|Welcome to Caraway LeBlanc’s CaseNotes for March 2012. In this edition of CaseNotes:
- MMA cap still the law in Louisiana
- Statute that denies abortion providers MMA rights is unconstitutional
- EMTALA claim denied to man with penile fracture
- Bystander damages hinge on underlying claim and actually seeing negligence
- Radiology standard of care within expertise of general surgeon
- Standard of care is not what “most” doctors would do
- MMA does not encompass Katrina failure to evacuate claims
- Physician liability based on physician assistant’s errors
- Negligent supervision of employee in rape case covered by MMA
Louisiana Supreme Court
1. Oliver v. Magnolia Clinic,Louisiana’s highest court upholds the cap. The Louisiana Supreme Court reversed the Louisiana Third Circuit Court of Appeal’s decision which found the Louisiana medical malpractice cap, enunciated in La. R.S. §40:1299.42(B), was unconstitutional as it applied to nurse practitioners. Prior to appeal, a jury awarded ten million dollars in favor of the parents of an infant who was treated by a nurse practitioner thirty-two times for various symptoms; the child was later diagnosed by physicians with neuroblastoma, a form of cancer, and suffered from severe bone loss and muscle deterioration, loss of sight and several cognitive disabilities. The Supreme Court found that the Medical Malpractice Act (“MMA”) was not unconstitutional as to all qualified health care providers, including nurse practitioners, because limiting damages in malpractice cases lowers malpractice insurance costs, thereby assuring accessible and affordable health care for the public. The court also found nurse practitioners were included in the MMA because, even though they were not expressly mentioned in it when enacted, the State was not required to put on evidence of an insurance crisis within each specialty and sub-specialty in the field of health care. The court recognized the argument that inflation and economic changes touch on the adequacy of the cap’s amount. However, the court also concluded any perceived infirmity in the MMA is to be addressed by the legislature. Finally, the court found payment of a Medicaid lien did not absolve the PCF from having to pay additional medical costs and related services from the time of the injury until the time of trial; the PCF also had to pay interest on past medical expenses to the plaintiffs even though those expenses were paid by Medicaid and not the plaintiffs. 2011-2132, et al. (La. 3/13/12); ___So.3d___; 2012 WL 798796.
United States District Court for the Middle District of Louisiana
2. Hope Medical Group for Women v. LeBlanc, Abortion service related statute = unconstitutional. A medical group and individual physicians who performed abortion services challenged the constitutionality of La. R.S. §9:2800.12 (Act 825) which provides patients with a claim against abortion providers and denies abortion providers benefits of the MMA. The defendants were the executive director of the PCF and members of the PCF Oversight Board. The district court judge found the statute was unconstitutionally vague, placed an undue burden on a woman’s right to seek an abortion, and violated Equal Protection rights because there was no rational basis between the classification of different health care providers and the defendants’ stated goal of the statute, i.e., providing “informed consent.” The district judge was Helen G. Berrigan. 07-879, 10-511 (M.D. La. 3/1/12); 2012 WL 701174.
Louisiana First Circuit Court of Appeal
3. Ivy v. St. Tammany Parish Hosp. Service Dist. No. 1, Penile injury was not “medical emergency.” A patient sued a hospital under EMTALA and Louisiana’s Anti-dumping law, alleging it failed to provide legally required medical treatment, after he was diagnosed in the ER with a penile fracture, because he did not have insurance. The lower court found he was stable when he was discharged and that he failed to prove a medical emergency as required under the anti-dumping laws. The trial court judge was Allison Penzato of the 22nd Judicial District Court, Parish of St. Tammany. 2011-1624 (La. App. 1st Cir. 3/23/12); 2012 WL 996545.
Louisiana Second Circuit Court of Appeal
4. Jenkins v. Washington and Wells, LLC, Lejeune damages not allowed when underlying malpractice is nonexistent and because family was outside patient’s room. Family members sued their lawyer for alleged mishandling of medical malpractice claim which asserted they were entitled to Lejeune damages (damages for mental distress caused to a bystander of negligence) from a hospital where their relative died of a stroke. The attorney missed a court deadline. The court found because the clients would not have succeeded on the medical malpractice claim, the legal malpractice claim failed as well. Specifically, the court found the medical malpractice claim would not have been successful because (1) the administration of blood thinner to the stroke victim did not cause her death, as plaintiffs alleged, and (2) the medication was given to the patient in the emergency room when the family was not present. Therefore, they did not view or come upon the scene of an injury causing event. The trial judge was Judge Ford E. Stinson of the 26th Judicial District Court for the Parish of Bossier. 46,825 (La. App. 2d Cir. 1/25/12); ___So.3d___; 2012 WL 204514.
5. Harper v. Minor, Surgeon can testify regarding standard of care of radiologist. A patient brought an MMA action against a surgeon and radiologist after it was discovered that a guide wire fragment and targeted breast mass remained in breast after a needle localization breast biopsy was performed. A directed verdict was granted in favor of defendants because plaintiff’s proposed expert, a general surgeon and not a radiologist, was not allowed to testify as to the standard of care applicable to the radiologist defendant or about other issues that also had an impact on the defendant surgeon’s liability. The appellate court reversed, stating the expert surgeon could testify because he regularly performed the type of procedures at issue and had reviewed numerous radiographic images over the years. The trial court judge was Bernard Leehy, of the Fourth Judicial District Court for the Parish of Ouachita. 46,871 (La. App. 2d 2/1/12); ___So.3d___; 2012 WL 287727.
