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Category: Medical Malpractice

  • Medical Malpractice Claim Fails: No Expert Testimony to Support Allegations

    The following case highlights the critical role of expert testimony in medical malpractice lawsuits and the difficulty of succeeding on such claims without it.

    Case Background

    Claire James sued Dr. Shahed Jameel, alleging that his negligent care caused the death of her mother, Laura James. However, a Medical Review Panel had previously reviewed the case and found no breach of the standard of care by Dr. Jameel. Despite this, Claire proceeded with her lawsuit. The trial court granted summary judgment in favor of Dr. Jameel, and Claire appealed.

    Medical Malpractice in Louisiana

    To succeed in a medical malpractice claim in Louisiana, a plaintiff must prove:

    1. Standard of Care: The degree of care and skill expected of a healthcare provider in the same or similar circumstances.
    2. Breach of Duty: The healthcare provider’s actions fell below the accepted standard of care.
    3. Injury: The patient suffered an injury.
    4. Causation: The healthcare provider’s breach of duty directly caused the patient’s injury.

    The Importance of Expert Testimony

    Expert testimony is crucial in medical malpractice cases because it helps the court understand complex medical issues and determine whether the standard of care was breached. Without expert testimony, it’s often impossible for a layperson (judge or jury) to make that determination.

    The Court’s Analysis

    The appeals court reviewed the case and focused on the lack of expert testimony to support Claire’s claims. Here’s what they considered:

    • Medical Review Panel: The panel, consisting of medical experts, unanimously found no breach of the standard of care by Dr. Jameel.
    • Plaintiff’s Evidence: Claire failed to present any expert testimony to contradict the panel’s findings or support her allegations of negligence.
    • Tangential Evidence: The only expert opinion Claire offered was from a panel member who criticized a different doctor’s actions, not Dr. Jameel’s.

    The court emphasized that without expert testimony to establish a breach of the standard of care, Claire could not meet her burden of proof in a medical malpractice case.

    Key Takeaways

    • Medical Review Panel: The opinion of a Medical Review Panel carries significant weight in Louisiana malpractice cases.
    • Expert Testimony is Essential: Without expert testimony, it’s very difficult to win a medical malpractice lawsuit, especially when the medical issues are complex.
    • Summary Judgment: If a plaintiff fails to produce expert evidence to support their claims, the defendant is likely to succeed on a motion for summary judgment.

    Outcome

    The appeals court affirmed the trial court’s decision, granting summary judgment in favor of Dr. Jameel. This case illustrates the high bar plaintiffs face in medical malpractice cases and the necessity of expert testimony to establish a breach of the standard of care.

  • Louisiana Medical Malpractice: When the Mailbox Rule Doesn’t Deliver

    Filing a medical malpractice claim in Louisiana involves navigating a complex process, including meeting strict deadlines. One crucial step is timely paying the filing fee to the Patient’s Compensation Fund Oversight Board (PCF Board). But does the “mailbox rule” apply to these payments? A recent Louisiana Court of Appeal case, In re: Medical Malpractice Review Panel Proceedings of Tiffany Anderson, grappled with this question, highlighting the importance of understanding the nuances of the law and the potential consequences of missed deadlines.

    Tiffany Anderson’s Case:

    Tiffany Anderson filed a request for a medical review panel with the PCF Board alleging medical malpractice. She mailed the required filing fee within the 45-day deadline, but the payment was not received by the PCF Board until after the deadline. The PCF Board declared her claim invalid, and the district court upheld this decision. Anderson appealed.

    The Court’s Decision:

    The Court of Appeal reversed the lower court’s ruling, stating that the “mailbox rule” should apply to filing fees. This rule generally states that a mailed document is considered filed on the date it’s mailed, not the date it’s received. The court reasoned that the law doesn’t specify whether “to pay” means the payment must be received or merely mailed within the deadline. In such cases, they favored the interpretation that preserves the claim.

