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January 2014, Volume 2

Welcome to Caraway LeBlanc’s CaseNotes for January 2014, Volume 2. In this edition of CaseNotes:

  1. Medicaid lien covers entire settlement
  2. Supreme Court reinstates jury verdict against pacemaker patient who claimed lack of informed consent.
  3. Health care provider precluded from relying on inaccurate qualification letter from PCF.
  4. Timely filed claim against qualified health care providers suspended prescription as to a non-health care provider.
  5. Unsworn opinion from expert witness not enough to defeat summary judgment.
  6. Plaintiff unable to establish standard of care in spider bite case.
  7. Appellate court cuts pro se plaintiff little slack, finding her claim prescribed.
  8. Case dismissed against orthopedic surgeon despite adverse medical outcome.
  9. Medical malpractice statute does not apply to allegations that hospital was not hurricane-ready.
  10. Hemostat left behind during surgery, but promptly detected, not a case of obvious negligence.
  11. Summary judgment granted in favor of dermatologist who stopped providing care after becoming subject to disciplinary proceedings and abruptly retiring.

United States Congress
1. HJ. Res. 59, recently passed by Congress and signed by the President on December 26, 2013 makes changes to sections 1902(a)(25), 1912 and 1917 of the Medicaid third-party liability law by giving states the ability to recover costs from the full amount of a beneficiary’s liability settlement, instead of only that portion of the settlement designated for medical expenses. It also establishes an option for states to place liens against Medicaid beneficiaries’ liability settlements.

Louisiana Supreme Court
2. Snider v. Louisiana Medical Mutual Insurance Company, Supreme Court overturns appellate court’s reversal of jury verdict on informed consent case. A 27 year-old cardiac patient alleged that defendant/physician did not obtain his informed consent when he implanted a pacemaker following which the plaintiff developed complications. The jury found no breach of the standard of care and implicitly that informed consent was obtained; the court of appeal reversed. The Supreme Court reinstated the verdict, finding the appellate court should have conducted a manifest error standard of review and given great deference to the jury’s finding of fact; moreover, the jury apparently concluded that although the physician did not meet one section of the consent law (Section E which requires disclosure of risks and hazards identified by the Louisiana Medical Disclosure Panel), there were alternative ways to obtain consent under the consent law (sections A and C); there was ample evidence based on the written consent form signed by the plaintiff, together with the verbal information the physician testified he provided, to support the jury’s findings. 2013-0579 (La. 12/10/13); ___So.3d___; 2013 WL 6475227. The court of appeal was the Third Circuit, and the district court judge was not noted.

3. Luther v. IOM Company, LLC. Defendant considered not reasonable in relying on erroneous qualification under the MMA. Plaintiff underwent back surgery which resulted in neurological damage allegedly due to the failure of an electro-diagnostic monitoring service and its staff (collectively IOM) to report loss of function to critical neurological structures during the procedure. Plaintiff filed a medical malpractice complaint following which the PCF indicated IOM was qualified under the MMA, reserving the right to revise its qualification and coverage determination. IOM settled with plaintiff for the statutory cap of $100,000, and the plaintiff sought excess damages from the PCF. When the PCF was served with the settlement petition and excess damages demand, it responded that IOM was not qualified at the time of the alleged malpractice, after all, but only subsequent thereto. Plaintiff and his wife filed a lawsuit against IOM which filed a third party demand against the PCF, seeking a declaration that it was a qualified health care provider (“QHCP”), entitled to the cap. The parties filed cross motions for summary judgment which placed at issue whether IOM detrimentally relied on the initial qualification notice provided by the PCF and therefore, should be deemed a QHCP. The district court sided with the PCF, and the appellate court reversed. The Supreme Court reinstated the district court’s ruling, finding that the PCF introduced sufficient evidence to support its summary judgment by showing IOM was not qualified at the pertinent time. In response to IOM’s detrimental reliance claim, the court found that reliance must be reasonable, and IOM was not reasonable in relying on the PCF letter indicating it was qualified because it knew or should have known it was not enrolled in the PCF at the time of the plaintiff’s surgery. 2013-0353 (La. 10/15/13); ___So.3d___; 2013 WL 5788759. The court of appeal was the Second Circuit, and the district court judge was Judge Carl Van Sharp of the Fourth JDC, Parish of Ouachita.

4. Milbert v. Answering Bureau, Inc.,  Prescription on petition against answering service suspended by claim against qualified health care providers. Plaintiff filed a medical malpractice complaint against doctors and a hospital regarding failure to timely diagnose and treat compartment syndrome in his leg. Plaintiff later filed a Petition against an answering service for alleged delay in getting messages to the plaintiff’s doctor. The answering service argued and the lower courts agreed that a timely filed claim against qualified health care providers did not suspend prescription as to a non-health care provider under La. Rev. Stat. 40:1299.47(A)(2)(a). The Supreme Court disagreed stating that while the first part of the statute referred to qualified and non-qualified health care providers, the portion of the statute relating to suspension of prescription as to joint tortfeasors was not limited to health care providers. “Nothing in the language of the statute prohibits a non-health care provider from being a joint tortfeasor with a health care provider under an appropriate fact situation.”  2013-0022 (La. 6/28/13); 120 So.3d 678. The appellate court was the Third Circuit, and the district court judge was Judge Thomas Duplantier of the 15th JDC, Parish of Lafayette.

