CaseNotes

January 2013

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

Louisiana Supreme Court

1. Ballard v. Planation Management Company, LLC, Supreme Court lets stand summary judgment in favor of nursing home despite arguably sufficient expert testimony.  Plaintiff filed suit against a nursing home alleging wrongful death of her mother who fell at the facility, broke her hip and died approximately a year later.  The trial court granted the defendant’s motion for summary judgment on the basis that even though plaintiff had a nurse expert who opined regarding breaches in the standard of care, her opinions were about general breaches and were not specific to the instant case.  Further, although the plaintiff offered an affidavit of a physician who opined the hip fracture contributed to the patient’s death, she did not comment on any breach in the standard of care.  The plaintiff sought relief from the Supreme Court, and her request was denied.  In a strong dissent, Justice Johnson stated she  sided with plaintiffs because the nurse expert attested to several specific violations of the standard of care and the Court had never held that opinions on standard of care have to be particularly specific for purposes of summary judgment motions.  Moreover, Justice Johnson stated the plaintiff’s physician expert was never offered as an expert in standard of care but her opinion was limited to causation, an opinion she could solely provide to supplement the nursing testimony regarding standard of care.  2012-1233 (La. 10/8/12); 99 So.3d 16.

Louisiana First Circuit Court of Appeal

2. Clavier v. Our Lady of the Lake Hosp., Inc., Family’s separate lawsuit against hospital and physicians for “spoliation” of evidence dismissed as unfounded and untimely.  Parents of son who died following surgical procedure related to Crohn’s colitis brought both a medical malpractice claim and a separate lawsuit claiming the hospital intentionally destroyed evidence by erasing data from the patient’s pain pump and by not conducting certain toxicology screens during autopsy.   The son’s doctor stated he either died from bleeding to death, an adverse reaction to narcotics, a cardiac event or a pulmonary embolism.  The autopsy ruled out some of these theories but could not rule out a narcotic reaction or a cardiac event.  The trial court found and the court of appeal agreed that the plaintiffs had no cause of action for “spoliation” because there was no evidence that the data was erased intentionally or the screens were purposely not done to hide evidence from plaintiffs in connection with litigation.  The court also found there was no duty to perform certain toxicology screens.   Finally, the court found the plaintiffs knew about their claim more than a year before it was filed; therefore, it was prescribed.  2012-0560 (La. App. 1^st Cir. 12/28/12); ___So.3d____; 2012 WL 6725825. The district court judge was Todd Hernandez of the 19^th JDC, Parish of East Baton Rouge.

3. Woods v. Humphries, Court of appeal reinstates jury verdict that standard of care was not established.   Plaintiffs alleged that ER physician and hospital violated the standard of care resulting in serious and permanent damage to him as a result of a major stroke. The jury found the plaintiff did not prove the standard of care.  The trial judge granted a judgment notwithstanding the verdict and awarded significant damages. The court of appeal disagreed with the trial judge and reinstated the jury verdict finding that given the considerable disagreement among the medical experts, a reasonable juror could conclude that plaintiffs had not established the standard of care applicable to the physician, which is the first step in proving a medical malpractice claim.  2011-2161 (La. App. 1^st Cir. 10/9/12); ___So.3d___; 2012 WL 4813813.  The district court judge was Jerome Barbera of the 17^th JDC, Parish of Lafourche.

Louisiana Second Circuit Court of Appeal

4. Farmer v. Willis-Knighton Medical Center, Appellate court affirms jury verdict against nurse regarding administration of lethal undiluted potassium.  A 69 year old  woman, with no history of cardiac problems, presented to an ER with epigastric symptoms.  The ER physician ordered Demerol, Phenergan and potassium.  The evidence showed that rather than injecting the undiluted potassium into a saline bag, the nurse directly injected it into the patient’s IV causing her intense burning at the IV site, erratic heartbeat, frothing at the mouth, convulsions and eventual death from cardiac arrhythmia. The testimony indicated the patient looked at her daughter as if she was begging for help and stopped breathing 90 seconds after the potassium was administered.  The jury rendered a verdict against the nurse which was upheld on appeal. The jury also awarded $250,000 in survival damages even though the patient was conscious for less than two minutes.  The court of appeal further found each of the patient’s 13 children were entitled to $60,000 in wrongful death damages (presumably subject to the Medical Malpractice cap).  47,530 (La. App. 2d Cir. 11/14/12); ___So.3d___; 2012 WL 5499991. The district court judge was Leon L. Emanuel of the First JDC, Parish of Caddo.

