CaseNotes

January 2012

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

Louisiana First Circuit Court of Appeal
1. Harris v. St. Tammany Parish Hospital, Allegations about not sending body for autopsy yield damages. Plaintiff sued physicians, CRNA,and hospital after his wife died following mitral valve prolapse surgery allegedly because the CRNA administered the wrong type of medication when the patient began to crash after surgery.  The plaintiff also alleged intentional spoliation of evidence and negligent infliction of emotional distress against the hospital because it did not send the body to the coroner’s office for autopsy as ordered by the surgeon and requested by the plaintiff.  The jury found no intentional spoliation and no breach of the standard of care by the CRNA.  On appeal, the plaintiff alleged the judge erred in not allowing the issue of negligent spoliation and negligent infliction of emotional distress to go to the jury, and the court of appeal agreed.  The court then found no evidence of spoliation but that the hospital was negligent in the handling of the body; the plaintiff experienced emotional distress because he never would know what caused his wife’s death which worsened his grief. The court of appeal awarded $35,000 in damages.  The trial court judge was Raymond Childress, 22^nd Judicial District Court, Parish of St. Tammany:  2011-0941 (La. App. 1^stCir. 12/29/11), 2011 WL 6916523.

2. Armand v. Lady of the Sea General Hosp., Actions relating to fall=malpractice.  Plaintiff filed a lawsuit against a hospital after she sustained injuries when exiting a whirlpool where she was receiving therapy.  The hospital filed an Exception of Prematurity, claiming the allegations needed to be presented to a Medical Review Panel first, and the trial court granted the exception. The court of appeal agreed, stating that the whirlpool treatment was ordered by a physician, the treatment was being administered by a physical therapist (PT) because of that order,and the question of whether the physical therapist or other hospital employee violated any duty owed the patient was not an issue for a lay person to decide.  The court also stated that a copy of the hospital’s certificate of enrollment with the PCF was properly admitted even though it was not formerly authenticated.  The trial court judge was Ashley Bruce Simpson, 17^th Judicial District Court, Parish of Lafourche:  2011-1083 (La. App. 1^stCir. 12/21/11), ___So.3d___, 2011 WL 6412063.

3. Pleasure v. La. Organ Procurement Agency,Post brain death actions=malpractice. Plaintiff sueda hospital and organ procurement agency (LOPA) claiming negligence because after her husband’s death, he was kept alive by machines long enough so that his organs could be procured.  The defendants argued the allegations sounded in medical malpractice, were required to be presented to a Medical Review Panel,and should be dismissed as premature. The trial court dismissed both defendants.  On appeal, plaintiff argued the negligence was not medical malpractice because it occurred after her husband was brain dead.  The appellate court agreed with the trial court, finding that the procurement of organs constituted a medical service under La. Rev. Stat. 9:2797 and fell under the Medical Malpractice Act.  A third defendant, Southern Eye Bank (SEB), where the patient’s organs were sent, was properly dismissed on prescription after being brought into the case late because the court found the petition against the hospital and LOPA did not toll the prescriptive period as to SEB. The trial court judge was Lee Faulkner, Jr., 24^th Judicial District Court, Parish of Jefferson:  11-175 (La. App. 5^th Cir. 12/28/11), ___So.3d___, 2011 WL 6822096.

