CaseNotes

November 2011

1. MMA prescription rules bar mother’s claim against OCS
2. Physician exonerated by jury despite “bad” panel opinion 
3. Alleged failure to detect impending MI requires expert testimony
4. Cardiologist allowed to criticize neurologist in response to summary judgment motion
5. Jury clears doctor for alleged failure to detect central line in artery, not vein
6. Complaint lacking in detail is prescribed
7. Physician 50% to blame for retained sponge
8. Alleged nursing home violations regarding abuse upheld by ALJ
9. Alleged violation regarding suicide upheld by ALJ

Louisiana First Circuit Court of Appeal
1. Pierce v. Tadlock, Court reaffirms uniqueness of Medical Malpractice prescription rules.  Plaintiff sued health care providers based on the alleged improper removal of her children by OCS from her home.  The issue was whether she could bring OCS into the suit more than 90 days after she learned from the PCF that the originally sued health care providers were not qualified under the MMA.  Plaintiff argued the suit against the health care providers suspended suit against OCS under the Louisiana Civil Code.  The court disagreed, stating that the only suspension permitted was that under the MMA which gave plaintiff 90 days plus whatever was remaining on the prescriptive period to bring in alleged joint tortfeasors.  The trial court judge was Timothy Kelley, Nineteenth Judicial District Court, Parish of East Baton Rouge:  2010-1656 (La. App. 1^st Cir. 11/9/11), 2011 WL 5408630.

2. Marroy v. Hertzak,Jury verdict in favor of physician whom the panel found deviated from the standard of care.  Plaintiff sued defendant, an OB/GYN, claiming he negligently induced premature delivery of her baby and caused his respiratory complications. The Medical Review Panel unanimously ruled against the defendant; however, at trial, the jury found the plaintiff had not established the standard of care and that the defendant did not breach the standard of care. Plaintiff argued the jury verdict should be overturned because the form did not properly state the law, and had the jury found no standard of care was proved, it should have gone no further on the form; the jury’s findings were inconsistent.  The court stated that the law was properly set forth in the jury interrogatories, plaintiff did not object to them, and the fact that the jury answered the second question only solidified the jurors’ opinion that there was no malpractice.  The plaintiff also argued that the jury decision was manifestly erroneous. The court stated that since the jury was faced with two different, but permissible views of the evidence, its choice between them could not be clearly wrong.  The trial court judge was William Knight, Twenty-Second Judicial District Court, Parish of St. Tammany:  2011-0403 (La. App. 1^st Cir. 9/14/11), ___So.3d___, 2011 WL 4484598.

3. Hall v. Dr. Rau,Expert evidence needed in case against surgeon who allegedly missed impending heart attack.  Plaintiff underwent gall bladder removal and after discharge, experienced nausea, vomiting, upper abdominal and chest pain, arm pain, and shortness of breath. She advised defendant, her surgeon’s partner, of these symptoms and that she had similar complaints a few weeks earlier which she reported to her cardiologist who ruled out heart disease.  She went to the ER where she ultimately suffered a myocardial infarction and had to be resuscitated.  Defendant, armed with a favorable medical review panel decision, filed a summary judgment motion arguing plaintiff lacked the requisite expert testimony.  In response, plaintiff argued expert testimony was not required because the malpractice was obvious given that the defendant was the only physician responsible for the patient’s care through the time she consulted him and the “code blue” crisis.  The trial court and court of appeal disagreed, stating the circumstances of the case did not fall within the category of exceptions to the general rule requiring expert medical testimony to establish the standard of care and breach thereof.  The trial court judge was Timothy Ellender, Thirty-Second Judicial District Court, Parish of Terrebonne:  2011-0126 (La. App. 1^st Cir. 9/14/11), 2011 WL 4344018.

Louisiana Third Circuit Court of Appeal
4. Bias v. Deltoro, Testimony from cardiologist defeats summary judgment for neurologist.  The family of a patient, who had lupus, alleged one of the defendants, a neurologist, failed to diagnose her with cryptococcal meningitis, and she died as a result.  The Medical Review Panel ruled in the doctor’s favor, and he sought summary judgment.  In response, plaintiff offered the affidavit of a cardiologist that stated the defendant breached the standard of care and deprived the patient of a chance of survival.  Defendant claimed the plaintiffs’ expert lacked the training and expertise to render an opinion because he was not a neurologist, and the district court granted defendant’s summary judgment.  The court of appeal reversed because plaintiff’s expert stated that the standard of care relative to treating a patient with this type of meningitis and complications involving lupus patients involved issues common to the specialties of internal medicine and neurology and were known to him.  The trial court judge was Jules D. Edwards, III, Fifteenth Judicial District Court, Parish of Lafayette:  2011-291 (La. App. 3d Cir. 10/5/11), ___So.3d___, 2011 WL 4579132.

