Louisiana Injury Lawyer Blog

The experienced Baton Rouge, Louisiana personal injury and wrongful death attorneys at Due', Price, Guidry, Piedrahita & Andrews are proud to announce the association of retired Judge, Bob Downing, as "Of Counsel" to the firm.

Bob Downing is a graduate of Zachary High School and of Louisiana State University. After practicing law for ten years, Bob Downing committed himself to a 25 year career in public service, first serving as a District Judge for the 19th Judicial District Court for the Parish of East Baton Rouge, and then as a Court of Appeal Judge for the Louisiana First Circuit Court of Appeal. After retiring in 2010, Bob Downing returned to private practice. Bob is accepting serious plaintiff personal injury and wrongful death cases at the trial and appellate levels.

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.

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.

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.

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.