Louisiana Third Circuit Court of Appeal
4. Hutto v. McNeil-PPC, Inc., Alleged Mary Carter agreement does not void multi-million dollar verdict relating to Tylenol.  Plaintiffs brought medical malpractice and products liability claims against a hospital and the manufacturer of Infant Tylenol following the death of their infant daughter from liver failure caused by acetaminophen toxicity.  The hospital, whose employees failed to give a dosing sheet to the parents after the infant was treated in the ER and gave the parents instructions on how to use Children’s Tylenol as opposed to the more potent Infant Tylenol, settled for $100,000 and the PCF intervened.  The jury assigned 70% to the hospital (PCF), 23% to the manufacturer, and the remaining fault to the mother and grandmother because they did not bring the child back to the hospital earlier.  Prior to trial, the PCF entered into an agreement with the plaintiffs that if the verdict was a certain dollar amount (three million dollars), the plaintiffs would voluntarily collect less from the PCF. The PCF and plaintiffs also jointly agreed to minimize the percentage of fault allocated to the PCF and that the PCF would support the plaintiffs’ damages argument. The defendant manufacturer argued that the agreement was an unlawful Mary Carter settlement agreement which voided the verdict.  The lower court and court of appeal disagreed, finding that while the agreement of the plaintiffs and the PCF was secret, it was not a compromise because the plaintiffs did not receive any money and did not settle with the PCF.  The PCF remained potentially liable to them.  The PCF had no defense to liability and was not the manufacturer’s co-defendant.  Finally, because the PCF was assigned 70% of the fault, the manufacturer was not prejudiced by the agreement.  The appellate court also upheld the verdict as to the manufacturer under products liability law and the assignment of fault to the hospital (PCF) for 70% because the hospital was in a superior position to prevent the injury.  And, the court upheld the awards to the plaintiffs in the amount of 4 million dollars. The PCF’s share was reduced to the cap.  The trial court judge was Donald Wayne Hebert, 27^th Judicial District Court, Parish of St. Landry:  11-609 (La. App. 3d Cir. 12/7/11), ___So.3d___, 2011 WL 6058038.

5. Owens v. Smothers, Discovery need not be complete for defense summary judgment.  Plaintiff, who suffered burns from a welding torch, alleged that the doctor who treated him in a hospital discharged him too soon causing him pain and suffering to the point of wanting to commit suicide and requiring him to be admitted to a long term care facility.  The defendant physician filed a Motion for Summary Judgment because plaintiff did not have an expert, and the motion was granted by the trial court.  On appeal, the plaintiff argued that (1) he did not need an expert because the negligence was obvious, and (2) a deposition scheduled to take place in two days would provide the sufficient expert testimony he needed. The court of appeal found expert evidence was required to defeat summary judgment because whether to discharge the plaintiff and whether discharing him caused any damage were complex issues.  Regarding the request by plaintiff to allow the deposition to go forward first, the court stated the grant of the summary judgment occurred three years after the injury and that plaintiff did not have an absolute right to delay action on a summary judgment motion until discovery was complete.  The trial court judge was Edward Broussard, 15^th Judicial District Court, Parish of Lafayette:  2011-575 (La. App. 3d Cir. 12/7/11), 2011 WL 6372859.

Louisiana Fourth Circuit Court of Appeal
6. Lagasse v. Tenet HealthSystem Memorial,Alleged Injection of “lethal” dose during Hurricane Katrina not malpractice.  Plaintiff filed suit against several defendants including a physician alleging he intentionally injected her mother with a lethal dose of narcotics while she was hospitalized with terminal medical conditions during Hurricane Katrina.  The physician contended that he was merely providing comfort measures as the patient was “actively dying.”  Plaintiff also asserted negligence claims.  The trial court sustained the physician’s Exception of Prematurity which argued all of the allegations sounded in medical malpractice.  The court of appeal reversed in part, stating that alleged euthanasia was an intentional tort not covered by the Medical Malpractice Act.  The negligence claims were properly dismissed as premature. The trial court judge was Sidney Cates, Civil District Court for the Parish of Orleans:  2011-0782 (La. App. 4^th Cir. 12/14/11), ____So.3d___, 2011 WL 6208696.

