Articles Posted in Medical Malpractice

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Two Villa Feliciana Medical Complex employees, accused of hitting a patient, were arrested on November 13, 2009, and booked into the East Feliciana Parish Jail.

Hitting a patient is considered an intentional tort or battery by Louisiana law, and any claim for injuries and damages suffered by the struck patient generally fall outside the Louisiana Medical Malpractice Act. Other types of abuse and neglect of the elderly in nursing home settings will generally fall within Louisiana Medical Malpractice Act.

The National Center for Elder Abuse estimates that between 1 and 2 million Americans age 65 or older have been injured, exploited, or otherwise mistreated by a caregiver. If that caregiver is a nursing home or other healthcare provider licensed by the State of Louisiana, a complaint should be filed with the Health Standards Section of the Louisiana Department of Health and Hospitals. The Health Standards Section will investigate any good-faith and timely complaint against the health care provider, and if the complaint is verified, appropriate action will be taken.
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Crisis, what Crisis? Medical malpractice lawsuits account for less than 1% of all civil suits and have been declining for nearly 10 years. In 2008, fewer medical malpractice claims were filed by patients in Louisiana than in any year since 1996. The insurance market is so strong in Louisiana that the largest medical malpractice insurer in Louisiana has returned a 20% dividend on written premiums to its Louisiana doctors each of the last two years.

According to the Government Accountability Office (GAO) and the Congressional Budget Office (CBO), less than one and one-half percent of overall health care spending in the United States is related to medical malpractice suits. While there is evidence that some doctors run unnecessary tests to generate more income for themselves, there is no credible evidence that “defensive medicine” increases health care costs. Rather, good doctors run additional tests to aid in their diagnosis of their patients. The only way to reduce medical malpractice suits is to hold doctors accountable for their unacceptable errors and mistakes. Juries and fellow doctors must stop protecting bad doctors. As long as bad doctors are “given a pass”, they will continue to cut corners and perform below the standard of care.

In Louisiana, the Medical Malpractice Act protects doctors and other qualified health care providers with a $500,000, plus medical expenses, cap on damages. This draconian $500,000 cap on damages includes lost wages. So, if a 20 year old husband and father of two infant children is killed by medical malpractice, the most his widow and infant children can recover, including for lost wages or support, is $500,000. This is a joke.

Not only is the cap on damages so low as to be unconscionable, but the Louisiana Medical Malpractice Act requires that three Louisiana doctors review the case against their fellow Louisiana doctor prior to suit being filed. Anyone who thinks the “conspiracy of silence” and “good ole boy” system is not alive and well in Louisiana is fooling themselves. The extent to which many doctors reviewing Louisiana medical malpractice cases will go to protect their fellow doctors is absolutely shocking.

Doctors and hospitals in Louisiana are not suffering from any malpractice crisis. The Louisiana Medical Malpractice Act was enacted in 1975. Doctors and other qualified health care providers are ONLY liable for $100,000 of the damages caused to their patients. The Louisiana Patient’s Compensation Fund (PCF) is liable for the remainder, including future medical expenses. And, since 1975, the Louisiana PCF has paid in excess of $4.5 million in Just 20 medical malpractice cases, including for medical expenses for brain damaged babies and other malpractice victims requiring 24 hour attendant or custodial care. If there is a crisis in Louisiana, it is the crisis of the medical malpractice victim who can no longer work or care for his or her family following an unacceptable medical error and who cannot obtain fair and equal justice.
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In a Louisiana medical malpractice trial, defense counsel had an ex parte meeting with a prior treating physician who was not a party to the case to go over the plaintiff’s medical records, without a medical authorization allowing verbal communication with the health care provider and without advance notice to the plaintiff’s lawyer. Nevertheless, the trial court allowed the physician’s testimony at trial over plaintiff’s objection. The Louisiana Third Circuit Court of Appeal held that the testimony of the treating physician should have been excluded and found that the improperly admitted testimony tainted the jury’s verdict. Ernst v. Taylor, 08-1289 (La.App. 3d Cir. 5/6/09), 17 So.3d 981, writ denied, 09-1262 (La.9/18/09), 17 So.3d 977, citing Coutee v. Global Marine Drilling Co., 04-1293 (La.App. 3 Cir. 2/16/05), 895 So.2d 631, writ granted, 05-756 (La. 5/13/05), 902 So.2d 1000, writ reversed on other grounds, 05-756 (La. 2/22/06), 924 So.2d 112 and Wood v. Am. Nat’l Prop. & Cas. Ins. Co., 07-1589 (La.App. 3 Cir. 12/23/08), 1 So.3d 764.

