Articles Posted in Medical Malpractice

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In Landy v. Bellanger, 2002-1443 (La. 5/20/03), 851 So.2d 943, the Louisiana Supreme Court relied on the 1996 tort reform amendment to La. C.C. art. 2323 requiring apportionment of fault to all responsible persons regardless of the theory of liability, to abolish the jurisprudential “aggressor doctrine” which had precluded tort recovery where the plaintiff acted in such a way to provoke a reasonable person to use physical force in fear or anticipation of further injury at the hand of the aggressor plaintiff, unless the person retaliating used excessive force to repel the aggressor. However, the Supreme Court recognized that self-defense remains a valid defense to a battery.

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Establishing negligence under Louisiana law is accomplished via the following five prong duty / risk analysis:

I. Was the conduct in question a substantial factor in bringing about the harm to the plaintiff, i.e., was it a cause in fact of the harm?

-It is irrelevant in determining cause in fact whether the defendant’s actions were lawful, unlawful, intentional, unintentional, negligent, or non-negligent. The inquiry is a neutral one, free of the entanglements of policy considerations – morality, culpability or responsibility-involved in the duty-risk analysis. Ask whether the defendant’s conduct was a necessary antecedent of the accident, that is, but for the defendant’s conduct, the incident probably would not have occurred.

-Is there a factual causal relationship between the defendant’s actions and the plaintiff’s injuries? Did defendant’s actions have something to do with the injury the plaintiff sustained? Did the defendant’s conduct appreciably enhance the chance of the accident occurring?

-Generally, cause in fact entails a “but for” inquiry: If the plaintiff probably would have not sustained the injuries but for the defendant’s conduct, such conduct is a cause in fact. But, when multiple causes are present, cause in fact is found to exist when the defendant’s conduct was a substantial factor in bringing about the plaintiff’s harm.

II. Did the defendant owe a duty to the plaintiff?

-Duty is a question of law. Simply put, the inquiry is whether the plaintiff has any law – statutory or jurisprudential – to support his or her claim?

III. Was the duty breached?

-Did the defendant fail to conform to the legally imposed duty?

IV. Was the risk, and harm caused, within the scope of protection afforded by the duty breached?

-Regardless if stated in terms of proximate cause, legal cause, or duty, the scope of the duty inquiry is ultimately a question of policy as to whether the particular risk falls within the scope of the duty. The scope of protection inquiry asks whether the enunciated rule or principle of law extends to or is intended to protect this plaintiff from this type of harm arising in this manner. Although, the determination of legal cause involves a purely legal question, this legal determination depends on factual determinations of foreseeability and ease of association. The extent of protection owed by a defendant to a plaintiff is made on a case-by-case basis to avoid making a defendant an insurer of all persons against all harms.

-Substandard conduct does not render the actor liable for all consequences spiraling outward until the end of time. Ask whether too much else intervened – time, space, people, and bizarreness?

-Ease of association: in determining whether there is a duty-risk relationship, the inquiry is how easily the risk of injury to plaintiff can be associated with the duty sought to be enforced, or how easily does one associate the plaintiff’s complained of harm with the defendant’s conduct, or how easily the risk of harm can be associated with the rule which was breached. Is the purpose of the duty substantially related to the risk of harm?

-Although ease of ease of association encompasses the idea of foreseeability, it is not based on foreseeability alone. Ease of association melds policy and foreseeability into one inquiry: Is the harm which befell the plaintiff easily associated with the type of conduct engaged in by the defendant?

-Legal cause requires a proximate relation between the actions of a defendant and the harm which occurs and such relation must be substantial in character.

-Because legal cause analysis is so fact bound, other legal cause cases serve only as examples of the methodology and can only be analogized from when the facts bear a striking resemblance to the case to be decided.

V. Damages.

-Was the defendant’s culpable conduct a cause of the plaintiff’s harm?
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Paul H. Dué
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For the sixth straight year, Baton Rouge, Louisiana personal injury lawyer, Paul H. Dué of Dué Guidry Piedrahita Andrews Courrege L.C. has been rated by Louisiana Super Lawyers. “Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process is multi-phased and includes independent research, peer nominations and peer evaluations. Super Lawyers magazine features the list and profiles of selected attorneys and is distributed to attorneys in the state or region and the ABA-accredited law school libraries. Super Lawyers is also published as a special section in leading city and regional magazines across the country. Super Lawyers magazine is published in all 50 states and Washington, D.C., reaching more than 13 million readers.”

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Baton Rouge, Louisiana personal injury lawyer, B. Scott Andrews, of Dué Guidry Piedrahita Andrews Courrege L.C. has been recognized by Louisiana Super Lawyers 2012 in the practice area of Personal Injury-Plaintiff. “Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process is multi-phased and includes independent research, peer nominations and peer evaluations.”

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In Guy v. Brown, 2011-0099 (La.App. 4 Cir. 7/6/11), 67 So.3d 704, the Louisiana Fourth Circuit Court of Appeal held that a wrongful death claim arising out of medical malpractice must be brought within the three year peremptive period set forth in La. R.S. 9:5628. Therefore, if the death occurs three years after the alleged medical malpractice and no claim was previously and timely filed by the wrongful death beneficiaries, the claim is forever time barred.

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The Louisiana Supreme Court in McGlothlin v Christus St. Patrick’s Hospital, 2010-2775 (La. 7/1/11), struck a powerful blow to the conspiracy of silence machine that dominates Louisiana medical malpractice litigation by holding that the Louisiana Medical Malpractice Act does NOT mandate the admission of a medical review panel opinion when the panel exceeds its statutory authority and renders an opinion based on its determination of the patient’s credibility, rather than on the appropriate medical standard. Prior to this holding, it was common practice for Louisiana medical review panel members, when faced with conflicting versions of the events, to accept as truth everything the doctor said and to disregard what the patient said.

In a recent case handled by Baton Rouge, Louisiana medical malpractice attorney, Scott Andrews, the Louisiana medical review panel totally disregarded (and did not even read) the affidavits of the widow and an eye witness and found that the doctor did not commit medical negligence based solely on his deposition testimony. Even though the Medial Review Panel Attorney Chairman agreed that an issue of fact existed that prevented the panel from rendering a valid opinion, he nevertheless allowed the medical review panel to rule in favor of the doctor, with the caveat that plaintiff could object to admissibility of the opinion later. It is time for Medical Review Panel Attorney Chairmen to stand up to the conspiracy of silence machine and follow the law as written by the Louisiana Legislature, as interpreted by the Louisiana Supreme Court, and give victims of medical malpractice their rightful day in court.

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Louisiana Revised Statute 9:2794(D)(1)(a) requires that a physician who testifies as an expert witness in a medical malpractice case must be: “practicing medicine at the time such testimony is given or was practicing medicine at the time the claim arose.” The Louisiana Supreme Court in Johnson v. Morehouse General Hospital, 10-387 c/w 10- 488 (La. 5/10/2011), held that the trial court did not abuse its discretion in allowing a disabled OB/GYN doctor who no longer had an active medical practice from testifying in a medical malpractice case involving obstetrics because the physician was still licensed to practice medicine and write prescriptions, and because he continued to render non-specialist medical services, albeit gratuitously, to friends and family.

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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.