    Dissenting Opinion:

    However, there was a dissenting opinion. Judge McDonald argued that the plain meaning of “to pay to the board” implies receipt of the payment, not just mailing it. He cited previous cases supporting this interpretation and expressed concern that applying the mailbox rule could circumvent the 45-day deadline. He also pointed to recent legislative changes suggesting a trend towards a “date of receipt” requirement.

    Key Takeaways:

    This case emphasizes the following crucial points:

    • Strict Deadlines in Medical Malpractice Claims: The Louisiana medical malpractice process involves strict deadlines. Missing any of them can have serious consequences for your claim.
    • The Mailbox Rule & Its Limitations: While the mailbox rule generally applies to filing legal documents, its applicability to payments like filing fees can be less clear.
    • Importance of Legal Counsel: Navigating the complexities of medical malpractice claims requires experienced legal guidance. An attorney can help you understand the deadlines, ensure timely filings, and advocate for your rights.

    The Tiffany Anderson case serves as a reminder of the importance of adhering to all deadlines in medical malpractice claims. While the court’s decision in this case favored the plaintiff, the dissenting opinion and other legal precedents highlight the potential risks of relying solely on the mailbox rule for payments. When in doubt, it’s always best to err on the side of caution and ensure your payments are received by the deadline.

    Written by Berniard Law Firm

    Other Berniard Law Firm Blog Articles on Medical Malpractice and Prescription Issues: Louisiana Court Upholds Prescription in Wrongful Death Suit, Highlights Joint Tortfeasor Rule and Grieving Widow Granted Opportunity to Fight Prescription in Medical Malpractice Case

  • Louisiana Court Reverses Summary Judgment in Medical Malpractice Case, Highlighting Importance of Fact-Finding in Proving Negligence

    In a significant development for medical malpractice litigation in Louisiana, the Fourth Circuit Court of Appeal recently reversed a summary judgment, underscoring the importance of thorough fact-finding and the potential need for expert testimony in such cases. The case, Diana Deruise-Pierce v. University Healthcare System, L.C., et al., underscores the necessity of thorough fact-finding and the potential need for expert testimony in medical malpractice cases, even when negligence appears evident.

    Case Overview:

    The lawsuit stemmed from the treatment rendered to Mr. Pierce at University Medical Center in New Orleans. Mr. Pierce was admitted for a medical procedure, but his condition deteriorated overnight. Despite this, the medical team proceeded with the planned procedure.

    Tragically, Mr. Pierce went into cardiac arrest during the procedure and passed away. His widow, Diana Deruise-Pierce, filed a medical malpractice lawsuit alleging that the healthcare providers breached the standard of care by transporting and leaving Mr. Pierce unattended in the hallway outside the radiology suite while he was in a severely deteriorated state.

    Trial Court’s Ruling:

    The trial court granted summary judgment in favor of the defendants, relying on the medical review panel’s opinion that no breach of the standard of care occurred. The court also emphasized the absence of independent medical expert testimony to support the plaintiff’s negligence claim.

    Court of Appeal’s Decision:

    The Court of Appeal reversed the summary judgment, highlighting the presence of genuine issues of material fact that precluded summary judgment. The court emphasized the ambiguity surrounding whether Mr. Pierce was left unattended and for how long.

    Crucially, the court recognized that even without expert testimony, a breach of the standard of care could be established if the alleged negligence was so obvious that a layperson could infer it. The court also pointed to the deposition testimony of a fellow physician, Dr. Cooper, which suggested potential deviations from the standard of care.

    While acknowledging the challenges in proving causation without expert testimony, the court stressed the need for further fact-finding to determine the circumstances surrounding Mr. Pierce’s death and whether the alleged negligence contributed to it.

    This case underscores the critical importance of thorough investigation and fact-finding in medical malpractice cases. It highlights that even when negligence seems apparent, a detailed examination of the circumstances is necessary to establish a breach of the standard of care and its causal link to the patient’s injuries.

    The decision also emphasizes the potential role of expert testimony in proving medical malpractice. Still, it acknowledges that negligence may be so evident that expert opinion is not required in some instances.

