CaseNotes

June 2013

1. Supreme Court analyzes requirements for expert witnesses
2. MRP member’s failure to disclose business relationship with defendant triggers new panel
3. Nurse not qualified to testify re: standard of care of nephrologist or causation
4. Surgeon need not disclose to his patient recently undergoing eye surgery
5. Question during deliberations leads judge to uncover error in calculating medical damages
6. $250,000 award upheld for “loss of chance” in misdiagnosed ovarian cancer case
7. PCF must return to court in order to terminate payment of future medical expenses
8. 26 year-old pacemaker recipient found not to have given consent even though he signed consent form
9. Filing fee must be paid for each defendant, or the entire claim will be invalid
10. Appellate court rejects judge’s defense ruling and MRP opinion and finds transfer of patient violated standard of care
11. Plaintiff’s change in focus from fall to treatment after the fall made too late
12. A Medical Malpractice Claim, disguised as an EMTALA claim, is summarily dismissed

Louisiana Supreme Court
1. Benjamin v. Zeichner.  Supreme Court reverses Court of Appeal on whether currently unlicensed expert physician, who claimed to have graduated from accredited medical school, could testify as an expert.  Plaintiffs attempted to introduce testimony of an expert physician who had given up or allowed to lapse his licenses to practice medicine in Louisiana and Alabama but had graduated from Tulane Medical School in 1958.  Plaintiffs argued they met the requirements of La. Rev. Stat. 9:2794(D)(1)(d), which provides that an expert must be licensed at the time of his testimony or have graduated from a medical school accredited by the LCME.  The trial court refused to allow the testimony because plaintiffs only had a faxed letter from Tulane which purported to establish its accreditation status in 1958. The trial court found the letter to be inadmissible hearsay and granted directed verdict against the plaintiff.  The court of appeal reversed, finding that based on an entire reading of Section 9:2794(D)(1), as long as the expert was licensed at the time the claim arose, which was the case, he should be allowed to testify. The supreme court reversed and agreed with the trial judge’s reasoning, finding subsection (d)(1) was clear and could not be interpreted in the manner employed by the court of appeal.  2012-1763 (La. 4/5/13); ___So.3d___; 2013 WL 1363725. The district court judge was Judge Dee Hawthorne of the Tenth JDC, Parish of Natchitoches.

2. Fanguy v. Lexington Insurance Company.  MRP member’s failure to disclose financial relationship with defendant invalidates panel opinion and sends case back to square one.  A MRP panelist failed to disclose a financial relationship with the defendant despite La. Rev. Stat. 40:1299.47, which requires that a panelist disclose in writing to the parties, prior to any hearing, “any employment relationship or financial relationship with . . . the health care provider against whom a claim is asserted.”  The MRP found for the defendant.  The plaintiff moved to exclude the panel opinion and any testimony from the panel members.  The district court only excluded the testimony of the panelist who failed to disclose the conflict of interest.  The appellate court excluded the entire opinion and panel member testimony stating that the entire medical review process was tainted.  The defendant sought relief from the supreme court which found that the panel member violated his oath of impartiality and tainted the proceedings.  However, the court then held that justice would be best served by ordering the re-constitution of the MRP with different physician-members.  2013-0114 (La. 4/1/13); 110 So.3d 127.  The district court judge was Judge Donald Rowan of the 24^th JDC, Parish of Jefferson.

Louisiana First Circuit Court of Appeal
3. Jackson v. Suazo-Vasquez.  Nurse expert’s opinion on causation and standard of care of a nephrologist rejected in summary judgment proceeding.  Plaintiff filed a claim against a physician and dialysis center alleging they breached the standard of care when they failed to send his mother to the hospital after she received dialysis and experienced an episode of high blood pressure.  After the patient returned home, or while in route, she became nonresponsive and was rushed to the hospital where she died.  The MRP found for the defendants, and after suit was filed, defendants filed a Motion for Summary Judgment.  Plaintiff responded with the expert opinion of a nurse.  However, the trial court granted the summary judgment motion, finding that the nurse’s affidavit was insufficient to refute the MRP opinion because the nurse could not address the fault of the defendant nephrologist or the issue of whether the alleged malpractice caused the patient’s death. The appellate court affirmed.  In its decision, the court specifically stated that the patient had a complicated medical history and complex medical condition, and as a result, this was not a case of obvious negligence, as plaintiff argued.  2012-1377 (La. App. 1^st Cir. 4/26/13); ___So.3d___; 2013 WL 1786431.  The district court judge was Judge David Arceneaux of the 32^nd JDC, Parish of Terrebonne.