Louisiana Third Circuit Court of Appeal
6. Lindgren v. Ning, What most physicians would do is not the standard. A jury found a urologist was not negligent, and the plaintiffs appealed for several reasons including that the trial judge refused to allow their expert testify as to what most urologists would do faced with the patient’s condition. The court of appeal found what most urologists would do is irrelevant; the only issue was whether the defendant doctor either lacked the degree of knowledge or skill practiced by physicians in urology or failed to use reasonable care and diligence (without more explanation on what the language meant). The jury’s verdict was affirmed. The trial judge was John C. Ford of the Thirteenth District Court for the Parish of Vernon. 11-1152 (La. App. 3d 3/7/12); 2012 WL 716316.
Louisiana Fourth Circuit Court of Appeal
7. Montalbano v. Buffman, Inc., Failure to evacuate nursing home residents is not medical malpractice. The PCF was granted summary judgment dismissing wrongful death and survival actions filed by family members of ten residents of St. Rita’s Nursing Home (“St. Rita’s”) who died there in the aftermath of Hurricane Katrina. The plaintiffs’ allegations were that the facility failed to evacuate the nursing home prior to the hurricane and that these failures constituted medical malpractice under the MMA. The trial court disagreed, and the court of appeal upheld the decision finding under the Coleman v. Deno factors: (1) the decision not to evacuate made by the administrator, who was not a health care professional, was not related to medical treatment or dereliction of professional skill; (2) the actual decision not to evacuate did not involve the assessment of the patients’ conditions; (3) the evacuation-related decision did not involve physician-patient relationships within the MMA; and (4) nothing in the record indicated the residents died due to medical treatment they received or should have received. The trial court judge was Judge Cossich Lobrano of the 34th Judicial District Court for the Parish of St. Bernard. 2011-0753, et al. (La. App. 4th Cir. 3/21/12); ___So.3d___; 2012 WL 966062.
8. Talbert v. Evans, Doctor, who never saw the patient, found liable for pre-signing prescriptions and leaving medication closet open. A patient was treated by a physician’s assistant (“PA”) who gave him a sample of Zomig which contained Codeine. He suffered an allergic reaction and subsequently died from an acute myocardial infarction induced by vasospam. The trial court found the defendant (the physician who owned the clinic), the clinic and the PA were all partially at fault but then concluded that defendant doctor was legally responsible for all fault that caused the patient’s wrongful death. The PCF, which had previously established that the PA was not qualified under the MMA and therefore, the PCF was not responsible for any damages attributable to her, appealed. The PCF argued negligent supervision, one of the charges against the defendant, was not covered by the MMA at the time of the alleged malpractice. The court of appeal disagreed, stating under Coleman v. Deno, the actions of the defendant were covered by the MMA since (1) the actions of the PA were under the sole supervision of the doctor, and (2) there were actions of the doctor independent of the PA that triggered a finding of malpractice, namely his practice of having pre-signed prescription forms and leaving his medication sample closet unlocked and open to his employees. The trial court judge was Piper Griffin of the Civil District Court for the Parish of Orleans. 11-1096 (La. App. 4th Cir. 3/7/12); ___So.3d___; 2012 WL 746364.
Louisiana Fifth Circuit Court of Appeal
9. Buford v. Williams, Negligent supervision of alleged rapist covered by act; rape itself was not. Plaintiff sued hospital for negligence arising out of an alleged rape committed by one of its employees. The hospital filed an Exception of Prematurity, arguing the case had to be presented to a Medical Review Panel (“panel”) first, and the trial court agreed. The court of appeal reversed, in part, stating that the allegations that the hospital was negligent in its supervision and handling of the patient sounded in malpractice and had to be reviewed by a panel. However, the allegations relating to the rape were not covered by the MMA as they were allegations of intentional acts not covered by the act. Likewise, any vicarious liability for such intentional acts would also not be subject to the MMA. The trial court judge was Patrick McCabe of the 24th Judicial District Court for the Parish of Jefferson; 11-568 (La. App. 5th Cir. 2/14/12); ___So.3d___; 2012 WL 469871.
W.P. v. University Health Services Foundation, (court followed same rationale as in Buford and found allegations that psychiatric hospital was negligent in not protecting a patient who was sexually assaulted twice by another patient were medical malpractice allegations subject to panel review). 11-801 (La. App. 5th Cir. 3/27/12); ___So.3d___; 2012 WL 1020683.
Bickham v. Lammico(neurosurgeon’s status of qualified health care provider was not limited to services provided within the course and scope of his employment at the hospital that paid his medical malpractice premiums, and PCF did not owe interest on the $100,000 settlement with the underlying health care provider). 2011-0900 (La. App. 4th Cir. 2/1/12); ____So.3d___; 2012 WL 293216.
Giovingo v. Dunn(plaintiff’s claim was considered abandoned since plaintiff took no action against defendant, including serving him with the claim, within the three year abandonment period; bankruptcy proceedings by defendant and motion for summary judgment filed by another defendant did not interrupt the abandonment period). 11-781 (La. App. 5th Cir. 3/13/12); ___So.3d___; 2012 WL 833338.
Howard v. Vincent(summary judgment based on the fact that plaintiff did not have glaucoma subspecialist as an expert reversed because plaintiff’s expert, an ophthalmologist, was knowledgeable about the applicable standard of care; he only would defer to a glaucoma expert regarding appropriate surgical treatment to address the problem allegedly not treated by the defendant ophthalmologist). 2011-0912 (La. App. 4th Cir. 3/28/12); ___So.3d___; 2012 WL 1037919.