CaseNotes

April 2011

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

Louisiana Fourth Circuit Court of Appeal
1. Hall v. Nix, There are limits to the requirement that plaintiff must mitigate her damages.  Plaintiff sued her eye surgeon claiming he allowed intraocular pressure in her right eye to get too high after surgery causing permanent eye damage.  Among the findings of the court was that plaintiff did not fail to mitigate her damages when she did not seek employment.   Plaintiff argued that even though her vision had improved due to several surgeries to her right eye, her doctors still considered her legally blind and would not approve her return to work.  In siding with plaintiff, the court recognized the general concept that the plaintiff should mitigate damages, but at the same time stated that a plaintiff does not fail to mitigate when she refuses to undergo treatment which would not significantly alleviate her disability, carries risks of failure, when the treatment will be painful, or when she is unable to pay for the treatment.  The trial judge was Judge Rosemary Ledet of Orleans Parish.  2010-1146 (La. App. 4^th Cir. 2/23/11); ____So.3d____; 2011 WL 976502.

Louisiana Fifth Circuit Court of Appeal
2. Pleasure v. Louisiana Organ Procurement Agency, Allegations that patient was kept on life support merely to preserve his organs sound in medical malpractice. Plaintiff sued the hospital claiming it was negligent in failing to obtain proper consent to release her deceased husband’s body for organ removal and by keeping him on life support just to keep his organs viable for organ donation.  The hospital defendant argued the claim sounded in medical malpractice, and therefore, a medical review panel had to be convened. The district court agreed as did the court of appeal finding the claim concerned a “medical service” that was covered under the Medical Malpractice Act.  The trial judge was Lee Faulkner of Jefferson Parish.  10-294 (La. App. 5^th Cir. 2/15/11); ___So.3d___; 2011 WL 527209.

Federal Court
3. Whitsitt v. United States,  Cap applied in serious case of misdiagnosis against Army physician.  Misdiagnosis of pancreatitis which led to two unnecessary surgeries and a prolonged hospital course constituted a deviation from the standard of care.  Moreover, even though the case involved damages of greater than a million dollars, the Louisiana Medical Malpractice cap applied since the action was against an Army physician under the Federal Torts Claims Act which applies the law of the jurisdiction in which the claim was brought.  The trial judge was Judge Richard T. Haik.  08-414 (W.D. La. 4/8/11), 2011 WL 1347008.

Congressional news
4. Congress is debating a bill that would affect medical malpractice cases across the country, but should not shake up Louisiana’s system if the bill is, in fact, enacted.  The proposed legislation, entitled: “Help Efficient, Accessible, Low Cost, Timely Healthcare (HEALTH) Act of 2011,” would, among other things, accomplish the following in medical malpractice cases:  (1) set a cap on noneconomic damages of $250,000; (2) create a one/three year statute of limitations somewhat similar to Louisiana’s prescriptive period; (3) allow for punitive damages only under certain conditions and only if allowed by applicable State of Federal law; (4) permit evidence of collateral source benefits such as health insurance payments; (5) prevent health care providers from recovering those benefits out of an award in a lawsuit involving injury or death; and (6) allow courts to restrict payment of attorney contingency fees.

Most importantly for health care providers in states like Louisiana, which have systems in place to limit medical malpractice liability, is that the “Act shall not preempt or supersede any State or Federal law that imposes greater procedural or substantive protections for health care providers and health care organizations from liability, loss, or damages than those provided by this Act. . . .”  Further, no provision of the Act will preempt state laws that set a monetary amount of compensation regardless of whether the amount is greater or lesser than what is provided under the Act.  It also will not preempt any defense available to a party in a health care lawsuit under any other State law.