CaseNotes

January 2014, Volume 1

1. Misdiagnosis of breast cancer yields significant jury verdict.
2. The PCF estopped from arguing causation after summary judgment against the underlying defendant.
3. Court reinstates jury’s finding of informed consent, even though consent was obtained by physician’s assistant.
4. Allegedly defective medical malpractice complaint interrupts prescription.
5. Wrong level fusion case prescribed despite delayed discovery and alleged continuing treatment.
6. Lack of documentation can constitute a breach of the standard of care.
7. Appellate circuits disagree on whether prematurity exception is a prerequisite to a prescription exception.
8. Summary judgment granted in over-prescription of pain medication case despite an affidavit from plaintiffs’ expert.
9. Plaintiff unable to overcome presumption in informed consent case.

Louisiana First Circuit Court of Appeal

1. Monroe v. Leonard Chabert Medical Center and Charles Binford, Damages not excessive in wrongfully diagnosed breast cancer case.  Plaintiff filed a medical malpractice action alleging misdiagnosed breast cancer which resulted in her undergoing an unnecessary mastectomy of her left breast. The jury awarded $475,000 in general damages, and defendants (state health care providers) appealed. The court of appeal affirmed, applying the long-settled principle that the fact finder is afforded vast discretion in assessing general damages, and its award should rarely be disturbed. The appellate court noted that the plaintiff was pregnant and a mother of three at the time of surgery, which left her with serious emotional, mental, and physical scars from her misdiagnosis. She was faced with undergoing a surgery during pregnancy, disfigurement, and a long, complicated road ahead of her regarding reconstructive surgery of her removed breast. Her relationship with her child’s father ended, and she now had a distrust of physicians. 2012-1683 (La. App. 1^st Cir. 4/26/13); 2013 WL 1791022 (unpublished). The district court judge was Judge Timothy Ellender of the 32^nd JDC, Parish of Terrebonne.

2. Khammash v. Clark. Trial court errs in allowing the PCF to argue causation at trial.  Plaintiff filed suit against several defendants alleging failure to adequately treat his back condition. On the same day as the court approved plaintiff’s settlement with the only remaining defendant, the court also granted summary judgment against that defendant on both the issues of liability and causation.  Thereafter, there was a trial against the PCF for excess damages. The trial court allowed the jury to hear evidence on causation and to determine whether any breach caused the plaintiff damages, to which the jury responded “no.” The plaintiff appealed, and the PCF argued that under Graham v. Willis-Knighton Medical Center, the plaintiff had the burden of proving that the admitted malpractice caused damages in excess of $100,000, and therefore, it was proper to allow the jury to consider causation. The appellate court found the trial court erred in allowing testimony regarding causation and allowing the jury to consider causation, and the matter was reversed and remanded for a new trial.  2012-0763 (La. App. 1^st Cir. 5/17/13); 2013 WL 2150711 (unpublished). The district court judge was Judge Wilson Fields of the 19^th JDC, Parish of East Baton Rouge.

3. Cobb v. Mitchell, M.D.,  Failure to thoroughly read consent form, disclosed by surgeon’s assistant, is no defense to informed consent presumption.  Following jury trial in which a jury exonerated the defendant physician, finding he did not breach the standard of care and obtained informed consent, the district court judge granted JNOV on the issue of informed consent. The judge found the jury was confused about the law regarding informed consent and specifically found the defendant surgeon did not actually disclose the required risks to the patient (rather a physician’s assistant did so) in violation of La. Rev. Stat. 40:1299.40(E)(7)(c). The appellate court found that there is no such requirement that the surgeon provide the disclosure under subsections A or C of the consent law.  The form met the requirements of subsection A, and the fact that the patient merely “glanced” at the form did not defeat the presumption of validity. 2012-1032 (La. App. 1^st Cir. 6/27/13): 121 So.3d 692. The district court judge was Judge Janice Clark of the 19^th JDC, Parish of East Baton Rouge.