5. Abshire v. Continental Casualty Co., Appellate court upholds jury’s absolution of physician and hospital for failing to detect misplaced central line.  Plaintiffs’ mother, who was debilitated due to an earlier stroke, underwent placement of a central line in advance of surgery for abdominal obstruction.  The doctor confirmed placement by checking blood color and pulsatile blood flow and through X-ray.  The line was placed in the artery rather than a vein which allegedly caused the patient to have another stroke and later die.  There was testimony that the patient’s various ailments may have concealed signs of misplacement.  Plaintiffs sued the physician and hospital staff for failing to detect the mal-positioned central line. The judge granted directed verdict for the hospital; the jury found the physician did not deviate from the standard of care. Both decisions were upheld.  The trial court judge was Durwood Conque, Fifthteenth Judicial District Court, Parish of Acadia:  2011-655 (La. App. 3d Cir. 11/2/11), 2011 WL 5215867.

6. Patin v. State of Louisiana, Insufficient detail in medical malpractice claim results in dismissal due to prescription.  Plaintiff alleged her doctor prescribed inappropriate treatment which resulted in a stroke, heart attack and other serious injuries.  In her letter requesting a Medical Review Panel, filed almost three years after the alleged malpractice, she only referenced the date of the last treatment.  She did not provide the date she discovered she was the alleged victim of malpractice.  She also produced no evidence to allow a determination of when she discovered the facts on which to base the cause of action. The trial court and appellate court found the claim was prescribed on its face, the burden was on plaintiff to disprove prescription, and in the absence of any evidence in her favor, the case was prescribed.  The trial court judge was Mary Lauve Doggett, Ninth Judicial District Court, Parish of Rapides:  2011-290 (La. App. 3d Cir. 10/5/11); ___So.3d___, 2011 WL 4579131.

7. Davis v. Women and Children’s Hospital Lake Charles, Physician partially responsible for retained sponge.  Plaintiff underwent a lap band procedure and later developed complications which led to the discovery of a retained 3 ½ x 4 inch sponge inside her body, underneath the skin.  The surgeon settled with plaintiff, and after trial against the hospital, the judge awarded $50,000 in damages and assessed fault equally between the hospital and the surgeon, which effectively reduced the plaintiff’s award in half since the surgeon had settled.  The plaintiff appealed, arguing that the surgeon should not have been apportioned fault because he was not involved in the counting procedure followed by nurses in the operating room. The court of appeal agreed with the trial judge that a physician cannot delegate his obligation to count the sponges used during a procedure according to the jurisprudence.  The trial court judge was Robert Wyatt, Fourteenth Judicial District Court, Parish of Calcasieu: 2011-0318 (La. App. 3d Cir. 10/5/11), ___So.3d___, 2011 WL 4579137.

Departmental Appeals Board Decisions
8. Meridian Care v. CMS,Sexual Abuse tags upheld at Immediate Jeopardy level.  CMS determined Petitioner violated several tags in connection with a respiratory therapist (“RT”) who allegedly:  held the hand of one resident, stated he dreamed of her, and asked if he could kiss her, and engaged in sexually inappropriate touching of another resident.  The facility’s investigation revealed that residents interviewed (not the accusers) said no staff member had ever said or done anything inappropriate to them. The resident, who alleged inappropriate touching, was said to be manipulative.  The ALJ upheld the violations and CMS’ immediate jeopardy determination, finding that residents were subject to abuse by the RT, the facility failed to recognize the incident involving the first resident was abuse, the facility conducted only a cursory investigation regarding the second resident, and it allowed the perpetrator to work in the facility after the allegations surfaced.  The fines exceeded $80,000.  The ALJ was Keith Sickendick:  DAB No. CR2438 (9/29/11).

Del Rosa Villa v. CMS, Accident tag upheld in connection with resident suicide.  CMS cited a facility for allegedly not providing adequate supervision to a resident who left the facility presumably to smoke a cigarette, unaccompanied by staff, and who hanged himself with his belt on the perimeter fence.  The resident, who had been diagnosed with schizophrenia, had attempted suicide in the past by jumping in front of a moving vehicle and continued to have suicide ideations according to the RAP.  The ALJ upheld the tags, stating that although the staff might not have been expected to foresee the traffic event that occurred, it could reasonably be expected to foresee that the resident was at risk of suffering harm if not adequately supervised.  The ALJ was Richard Smith:  DAB CR2435 (9/21/11).