Louisiana Personal Injury Lawyer Blog
Mar’Kirney Holland, only four years old, died tragically in Orleans Parish after allegedly receiving negligent medical care in Lincoln Parish six years ago. This story provides a lesson on how important procedural motions are to a case. Plaintiffs often choose a certain jurisdiction because of different factors. Sometimes certain jurisdictions are chosen because of ease and convenience to parties and witnesses. Other times, plaintiffs have heard that certain courts or judges are more amenable and therefore, more likely, to rule in their favor. No matter the reasoning, deciding which court to proceed in is an essential decision that plaintiffs and plaintiffs’ attorneys must make. In this case, Holland v. Lincoln General Hospital, No. 2010-CC-0038 (La. Oct. 19, 2010), Defendants were successful in having the case moved from Plaintiffs preferred location of Orleans Parish to Lincoln Parish.
Mar’Kirney was born prematurely on November 12, 1999, and from an early age suffered from hydrocephalus, a condition where cerebrospinal fluid pools in the brain. At Tulane Hospital in New Orleans, doctors inserted a shunt to drain this fluid. Most, if not all, of the treatment related to the shunt took place at Tulane Hospital. The most recent “shunt revision” took place at Tulane Hospital two weeks before her death.
However, when Mar’Kirney began to suffer headaches, nausea, and vomiting, her mother, Latisha Holland, took Mar’Kirney to the closer hospital, Lincoln General Hospital. There, after fruitlessly waiting an hour, leaving, and coming back, Latisha claims that the doctor diagnosed Mar’Kirney with an upper respiratory infection. This was not the case. Mar’Kirney worsened and had to be transferred to Tulane Hospital after CT scans revealed that the shunt was blocked. Mar’Kirney died less than 24 hours after arriving at Tulane’s Pediatric Unit. Latisha brought a wrongful death and survival action against Lincoln General Hospital.
Generally, where proper venue lies in more than on parish, as in this case where Mar’Kirney was treated in both Lincoln General Hospital and Tulane Hospital, plaintiff may choose whichever venue to pursue the case. However, defendants may seek to move the case to another court because of the doctrine known as forum non conveniens. Although plaintiff’s initial forum choice is given deference, the court may grant this motion if defendant is able to show why. This procedural doctrine is set forth in La. Code of Civ. Proc. art. 123(A). provides that:
For the convenience of the parties and the witnesses, in the interest of justice, a district court upon contradictory motion, or upon the court’s own motion after contradictory hearing, may transfer a civil case to another district court where it might have been brought; however, no suit brought in the parish in which the plaintiff is domiciled, and in a court which is otherwise a court of competent jurisdiction and proper venue, shall be transferred to any other court pursuant to this Article.
Essentially this provides three factors which a court will consider in deciding whether to keep the case with itself or to move it to another court. These three factors are (1) convenience of the parties; (2) convenience of the witnesses; and (3) interest of justice.
In this case, Defendants were able to persuade the Supreme Court of Louisiana that these three factors weighed in their favor. They were able to show that Plaintiffs were residents of Lincoln Parish, Lincoln General Hospital’s principal place of business is in Lincoln Parish, and the doctor involved in the initial diagnosis is a resident in the neighboring parish. Further, several of the key witnesses are residents of Lincoln Parish or neighboring parishes. The distance between Ruston and New Orleans is approximately a five hour drive and Defendants were able to show that it would be overly burdensome for them to travel this distance to litigate. Further, Plaintiff did not properly introduce evidence of witnesses who were living in New Orleans. Ultimately, the Court decided that in the interest of justice, the case should be moved to Lincoln Parish, granting Defendants’ motion.
It is important to seek knowledgeable legal assistance as this case shows. Bringing a wrongful death and survival action is difficult and fraught with emotion. It is made more difficult by procedural tricks that sophisticated defendants utilize to have an advantage in the case. Further, if you believe you have a claim against a medical provider it may or may not be a medical malpractice claim. As an earlier blog entry discussed. Under the Louisiana Medical Malpractice Act, additional steps must be taken if the nature of the claim indicates that the MMA applies. If these steps are not taken, the claim will fail and is just one more reason why the success of your case depends on a bright, experienced attorney, who understands the intricacies of medical malpractice law.
If you think you have a medical malpractice claim, call the Berniard Law Firm toll-free at 504-521-6000 to speak with a trial attorney who can help you through every step of your lawsuit. You can also go to our firm’s website where you can chat online with an attorney. The attorneys at Berniard Law Firm are adept and experienced in manners like this, thus able to advise you of your legal options to help you successfully win a medical malpractice claim.