance the need for roadway safety with the countervailing requirement that DOTD not become “the insurer for all injuries or damages resulting from any risk posed by obstructions on or defects in the roadway.” The case of Schysm v. Boyd offers an interesting example of a jury’s misapplication of this balancing test.

On February 22, 2003, Douglas Schysm visited the Isle of Capri Casino in Vicksburg, Mississippi. After consuming three beers, he left the casino around 1:00 a.m. and drove his truck into Madison Parish, Louisiana on I-20. Just outside of the community of Delta, Schysm’s truck collided with a horse which, after wandering into the roadway, had just been struck by another car and which lay in the right lane. Schysm’s truck shot into the air and landed upside-down next to a guardrail approximately 245 feet beyond the point of impact. Schysm suffered significant injuries as a result of the crash, including broken bones and nerve damage. He sued the owner of the horse, the owners of the property adjacent to I-20 where the horse was kept, and DOTD for damages related to the incident. Schysm argued that the DOTD failed to inspect and maintain a fence along I-20, allowed the fence to be cut for easier (but illegal) vehicle access, and failed to warn drivers that the cut in the fence would allow animals to roam onto the highway. After a trial, the jury assigned 50 percent fault to DOTD, 30 percent to the owner of the horse, and 20 percent to Schysm. It also awarded Schysm damages totaling $884,062. DOTD appealed, disputing any fault.

The Second Circuit reviewed the trial record for the evidence relating to two areas adjoining I-20 where DOTD either did not maintain a fence or did not build one in the first place. The area closest to the horse’s pen and where it most likely entered the highway was separated from the road by a fence; however, this fence had been cut by local motorists who used the path as a short-cut to access I-20. The other area apparently never had a fence at all. At trial, the parties offered expert witnesses who referenced the design guidelines published by the American Association of State Highway and Transportation Officials (“AASHTO”) which establish fencing recommendations for lands adjacent to interstate highways. The experts disagreed about which version of the guidelines applied in the case, and further about whether fencing was recommended at all due to the particular construction method of the highway near the point of impact. DOTD’s witness, with whom the Second Circuit ultimately sided, explained that the purpose of the fencing along I-20 was “to control vehicular access, not to keep livestock off the Interstate.” Furthermore, “there was no duty under the 2001 AASHTO guidelines to have a fence along I-20.” The court found that if even if DOTD had a duty to construct fencing along the highway, it was only to restrict vehicle access to and from the interstate; “it was not intended to prevent a horse that had escaped from its pen from entering upon I-20.” The court observed that the horse’s pen was “not adjacent to I-20… In order to reach I-20, [the horse] had to cross a ditch, a gravel road, a paved road, and a grassy area. No unreasonable risk of harm was created for motorists under these circumstances by DOTD’s failure to maintain or erect a right-of-way fence in this stretch of I-20.” In light of the additional fact that there was no history of animals wandering onto the roadway in the area, the court concluded that the jury was “clearly wrong” in finding that DOTD was in any way at fault for Schysm’s collision.

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The Third Circuit Court of Appeal for the State of Louisiana affirmed a Calcasieu Parish court’s decision to grant the defendants’ motions for summary judgment and dismissal of the plaintiff’s claims for injuries she sustained when her electric grocery cart allegedly malfunctioned while she was grocery shopping.

In considering a motion for summary judgment, a judge must consider whether there is a genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law. Because the moving parties here (the defendants) did not have the burden of proof at trial, they merely needed to show that there was an absence of factual support for at least one of the elements of the plaintiff’s claim. This is a question of law and is reviewed by an appellate court de novo, without any deference to the trial court.

The plaintiff in this case was a 73-year-old woman who used a motorized cart called the Mart Cart, provided by Kroger. She alleged that in order to reach a can from a shelf, she dismounted the Mart Cart and put her left foot on the ground, but while she had one foot on the cart and another on the ground, the cart rolled forward, causing her to fall. She filed suit against Kroger and the manufacturer of the Mart Cart, alleging that they were liable for her injuries under the Louisiana Products Liability Act (the LPLA).

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On March 13, 2008, Sarah Hollier visited Dr. Gregory Green for treatment of bronchitis. Dr. Green wrote Hollier a prescription, which she took to the Super One Pharmacy in Monroe to have filled. The pharmacist on duty, Katy Buntyn, was not familiar with the particular form of the drug that Dr. Green prescribed because it had been discontinued some four years prior. Buntyn directed her pharmacy technician to phone Dr. Green’s office for clarification on how to fill the order. Ultimately, after further confusion over the form of the drug and the dose, Buntyn mistakenly filled the prescription at a dosage which was at more than 2.5 times the “top end” dose indicated on the drug’s literature and eight times the dose intended by Dr. Green. When Hollier began taking the medication, she experienced high energy levels, sleeplessness, increased heart rate, and nausea.

Hollier’s husband, himself a pharmacist, recognized her symptoms and discovered the erroneous dose after inspecting the prescription bottle. The Holliers reported the problem to the pharmacy and, later, filed suit against the pharmacy and Buntyn. In Louisiana, pharmacists are not subject to the state’s Medical Malpractice Act, so the matter was heard in Monroe City Court on September 21, 2009. The trial court entered a judgment for Hollier and awarded her $7,500 in general damages and $827.08 for medical expenses. The defendants appealed, refuting liability.

