CaseNotes

March 2011

1. Court bends rules for patient due to attorney deception
2. Court finds negligence but awards minimal damages
3. Physician should not have operated on diabetic
4. Constitution does not require optimal medical care for prisoners (despite defendant’s discovery abuses)
5. Nursing facility loses bid to shift immediate jeopardy burden of proof

Louisiana Second Circuit Court of Appeal
1. Sims v. Hawkins-Sheppard, Court bends rules for patient due to attorney deception.  The plaintiff alleged her obstetrician failed to obtain her informed consent before performing a surgical vaginal delivery that resulted in her baby’s eyes being permanently damaged by  forceps, and an unwanted hysterectomy.  The defendant filed a motion for summary judgment based on plaintiff’s lack of an expert to support her claims.  One day before the hearing, plaintiff’s counsel informed his client that the expert they had retained weeks before had not yet signed the affidavit to oppose the motion.  On the hearing date, the trial judge granted summary judgment.  The appellate court reversed on the basis that the plaintiff was the victim of her attorney’s deception, and found the trial court abused its discretion by not allowing the plaintiff more time to retain another attorney and secure the affidavit from her expert.  The trial court judge was Bernard Scott Leehy; 46,145 (La. App. 2d Cir. 3/2/11), ____So.3d _____, 2011 WL 723169

Louisiana Third Circuit Court of Appeal
2. Mitcham v. Kufoy,Court finds negligence but awards minimal damages. The patient’s family sued the defendant doctor alleging he performed a thoracentesis on the wrong side of the patient’s chest.  The patient developed a pneumothorax as a result and suffered pain and discomfort for about one day. The judge ruled the physician breached the standard of care, but only awarded $1500 in general damages.  The appellate court upheld the award stating it could not say it was abusively low.  The trial court judge was Martha Ann O’Neal; 2010-1068 (La. App. 3d Cir. 2/9/11), ___So.3d ____, 2011-WL408881.

Louisiana Fourth Circuit Court of Appeal
3. In Re Medical Review Panel of Zsa Zsa Dunjee, Court agrees physician should not have operated on diabetic.  A patient with a history of juvenile diabetes sued her gynecologist/fertility specialist after suffering significant complications from a laparoscopic myomectomy and colpotomy he performed.  Two of the three medical review panelists found the defendant had breached standards of care because the patient’s diabetes was not stable before surgery and also because the defendant did not stop the surgery once he discovered signs of infection.  The trial judge (in a bench trial) ruled against defendant and awarded $100,000 in damages. The defendant argued on appeal that the judge should have agreed with the contrary opinions of defendant’s expert.  The appellate court found, however, it was up to the trial court to determine the weight to accord contradictory expert opinion and emphasized the trial court’s determination of credibility was to be given great deference.  The appellate court also rejected defendant’s claim that the patient herself was at fault for failing to take prescribed antibiotics.  The court would not, however, increase the plaintiff’s damages above $100,000.  The trial court judge was Sidney Cates; 2010-1217 (La. App. 4^th Cir. 1/26/11), 2011-WL241960.

United States District Court – Louisiana
4. Zara v. Strain, The Constitution does not require optimal medical care to prisoners. An inmate of the St. Tammany Parish jail sued the sheriff alleging his constitutional rights were violated because he was not afforded adequate medical care.  The court found the plaintiff could not specify a specific policy or procedure of the sheriff’s office  that caused his allegedly inadequate medical care.  The court also noted that under the constitution, the jail is not required to provide “optimal” medical care.  Nor are constitutional rights violated if inmates receive unsuccessful treatments or if pain persists after treatments. Finally, the constitution only protects an inmate’s right for his serious medical problems to “not be met with deliberate indifference.”  The court dismissed the inmate’s claim. As an aside, the court emphasized that defense counsel’s behavior during discovery had been “appallingly unprofessional.” The court stated that if plaintiff pursued sanctions for discovery abuses, the court would entertain such a motion.  Magistrate Sally Sushan; 2011-WL723409 (E.D. La. 2/11/11)
Departmental Appeals Board

5. Highland Pines Nursing Home v. CMS, Nursing facility loses bid to shift immediate jeopardy burden of proof.  Nursing home was cited for violating a number of participating requirements at an immediate jeopardy level related to a resident who had a necrotic leg wound that became gangrenous and led to her death.  The facility did not challenge the merits of deficiencies found by the Administrative Law Judge (“ALJ”).  However, it argued that it was wrong for the ALJ to put the burden on the facility to show the immediate jeopardy finding was clearly erroneous.  The burden, instead, should have been placed on CMS pursuant to the Administrative Procedure Act.  The DAB stated, regardless of who had the burden, the facility’s response to the resident’s wound was noncompliance that caused and was likely to cause serious injury, harm, impairment or death.  The ALJ was Carolyn Cozad Hughes; DAB 2361 (1/14/11).