CaseNotes January 2014 Volume 2

  • Medicaid lien covers entire settlement
  • Supreme Court reinstates jury verdict against pacemaker patient who claimed lack of informed consent.
  • Health care provider precluded from relying on inaccurate qualification letter from PCF.
  • Timely filed claim against qualified health care providers suspended prescription as to a non-health care provider.
  • Unsworn opinion from expert witness not enough to defeat summary judgment.
  • Plaintiff unable to establish standard of care in spider bite case.
  • Appellate court cuts pro se plaintiff little slack, finding her claim prescribed.
  • Case dismissed against orthopedic surgeon despite adverse medical outcome.
  • Medical malpractice statute does not apply to allegations that hospital was not hurricane-ready.
  • Hemostat left behind during surgery, but promptly detected, not a case of obvious negligence.
  • Summary judgment granted in favor of dermatologist who stopped providing care after becoming subject to disciplinary proceedings and abruptly retiring.

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CaseNotes January 2014, Volume 1

  • Misdiagnosis of breast cancer yields significant jury verdict.
  • The PCF estopped from arguing causation after summary judgment against the underlying defendant.
  • Court reinstates jury’s finding of informed consent, even though consent was obtained by physician’s assistant.
  • Allegedly defective medical malpractice complaint interrupts prescription.
  • Wrong level fusion case prescribed despite delayed discovery and alleged continuing treatment.
  • Lack of documentation can constitute a breach of the standard of care.
  • Appellate circuits disagree on whether prematurity exception is a prerequisite to a prescription exception.
  • Summary judgment granted in over-prescription of pain medication case despite an affidavit from plaintiffs’ expert.
  • Plaintiff unable to overcome presumption in informed consent case.

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CaseNotes June 2013

  • Supreme Court analyzes requirements for expert witnesses
  • MRP member’s failure to disclose business relationship with defendant triggers new panel
  • Nurse not qualified to testify re: standard of care of nephrologist or causation
  • Surgeon need not disclose to his patient recently undergoing eye surgery
  • Question during deliberations leads judge to uncover error in calculating medical damages
  • $250,000 award upheld for “loss of chance” in misdiagnosed ovarian cancer case
  • PCF must return to court in order to terminate payment of future medical expenses
  • 26 year-old pacemaker recipient found not to have given consent even though he signed consent form
  • Filing fee must be paid for each defendant, or the entire claim will be invalid
  • Appellate court rejects judge’s defense ruling and MRP opinion and finds transfer of patient violated standard of care
  • Plaintiff’s change in focus from fall to treatment after the fall made too late
  • A Medical Malpractice Claim, disguised as an EMTALA claim, is summarily dismissed

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CaseNotes January 2013

  • Nursing Home dismissed early in hip fracture/death case
  • One appellate court’s recent view on what it takes to prove intentional destruction of evidence
  • Threshold requirement of establishing medical malpractice not met in ER case
  • Family of patient who received deadly dose of potassium recovers
  • Unanimous negative panel decision against physician eludes jury
  • Patient dies after multiple transfers from hospitals which lacked capacity to provide care
  • ER physician convinces jury he did not breach standard of care in treatment of heart patient who died nine hours after ER visit
  • Claim against answering service which allegedly failed to deliver message on time is considered untimely
  • Blanket naming of all identifiable surgeons not encouraged
  • Plaintiffs apparently focus on wrong defendants in infant brain injury case
  • Informed consent can be based on oral communication by physician
  • Appellate court significantly increases award for complications following treatment of broken forearm
  • Nursing home not liable for providing only palliative care to hospice patient
  • Medical Review Panel member’s oath carries little weight on appeal

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Perspectives – The Medical Malpractice Journey

Perspectives – The Medical Malpractice Journey will give you a chance to hear varying views on a multitude of subjects encountered by the med-mal practitioner. Our own Katy Caraway will be part of a panel on Professionalism: The Responsibilities and Concerns of Medical Review Panel Attorney-Chairs.

The seminar takes place on Friday September 28, 2012 at the New Orleans Marriott Hotel, 555 Canal St. You can register online at the Louisiana State Bar Association’s site.


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CaseNotes May 2012

  • Defense verdict withstands appeal even though plaintiff claimed limited review by defense expert
  • Partially proved case establishes causation and damages for patient’s spouse
  • Summary Judgment awarded defendant even though plaintiff had retained an expert
  • Even if doctor erred, damage was already done
  • Lawsuit not premature just because attorney chair for Medical Review Panel was never appointed
  • Allegations of improper transfer of high risk fall patient governed by MMA

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CaseNotes March 2012

  • MMA cap still the law in Louisiana
  • Statute that denies abortion providers MMA rights is unconstitutional
  • EMTALA claim denied to man with penile fracture
  • Bystander damages hinge on underlying claim and actually seeing negligence
  • Radiology standard of care within expertise of general surgeon
  • Standard of care is not what “most” doctors would do
  • MMA does not encompass Katrina failure to evacuate claims
  • Physician liability based on physician assistant’s errors
  • Negligent supervision of employee in rape case covered by MMA

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CaseNotes January 2012

  • Hospital found liable for negligent infliction of emotional distress for not sending body to coroner’s office
  • Whirlpool accident constitutes medical malpractice
  • Keeping a patient alive for organ procurement sounds in medical malpractice
  • Agreement between PCF and plaintiff in case also including manufacturer was not unlawful “Mary Carter agreement”
  • Plaintiff’s case dismissed for lack of expert just days before deposition of possible expert scheduled
  • Alleged euthanasia not covered by MMA
  • Conclusory affidavit from defense expert does not defeat plaintiff’s summary judgment motion
  • Plaintiff’s reliance on JCOAH standards does not obviate need for expert testimony
  • Several federal courts find diversity jurisdiction remained despite plaintiffs’ attempts to bring in nondiverse hospital
  • Alleged improper use of stimulator on patient is malpractice

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CaseNotes November 2011

  • MMA prescription rules bar mother’s claim against OCS
  • Physician exonerated by jury despite “bad” panel opinion
  • Alleged failure to detect impending MI requires expert testimony
  • Cardiologist allowed to criticize neurologist in response to summary judgment motion
  • Jury clears doctor for alleged failure to detect central line in artery, not vein
  • Complaint lacking in detail is prescribed
  • Physician 50% to blame for retained sponge
  • Alleged nursing home violations regarding abuse upheld by ALJ
  • Alleged violation regarding suicide upheld by ALJ

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CaseNotes July 2011

  • Supreme Court gets tough on plaintiffs who fail to follow summary judgment rules
  • Supreme Court finds inadmissible Medical Review Panel Opinion “harmless error”
  • Plaintiff failed to connect the dots between malpractice and harm to the patient
  • Court upholds verdict against hospital; finds juror internet research harmless

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CaseNotes April 2011

  • Plaintiff does not have to do the “unreasonable” to mitigate.
  • Medical malpractice encompasses claim that patient left on life support too long.
  • Cap applies to claim against military doctor.
  • Congress considers medical malpractice reform.

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CaseNotes March 2011

  • Court bends rules for patient due to attorney deception
  • Court finds negligence but awards minimal damages
  • Physician should not have operated on diabetic
  • Constitution does not require optimal medical care for prisoners (despite defendant’s discovery abuses)
  • Nursing facility loses bid to shift immediate jeopardy burden of proof

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