The Second Circuit first reviewed the elements of general negligence, but then noted that a “pharmacist has a duty to fill a prescription correctly and to warn the patient or to notify the prescribing physician of an excessive dosage or of obvious inadequacies on the face of the prescription which create a substantial risk of harm to the patient.” Buntyn argued that she met this duty by calling Dr. Green’s office to inquire about the prescription. But the court disagreed that this action was sufficient to discharge her duty; instead, “the fact that the package insert lists the top end of an initial daily dosage of [the drug] at 9 mg should have aroused Ms. Buntyn’s suspicions that a 24 mg initial daily dosage was excessive.” At that point, reasoned the court, Buntyn “should have inquired further.” Thus, the court could not find that trial court committed manifest error in finding that Buntyn breached her duty to Hollier by supplying the extremely high dose of the drug, and affirmed the judgment.

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On June 19, 2006, CITGO Petroleum Corp. released some four million gallons of hazardous slop oil and seventeen million gallons of wastewater into the Calcasieu River from the waste water treatment unit at its Lake Charles refinery. The overflow was caused in part by a storm that dropped more than six inches of rain in a three-hour period. The slop oil, which contained numerous toxic chemicals, fouled approximately one hundred miles of the river’s shoreline. Within a few days, the sludge migrated to the waters surrounding a small industrial plant located on an island in the river owned by the Calcasieu Refining Company (“CRC”), where several employees continued to work during CITGO’s clean-up efforts. Some of the workers in the dock area at CRC were directly exposed to the water and slop oil. They reported nausea, rashes, and peeling skin as a result. The vapors from the slop oil led to respiratory and central nervous system injuries to other workers. Complaints included headaches, nausea, dizziness, as well as eye, nose, and throat problems.

In May, 2007, fourteen plaintiffs from the CRC plant filed suit against CITGO for their injuries related to the spill. On September 17, 2008, CITGO entered a plea agreement in federal court over the spill in which it agreed to pay a $13 million criminal fine for various EPA violations. On September 19, 2008, the trial court entered a judgment against CITGO and awarded each CRC plaintiff general damages in the amount of $5,000, punitive damages in the amount of $30,000, and $2,500 for “fear of future injury.”

CITGO appealed, citing as error, among other things, that the award for fear of future injury lacked a basis in the evidence and was speculative. In support of its argument, CITGO cited a prior case, Broussard v. Olin Corp., where the plaintiff sought recovery for fear of developing cancer after he was exposed to phosgene gas. Because the plaintiff failed to clearly link phosgene gas exposure to an increased risk of cancer, the court in Broussard concluded that the claim was “mere speculation” and that the facts did not support an award for “anxiety.” The Third Circuit distinguished the present case in that CITGO’s own technical data showed that

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Previously on this blog, we have discussed the Louisiana Medical Malpractice Act (“LMMA”) and its requirement that “all claims against healthcare providers be reviewed or ‘filtered’ through a medical review panel before proceeding to any other court.” A plaintiff who fails to do this is subject to the defendant’s “exception of prematurity,” which is a procedural mechanism by which the defendant can petition the court to dismiss the plaintiff’s claim until the medical review panel has properly conducted its review. The defendants in the case of Heacock v. Cook attempted to invoke the exception in a case that involved a sexual relationship between a doctor and his patient.

In December of 2005, Margaret Heacock was admitted to the Palmetto Addiction Recovery Center (“Palmetto”) in Rayville for an inpatient substance abuse treatment program. After being discharged in May of 2006, she underwent outpatient treatment which continued through January of 2008. In 2009, Heacock filed two lawsuits against Palmetto and her treating physician, Dr. Douglas Cook. Both suits alleged essentially the same facts: that Dr. Cook “entered into an inappropriate, sexual relationship” with Heacock during the time she was his patient; one suit’s theory of recovery was based on intentional tort, the other on negligence. Dr. Cook and Palmetto filed exceptions of prematurity, seeking to have all claims dismissed in the trial court and instead brought before the medical review panel. After a hearing, the trial court determined that Heacock’s claims sounded primarily in medical malpractice and therefore required a review by the medical panel. Thus, the trial court dismissed Heacock’s suits without prejudice. Heacock appealed, arguing that it was error for the trial court to require the panel’s review given that her allegations gave rise to a general tort claim, and not a medical malpractice claim.

The Second Circuit Court of Appeal noted that the LMMA applies only to “malpractice” as defined by the statute, while other tort liability on the part of a health care provider is governed by general tort law. Further, Louisiana statute provides separate and distinct definitions for “malpractice” and “tort,” the former extending only to unintentional actions. Thus, “by definition, ‘malpractice’ does not include the intentional acts of the health care provider.” Noting that “Dr. Cook took deliberate action as a physician by becoming involved in a sexual relationship with his patient,” the court reasoned that Heacock’s claim of intentional tort against Dr. Cook was not “malpractice” as defined by the LMMA. Instead, “this type of deliberate action, a sexual relationship, has been deemed to be an intentional tort, and, as such, not considered a malpractice claim.” The court, concluding that the trial court erred in granting Dr. Cook’s exception of prematurity for Heacock’s claim of intentional tort, reversed the trial court’s judgment as to the intentional tort action and affirmed the trial court’s judgment as to the negligence claim.

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