Louisiana Second Circuit Court of Appeal

4. Ward v. Vivian Healthcare and Rehabilitation Center, A medical malpractice complaint, which the PCF found did not meet statutory muster, nevertheless interrupts prescription.  The estate of a nursing home resident brought a medical malpractice claim against a defendant nursing home alleging she died due to malnutrition. The PCF indicated the complaint did not meet the minimum requirements of La. Rev. Stat. 40:1299.47(A)(1)(b) and advised plaintiff it had 30 days to correct the errors. The defendant filed an exception stating that the complaint did not interrupt prescription, and the PCF did not have the right to give plaintiff additional time to meet the requirements of Section 40:1299.47(A)(1)(b).  The trial court denied the exception, and the court of appeal affirmed, finding the complaint met the minimum requirements of the statute and was timely. The court added that even assuming the request was not timely, there were no penalty provisions in the pertinent provision unlike the statute requiring medical malpractice plaintiffs to pay a filing fee. In the absence of specific penalty provisions, the request could not be deemed invalid by the court. The court also found it significant that the defendant was not prejudiced by the allegedly defective complaint. 47,649 (La. App. 2d Cir. 5/15/13); 116 So.3d 870. The district court judge was Judge Leon Lewis Emanuel, III of the First JDC, Parish of Caddo.

5. Nichols v. Patwardhan, Patient files claim for wrong level fusion too late.  Plaintiff underwent a lumbar fusion but symptoms persisted, following which the defendant/surgeon referred him to another physician for steroid injections. Plaintiff claimed that almost three years later he learned the surgeon performed the fusion at the wrong level, and more than three years after the last visit with the surgeon, he filed a medical malpractice complaint against him. Plaintiff argued that he underwent continuing treatment with the defendant even after the last visit with him because the subsequent steroid injections were done at his direction. Plaintiff also argued he had one year from the date of discovery that the wrong level was fused to file a claim. The district court and appellate court found the case prescribed because there was no continuing treatment by nature of the referral to another physician, and the three year prescriptive period of La. Rev. Stat. 9:5628 could not be interrupted pursuant to the discovery rule in absence of proof of any concealment, fraud or ill practices on the part of the defendant.  48,170 (La. App. 2d Cir. 6/26/13); 120 So.3d 322. The district court judge was Judge Leon Lewis Emmanuel, III of the First JDC, Parish of Caddo.

Louisiana Third Circuit Court of Appeal

6. Estate of Walters v. West Louisiana Health Services, Inc., A hospital’s failure to maintain adequate medical records can be, in itself, a breach of the standard of care.  Patient’s estate filed a complaint alleging the hospital breached the standard of care owed to the patient by allowing him to fall and fracture his hip. The Medical Review Panel (“MRP”) found the hospital did not breach the standard of care. Five months after suit was filed, defendant filed a Motion for Summary Judgment based on the MRP opinion. The plaintiff responded with an affidavit of a nurse who concluded that the hospital documentation was so inadequate, the hospital did not meet the standard of care and that based on the patient’s history of falls, there should have been documentation of the risk and procedures in place to prevent future falls. The trial judge granted the summary judgment, stating the plaintiff did not refute the MRP opinion with the nurse’s affidavit, the plaintiff’s nurse expert did not address how any breach in the standard of care caused injury to the plaintiff, and there was lack of documentation in the record of any call for assistance by the patient. The court of appeal reversed, stating the nurse properly established the hospital breached the standard of care by failing to maintain adequate medical records and failing to document fall prevention measures. The court noted it could not rely on the argument that there was an absence of a documented call for assistance based on the inadequate documentation throughout the entire chart. 2012-1457 (La. App. 3d Cir. 5/1/13); ___So.3d___; 2013 WL 1810579. The district court judge was Judge Kerry Anderson of the 36^th JDC, Parish of Beauregard.