Louisiana Second Circuit Court of Appeal
4. Roberts v. Marx:  Informed consent law did not require surgeon to disclose his own possible impairments to the patient.  A medical malpractice claim alleged that a surgeon, who performed a vasectomy on the plaintiff, was required to disclose that he had undergone retinal detachment repair surgery on his right eye about a week prior to the procedure.  Post-vasectomy, the plaintiff developed a hematoma and a staph infection.  The MRP found that the surgeon had no obligation to disclose his recent eye surgery to the plaintiff.  The trial court granted defendant’s summary judgment motion, which was affirmed on appeal, based on the conclusion that a doctor’s duty of disclosure to a patient includes only those risks that are material, and while there are cases in which the physician’s impairment is material, this was not one of them.  Of note was that the surgeon’s eye doctor indicated he could go back to work.  Plaintiff also failed to show a link between any negligence on the part of the physician to the hematoma, a known risk of the procedure.  The slight circumstantial evidence of the physician’s eye condition did not create an issue of fact.   47,658 (La. App. 2d Cir. 1/16/13); 109 So. 3d 462.  The district court judge was Judge Daniel Ellender of the Fourth JDC, Parish of Ouachita.

5. Richardson v. Christus Schumpert Health System. Judge grants JNOV after jury apparently misinterpreted collateral source rule. Plaintiff, a brittle asthmatic, sued a hospital for not providing continuous Albuterol treatments as ordered which caused him to go into respiratory arrest, and require resuscitation, intubation and a two week hospitalization.  He claimed subsequent damages in the form of delayed graduation from high school, personality changes, temporary visual problems and pain in his foot.  The jury found in plaintiff’s favor and awarded $80,000 for past medical expenses, and $30,000 in general damages.  The judge granted JNOV and increased the award of medical damages to $190,000.  Based on a question the jury asked during deliberations about the plaintiff’s out-of-pocket medical expenses, the trial judge believed the jury misunderstood the collateral source rule which allows the plaintiff to recover all his medical expenses even if paid for by insurance.   The court of appeal affirmed.   47,776 (La. App. 2d Cir. 2/27/13); 110 So.3d 264.  The district court judge was Judge Jeannette Garrett of the First JDC, Parish of Caddo.

6. Coody v. Barraza, Seven month delay in diagnosing recurrent ovarian cancer yields “loss of chance” award of $250,000, despite evidence that earlier diagnosis would not have resulted in a cure.  The patient filed a lawsuit against a diagnostic radiologist for causing a seven-month delay in diagnosis of the return of her ovarian cancer.  She died before trial.  The jury found the defendant breached the standard of care and awarded damages for “loss of a chance” in the amount of $250,000.  The court of appeal found there was a reasonable basis to determine the defendant committed a breach, even though only one out of five experts, which included the defendant, testified as such. The court found regardless of the fact that more radiologists testified in support of the defendant, the jury’s reliance on the one expert was not manifestly erroneous, and the jury is afforded great deference when faced with contradictory expert defense.  The appellate court then found the jury had a reasonable factual basis to determine that the defendant’s breach caused a loss of a chance of a better outcome or longer survival based on evidence that ten percent of recurrent ovarian cancer patients are able to go into second remission.  The fact that there was no proof that the patient fell into that ten percent or that she would have been cured of her cancer with earlier diagnosis was irrelevant; the only issue was whether she was deprived the chance of a better outcome.  In affirming the $250,000 damage award, the court reviewed the patient’s testimony, recorded before she died, that she was “devastated, sick and scared” after finding out about the misdiagnosis, and she had lost faith in her doctors.  She also suffered four years of deterioration and three years of chemotherapy before her death; she was married to her husband for 47 years and had a close relationship with both her husband and three children.  47,732 (La. App. 2d Cir. 3/6/13); ___So.3d___; 2013 WL 812418.  The district court judge was Judge Alvin Rue Sharp of the Fourth JDC, Parish of Ouachita.

