Welcome to Caraway LeBlanc’s CaseNotes for July 2011. In this edition of CaseNotes:
- Supreme Court gets tough on plaintiffs who fail to follow summary judgment rules
- Supreme Court finds inadmissible Medical Review Panel Opinion “harmless error”
- Plaintiff failed to connect the dots between malpractice and harm to the patient
- Court upholds verdict against hospital; finds juror internet research harmless
Louisiana Supreme Court
1. Sims v. Hawkins-Sheppard, Supreme Court gets tough on plaintiffs who fail to follow summary judgment rules. In a decision that bolsters medical malpractice defendants’ ability to obtain dismissals on summary judgment, the supreme court has indicated its frustration with appellate courts that routinely reverse trial courts that follow the summary judgment rules. In this case, the defendant doctor filed a motion for summary judgment based on the plaintiff’s failure to have an expert to support her allegations of malpractice. At plaintiff’s request, the trial court continued the hearing on the motion for two months. Then, plaintiff’s counsel opposed the motion, including an expert’s unsigned affidavit that plaintiff’s counsel asserted would be substituted with a signed affidavit at the hearing. No such affidavit was produced at the hearing. The plaintiff attended the hearing and advised the trial court she was hiring new counsel. The judge said that would not delay his granting of the motion. The court of appeal reversed, finding the trial court should have allowed the plaintiff a reasonable amount of time to find new counsel. The supreme court reversed the appellate court and reinstated the trial court’s dismissal of the case. The supreme court noted a “justified concern that courts of appeal are reversing district courts which properly apply the summary judgment rules contained in La. C.C. P. art. 966.” The trial court judge was Bernard Scott Leehy; 2011-0678 (La. 7/1/11), ____So.3d _____, 2011 WL 2586792.
2. McGolthlin v. Christus St. Patrick Hospital, Supreme Court finds inadmissible Medical Review Panel Opinion “harmless error.” This issue in this case was whether the Medical Malpractice Act, La. R.S. 40:1299.47(H), requires the admission of a medical review panel opinion when the panel exceeded its authority and rendered an opinion based on its determination of plaintiffs’ credibility. The patient alleged she suffered a patella dislocation after her bilateral total knee replacement surgery during two transfers from a wheelchair to a bed and then a commode. The LPNs alleged to be involved in each transfer vehemently denied that any incident occurred during either transfer. The medical review panel found no breach of the standard of care. In its reasons, the panel wrote that the patient’s version of the incidents had “numerous inconsistencies.” The trial court allowed admission of the opinion after it redacted the portion that reflected the panel’s beliefs about the plaintiff’s credibility. The appellate court found that the opinion was inadmissible because the panel is not supposed to render an opinion on whether standards of care are breached when there is “a material issue of fact, not requiring expert opinion, bearing on liability for consideration by the court.” Since the appellate court found the opinion tainted the jury, it conducted a de novoreview and reversed the verdict. The supreme court agreed the panel superseded its statutory authority; however, the supreme court found the trial court’s error was rendered harmless by its redaction of the offending credibility language. The supreme court, in reinstating the jury verdict, stated, “The edited opinion summarized the position of the parties and the evidence already presented to the jury without any indication of the panel’s credibility determinations. Therefore, this evidence was merely corroborative and cumulative of other properly introduced evidence.” The trial court judge was Kent Savoie; 2010-2775 (La. 7/1/11), ____So.3d _____, 2011 WL 2586853.
Louisiana First Circuit Court of Appeal
3. Johnson v. Williams, Plaintiff failed to connect the dots between malpractice and harm to the patient. Plaintiff, the widow of a patient who died of a heart attack while recovering from hip surgery, sued the hospital and the patient’s doctor alleging they had committed malpractice in administering Demerol and failing to ensure proper hydration and nutrition. The defendants filed a motion for partial summary judgment on the issue of causation which the judge granted. The appellate court noted the plaintiff needed to prove only that the defendants’ malpractice resulted in the patient’s loss of a chance of survival. However, no one testified for the plaintiff that the defendants’ actions resulted in a lost chance of survival from the heart attack that caused his death. The court found this was not a case that fell into the jurisprudential exception negating the necessity of supporting expert medical testimony. The decedent suffered from a long, complicated history of diabetes, and the court found several factors impacted the patient’s health. The court concluded the “interaction of any possible malpractice with Mr. Smith’s poor health would require expert medical testimony to establish the causation of any harm suffered by Mr. Smith. Without that medical testimony to link a breach of the standard of care to a lost chance of survival of a heart attack, Mrs. Smith failed to carry her burden of proof.” The trial court judge was Brenda Bedsole Ricks; 2010-2106 (La. App. 1st Cir. 6/17/11), ____So.3d _____, 2011 WL 2448136.
Louisiana Second Circuit Court of Appeal
4. Simmons v. Christus Schumpert Medical Center, Court upholds verdict against hospital; finds juror internet research harmless. Plaintiffs, the adult children of the patient/decedent, claimed the hospital failed to provide competent nursing personnel to care for the patient in the ICU and that the patient died as a result. The evidence apparently indicated the hospital did not give ICU orientation to the nurse. Further, the court emphasized that the nurse was not experienced in ICU nursing; ignored a physician’s order for respiratory nebulizer treatment; failed to document how long the patient’s respiratory rate was at an increased level; failed to ensure that monitor alarms were on and properly functioning; and failed to obtain an ABG as ordered. The jury (in a 9-3 verdict) found for the plaintiffs and awarded damages totaling $550,840 ($100,000 for the patient’s survival damages and $50,000 each to the decedent’s nine children, plus medical expenses). The appellate court affirmed. The court found a reasonable factual basis existed for the jury’s findings on the issue of liability. The court also addressed the trial court’s denial of a motion for new trial based, in part, on the misconduct of one of the jurors. The juror allegedly conducted internet research at home on medical issues that he shared with the other jurors during deliberations. The appellate court found the trial court did not abuse its discretion in denying the motion for new trial. The evidence adduced during a hearing on the juror’s misconduct did not demonstrate that the internet information unduly influenced the jury’s decision. The trial court judge was Scott Chrichton; 45,908 (La. App. 2d Cir. 6/15/11), ____So.3d _____, 2011 WL 2348654.