Louisiana First Circuit Court of Appeal
5. Johnson v. Bostick, Summary judgment granted for defendant in loss of chance case even though plaintiff had an expert witness and a letter containing his opinion. The patient’s family alleged the defendant’s conduct resulted in a delayed cancer diagnosis which deprived her of a chance of survival. The Medical Review Panel (“MRP”) found a deviation but no causation because by the time diagnostic tests were done, they showed focal areas (not extensive disease), and an earlier study would have been less revealing. The defendant filed a Motion for Summary Judgment (“MSJ”) arguing plaintiff did not provide an expert report. Thereafter, and after the deadline for providing such reports, the plaintiff submitted a letter from an expert in response to which the defendant argued the letter was inadmissible hearsay and even if admitted, did not raise genuine issues of material fact. On the day of the hearing, the plaintiff submitted an affidavit of the expert and asked that he be allowed to testify to authenticate the letter. The trial court denied the affidavit as untimely (case had been pending for over six years) and refused to allow live testimony. The court further stated that even if it allowed the letter into evidence, the physician made conclusory statements that did not raise genuine issues of material fact. The appellate court affirmed the trial court and added that to allow live testimony during a summary judgment hearing would foster piecemeal trials and appeals. 2013-0439 (La. App. 1st Cir. 11/1/13); 2013 WL 5916361 (unpublished). The district court judge was Judge Michael Caldwell of the 19th JDC, Parish of East Baton Rouge.

Louisiana Second Circuit Court of Appeal
6. Shell v. St. Francis Medical Center, Inc., Appellate court reverses judgment against medical clinic in a spider bite treatment case. Plaintiff brought action against medical clinic relating to treatment of an alleged spider bite. The City Court judge found for the plaintiff, and the clinic appealed. On appeal, the court found the plaintiff did not prove the standard of medical care, that it was breached or that any treatment or lack thereof caused plaintiff’s complications consisting of an abscess. Specifically, no doctor singled out any aspect of treatment as being improper and falling below the standard of care or how a different course of treatment would have altered the outcome. 48,613 (La. App. 2d Cir. 11/27/13); ___So.3d___; 2013 WL 6190356. The district court judge was Judge Tammy Lee of the Monroe City Court, Parish of Ouachita.

7. Wells v. Webb, Claim alleging faulty ankle surgery dismissed on prescription. A pro se plaintiff filed a complaint more than four years after her last postop visit with defendant who performed ankle surgery. She claimed she filed the complaint within a year from when she first discovered the surgery was done improperly. The trial court found that under applicable Supreme Court precedent, the discovery rule does not suspend the three year limit of the MMA, and the case was prescribed; the court of appeal affirmed and noted that while the court was sensitive to the plaintiff’s pro se status, it could not review evidence that was not in the record at the plaintiff’s request since she did not present certain facts before the trial court. 48,479 (La. App. 2d Cir. 9/25/13); ___So.3d___; 2013 WL 5346304. The district court judge was Judge Leon Lewis Emanuel of the First JDC, Parish of Caddo.

Louisiana Third Circuit Court of Appeal
8. Highsmith v. Foret, Orthopedic surgeon exonerated by trial and appellate court in a non-union fracture case. A trial court judge found plaintiffs failed to prove a surgeon breached the standard of care in a case in which the lead plaintiff alleged failed orthopedic surgery caused a non-union fracture of his right femur/hip. The court of appeal first found that even though the entire case was submitted through documentary evidence, as opposed to live testimony, the judgment would be given deference under the manifest error standard of review based on Supreme Court precedent. The court then affirmed the trial court’s finding that plaintiffs failed to prove the defendant’s degree of care was substandard. The court of appeal affirmed even though plaintiffs had offered testimony of an MRP member who stated that the surgeon should always view lateral radiographs during surgery; plaintiffs did not show the defendant/surgeon neglected to view such studies. And, while the plaintiffs offered testimony of a treating physician who stated lack of reduction contributed to the non-union, he had not seen the patient until four months after the surgery. There was evidence that non-union could occur just based on the passage of time. Therefore, it was reasonable for the trial judge to discount the treating physician’s testimony. 13-441 (La. App. 3d Cir. 10/30/13); 124 So.3d 571. The district court judge was Wilford Carter of the 14th JDC, Parish of Calcasieu.

