Articles Posted in Medical Malpractice

Courts have recognized the potential for a “conspiracy of silence,” whereby local doctors would refuse to find one another at fault in medical negligence cases, and the adverse effects this would have on patients. To offset this danger in Louisiana, the specialist’s duty is governed by a national standard of care. As such, a specialist is held to a higher standard of care because he has held himself out as having expertise in that specialty. See La. R.S. 9:2794; Ogletree v. Willis-Knighton Memorial Hospital, Inc., 530 So. 2d 1175, 1180 (La. App. 2nd Cir.), writ denied, 532 So.2d 133 (La.1988), citing Ardoin v. Hartford Accident and Indemnity Co., 360 So.2d 1331, 1335 (La. 1978); and Bryant v. St. Paul Fire and Marine, 382 So.2d 234, 237 (La.App. 3d Cir. 1980), citing Ardoin v. Hartford Accident and Indemnity Co., 360 So.2d 1331, 1335 (La. 1978).
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The plaintiff in a medical negligence case is not required to show that she would have obtained a perfect outcome in the absence of medical treatment that fell below the accepted standard of care. Rather, the plaintiff may recover on a showing that the physician’s unacceptable care denied the plaintiff a chance of a good outcome. Graham v. Willis-Knighton Medical Center, 27,338 (La.App. 2 Cir. 9/29/95), 662 So.2d 161.

If a defendant physician, by action or inaction, has substantially increased the chances of a patient developing complications and damages, then such conduct by the defendant physician is considered to be a cause of the patient’s damages. Hastings v. Baton Rouge General Hospital, 498 So.2d 713, 720-21 (La.1986).
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The Louisiana Supreme Court rendered the per curiam decision of Acara v. Banks, 10-0741 (La.6/18/10). The plaintiff, Ms. Acara, filed a medical malpractice claim against Dr. Bradley Banks after Dr. Banks allegedly gave an opinion in an earlier personal injury suit filed by Ms. Acara as to her medical condition without reviewing her medical records. Ms. Acara also complained that Dr. Banks gave a deposition in the earlier personal injury suit without her consent. The district court denied Dr. Banks’s motion for summary judgment and the appellate court denied supervisory relief. The Louisiana Supreme Court reversed the ruling as regards the deposition, finding that plaintiff partially waived the physician-patient privilege when she filed her personal injury suit. The Supreme Court held that the privilege was waived only as to testimony at trial or to a discovery method authorized by the Louisiana Code of Civil Procedure, such as a deposition. While the Supreme Court did not specifically discuss ex parte communications with treating physicians, the ruling has the effect of prohibiting such unauthorized communications since ex parte communications are not an authorized discovery method as evidenced by Louisiana Code of Civil Procedure article 1465.1’s prohibition of verbal communication between defense counsel and a treating physician.

The Louisiana Supreme Court affirmed the district court’s denial of summary judgment on the issue of giving opinions without reviewing plaintiff’s medical records, finding that genuine issues of material fact existed as to whether the standard of care was violated.

The Louisiana Supreme Court issued the following Per Curiam opinion in Williamson v. Hebert, 10-0071 (La. 4/5/10), regarding the interruption of prescription in a medical malpractice case based on the discovery rule:

“In Campo v. Correa, 01-2707 (La. 6/21/02), 828 So. 2d 502, 511, we explained ‘a plaintiff’s mere apprehension that something may be wrong is insufficient to commence the running of prescription, unless the plaintiff knew or should have known through the exercise of reasonable diligence that his problem may have been caused by acts of malpractice.’ Plaintiff in the instant case clearly had some apprehension something was wrong following her surgery, as she consulted two different doctors regarding her condition. However, both of these doctors assured plaintiff her condition would continue to improve, with one of the doctors indicating her symptoms might take two years to resolve. When plaintiff’s symptoms failed to improve by August 2002 (two years after the August 3, 2000 surgery), plaintiff performed computer research, and learned for the first time her symptoms may have been caused by malpractice. Plaintiff’s August 16, 2002 complaint was filed within one year of her discovery of this alleged malpractice.”

The Louisiana Supreme Court granted plaintiff’s writ and reversed the decision of the Louisiana Third Circuit Court of Appeal. The judgment of the district court denying the defendant’s exception of prescription was reinstated and the case remanded to the district court for further proceedings. This is a huge victory for victims of medical malpractice who prudently wait to see if their condition will improve before rushing to file a medical malpractice claim that might otherwise be frivolous.
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The $350,000 non-economic cap on medical malpractice damages in Georgia was declared to be an unconstitutional violation of the right to jury trial by a unanimous Georgia Supreme Court on March 22, 2010. The Georgia Supreme Court ruled that the 2005 law “clearly nullifies the jury’s findings of fact regarding damages and thereby undermines the jury’s basic function. *** Consequently, we are compelled to conclude that the caps infringe on a party’s constitutional right. *** The very existence of the caps, in any amount, is violative of the right to trial by jury.” Adam Malone, the Atlanta, Georgia lawyer who represented the plaintiff in the successful constitutional challenge stated that: “The bedrock of our democracy depends upon our ability to self govern at the ballot box and in the jury box. *** Any attempt by the government to invade either is an assault on what separates America from the rest of the world.”

Louisiana’s $500,000 cap on medical malpractice damages passed the Louisiana Legislature in the 1970’s and includes both non-economic and loss of earnings and support. In 1985, the Louisiana Supreme Court in Sibley v. Board of Supervisors, 477 So.2d 1094 (La.1985), declared Louisiana’s cap on medical malpractice damages constitutional. Louisiana’s medical malpractice cap was later declared unconstitutional by the Louisiana Third Circuit Court of Appeal in 2006 in the Taylor and Arrington cases, but the ruling was vacated by the Louisiana Supreme Court on February 2, 2007 on procedural grounds and remanded to the trial court for another trial on the constitutional challenge. Representatives of the medical industry, trial lawyers, and the Louisiana Legislature had numerous meetings in an attempt to reach a consensus on increasing Louisiana’s cap on medical malpractice damages, while at the same time, reducing the number of frivolous medical malpractice claims and reducing the costs associated with the medical review panel process. Not surprisingly, no consensus could be reached.
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So much for the medical malpractice crisis in Louisiana. Louisiana doctors will receive a 10% dividend this year from Louisiana’s largest medical malpractice insurer bringing the total amount of insurance premiums returned by the malpractice insurer to health care providers since 2008 to $20,500,000.

Thomas H. Grimstad, M.D., President / Chief Executive Officer of the Louisiana Medical Mutual Insurance Company (LAMMICO) announced on December 16, 2009 that the LAMMICO Board of Directors and the Louisiana Department of Insurance authorized a third consecutive dividend. The press release issued by LAMMICO states that: “A 10 percent dividend will be paid to individuals, groups and health care facilities holding a LAMMICO policy in force on December 9, 2009 (with the exception of medical student and tail policies). …This dividend equals approximately $5.1 million. Dividend checks will be distributed during the first quarter of 2010. This development follows two previous dividends declared since 2008, totaling $20.5-million.” The Advocate reports that Dr. Grimstad said in a prepared statement: “We declare this third dividend with confidence while maintaining a surplus level that ensures the reliable payment of claims over any cycle.” Victims of medical malpractice in Louisiana should be pleased to know that Louisiana’s largest medical malpractice insurer has sufficient money in its accounts to pay any and all medical malpractice claims that arise during any time period.
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