5. Crockham v. Dr. Thompson, Doctor criticized by MRP is exonerated by jury.  68 year old paraplegic woman presented to ER three times in one day with symptoms of bowel obstruction similar to obstructions she had previously.  She was finally admitted to the hospital the third time and was placed under the care of her longtime treating physician.   While the physician ordered oral medication for a very high blood pressure reading and an NG tube for nausea, he did not see the patient until the next day and after she suffered a stroke; she ultimately died.  The jury found both the physician and the hospital did not breach the standard of care.  With regard to the doctor, the jury reached this conclusion even though a Medical Review Panel found against the physician for not seeing the patient sooner, not admitting her to the ICU, not giving nurses blood pressure parameters to alert them to call him and by administering the blood pressure medication orally.  The court of appeal upheld the jury’s verdict.   47,505 (La. App. 2d Cir. 11/14/12); ___So.3d___; 2012 WL 5500307.  The district court judge was Rudolph McIntyre, Jr. of the Fifth JDC, Parish of Richland.

6. Toston v. St. Francis Medical Center, Inc.,  Trier of fact should decide claims against two hospitals for decisions related to transfer of septic patient.  Two hospitals filed and were granted summary judgments relative to a patient who was diagnosed with acute pyelonephritis and kidney stones at a rural hospital which did not have the capacity to care for the patient and sought to transfer her. The issue for the first transferee hospital (Conway) was whether it should have accepted the patient’s transfer considering it knew it did not provide urological services that the patient would probably need and whether the delay attributed to the transfer to Conway caused her subsequent death.  The issue for the second transferee hospital (St. Francis) was whether the hospital’s decision to accept and then reject the transfer from Conway affected the outcome.   The court of appeal ruled there were issues of fact that rendered summary judgments inappropriate.  As an aside, the court also found the anti-dumping statute that prevents hospitals from refusing to treat patients due to the inability to pay did not apply to St. Francis.   47,529 (La. App. 2d Cir. 12/17/12); ___So.3d___; 2012 WL 6554873.   The district court judge was Alvin Rue Sharp, Jr. of the Fourth JDC, Parish of Ouachita.

7. Atkins v. La. Mutual Medical Ins. Co., Jury exonerates ER physician alleged to have misread EKG.  An ER physician treated patient for chest pain and patient died nine hours later at another hospital, where he was transferred, of a heart attack.  He had a history of acid reflux, hypertension, obesity, a prior negative nuclear stress test, prior ablation due to a fast heartbeat and a family history of heart disease.   The plaintiffs alleged the physician misinterpreted the EKG, failed to administer clot busters and beta blockers to relax the heart, and delayed referral to cardiologist.  Two members of the Medical Review Panel found for the doctor but one dissented, stating he deviated from the standard of care. The jury disagreed and the trial court refused to grant the plaintiffs’ post-trial motions to reverse the jury findings. The court of appeal upheld the jury verdict and the judge’s decision not to grant plaintiffs’ motions.   47,374 (La. App. 2d Cir. 11/7/12); ___So.3d___; 2012 WL 5415521. The district court judge was Jimmy Teat of the Second JDC, Parish of Jackson.

Louisiana Third Circuit Court of Appeal

8. Milbert v. Answering Bureau, Inc.,  Non-medical defendants are not jointly liable with health care providers qualified under the MMA.  A claim against an answering service that allegedly failed to timely pass on messages from a patient to his doctor was dismissed on summary judgment by the trial court.  The patient claimed that the combination of the doctors’ response to his compartment syndrome following the patient’s ankle fracture and the answering service’s failure to communicate to the doctor led to his damages.  The trial court held and court of appeal agreed that since the lawsuit was not filed against the answering service for more than a year after the alleged negligence, the claim was prescribed, notwithstanding that the plaintiff claimed the answering service was jointly liable with the qualified health care providers against whom a timely medical malpractice claim was filed.    With little explanation,  the court found that the answering service could not be jointly liable with the qualified health care providers.   Based on the concurrence, the majority seemed to conclude there was no joint liability because the claims against the answering service sounded in negligence and not medical malpractice. There was a strong and, in our opinion, a well-reasoned dissent.   2012-632 (La. App. 3d Cir. 12/5/12); ____So.3d___; 2012 WL 6028899.  The district court judge was Judge Thomas R. Duplantier of the 15^th JDC, Parish of Lafayette.