Louisiana Fourth Circuit Court of Appeal
9. Burandt v. Pendleton Memorial Methodist Hospital, Allegations that hospital should have planned better for hurricane did not qualify as medical malpractice allegations. Plaintiff, a daughter of hospital patient who died in the aftermath of Hurricane Katrina at a hospital acute care center in New Orleans, alleged, among other things, that the defendant did not engage in appropriate planning and supervision to accommodate the patient as the hurricane approached and had an inadequate evacuation plan. Defendant argued the case sounded in medical malpractice and was premature with which the trial court agreed. The appellate court reversed, stating the allegations, in light of the strict application of the MMA, did not relate to medicine, medical care or medical treatment under Coleman v. Deno factors and the Supreme Court’s decision in LaCoste v. Pendleton Methodist Hosp. 2013-0049 (La. App. 4th Cir. 8/7/13); 123 So.3d 236. The district court judge was Judge Lloyd Medley of CDC, Parish of Orleans.

Louisiana Fifth Circuit Court of Appeal
10. Valence v. Jefferson Parish Hospital District No. 2, Summary judgment ordered and affirmed in case involving allegedly recalled surgical equipment and a left behind surgical device. Defendants were granted summary judgment in a case alleging they left a hemostat in the patient’s body after surgery for a ventral hernia repair and used recalled equipment resulting in twenty-one staples allegedly being mis-fired into his abdomen. Plaintiff had no expert witness and argued obvious negligence or the doctrine of res ipsa loquitur (the thing speaks for itself), obviating the need for expert testimony. The trial court stated and the court of appeal agreed that because the hemostat was noted to be left in the plaintiff’s body at the time of the instrument count, and the MRP found that an instrument count after closure is appropriate because instruments are used in closing the incision, it was acceptable to have accounted for the hemostat immediately after surgery and retrieved it at that time. This was not a retained instrument case that suggested obvious negligence in the failure to account for the device. Res ipsa did not apply because there were specific acts of negligence alleged, and direct evidence was available to explain a reason for plaintiff’s damages. Finally, plaintiff had no proof that defendants knew they were using recalled instrumentation. 13-48 (La. App. 5th Cir. 10/30/13); ___So.3d___; 2013 WL 5849724. The district court judge was Judge Nancy Miller of the 24th JDC, Parish of Jefferson.

11. Pignona v. Farber, Plaintiff sues a physician, subject to disciplinary proceedings, alleging he left her surgery “half-done.” Plaintiff alleged her dermatologist performed the first part of surgery to biopsy and repair a fibrolipoma of the right lower abdomen but failed to do the second part of the surgery because he retired, after becoming the subject of disciplinary proceedings by the Louisiana Board of Medical Examiners. She alleged he breached the standard of care in several respects including failing to disclose to plaintiff that he was the subject of those proceedings and that he had lost PCF eligibility, failing to disclose the risks of the procedure, attempting to perform a surgical procedure which should have been performed by a plastic or cosmetic surgeon, and neglecting to provide follow up care, all of which resulted in scars and unresolved need for cosmetic surgery. She also alleged his actions constituted violations of the Unfair Trade Practices Act (“UTPA”). The court of appeal affirmed the trial court’s granting of the summary judgment, finding that the mere fact that plaintiff had a scar after the surgery was not enough to establish negligence without the required guidance of expert testimony. And, there was no evidence that the physician’s stopping the practice of medicine caused her harm. There was also no merit to the plaintiff’s argument that she should have been given more time to obtain an expert opinion, an argument that was rejected by the trial judge who found significant that the case had been going on for three years. The appellate court stated:  “There is no absolute right to delay a trial court’s consideration of a summary judgment motion until discovery is completed,” and the decision was left to the discretion of the trial court. Finally, the appellate court upheld the lower court’s dismissal of the UTPA claim, stating that it was trumped by the MMA, the more specific of the two Acts alleged. 13-192 (La. App. 5th Cir. 10/9/13); ___So.3d___; 2013 WL 5555567. The district court judge was Judge Raymond Steib of the 24th JDC, Parish of Jefferson.

Other MSJ cases
Williams v. Linschoten,  Defendant/surgeon was granted summary judgment in case in which plaintiff alleged botched hip revision surgery and lack of informed consent. Plaintiff provided an unsworn expert report, which the court stated lacked sufficient evidentiary quality, and failed to offer any factual support for the informed consent claim. 2013-0240 (La. App. 1st Cir. 11/1/13); 2013 WL 5915490 (unpublished). The district court judge was Judge Kay Bates, of the 19th JDC, Parish of East Baton Rouge.

Savoy v. Perry, Defendant granted summary judgment in case filed by a plaintiff who was incarcerated at the time the summary judgment hearing was set. He introduced no evidence in opposition to the defendant’s motion and the court stated the mere fact that he sustained an injury did not provide for a presumption of negligence on the part of the defendant. He also could have requested permission to appear at the hearing and had ample time to conduct discovery. 13-416 (La. App. 3d Cir. 10/9/13); 2013 WL 5539188 (unpublished). The district court judge was Judge Kristian Earles of the 15th JDC, Parish of Lafayette.