Louisiana Third Circuit Court of Appeal
7. Watkins v. Lake Charles Mem. Hospital, PCF cannot unilaterally stop future medical expense payments. This case stems from a previous case in which a judgment was rendered awarding future medical care and custodial expenses for a boy who suffered a stroke in utero, causing significant medical problems. The trial court ordered the PCF to make quarterly advanced payments of custodial care expenses to a trust in the boy’s name for twenty-four hour care, accessible by his mother who was providing care for him.  Years later when the PCF found out that the child, now a man, was married and no longer living with his mother, the PCF discontinued payments and requested that he undergo an Independent Medical Examination. The trial court held that a change in condition did not allow the PCF to make a unilateral determination to cease payments.  The PCF could have petitioned the trial court for a determination of the necessity for the payment of care, but otherwise, a judicial ruling was required to modify a prior judgment before discontinuation of payments.  2012-1320 (La. App. 3d Cir. 4/17/13); ___So.3d___; 2013 WL 1628719.   The district court judge was Judge Michael Canaday of the 14^th JDC, Parish of Calcasieu.

8. Snider v. Louisiana Medical Mut. Ins. Co. Although signed by pacemaker recipient, consent form found to not give informed consent.  Plaintiff, with a personal and family history of heart trouble, filed suit against a physician for placing a pacemaker later determined to be unnecessary.  The defendant physician told the then 26 year-old man, who was suffering from chest pain and a low pulse rate, that he could not be transferred to another hospital to see his regular cardiologist because the placement of the pacemaker was an emergency.  The MRP found the physician breached the standard of care since he rushed the decision for implantation.  Rather, the defendant should have stopped the patient’s heart medications before making the decision about a permanent pacemaker. The jury found for the defendant.  The court of appeal reversed, finding that the plaintiff did not give informed consent for the procedure.  Specifically the consent form, which was not entirely filled out when the patient signed it, did not disclose:  the risks of the patient’s medical conditions which would have included the effects of the medications he was taking; the reasonable therapeutic alternatives and the risks associated with those alternatives; and plaintiff’s immediate condition that necessitated the emergent procedure, all of which were critical to his decision-making process.  The court also found that the plaintiff established that had he been advised appropriately, he would not have consented to the procedure and that a reasonable patient in the plaintiff’s position would not have consented to the procedure had the material information been disclosed.  2012-1068 (La. App. 3d Cir. 2/27/13); ___So.3d___; 2013 WL 692522.  The district court judge was Judge Kerry Anderson of the 36^th JDC, Parish of Beauregard.

9. In re Rideaux, Failure to pay filing fee for one of two defendants costs plaintiff her entire medical malpractice claim.  Plaintiff filed a request for a MRP naming two defendants but only submitting a $100 filing fee.  When the PCF received the complaint and only one $100 fee, it immediately notified plaintiff that she had 45 days to send in the correct payment, or the original filing would be invalid and without effect.  One year after the deadline for paying the correct fee passed, plaintiff notified the PCF of her desire to dismiss the claim against one of the defendants. The PCF stated that it would commence a review panel and that the earlier invalidation of their claim was rescinded. The defendant filed an exception of prescription, which the trial court granted, and the appellate court affirmed, finding the language of the statute regarding filing fees is clear; a filing fee of one hundred dollars per named defendant must be paid within forty-five days. Accordingly, since plaintiff did not pay the correct filing fee ($200) prior to the 45 day deadline set by the PCF, the initial claim was deemed invalid and insusceptible of interrupting prescription.  2012-1096 (La. App. 3d Cir. 3/6/13); 2013 WL 811628.

