Articles Posted in Louisiana Personal Injury Law

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The loss of a less-than-even chance of survival is a distinct injury compensable as general damages which cannot be calculated with mathematical certainty. The jury should make a subjective determination of the value of that loss, fixing the amount of money that would adequately compensate the survivor for that particular loss. In awarding damages for loss of a chance of survival, the jury is to focus on the chance of survival lost on account of the medical negligence as a distinct compensable injury and to value the lost chance as a lump sum award based on all the evidence in the record. In considering an award for loss of a chance of survival, the jury may consider evidence of percentages of chance of survival, loss of support, loss of love and affection, and other wrongful death damages. Smith v. State, 95-0038, (La. 6/25/96), 676 So.2d 543, 547-49.

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In Russo v. Dr. Stephen Kraus, 2010-2463 (La. 1/28/2011), the Louisiana Supreme Court granted a writ and reinstated the judgment of the District Court denying a Sibley v. Board of Supervisors of Louisiana State University, 477 So.2d 1094 (La. 1985), hearing, which is a hearing to determine the constitutionality of provisions related to the Louisiana Medical Malpractice Act. The Louisiana Supreme Court’s Order was based in part on the Court’s prior findings concerning the existence of a medical malpractice insurance crisis in the 1970s.”

In effect, the Louisiana Supreme Court ordered that because an insurance crisis existed in the 1970’s, it is impermissible to conduct a “Sibley hearing” in 2011 to determine the unconstitutionality of the 3 year preemption period applicable to medical malpractice claims. The District Court had denied the plaintiffs the opportunity to have a hearing on the constitutionality of the 3 year preemption statute. The Fourth Circuit Court of Appeal reversed and ordered a “Sibley hearing.” The Supreme Court held that the Court of Appeal “erred in reversing the District Court’s judgment and remanding this matter for a Sibley v. Board of Supervisors of Louisiana State University, 477 So.2d 1094 (La. 1985), hearing on these issues. See Crier v. Whitecloud, 496 So.2d 305, 308-09 (La. 1986); see also, Branch v. Willis-Knighton Medical Center, 92-3086, pp. 9-10 (La. 4/28/94), 636 So.2d 211, 215, overruled on other grounds in David v. Our Lady of the Lake Hospital, 02-2675 (La. 07/02/03), 849 So.2d 38.”

At first glance, it appears that the Louisiana Supreme Court is implying that it will reject a challenge to the constitutionality of the $500,000 cap on general damages and lost wages in medical malpractice cases. However, the preemption provision before the Court and the cap on damages present two different issues that have totally different equal protection constitutional implications. The preemption provision affects every medical malpractice claimant in the same manner, while the cap on damages adversely (and unconstitutionally) impacts only those claimants with severe and disabling injuries and damages. The 1970’s cap is also woefully inadequate when considering 2011 dollars. So, while the medical malpractice insurance crisis of the 1970’s may still matter when it comes to issues effecting every claimant equally, the 40 year old medical malpractice insurance crisis does not matter when determining the constitutionality of the cap.

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Even if the negligence of a doctor did not cause the patient’s death, because he was likely to have died anyway, damages can still be awarded if the doctor’s negligence caused the patient to lose a less-than-even chance of survival. A loss of a chance of survival in any degree is compensable in damages. To establish causation in a situation when the patient dies, the survivor need only prove that the defendant’s medical negligence resulted in the patient’s loss of a chance of survival. The survivor does not have to prove that the patient would have survived if properly treated. Martin v. East Jefferson General Hosp., 582 So.2d 1272, 1278 (La. 1991); Hastings v. Baton Rouge General Hosp., 498 So.2d 713, 720 (La. 1986); and Smith v. State, 95-0038 (La. 6/25/96); 676 So.2d 543, 547.

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There is no presumption that a doctor possesses the required skill and knowledge required of him by the controlling medical standards and that in treating his patients, that he applies that knowledge and skill. Williams v. Golden, 95-2712 (La. App. 4 Cir. 7/23/97), 699 So.2d 102, 106-07, writ denied, 1997-2788 (La. 1/30/98), 709 So.2d 708.

