Articles Posted in Medical Malpractice

In Louisiana medical malpractice actions, the plaintiff has the burden of proving:

(1) the degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, dentists, optometrists, or chiropractic physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale (the locality rule) and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians, dentists, optometrists, or chiropractic physicians within the involved medical specialty (locality rule is inapplicable to specialists); and

(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill; and

In a Louisiana medical malpractice action against a Louisiana physician, a person may qualify as an expert witness on the issue of whether the physician departed from accepted standards of medical care only if the person is a physician who meets all of the following criteria:

(a) He is practicing medicine at the time such testimony is given or was practicing medicine at the time the claim arose. “Practicing medicine” includes but is not limited to training residents or students at an accredited school of medicine or osteopathy or serving as a consulting physician to other physicians who provide direct patient care, upon the request of such other physicians.

(b) He has knowledge of accepted standards of medical care for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim.

In Pfiffner v. Correa, 9400924 (La.10/17/94), 643 So.2d 1228, 1234, the Louisiana Supreme Court recognized that expert testimony is not always required for a plaintiff to meet his/her burden of proof required by La.R.S. 9:2794 in a Lousisiana medical malpractice action where there is an “obvious act of malpractice”, but noted that, in most cases, the plaintiff will be unable to sustain his/her burden of proof without such evidence:

We hold that expert testimony is not always necessary in order for a plaintiff to meet his burden of proof in establishing a medical malpractice claim. Though in most cases, because of the complex medical and factual issues involved, a plaintiff will likely fail to sustain his burden of proving his claim under LSA-R.S. 9:2794’s requirements without medical experts, there are instances in which the medical and factual issues are such that a lay jury can perceive negligence in the charged physician’s conduct as well as any expert can, or in which the defendant/physician testifies as to the standard of care, and there is objective evidence, including the testimony of the defendant/physician which demonstrates a breach thereof. Even so, the plaintiff must also demonstrate by a preponderance of the evidence a causal nexus between the defendant’s fault and the injury alleged.

As examples of obvious negligence that could be inferred by a lay person, the Pfiffner court cited instances “where the physician does an obviously careless act, such as fracturing a leg during examination, amputating the wrong arm, dropping a knife, scalpel, or acid on a patient, or leaving a sponge in a patient’s body….” 643 So.2d at 1233-34. Other examples posited by the Pfiffner court include “[f]ailure to attend a patient when the circumstances demonstrate the serious consequences of this failure, and failure of an on-call physician to respond to an emergency when he knows or should know that his presence is necessary….” Id.

In Turner v. Massiah, 94-2548 (La.8/30/95), 656 So.2d 636, the Louisiana Supreme Court stated: “If the damage, or injury, could have been divided into two parts, one part caused by one defendant and the other part caused by the other there would have been, in effect, two injuries,” 656 So.2d at 640, and suggested “the question of two caps might have been present.” The Turner court then concluded, “[f]or one patient and one injury there is but one cap.” 656 So.2d at 641.

In Batson v. South Louisiana Medical Center, 99-0232 (La.11/19/99) 750 So.2d 949, the Louisiana Supreme Court held that three separate caps applied to three separate acts of medical negligence under the Malpractice Liability for State Services Act (MLSSA), La.R.S. 40:1237.1, et seq., where the damages were divisible into three different injuries, each traceable to a separate act of medical negligence.

The Louisiana Supreme Court decision of Coleman v. Deno, 01-1517 (La.1/25/02), 813 So.2d 303, 315-16, sets forth the following six factors for determining whether a claim sounds in medical malpractice and must first be presented to a medical review panel:

(1) whether the particular wrong is “treatment related” or caused by a dereliction of professional skill;

(2) whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached;

Louisiana’s Uniform Consent Law, La. R.S. 40:1299.40, requires disclosure of the nature and purpose of a medical or surgical procedure, together with the known risks, if any, of death, brain damage, quadriplegia, paraplegia, the loss or loss of function of any organ or limb, or disfiguring scars. Thus, a competent person contemplating treatment must be advised of the known serious complications which might result. This enables the patient to make an informed decision. Written consent shall be presumed to be valid and effective, in the absence of proof that execution of the consent was induced by misrepresentation of material facts.