    This case serves as a reminder that medical malpractice cases are complex and require careful consideration of all relevant facts and evidence. If you or a loved one has suffered harm due to potential medical negligence, it is crucial to consult with an experienced attorney to understand your legal rights and pursue appropriate action.

    Written by Berniard Law Firm

    Other Berniard Law Firm Blog Articles on Fact-Finding and Expert Witnesses: When Do I Need Expert Testimony for a Medical Malpractice Lawsuit? and Appeal Necessary in Car Accident Case Where District Court’s Finding of Fact Strays

  • Louisiana Court Upholds Medical Malpractice Review Requirement in Hospital Device Lawsuit

    In a recent Louisiana Court of Appeal decision, the court reinforced the importance of the Louisiana Medical Malpractice Act (LMMA) in determining the course of lawsuits against healthcare providers. The case involved a patient who allegedly suffered injuries due to a medical device used after surgery.

    Gregory Arrington, following surgery at St. Tammany Parish Hospital, was provided with an Alternating Leg Pressure (ALP) wrap to prevent blood clots. He claimed the device malfunctioned, causing him harm. The Arringtons sued the hospital, alleging negligence in the selection, purchase, and implementation of the ALP wrap.

    The hospital countered with a dilatory exception of prematurity, arguing that the claims fell under medical malpractice and required a medical review panel’s evaluation before proceeding to court. The trial court agreed and dismissed the Arringtons’ claims against the hospital without prejudice. The Arringtons appealed this decision.

    The Court’s Ruling and the Coleman Factors:

    The Court of Appeal affirmed the trial court’s ruling, focusing on the LMMA’s definition of “malpractice” and the six “Coleman factors” used to determine if a claim falls under medical malpractice.

    The court held that the hospital’s actions regarding the ALP device constituted “healthcare” under the LMMA. They reasoned that the selection and use of medical devices are intertwined with patient treatment and require medical expertise.

    The court also considered the Coleman factors, particularly:

    • Treatment-Related: The use of the ALP wrap was directly related to Mr. Arrington’s post-surgery treatment and involved professional medical judgment.
    • Expert Medical Evidence: Determining if the hospital was negligent in choosing and using the device would necessitate expert medical testimony.
    • Assessment of Patient’s Condition: The decision to use the ALP wrap involved assessing Mr. Arrington’s risk for DVT, a medical condition.
    • Physician-Patient Relationship: The incident occurred within the context of a physician-patient relationship and the scope of activities a hospital is licensed to perform.
    • Injury Related to Treatment: The injury allegedly wouldn’t have happened if Mr. Arrington hadn’t sought treatment at the hospital.

    Things to Know: 

    • Importance of the Medical Review Panel: The LMMA mandates that medical malpractice claims be reviewed by a medical review panel before litigation. This process aims to filter out meritless claims and encourage early resolution.
    • Broad Scope of the LMMA: The LMMA’s definition of “malpractice” is expansive, encompassing not just the direct treatment of patients but also decisions about medical devices and equipment used in their care.
    • Coleman Factors as a Guide: The six Coleman factors provide a framework for courts to determine whether a claim falls under medical malpractice, even in cases where the line between administrative and medical decisions may seem blurred.

    This case emphasizes the importance of understanding the LMMA and its procedural requirements when pursuing claims against healthcare providers in Louisiana. It reinforces the necessity of a medical review panel’s assessment in cases involving allegations of negligence related to medical devices and equipment. If you have suffered an injury due to a medical device, it is crucial to seek legal counsel to navigate the complexities of the LMMA and protect your rights.

    Additional Sources: GREGORY ARRINGTON HUSBAND OF/AND CLARNETTA ARRINGTON VERSUS ST. TAMMANY PARISH HOSPITAL SERVICE DISTRICT NO. 1 D/B/A ST. TANIMANY PARISH HOSPITAL AND CURRIE MEDICAL SPECIALTIES, INC. 