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Where medical disciplines overlap, a specialist in one field may give expert testimony as to the standard of care applicable to areas of the practice of medicine common to both disciplines. Corley v. State, DHH, 32,613 (La.App. 2 Cir. 12/30/99), 749 So.2d 926, 931-32, citing Leyva v. Iberia General Hospital, 94-0795 (La.10/17/94), 643 So.2d 1236; Richardson v. State, 98-918 (La.App. 3 Cir.12/09/98), 726 So.2d 417; Kippers v. Corcoran, 97-870 (La.App. 5 Cir.01/27/98), 707 So.2d 463; Smith v. Juneau, 95-0724 (La.App. 4 Cir.04/09/97), 692 So.2d 1365; and Ricker v. Hebert, 94-1743 (La.App. 1 Cir.05/05/95), 655 So.2d 493.

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In Sensebe v. Canal Indemnity Company, 2010-0703 (La. 1/28/2011), the Louisiana Supreme Court held that an “automobile business” exclusion in a Farm Bureau insurance policy violates Louisiana’s public policy of requiring insurance coverage as expressed in the Louisiana Motor Vehicle Safety Responsibility Law, La. R.S.32:851 – 1043. Specifically, the Court found that the “automobile business” exclusion conflicts with the “statutory omnibus clause” contained in La.R.S. 32:900(B)(2), which requires coverage for all permissive drivers.

See also Marcus v. Hanover Insurance Company, 1998-2040 (La. 6/4/99), 740 So.2d 603, 606, wherein the Louisiana Supreme Court struck down a “business use” exclusion as being in direct conflict with the statutory omnibus clause.
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In a medical negligence claim against a Louisiana doctor practicing in a specific specialty, the plaintiff has the burden of proving, by a preponderance of the evidence: (1) the degree of knowledge or skill possessed, or the degree of care ordinarily exercised by physicians licensed to practice and actively practicing in the same medical specialty as the defendant doctor; (2) that the defendant doctor either lacked this degree of knowledge or skill or failed to use reasonable care or diligence, along with his best judgment in the exercise of that skill; and (3) that, as a proximate result of this lack of knowledge or skill, or failure to exercise this degree of care, the patient suffered injuries which would not otherwise have been incurred. La.R.S. 9:2794.

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In Louisiana, “[t]o establish a claim for medical malpractice, a plaintiff must prove, by a preponderance of the evidence: (1) the standard of care applicable to the defendant; (2) the defendant breached that standard of care; and (3) there was a causal connection between the breach and the resulting injury. La. Rev. Stat. 9:2794.2.

Expert testimony is generally required to establish the applicable standard of care and whether or not that standard was breached, except where the negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony. ***

In ruling on a motion for summary judgment, we are not free to simply disregard the … unopposed expert medical evidence.”

Schultz v. Guoth, 2010-0343 (La. 1/19/01), citing Samaha v. Rau, 07-1726 (La. 2/26/08), 977 So.2d 880, 883, and Pfiffner v.Correa, 94-0924 (La. 10/17/94), 643 So.2d 1228.

Based on the foregoing, the Louisiana Supreme Court reversed the lower courts and granted summary judgment in favor of a defendant obstetrician who offered a unanimous medical review panel opinion in his favor and an affidavit of one the medical review panel members in support of his motion. The plaintiff, whose baby was still born allegedly as a result of the medical malpractice, produced no expert testimony or counter-affidavit.
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A plaintiff in a medical negligence case must present his claim first to a medical review panel of physicians of the same specialty as the defendant physician and licensed to practice in Louisiana. Physicians from other states or from different specialties can not be appointed to a medical review panel. The panel evaluates the evidence submitted and renders a non-binding opinion. The opinion of the panel has been admitted into evidence in this case. The jury may consider it along with all of the other evidence in the case on this issue, but its findings are not binding on the parties or on the jury. Like any other evidence, it may be evaluated for bias when you determine the weight you may give, if any, to the opinion. La. R.S. 40:1299.47(C) & (H); and Derouen v. Kolb, 397 So.2d 791, 794 (La. 1981).

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On January 6, 2011, Chief Justice Catherine D. “Kitty” Kimball announced that the Louisiana Supreme Court has appointed the following five members to sit on the newly established Committee to Study Plain Civil Jury Instructions:

-Committee Chairman: H. Alston Johnson, III, Phelps Dunbar law firm

-Judge James E. Stewart, Second Circuit Court of Appeal

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