A doctor has a duty to disclose all risks which are “material”. To overcome the statutory presumption of informed consent where the patient has signed a consent form, the patient must first prove that a material risk existed. An adverse result does not establish a material risk. In broad outline, a risk is material when a reasonable person in what the doctor knows or should know to be the patient’s position, would be likely to attach significance to the risk or cluster of risks in deciding whether or not to forego the proposed therapy. The factors contributing significance to a medical risk are the incidence of injury and the degree of the harm threatened. If the harm threatened is great, the risk may be significant even though the statistical possibility of its taking effect is very small. But if the chance of harm is slight enough, and the potential benefits of the therapy or the detriments of the existing malady great enough, the risk involved may not be significant even though the harm threatened is very great.

The determination of materiality is a two-step process. The first step is to define the existence and nature of the risk and the likelihood of its occurrence. “Some” expert testimony is necessary to establish this aspect of materiality because only a physician or other qualified expert is capable of judging what risk exists and the likelihood of occurrence. The second prong of the materiality test is for the trier of fact to decide whether the probability of that type harm is a risk which a reasonable patient would consider in deciding on treatment. The focus is on whether a reasonable person in the patient’s position probably would attach significance to the specific risk. This determination of materiality does not require expert testimony.

In Hall v. Brookshire Brothers, Ltd., 02-2404 (La.6/27/03), 848 So.2d 559, the Louisiana Supreme Court held that the proper method for applying the comparative fault scheme is to apply the jury’s comparative fault finding prior to reducing the damages award to the cap on damages under La. R.S. 40:1299.42(B)(1). The Court based its holding on three primary grounds, finding that comparative fault percentages should be allocated prior to application of the statutory damages cap under the Medical Malpractice Act because: (1) the use of different language in the comparative fault article and statutory damages cap provision dictates this result; (2) the comparative fault and Medical Malpractice Act damages cap provisions are in derogation of established rights and must be strictly construed; and (3) a contrary rule would lead to absurd consequences.

See also Miller v. LAMMICO, 2007-1352 (La.1/16/08), 973 So.2d 693, 702-03, 705, confirming that the Hall holding is not limited to circumstances in which the plaintiff is comparatively at fault.

Since 1976, medical malpractice claims against the State of Louisiana have been governed by the Malpractice Liability for State Services Act (MLSSA), sometimes referred to as the Public Act, found at La. R.S. 40:1237.1, et seq. The MLSSA generally provides for the limitation of liability and damages for medical malpractice committed by health care providers employed or contracted by the State of Louisiana or who are working at a state hospital or who are treating a patient referred by a state hospital without compensation or reimbursement.

The MLSSA does not cover political subdivisions of the state or hospital service districts established by the Legislature.

Malpractice is defined as the failure to exercise the reasonable standard of care, when such failure proximately causes injury to a patient.

The MLSSA, La.R.S. 40:1237.1, et seq., or Public Act provides a limitation or cap on recoverable damages for the injury or death of any patient of $500,000 plus interest and costs, exclusive of future medical care and related benefits (defined as all medical from date of injury) valued in excess of $500,000.

The $500,000 cap on damages includes lost wages, or loss of earning capacity, or loss of support.

All judgments or settlement shall include a recitation that the patient is or is not in need of future medical care and related benefits and the amount thereof. If the total amount of the recovery, less interest and costs, but including future medical is less than $500,000, judgment may be rendered and the claim paid. If the total amount of the recovery is greater than $500,000, exclusive of interest and costs, the claimant may make a claim to the office of risk management for ALL future medical care and related benefits without regard to the $500,000 limitation.