7. Alexander v. Acadian Ambulance Services, Inc. Disagreeing with precedent from the Fourth Circuit, the Third Circuit finds an Exception of Prematurity is a prerequisite to arguing a premature lawsuit is prescribed.  Plaintiff filed a medical malpractice lawsuit but did not file a medical malpractice complaint with the Division of Administration. Defendant answered the lawsuit and subsequently raised an Exception of Prescription, after the three year anniversary of the alleged medical malpractice. The trial court denied the exception, and the appellate court affirmed, finding that in order for a medical malpractice defendant to urge that a premature lawsuit does not interrupt prescription under LeBreton v. Rabito, the defendant must first file an Exception of Prematurity. The appellate court found the Fourth Circuit decision in Farve v. Jarrott, which stands for the opposite result, did not consider the underlying facts in the prior cases which had addressed this issue.  12-1236 (La. App. 3d Cir. 5/22/13); 114 So.3d 605. The district court judge was Judge Kristian Earles of the 15^th JDC, Parish of Lafayette.

Louisiana Fourth Circuit Court of Appeal

8. Albers v. Vina Family Medicine Clinic, Conclusory expert affidavit not sufficient to defeat summary judgment in pain medication case.  The patient’s children brought suit against a physician arguing that his treatment of their mother caused her to be addicted to pain medication and ultimately led to her death. In response to a Motion for Summary Judgment (“MSJ”) filed by the defendant, plaintiffs offered an affidavit of an expert who opined that the seven medications prescribed to the patient were “powerful, addictive and subject to abuse,” and that the pattern, manner, method and amounts of the medications prescribed constituted a violation of the appropriate standard of care by those physicians (including the defendant doctor) who prescribed them. The trial court and court of appeal found the affidavit did not establish the standard of care, that it was breached or that any breach was the proximate cause of the patient’s death.  Summary judgment was appropriate.  2012-1484 (La. App. 4^th Cir. 5/22/13); 116 So.3d 940. The district court judge was Judge Michael Bagneris of CDC, Parish of Orleans.

Louisiana Fifth Circuit Court of Appeal

9. Griffitt v. Binder, Defendant’s MSJ granted even though plaintiff alleged she did not consent to the actual procedure performed.  A patient and her husband initiated a medical malpractice action against an orthopedist alleging breach of standard of care and lack of informed consent surrounding knee surgery. Plaintiffs settled with the physician for less than the policy limits. The PCF filed an MSJ on the informed consent claim which was granted by the district court.  On appeal, the court first found that the consent form was properly signed, and it met the requirements of La. Rev. Stat. 40:1299.40; therefore, it was presumed to be valid and effective. Further, the plaintiff did not overcome the presumption with her argument that she only consented to a closed rather than open procedure which was actually performed. All of the experts testified that the form covered both procedures. The appellate court affirmed the granting of the summary judgment motion. 12-744 (La. App. 5^th Cir. 5/30/13); 119 So.3d 794. The district court judge was Judge Ellen Kovach of the 24^th JDC, Parish of Jefferson.

Other MSJ cases
Vanner v. Lakewood Quarters Retirement Community, et al.  MSJ granted in favor of nursing home who allegedly failed to diagnose resident’s broken arm and to treat or prevent resident’s pressure sores because resident’s daughters failed to offer expert testimony. 12-1828 (La. App. 1^st Cir. 6/27/13); 120 So.3d 752. The trial judge was Judge Todd Hernandez of the 19^th JDC, Parish of East Baton Rouge.

Cooper v. McClintock, Summary judgment denied in case in which patient’s family alleged failure to treat and resuscitate their decedent who allegedly had a DNR order in place. The court found there was a genuine issue of fact as to whether there was such an order, precluding summary judgment regardless of whether plaintiffs had an expert witness. 11-1934 (W.D. La. 8/14/13); 2013 WL 4411090. The district court judge was Chief Judge Dee Drell.