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Welcome to Caraway LeBlanc’s CaseNotes for February 2011. In this edition of CaseNotes:

  1. Plaintiff needs a medical expert in case alleging delayed C-section caused still birth
  2. Medical malpractice prescription statute found to be constitutional
  3. One year, not three year, prescriptive period interrupted by continuing treatment
  4. Mental incapacity is no excuse for untimely medical malpractice lawsuit
  5. Expert’s affidavit was not sufficient to defeat summary judgment
  6. Facility’s burden re: “immediate jeopardy” is a heavy one

Louisiana Supreme Court

1. Schultz v. Guoth, M.D., Delayed delivery in still birth case is not obvious negligence.  Plaintiff sued defendant OB claiming malpractice associated with the still birth of her child.  In response to defendant’s summary judgment, which was supported by a unanimous medical review panel opinion, plaintiff argued she did not need an expert because the negligence was obvious and was based on the defendant’s almost hour long delay in performing a C-section on plaintiff.  The court disagreed stating whether the defendant breached the applicable standard of care and whether that breach caused the plaintiff’s injuries turned on complex medical issues, including the significance of fluctuating fetal heart tones; questions regarding the interpretation of readings from an ultrasound, a heart rate monitor and an FSE; decisions regarding the fetus’s viability; and questions regarding whether an immediate C-section was appropriate.  The trial judge, Donald T. Johnson of the Ninth Judicial District Court, Parish of Rapides, sided with plaintiff.  2010-0343 (La. 1/19/11), ____So.3d____, 2011 WL 15022.

2. Russo v. Kraus, Supreme Court upholds constitutionality of medical malpractice prescription statute in latent disease cases.  The plaintiff, who was diagnosed with metastatic squamous cervical cancer more than six years after undergoing hysterectomy which yielded questionable pathological findings, argued three year prescription statute violated the equal protection and open courts’ provisions of the Constitution.  The lower court ruled the statutes were constitutional without holding an evidentiary hearing.  The court of appeal reversed stating there needed to be a hearing under Sibley v. Board of Supervisors of Louisiana State University, 477 So.2d 1094 (La. 1985) to resolve issues including whether a medical insurance crisis existed when La. Rev. Stat. §9:5628 (the prescription statute) was passed, and (2) whether the plaintiff’s cancer was a disease with a latency period longer than three years. The Supreme Court reversed stating that defendants already stipulated to the latency period of disease, and the Supreme Court had already determined there was a medical malpractice insurance crisis in the 1970’s.  The judgment of the district court was reinstated.  As indicated, the trial judge, Piper D. Griffin, of the Civil District Court, Parish of Orleans, sided with defendant.  2010-2463 (La. 1/28/11), ___So.3d___, 2011 WL 287330.

Louisiana First Circuit Court of Appeal

3. Shaw v. Murtagh, Continuing treatment can interrupt one year prescriptive period but not three year period.  Plaintiff underwent knee replacement surgery performed by defendant doctor, who was plaintiff’s long time physician.  Plaintiff subsequently underwent two operations aimed at getting rid of pain that lingered after the initial surgery.  After his insurance changed and he had to pick another doctor, the subsequent physician told the plaintiff that hardware used in initial surgery was not correct.  Plaintiff filed a medical malpractice claim more than three years after the first surgery.  The court stated the one year prescriptive period was interrupted because of assurances by the doctor that treatment would eventually resolve the problem and based on the contra non valentem doctrine.  The full term “contra non valentem agere nulla currit praescripto” means prescription does not run against one who is unable to act.  The court found it was not necessary to prove the doctor was maliciously trying to deceive his patient for this doctrine to apply.  However, the court found the three year period could not be interrupted because that time limitation acted as a peremptive period.  Plaintiff’s claim was dismissed.  The trial judge, William A. Morvant, of the Nineteenth Judicial District Court, sided with defendant.  2009-2239 (La. App. 1st Cir. 1/13/11), 2011 WL 199118.

Louisiana Second Circuit Court of Appeal

4. Blake v. Maley, Mental illness does not excuse filing late medical malpractice lawsuit.   Plaintiff filed a timely medical malpractice claim asserting that the defendant failed to diagnose and treat a fixed drug reaction in her deceased husband. Suit was not filed until more than two years after the medical review panel decision. The plaintiff argued her attorney never explained to her that she had to file suit and her mental incapacity prevented her from doing so. The court disagreed stating that under Article 3468 of the Louisiana Civil Code, “prescription runs against absent persons and incompetents, including minors and interdicts, unless exception is established by legislation.”  There was no applicable exception according to the court.  The trial judge, Ramon Lafitte, of the First Judicial District Court for the Parish of Caddo, sided with defendant. 40,036 (La. App. 2d Cir. 1/26/11), ___So.3d ___, 2011 WL 365080.

Louisiana Third Circuit Court of Appeal

5. LeCroy v. Byrd Regional Hospital, Plaintiff’s case was dismissed when expert opinion fell short of meeting plaintiff’s burden.  Plaintiff’s decedent died the day after the defendant doctor, an ER physician, discharged her from the ER.  Armed with a favorable panel opinion, the defendants, the physician and the hospital, filed a motion for summary judgment.  Plaintiff’s expert first gave an affidavit stating that the defendant/physician’s failure to evaluate plaintiff’s suicide potential fell below the standards of care and contributed to her suicide. He subsequently changed his opinion stating that it was a combination of medication that caused her death (as opposed to suicide), and her treating physician (not the defendant) should have known about the contraindication of certain medications.   The court found that plaintiff failed to meet her burden of proving the applicable standard of care and that the defendants breached the standard of care.  The court also rejected plaintiff’s position that summary judgment should not be granted while there was outstanding discovery.  The motion for summary judgment was filed more than a year after suit was filed and more than four years after the incident in question.  The trial judge, John C. Ford, of the Thirtieth Judicial District Court, Parish of Vernon, sided with defendants. 2010-904 (La. App. 3d Cir. 2/2/11), _____So.3d ____, WL 309573.

Departmental Appeals Board

6. Highland Pines Nursing Home v. CMS, Heavy burden to reverse immediate jeopardy finding.  Treating physician was not given accurate information about necrotic wound affecting his patient and nursing home resident, nor was he asked by nursing home to evaluate the wound for about a month; resident eventually died after developing gangrene.  DAB found facility’s burden to prove finding of immediate jeopardy was erroneous was a heavy one; CMS’ decision will be upheld if one can draw reasonable conclusion that immediate jeopardy exists.  Decision No. 2361, January 14, 2011.