    Written by Berniard Law Firm

    Other Berniard Law Firm Blog Articles on Medical Malpractice: What Type of Expert Testimony Is Needed in a Louisiana Medical Malpractice Lawsuit? and Louisiana Court Reverses Summary Judgment in Medical Malpractice Case: The Importance of Expert Testimony

  • Louisiana Court Reverses Summary Judgment in Medical Malpractice Case: The Importance of Expert Testimony

    A recent Louisiana Court of Appeal decision has underscored the significance of expert testimony in medical malpractice cases. The case, Mariakis v. North Oaks Health System, involved a wrongful death lawsuit alleging that the hospital failed to provide adequate care, leading to the patient’s death. The trial court initially granted summary judgment in favor of the hospital, but the Court of Appeal reversed this decision, highlighting the necessity of expert evidence to resolve complex medical malpractice claims.

    Lori Mariakis presented to the emergency department at North Oaks Hospital with severe abdominal and vaginal pain. She was diagnosed with a colitis flare-up and discharged. Five days later, she returned with worsening symptoms and was diagnosed with constipation. However, her condition deteriorated, and she was admitted to another hospital, where she tragically passed away.

    Her sons sued North Oaks Health System, alleging that the hospital’s negligence in diagnosing and treating their mother led to her death. The medical review panel initially found no evidence of malpractice. However, the plaintiffs presented an expert witness, Dr. Robert V. West, who opined that the care provided by North Oaks fell below the applicable medical standard of care and caused Ms. Mariakis’s death.

    After initially excluding the testimony of the plaintiffs’ first expert witness, the trial court granted summary judgment in favor of North Oaks, arguing that the plaintiffs lacked expert evidence to support their claims. The plaintiffs appealed this decision.

    The Court of Appeal reversed the trial court’s grant of summary judgment, focusing on the importance of expert testimony in medical malpractice cases. It held that the plaintiff’s expert witness affidavit and subsequent report were sufficient to create a genuine issue of material fact regarding the standard of care and causation, thereby precluding summary judgment.

    Things to Know: 

    • Expert Testimony is Crucial: In medical malpractice cases, expert medical testimony is generally required to establish the standard of care, breach of that standard, and causation.
    • Summary Judgment and Expert Evidence: When a defendant in a medical malpractice case moves for summary judgment based on the plaintiff’s lack of expert testimony, the plaintiff must present competent expert evidence to counter the motion and demonstrate a genuine issue of material fact.
    • Admissibility of Expert Evidence: The court also addressed the admissibility of expert evidence, emphasizing the need for proper authentication and compliance with procedural rules.

    Implications for Patients and Medical Providers

    The Mariakis decision highlights the challenges of navigating medical malpractice litigation in Louisiana. For patients and their families, it underscores the critical importance of securing qualified expert witnesses to support their claims. Expert testimony can be the deciding factor in establishing a healthcare provider’s negligence and its causal link to the patient’s injuries or death.

    For medical providers, the case serves as a reminder of the importance of adhering to the standard of care and documenting their actions thoroughly. Even if a medical review panel initially finds no evidence of malpractice, a plaintiff can still prevail in court if they present compelling expert testimony.

    The Mariakis case illustrates the complexities of medical malpractice litigation and the critical role of expert witnesses. Whether you’re a patient seeking justice for medical negligence or a healthcare provider defending your actions, seeking legal counsel from an experienced medical malpractice attorney is crucial. They can help you understand the legal standards, gather and present expert evidence, and navigate the complexities of the litigation process.

    Additional Resources:CHRISTOPHER CHARLES MARIAKIS AND MICHAEL ANDREW MARIAKIS, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF LORI HALE MARIAKIS VERSUS NORTH OAKS HEALTH SYSTEM

    Written by Berniard Law Firm

    Other Berniard Law Firm Articles on Expert Testimony: Louisiana Court Reinstates Summary Judgment in Medical Malpractice Case: The Importance of Timely Expert Evidence and The Role of Expert Witnesses in Accident Claims: Resolving Conflicting Testimony

  • Granddaughters and Medical Malpractice in Louisiana: Who Can Initiate the Claim?