7. Feist v. Ferguson, Plaintiff wins summary judgment because defense affidavit found to be insufficient.  Plaintiff, who underwent a bunionectomy with base wedge osteotomy, screw fixation and arthroplasty, filed a complaint against his surgeon for alleged lack of informed consent, failure to obtain a pre-operative x-ray,and for having a poor surgical plan.  The plaintiff filed a Motion for Summary Judgment on the issue of liability only and introduced an affidavit of an expert who discussed in detail why he believed the defendant physician breached the applicable standard of care as alleged in the complaint.  In response to the Motion for Summary Judgment, the defendant offered an affidavit of his expert which was found to be conclusory by both the trial court and the court of appeal. The expert did not explain how he reached the conclusion that the defendant did not commit malpractice.  Further, the affidavit was neither dated nor notarized.  The trial court judge was Rosemary Ledet, Civil District Court for the Parish of Orleans:  2011-0643 (La. App. 4^thCir. 11/23/11), ___So.3d___, 2011 WL 5904430.

8. Wansley v. ABC Ins. Co.,Hospital wins summary judgment for lack of plaintiff expert.  The parents of a hemophiliac child sued hospital, alleging that it failed to ensure a machine designed to assist with range of motion for their son following knee synovectomy was used and was a proper fit.  The hospital filed a Motion for Summary Judgment, arguing that the plaintiff lacked expert testimony.  The plaintiff made numerous arguments including that expert testimony was not required because the negligence was obvious under Pffifnerand because the standard of care was established by the National Standards of the Joint Commission of Accreditation of Hospitals (“JCOAH”).  The court of appeal disagreed, stating thatany negligence as to the hospital was not obvious because the hospital did not procure, size the equipment or direct the patient to wear the device.  Plaintiff needed a medical expert to prove the standard of care for the hospital, a breach thereof and causation,which was lacking.  2011-0592 (La. App. 4^th Cir. 11/16/11), ___So.3d___, 2011 WL 5559982.

United States District Court, Eastern District of Louisiana
9. Taylor v. Ochsner Clinic Foundation, Alleged lack of sterilization of equipment=malpractice.  Putative classes sued Ochsner and GE Healthcare in state court for alleged failure to disinfect endoscopes at the temperature recommended by the manufacturer, causing the patients to face the risk of contracting Hepatitis and HIV.  GE removed the case to federal court, arguing Ochsner was improperly joined since a Medical Review Panel had not yet determined whether Ochsner deviated from the standard of care, and therefore, the lawsuit was premature.  Plaintiff sought remand which was denied by the district court because the judge found the alleged failure to properly sterilize endoscopes constituted medical malpractice.  Ochsner was dismissed, and complete diversity was maintained, allowing the case to remain in federal court.  The court applied the Coleman factors and noted that its opinion was in contrast with an opinion from Judge Lance Africk on the same issue.  The district court judge was Sarah Vance:  11-1926 c/w 11-2221 (E.D. La. 12/9/11), 2011 WL 6140885.
See also Bush v. Thoratec Corp., (Plaintiff’s allegations that hospital did not test surgically implanted heart pump and failed to inform the patient of known defects in the product sounded in medical malpractice such that the case needed to be presented to a Medical Review Panel before the hospital could be joined in the suit; hospital was dismissed and federal court jurisdiction against the manufacturer was maintained).  Judge Eldon Fallon, 11-1654 (E.D. La. 10/24/11), 2011 WL 5038842.

United States District Court, Middle District of Louisiana
10. Dyson v. Advanced Bionics, Alleged improper use of stimulator on patient=malpractice.  A magistrate remanded a case for the same reasons Judge Vance did in Taylor.  He found that allegations that a hospital was negligent in the use of a spinal cord stimulator on a patient, who claimed he received an electrical shock which caused him to fall and sustain injuries, clearly constituted medical malpractice.  Accordingly, the joining of the hospital defendants in the lawsuit he filed against the manufacturer was improper since no Medical Review Panel had yet rendered an opinion. The hospital was dismissed, and the case remained in federal court.  The Magistrate was Stephen Riedlinger:  11-672 (M.D. 11/22/11), 2011 WL 6294314.