CaseNotes

May 2012

1. Defense verdict withstands appeal even though plaintiff claimed limited review by defense expert
2. Partially proved case establishes causation and damages for patient’s spouse
3. Summary Judgment awarded defendant even though plaintiff had retained an expert
4. Even if doctor erred, damage was already done
5. Lawsuit not premature just because attorney chair for Medical Review Panel was never appointed
6. Allegations of improper transfer of high risk fall patient governed by MMA

Louisiana First Circuit Court of Appeal

Defense verdict withstands appeal even though plaintiff claimed limited review by defense expert
Turner v. General Health System,  Can expert rely solely on medical records?  A patient was injured during physical therapy, and she alleged improper assistance by the physical therapist.  After trial, during which two competing experts testified about the standard of care and breach of the standard of care, the trial judge found for the defendant. On appeal, plaintiff argued that the defense expert’s opinion was patently unsound because he relied solely on the medical records; therefore, the general rule that the appellate court should defer to the trial court should not be applied. The court of appeal disagreed and upheld the defense verdict, stating that the expert also relied on deposition testimony to render his opinion (even though the medical record seemed to be the primary basis of the expert’s opinion).  The trial judge was Judge Timothy E. Kelley.  2011-04 (La. App. 1^st Cir. 5/3/12), 2012 WL 1564552.

Louisiana Third Circuit Court of Appeal
Partially proved case establishes causation and damages for patient’s spouse
Langley v. American Legion Hosp.,Admitted liability and disputed causation, lead to plaintiff verdict and loss of consortium damages.  Patient, who experienced an allergic bee-sting, was given epinephrine intravenously rather than subcutaneously causing sudden onset of supraventricular tachycardia.  The hospital stipulated that the nurse breached the standard of care. Trial was held on the issue of causation and damages.  The trial judge found for the patient awarding her $25,000 but denied her husband’s loss of consortium claim.  On appeal, the hospital relied on the judge’s comments that the medical testimony was uncertain and did not show the patient’s present day complaints were related to the incident.  The court of appeal stated that, while the patient did not prove related nerve or heart damage at the time of trial, there was ample evidence of physical pain and psychological distress.  Moreover, the appellate court found the husband should have been awarded loss of consortium damages because the evidence showed the couple no longer engaged in hobbies together, the patient had nightmares, the husband worried about her constantly, he had to walk on eggshells because of the medications she was taking, and their sexual life was curtailed, etc.  The husband was awarded $2,500.  The trial judge was Judge Durwood Wayne Conque of the 15^th Judicial District Court, Parish of Acadia.  11-1521 (La. App. 3d Cir. 5/2/2012), 2012 WL 1521520.

Louisiana Fourth Circuit Court of Appeal
Summary Judgment awarded defendant even though plaintiff had retained an expert
Gorbach v. Tulane Medical Center, Plaintiff’s late naming of expert does not ward off summary judgment.  Plaintiff’s case was dismissed on summary judgment even though plaintiff had retained an expert; plaintiff did not notify defendant of the retention until two months after the court ordered deadline to do so and not until a month after the defendant filed its second motion for summary judgment.  The fact that the plaintiff’s attorney submitted an affidavit that indicated the specific expert had been named and that he was currently reviewing the file did not prevent the granting of the summary judgment which was upheld on appeal.  The trial judge was Judge Lloyd Medley of the Civil District Court, Parish of Orleans.  2011-1575 (La. App. 4^th Cir. 4/11/12), 2012 WL 1232546.

Louisiana Fifth Circuit Court of Appeal
Even if doctor erred, damage was already done
Boudreaux v. Parnell,  Damage already done before alleged malpractice.  Patient suffered radial nerve palsy after shoulder replacement surgery during which complications arose in the form of a humerus fracture and extrusion of cement used during the procedure.  The plaintiff alleged the defendant committed malpractice by not having an X-ray performed after surgery.  Based on evidence which showed the radial nerve damage would have occurred within 20 minutes of the contact with the cement, the trial judge found for the defendant on this allegation. The trial court also denied plaintiff’s informed consent claim because, although the consent form did not discuss cement extrusion, it did address the possibility of neurological injury and bone fractures.  In addition, the patient admitted to not reading the consent form even though no one prevented her from reading it.  The court of appeal affirmed.  The trial judge was Judge Hans J. Liljeberg of the 24^th Judicial District Court, Parish of Jefferson.  11-631 (La. App. 5^th Cir. 4/10/12), ___So.3d___, 2012 WL 1192165.

Lawsuit not premature just because attorney chair for Medical Review Panel was never appointed
Alexander v. Shaw-Halder,  Failing to appoint attorney chair does not mean later lawsuit is premature.  Plaintiff filed a medical malpractice complaint with PCF alleging malpractice related to cosmetic dental veneers and implants.  An attorney chairperson was never appointed within a year from the filing, as required, and the panel proceeding was dismissed; the PCF concluded the parties waived the panel process.  After the plaintiff filed a lawsuit, the defendant filed an Exception of Prematurity arguing that because the medical review panel process had not been completed, a lawsuit was premature.  The trial court agreed, stating that it was plaintiff’s fault that no chairman was timely selected. The court of appeal reversed, stating that both parties waived the panel by not selecting an attorney chairperson.  Defendant also argued that the medical malpractice complaint was insufficient to commence the panel process because it did not provide dates of the alleged malpractice.  This issue was not decided by the trial court or court of appeal.   The trial judge was Judge Stephen J. Windhorst of the 24^th Judicial District Court, Parish of Jefferson.  11-1136 (La. App. 5^th Cir. 5/8/12), ____So.3d____, 2012 WL 1605702.

See also Neese v. East Baton Rouge Medical Center,LLC, 2011-0811 (La. App. 1^st Cir. 3/30/12), 2012 WL 1080866, (failure to appoint attorney chair person does not mean subsequent suit is premature).

Allegations of improper transfer of high risk fall patient governed by MMA
Matherne v. Jefferson Parish Hosp. Dist. No. 1, Fall during treatment of patient at risk for falls covered by MMA.  Allegations regarding fall of 250 pound elderly patient while being transferred by a hospital employee from a bedside commode to her bed were determined to be medical malpractice related and covered by the MMA.  The transfer was made while the patient was receiving treatment for a leg hematoma, and she was considered to be a patient at risk for falls.  The trial judge was Judge Ross P. Ladart of the 24^th Judicial District Court for the Parish of Jefferson.   11-1147 (La. App. 5^th Cir. 5/8/12), ___So.3d___, 2012 WL 1608634.