9. LeBouef v. Dr. O’Donnell, Plaintiff need not sue all doctors listed on operating room record to avoid prescription defense.  A jury found a surgeon, who assisted in exploratory laparotomy scheduled after the patient developed infection post-hysterectomy, 100% at fault for delayed detection of a bowel perforation.  The surgeon argued the case against him was prescribed because it was not filed until more than a year after the alleged malpractice.  Plaintiffs argued that it was not until the main surgeon testified of the other doctor’s role in the surgery that plaintiffs had notice of a potential claim.  The trial court and court of appeal agreed apparently siding with plaintiffs that a contrary ruling would encourage patients to sue every doctor whose name appeared on a medical record without knowing the role he or she played in the patient’s treatment.  12-514 (La. App. 3d Cir. 12/12/12); ___So.3d___; 2012 WL 6178210.  The district court judge was Clayton Davis of the 14^th JDC, Parish of Calcasieu.

10. Landry v. PSA of Lafayette,  Non-party physician found 100% at fault in hypoxic brain injury to infant.  Family of infant sued medical equipment provider (“PSA”) and several physicians relating to brain damage suffered by their infant daughter.  The allegations against PSA was that it failed to provide information regarding results from an apnea monitor prescribed for the child who was born with Pierre Robin Sequence/Syndrome, a condition characterized by a small chin, cleft palate and risk that child’s tongue could obstruct her airway.  The jury found that while PSA violated a duty owed the child, the failure to provide the information did not cause her hypoxic injury; rather the non-defendant physician who read her earlier sleep study and failed to recommend surgical intervention was 100% at fault.  The trial court judge rejected post-trial motions by plaintiffs, and the court of appeal affirmed.  2012-277 (La. App. 3d Cir. 11/7/12); ___So.3d___; 2012 WL 5417014.  The district court judge was Edward B. Broussard of the 15^th JDC, Parish of Lafayette.

Louisiana Fourth Circuit Court of Appeal

11. Joseph v. Williams,  Jury verdict in favor of podiatrist in oral informed consent case is upheld.  Court of appeal refused to reverse finding of jury that defendant/podiatrist provided informed consent even though the risks of the surgery were not all documented in the written consent form.  The doctor was allowed to testify at trial as to what he communicated to the patient orally which the court of appeal found was proper.   The court of appeal also ruled that because the doctor stated that he disclosed all the risks of surgery to each and every one of his patients, the trial court erred in not allowing the impeachment testimony of another patient in plaintiff’s case in rebuttal; however, the appellate court found this was harmless error.   2012-0675 (La. App. 4^th Cir. 11/14/12); ___So.3d___; 2012 WL 5522755.  The district court judge was Paulette Irons of the Civil District Court, Parish of Orleans.

12. Collins v. National Healthcare of Leesville, Inc., Jury’s general damage award increased more than fourfold for broken forearm.  Jury awarded patient $30,000 in general damages after finding defendant doctor breached the standard of care and caused damages by delaying treatment and using inadequate hardware during an operation to repair fractures in the ulna and radius.  The patient required seven surgeries, couldn’t use his left arm for one and a half years and the bone took four years to heal.  He was still impaired at the time of trial.  On appeal, the court found the jury abused its discretion and the lowest award for general damages was $130,000 ($100,000 for pain and suffering and $30,000 for  loss of enjoyment of life).  As an aside, the defendant physician argued on appeal that he was not responsible for the $90,000 in medical expenses because they were considered future medical expenses owed by the PCF.  Since the court of appeal increased the total general damage award to in excess of $100,000 the appellate court did not have to consider the medical expense issue.  12-502 (La. App. 3d Cir. 11/7/12); ___So.3d___; 2012 WL 5423392.  The district court judge was James Richard Mitchell of the 30^th JDC, Parish of Vernon.

13. Hendrix v. Maison Orleans, LLC, Appellate court overturns trial judge who found nursing home was responsible for death of hospice patient.  Plaintiffs alleged that the defendant nursing home breached the standard of care in failing to keep their mother hydrated and failing to report her declining condition to her physician, ultimately causing her death.  The defense argued at trial that the patient was a hospice patient whose family wanted only palliative care, not curative care, justifying the actions of the nursing home.  The trial judge disagreed and awarded wrongful death and survival action damages.  On appeal, the Fourth Circuit reversed, finding that plaintiff’s expert’s testimony was largely based on his belief that the patient did not meet the criteria for hospice care and the nursing home had no role in the hospice certification. The court also found the family provided informed consent for hospice care and should have understood it did not provide curative measures.  The court further found that the facility’s failure to report a significant change in the patient’s condition did not constitute medical malpractice because it was not related to medical treatment.  However, the plaintiffs proved a claim under the Nursing Home Resident’s Bill of Rights and were entitled to minimal damages based on the version of that statute at the time of violation (before August 15, 2003) when the law was changed to limit plaintiffs to injunctive relief.  2011-1349 (La. App. 4^th Cir. 9/26/12); ___So.3d___; 2012 WL 4465674. The district court judge was Robert A. Buckley of the 34^th JDC, Parish of St. Bernard.

