Louisiana Injury Lawyer Blog

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).

Continue reading "Louisiana Personal Injury Law: Conspiracy of Silence" »

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).

Continue reading "Louisiana Personal Injury Law: Loss of a Chance of Survival" »

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.

After asking the East Baton Rouge Parish jury for $1.1 million, Louisiana Association for Justice President (LAJ) President Donald W. Price of the Baton Rouge, Louisiana personal injury law firm of Due', Price, Guidry, Piedrahita & Andrews obtained a $2.1 million medical malpractice jury verdict on April 30, 2010. The East Baton Rouge Parish jury found a local pediatrician negligent for prescribing the wrong antibiotic to a Zachary, Louisiana child that caused Stevens-Johnson syndrome and led to the loss of 65% of her skin. The pediatrician told the patient's mother he was prescribing Omnicef for a sinus infection, but actually prescribed Septra DS, a sulfa antibiotic not approved for the treatment of sinus infections.

"It's not something that had ever happened to me before," Donald Price said of the jury awarding more than he requested. "We were gratified." Unfortunately, Louisiana's $500,000 medical malpractice cap will prevent recovery of the entire jury verdict.

Continue reading "Baton Rouge Louisiana Personal Injury Lawyer Obtains $2.1 Million Medical Malpractice Jury Verdict" »

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.

Continue reading "Louisiana Supreme Court Applies Discovery Rule to Interrupt Medical Malpractice Prescription" »

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.

Continue reading "Georgia Medical Malpractice Cap on Damages Ruled Unconstitutional" »

I am a Baton Rouge, Louisiana medical malpractice lawyer who recently underwent a minor overnight medical procedure that resulted in an unexpected and severe burn injury to my face. When I left the hospital, the extent of the burn injury was suspected to be minor and the cause was unknown. When I got home, I realized that the burn was much more severe than I had thought and I was extremely angry. I contacted the medical facility and the director promptly returned my phone call, expressed his genuine concern, and assured me that every effort would be made to determine the cause of the burn so that no other patients would be harmed. I was satisfied with the response and no longer felt any ill-will toward the facility for what happened to me because as a medical malpractice lawyer, I realize that sometimes bad things happen, complications occur, and injuries are sustained, but that does not mean that medical malpractice has occurred. A simple and sincere phone call was all that was necessary to "calm the savage beast".

All too often, however, I hear about medical providers faced with even minor complications or unforseen injuries who ignore their patients or, worse yet, treat their patients like it was their fault. In my humble opinion, a good bed-side manner, an empathetic ear, and an expression of concern for the patient goes along way toward reducing medical malpractice lawsuits involving accepted complications and unforeseen injuries. I would venture to say that over one-half of all of my medical malpractice consultations with potential clients begin with a recitation of how poorly the patient or his/her family felt they were treated by the medical provider after the complication or injury occurred. So, follow the Golden Rule--Do Unto Others as You Would Have Them Do Unto You--and we will all sleep a little better at night. Of course, if the complication or injury is the result of actual medical malpractice, even a kind and understanding health care provider should be held accountable for his/her actions.

Continue reading "Louisiana Medical Malpractice Lawyer With Burn Injury Believes in the Golden Rule" »

In an Illinois medical malpractice case involving a four year old girl who suffered brain damage at birth, LeBron v. Gottlieb Memorial Hospital, the Illinois Supreme Court held on February 4, 2010, that a 2005 medical malpractice cap on noneconcomic damages, such as pain and suffering, is unconstitutional. The cap limited awards to $500,000 from doctors and $1,000,000 from hospitals. The Supreme Court reasoned: "That 'everybody is doing it' is hardly a litmus test for the constitutionality of the statute."

According to Louisiana medial malpractice attorney, Scott Andrews, Louisiana's medical malpractice cap on damages, which limits awards for noneconomic damages and lost earnings to $500,000, is also under attack. The Louisiana Third Circuit Court of Appeal had ruled the cap unconstitutional, but the Louisiana Supreme Court reversed on procedural grounds and remanded the case to the trial court for another trial on the issue. The Louisiana Legislature is expected to tackle the med mal cap again this legislative session with trial lawyers pushing for an increase in the cap on damages, and health care providers pushing for more restrictions on medical malpractice lawsuits.

Continue reading "Illinois Medical Malpractice Cap On Damages Ruled Unconstitutional" »

Louisiana medical malpractice attorneys have a new resource to assist with the investigation and filing of medical malpractice claims against Qualified Health Care Providers in Louisiana. The Louisiana Patient's Compensation Fund has launched a new website describing its purpose and the procedure involved in filing a claim for injuries and damages arising out of medical malpractice committed by a Louisiana Qualified Health Care Provider, as defined by the Louisiana Medical Malpractice Act. Included on the PCF's new website are instructions on how to file a Louisiana medical malpractice complaint, Louisiana medical malpractice rules, regulations and statutes, and copies of certificates of enrollment of Louisiana health care providers in the Patient's Compensation Fund. In order to be protected by the Louisiana Medical Malpractice Act, a Louisiana health care provider must be enrolled in the PCF. However, note that the certificate section appears incomplete and the search query does not always return accurate responses.

Continue reading "Louisiana Medical Malpractice Attorneys Use PCF's New Website" »

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.

Continue reading "LAMMICO Returns Dividend of $20.5 Million of Medical Malpractice Premiums to Health Care Providers" »

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.

Continue reading "Nursing Home Employees Accused of Hitting a Patient Arrested in Jackson, Louisiana" »

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.

Continue reading "There is No Medical Malpractice Crisis in Louisiana" »

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, Due', Price, Guidry, Piedrahita & Andrews.

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, Due', Price, Guidry, Piedrahita & Andrews.

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.

Continue reading "Zachary, Louisiana Emergency Room Malpractice Case Settles" »