Louisiana Fourth Circuit Court of Appeal
10. In re Brown, Appellate court reverses trial judge’s finding of no malpractice in patient transfer case.  Paraplegic patient filed a medical malpractice claim against a hospital’s rehab unit, alleging a breach in the standard of care when a nursing assistant transferred her from the wheelchair to the bed without using a slide board. The patient fell and fractured her tibia. The trial judge found no breach in the standard of care based on the MRP finding that transferring with one person assisting and without a slide board was appropriate.  The court of appeal reversed, finding no reasonable basis for the panel opinion. The medical record indicated that a slide board should have been used when transferring the patient to and from the bed and three of the experts that testified that a slide board was needed worked for Touro.  The appellate court also awarded general damages of $65,000.  2011-1824 (La. App. 4^th Cir. 2/20/13); ___So.3d___; 2013 WL 633101.  The district court judge was Judge Herbert Cade of CDC, Parish of Orleans.

11. Santiago v. Tulane University Hospital and Clinic, Added allegations against surgeon after the prescriptive period had run deemed not to relate back to the originally filed complaint.  Plaintiff filed a timely medical malpractice complaint against her surgeon, an unidentified X-ray technician and their alleged employer.  In the complaint, she alleged she was dropped or improperly and inadequately restrained while undergoing post-operative testing.  After the MRP found no deviation of the standard of care, plaintiff filed suit.  Subsequently and more than three years after the alleged malpractice, she amended her lawsuit and filed a supplemental complaint with the PCF adding four additional doctors, and additional claims against her surgeon, alleging that they failed to detect/treat the injury that she experienced when she was dropped.  The amended petition had no fall-related allegations against the surgeon or the other physicians.  The surgeon, the newly named physicians and their employer filed an exception arguing that all claims against them were prescribed:  the initial timely filed complaint against the surgeon was prescribed because it included no actual allegations against him but rather were directed at an X-ray technician involved with post-operative testing; and the later allegations were prescribed because they did not relate back to the original filing.  The district court granted the defendants’ exception in its entirety dismissing all claims.  On appeal, the court of appeal agreed with the dismissal of the later filed claims against the surgeon, the four physicians and their employer, agreeing with defendants that the “relation back” doctrine does not apply in medical malpractice cases.  The appellate court reversed the lower court’s finding that the original complaint/lawsuit relating to the fall itself was not prescribed as to the surgeon.  Since the plaintiff’s supplemental lawsuit expressly incorporated all allegations contained in the original filing, the later pleadings did not supersede the original claims.  2012-1095 (La. App. 4^th Cir. 4/24/13); ___So.3d___: 2013WL 1776165.  The district court judge was Judge Robin Giarrusso, of CDC, Parish of Orleans.

United States District Court, Western District of Louisiana
12. Mays v. Bracey,  EMTALA claim, alleging malpractice, dismissed on summary judgment.  Of note in this case is that plaintiff filed, with what turned out to be a premature medical malpractice lawsuit, an EMTALA claim as well.  She claimed that she did not receive appropriate medical screening and was discharged from the hospital in violation of EMTALA.  Her experts provided affidavits that the hospital failed to order diagnostic procedures and failed to render the proper diagnosis. The court found that EMTALA is not designed to be used as a federal medical malpractice statute.  The only issue under EMTALA is whether the patient is stabilized after medical screening reveals certain emergent medical conditions.  If an appropriate screening is provided and the patient’s condition is determined to be non-emergent, the hospital is not liable under EMTALA even in the event of a misdiagnosis that would subject the provider to a medical malpractice action under state law.  Her EMTALA claim was dismissed on summary judgment. 11-2158 (W.D. La. 2/5/13); 2013 WL 450156. The district judge was Judge Tom Stagg of the United States District Court, Western District of La.
Of notable mention:  In re Robinson, Held: Filing a request for review of a malpractice claim with any agency other than the Division of Administration shall not suspend or interrupt the ruling of prescription citing La. Rev. Stat. 40:1299.47.  47,380 (La App. 2d Cir. 1/16/13); ___So.3d___; 2013 WL 163735.
Howard v. Mamou Health Resources, Held:  Plaintiff’s Supplemental Petition adding medical malpractice allegations against the PCF to her lawsuit regarding an alleged attack at a medical center deemed prescribed.  2012-820 (La. App. 3d Cir. 3/6/13): ___So.3d___; 2013 WL 811676.