See also Boutte v. Winn-Dixie of La., Inc., 674 So.2d 299, 306-07 & n.12 (La.App. 3d Cir. 1996), writ denied, 96-1936 (La. 11/8/96), 683 So.2d 268 (the impermissible contact deprived plaintiff of her right to a fair and impartial hearing); and Johnson v. Apeck Construction, Inc., 96-1283 (La. App. 3 Cir. 3/5/97), 692 So.2d 476, 481 (“[c]ontacts by an adverse party or by its representative of a treating physician will not be tolerated, as they strike at the very heart of our system of civil justice.” cf. Hortman v. Louisiana Steel Works., 96-1433 (La.App. 1 Cir. 6/20/97), 696 So.2d 625, 629, Kuhn, J. concurring (“Although contacting an opponent’s treating physician is not in violation of the physician-patient privilege, it clearly impugns upon the Code [of Professional Conduct]’s mandate of professionalism. The practice of law should be a search for the truth, through honorable and professional means long established but perhaps forgotten.”).

This personal injury legal update is provided by Baton Rouge, Louisiana injury lawyer Scott Andrews of the Louisiana accident and injury law firm, Dué Guidry Piedrahita Andrews Courrege L.C..

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The Louisiana First Circuit Court of Appeal held that where the general employer’s business is to loan out his or her employees and equipment to others, the general employer’s business is being furthered even if he does not control the details of the work. The special employer benefits because it is his work that is being done as well. The relevant enterprise benefited by the work consist of a combination of the general and special employers, who are liable in solido for damages occasioned by the borrowed employee. This applies where a hospital is the general employer of a nurse and an independent contractor physician is “in charge” of the delivery room. Grimes v. LAMMICO, 2009-0292 (La.App. 1 Cir. 9/11/09), citing Morgan v. ABC Manufacturer, 97-0956 (La. 5/1/98), 710 So. 2d 1077, 1080.

This personal injury legal update is provided by Baton Rouge, Louisiana injury lawyer Scott Andrews of the Louisiana accident and injury law firm, Dué Guidry Piedrahita Andrews Courrege L.C..

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After unanimously winning the medical review panel, Baton Rouge, Louisiana medical malpractice lawyer, Scott Andrews, settles a failure to diagnose compartment syndrome case against an emergeny room doctor for $450,000.

Plaintiff, a fifty-one year old nurse, presented to the Lane Memorial emergency room in Zachary, Louisiana, on the evening of September 5, 2005, with a history of falling twice within the last week, right lower leg and ankle pain of 10/10, swelling in the right foot, ankle and lower leg, and the inability to feel her toes. Plaintiff had a long history of back problems and pain that had required two lumbar surgeries and she was being actively treated for progressing lumbar disease and pain in the weeks before the emergency room visit. Physical examination by the emergency room physician revealed edema, pain on movement, pain on palpation and diminished range of motion. X-rays ruled out fractures and an ultrasound ruled out DVT. The emergency room physician sent plaintiff home with a diagnosis of “sprain”, without any consideration being given to the differential diagnosis of acute compartment syndrome–a medical emergency requiring immediate surgical intervention. The next morning, plaintiff was unable to flex her foot. She went to work and saw her treating neurosurgeon, who immediately sent her to the Our Lady of the Lake Regional Medical Center emergency room in Baton Rouge for a four compartment fasciotomy. Because of the delay in diagnosing the compartment syndrome and relieving the compartmental pressure, plaintiff sustained a permanent drop-foot.
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