    In the recent Louisiana Court of Appeal, Third Circuit, decision of Guffey v. Lexington House, the court delved into the complexities of prescription (the Louisiana equivalent of a statute of limitations) in medical malpractice cases. This ruling provides valuable insights into the interplay between the Louisiana Medical Malpractice Act (LMMA) and the state’s Civil Code, specifically concerning who can initiate a medical review panel and how that affects prescription for potential plaintiffs. This blog post will dissect the Guffey decision, analyze its implications, and offer guidance for navigating medical malpractice claims in Louisiana.

    Case Background

    Geneva Guffey, a nursing home resident, suffered a severe leg injury when a Lexington House employee dropped her during a transfer. She tragically passed away a few months later. Her granddaughter, Deana Fredrick, initiated the medical review panel process, a prerequisite to filing a medical malpractice lawsuit in Louisiana.

    Lexington House challenged Deana’s right to file the request, arguing she wasn’t a direct beneficiary under Louisiana law. The trial court and the Court of Appeal initially sided with Deana, allowing the medical review panel to proceed.

    The panel found that Lexington House had breached the standard of care. Subsequently, two of Geneva’s children filed a lawsuit. Lexington House responded with exceptions of vagueness and prescription, the latter being the focus of this appeal. They argued that the lawsuit was filed beyond the one-year prescriptive period and that Deana’s initial filing did not suspend prescription for the other potential plaintiffs. The trial court denied the exception of prescription, leading to this appeal.

    Court’s Ruling

    The Court of Appeal upheld the trial court’s decision, denying the exception of prescription. The court focused on the definition of “claimant” under the LMMA and concluded that there’s a distinction between the right to initiate the medical review panel process and the right to file a lawsuit after the panel’s decision.

    The court reasoned that the LMMA’s definition of “claimant” is broad, encompassing not just direct beneficiaries but also representatives of the patient or the decedent’s estate. This broad definition serves the LMMA’s purpose, which is to facilitate the efficient resolution of medical malpractice claims.

    The court also addressed the argument that allowing anyone to initiate the medical review panel process would render meaningless a provision allowing healthcare providers to raise an exception of no right of action. The court countered that the LMMA’s definition of “claimant” is specific enough to prevent frivolous claims.

    Key Takeaways from the Guffey Decision

    • Broad Definition of “Claimant”: The LMMA’s definition of “claimant” is inclusive, allowing not only direct beneficiaries but also representatives of the patient or the decedent’s estate to initiate the medical review panel process.
    • Suspension of Prescription: Filing a request for a medical review panel suspends prescriptions for all potential plaintiffs, even those not directly involved in the panel process.
    • Distinction Between Panel Initiation and Lawsuit: The right to initiate the medical review panel process doesn’t necessarily equate to the right to file a lawsuit after the panel’s decision. The Louisiana Civil Code’s provisions on wrongful death and survival actions determine the latter.

    Implications for Medical Malpractice Claims

    The Guffey decision clarifies several aspects of medical malpractice litigation in Louisiana. It underscores the importance of initiating the medical review panel process in a timely manner, as this suspends prescriptions for all potential plaintiffs. It also highlights the broad definition of “claimant” under the LMMA, potentially allowing a wider range of individuals to initiate the process.

    However, it’s important to remember that initiating the panel process doesn’t automatically guarantee the right to file a lawsuit. The right to sue is still governed by the Louisiana Civil Code, which specifies the classes of beneficiaries who can bring wrongful death and survival actions.

    If you are considering filing a medical malpractice claim in Louisiana, consulting with an experienced attorney is crucial. They can help you navigate the complexities of the LMMA, ensure compliance with procedural rules, and protect your rights throughout the process.