Louisiana Fifth Circuit Court of Appeal

14. Fanguy v. Lexington Ins. Co., et al., MRP decision tarnished by panel member’s relationship with defendant.   Fifth Circuit reversed trial court’s decision on prescription and also found that trial court erred in denying plaintiff’s motion to exclude Medical Review Panel Opinion and testimony of two panel members.  Plaintiff argued and the court of appeal agreed that the opinion and testimony had been “tainted” by the presence of third panel member who had financial relationship with the defendant/doctor.  The defense argued unsuccessfully that the third panel member signed an oath establishing he could perform his duties as a panelist faithfully and without partiality, and there was no evidence presented that he violated that oath.  12-136 (La. App. 5^th Cir. 11/13/12); ___So.3d___; 2012 WL 5500511.  The district court judge was Donald Rowan of the 24^th JDC, Parish of Jefferson.

Other Decisions
Turner v. Willis Knighton Medical Center, The Supreme Court held that under La. R.S. 40:1299.47(A)(2)(c), which provides that “[t]he filing of a request for a medical review panel shall suspend the time within which suit must be filed until ninety days after the claim has been dismissed in accordance with this Section,” means 90 days from dismissal and not 90 days after the dismissal is communicated to the plaintiff.  2012-0703 (La. 12/4/12); ___So.3d___; 2012 WL 6015598.  The district court judge was Leon Emanuel, III of the First JDC, Parish of Caddo.

Richard v. Parish Anesthesia Associates, Ltd., et al., The Fourth Circuit found the lower court properly applied the burden of proof in ruling that a doctor deviated from the standard of care in the refilling of a morphine infusion pump notwithstanding doctor’s argument that the court improperly required him to disprove his negligence by showing the pump malfunctioned; since the claim of a malfunctioning pump was an “affirmative defense,” the burden of proving it malfunctioned was on the defendant doctor.   2012-0513 (La. App. 4^th Cir. 12/14/12); ___So.3d___; 2012 WL 6560596.  The district court judge was Ethel Simms Julien of the Civil District Court, Parish of Orleans.

Johnson v. Ray, Fourth Circuit (1) upheld judgment against agency nurse who failed to timely report signs of paralysis/nerve damage in patient who ultimately was diagnosed with epidural abscess and became paraplegic, (2) found that trial court properly rejected expert testimony of treating neurosurgeon because defendants did not identify him as an expert, and (3) determined that non-practicing rehabilitation physician, who allegedly did not meet qualifications of La. R.S. 9:2794, could nonetheless testify regarding causation in a neurosurgery case.  2012-0006 (La. App. 4^th Cir. 12/5/12); ___So.3d___; 2012 WL 6055584.  The district court judge was Madeleine Landrieu of the Civil District Court, Parish of Orleans.

Guardia v. Lakeview Regional Medical Center, First Circuit affirmed trial judge’s judgment awarding $35,000 to plaintiff who alleged the defendant hospital committed malpractice in not preventing his pressure ulcers on his head and sacrum.  The hospital had earlier been dismissed on summary judgment, but the court of appeal reversed the decision as premature.  2011-1877 (La. App. 1^st Cir. 11/2/12); 2012 WL 5381494.  The district court judge was Reginald Badeaux of the 22^nd JDC, Parish of St. Tammany.

Baker v. Dunn, First Circuit agreed that claims against ambulance company regarding medic’s release of restraints in seizure patient being transported resulting in him exiting the ambulance and getting hit by a vehicle were medical malpractice claims subject to the medical malpractice cap and were not mere negligence claims.  2012-0074 (La. App. 1^st Cir. 9/21/12); 2012 WL 4335406.  The district court judge was Elizabeth Wolfe of the 21^st JDC, Parish of St. Helena.

New Orleans Home for Incurables, Inc. v. Greenstein, Federal Court in New Orleans found it was improper for the Secretary of Department of Health and Hospitals (“DHH”) to use a revocation of nursing home license based on being out of compliance with minimum licensing standards as a basis to terminate the facility’s Medicaid provider agreement under the Medical Assistance Programs Integrity Law (“MAPIL”). The revocation decision was being appealed and the revocation was suspended pending all administrative and judicial appeals of the license.  DHH was enjoined from terminating the agreement and from forcing the facility to notify its residents of the termination.  2012 WL 5877961 (E.D. La. 11/20/12).  The district court judge was Nannette Jolivette Brown of the United States District Court, Eastern District of Louisiana.