    Additional Sources: JAMES E. GUFFEY, ET AL. VERSUS LEXINGTON HOUSE, LLC 

    Article Written By Berniard Law Firm

    Additional Berniard Law Firm Article on Prescription: Grieving Widow Granted Opportunity to Fight Prescription in Medical Malpractice Case and Trial Court Errs by Granting an Exception of Prescription to Insurance Company

  • Hospital Not Liable For Negligent Transportation During Hurricane Katrina

    Over a decade after Hurricane Katrina, we have almost all heard of the difficult choices hospitals faced while trying to care for patients. This case involves a patient who was allegedly injured while being evacuated from a New Orleans hospital during Hurricane Katrina. 

    Lionel Favret was admitted to the hospital in New Orleans, Louisiana where he was diagnosed with a bone disease and back pain. He was treated with antibiotics and underwent back surgery. He faced a difficult recover and while in the ICU, Favret had to be resuscitated on two different occasions. 

    He was moved out of the ICU into a unit for surgery patients when Hurricane Katrina hit. Hospital employees carried Favret down several stories of stairs into the parking garage where he was eventually evacuated after over a day. When he arrived at the new hospital, he was diagnosed with fractures in his back and an infection. He underwent another back surgery. 

    Favret filed a petition for a Medical Review Panel. Favret alleged the original hospital had failed to provide him with antibiotic treatment, had jostled him while moving him to the evacuation site and did not have sufficient personnel to put him on a helicopter, and forced him to remain upright during the ten-hour ride to the other hospital. The panel found Favret did not have sufficient evidence the hospital did not meet the applicable standard of care or that it had discontinued his antibiotics. 

    Favret then filed a lawsuit in the district court under the Louisiana Medical Malpractice Act, La. R.S. 40:1299.41(A)(8), alleging his severe injuries had resulted from the hospital’s malpractice. He also brought negligent transportation and premises liability claims. 

    The hospital filed a summary judgment motion for dismissal of Favret’s medical malpractice claims, which the court granted because Favret had not provided expert testimony to establish it had breached the applicable standard of care. The court also later dismissed his negligent transportation and premises liability claims. Favret filed an appeal, arguing the trial court erred in dismissing his claims. 

    With respect to the negligent transportation claims, the appellate court looked at the statutory language of the Louisiana Medical Malpractice Act. The act explicitly states medical malpractice includes actions related to the loading or unloading of a patient. Therefore, Favret’s negligent transportation claims were medical malpractice claims. Favret had not provided sufficient evidence or testimony from medical experts to establish his claim. Therefore, the appellate court held the district court had not erred in dismissing Favret’s negligent transportation claims. 

    For Favret’s premises liability claims, the appellate court reviewed the evidence presented to the trial court about the condition of the hospital’s premises. Although Favret providing witnesses, he did not provide sufficient evidence to establish causation between the hospital’s negligence and his supposed damages. Therefore, the appellate court held the trial court did not err in dismissing Favret’s premises liability claims. 

    If you have been injured while hospitalized, a good attorney can advise you on possible medical malpractice claims, even if there were extenuating circumstances like here.

    Additional Sources: Lionel Favret, Jr. and Lynda Hannie Favret v. Touro Infirmary

    Article Written By Berniard Law Firm

    Additional Berniard Law Firm Article on Medical Malpractice: Orleans Parish Hospital Negligence Trial Concerns Medical Malpractice, Negligence, & Damage Caps

  • Doctor Held Not Vicariously Liable For Physical Therapist’s Actions by Louisiana Court

    When you think about medical malpractice lawsuits, a botched surgery or missed diagnosis are likely the first things that come to mind. The following case involves a less common situation involving purported medical malpractice involving physical therapy post-surgery. It analyzes the relationship between a doctor and a physical therapist and whether a doctor can be vicariously liable for the actions of a physical therapist.

    Jean McKeogh underwent a total shoulder arthroplasty, which Dr. Michael O’Brien performed. Following the surgery, Dr. O’Brien saw McKeogh for office visits at a Tulane University clinic. Part of McKeogh’s follow-up care involved physical therapy, which was located in the same building as Dr. O’Brien’s offices. McKeogh went to physical therapy but subsequently told Dr. O’Brien she thought she had been injured during it. A CT scan showed she had fractured her elbow. McKeough then had a frozen shoulder and had to have a second surgery. 

    As a result of the injury and alleged negligence, McKeough requested a medical review panel. In her complaint, she claimed Dr. O’Brien had not used reasonable care with respect to his post-surgery care for her, including with respect to the physical therapy he prescribed. The medical review panel determined Robin Silverman, the physical therapist, had not satisfied the applicable standard of care. However, the medical review panel found there was no evidence to support a finding that Dr. Brien and Tulane had not met the applicable standard of care. 

    McKeough then filed a lawsuit against Dr. O’Brien, Tulane, and others. She repeated her allegations from the medical review panel. McKeough also claimed Dr. O’Brian and Tulane were vicariously liable for the physical therapist’s actions. Dr. O’Brien and Tulane filed a summary judgment motion. They argued McKeogh did not have an expert, as necessary to establish there had been medical malpractice, and had not established Dr. O’Brien and the physical therapists had an employee-employe relationship such that Dr. O’Brien could be vicariously liable for the physical therapist’s actions. The trial court granted Dr. O’Brien and Tulane’s summary judgment motion. The court explained under La. C.C. art. 2320, an employer can only be liable for its employee’s acts, not a third party’s acts. McKeough appealed. 

    Under Marchetta v. CPC of Louisiana, Inc., in medical malpractice lawsuits, the most important factor to determine if there is an employer-employee relationship is whether the purported employer can control the employee’s work. Here, Dr. O’Brien’s deposition testimony and other evidence did not indicate there was an employee-employer relationship between him and the physical therapist. For example, Dr. O’Brien testified he did not have supervision of the physical therapy and did not have the authority to direct or dismiss a physical therapist employed by third parties. The only “control” Dr. O’Brien had was the ability to recommend patients to a physical therapy center. Therefore, the appellate court affirmed the trial court’s grant of Dr. O’Brien’s summary judgment motion because there was no evidence Dr. O’Brien could supervise or control the physical therapist such that he could be vicariously liable for the physical therapist’s actions. 

    In medical settings, there are often multiple care providers involved. If you are considering filing a medical malpractice lawsuit, it is important to consult with an experienced medical malpractice attorney about the roles of the involved medical professionals to determine who to file claims against in your lawsuit. 

    Additional Sources: Jean Montedonico McKeogh v. Healthcare Indemnity Inc., University Healthcare Systems, LC, Robin A. Silverman, The Administrators of the Tulane Education Fund, and Michael O’Brien

    Article Written By Berniard Law Firm

    Additional Berniard Law Firm Article on Vicarious Liability: Vicarious Liability Doesn’t Always Extend Liability for an Employees Actions

  • Louisiana Court Finds Hospital Director Void of Liability in Medical Malpractice Suit Involving His Staff

    A visit to the hospital is a stressful and anxious time for patients and family members. Most people, however, assume that their doctors are competent and will administer the proper standard of care. This was not the case for Richard Smallwood. 

    Smallwood fell at his home and sustained bilateral patella tendon ruptures. He was admitted to the Ochsner-Baptist Hospital for surgery to repair the ruptures in his tendon. After a complicated postoperative course, Smallwood was discharged to another Oschner unit. After some time in the nursing unit, Smallwood died. The autopsy revealed that he had suffered a pulmonary embolism, a secondary result of his deep vein thrombosis (DVT). Since Smallwood had been in “generally good health” before the surgery, his sudden death was shocking. The petition for this case alleged that Smallwood was not given the appropriate prophylactic anti-coagulant medication in violation of the standard of care.

    Since pulmonary embolisms are a common secondary result of DVT, Dorothy Pennington alleged a medical malpractice claim against the doctors and nurses in charge of Smallwood’s care. This included Dr. Todd, Dr. Hawawini, Dr. Jones, Dr. Ulfers, and the Ochsner Clinic Foundation. After moving for a directed verdict, the trial court found that all parties except Dr. Hawawini were liable for medical malpractice. Since Dr. Hawawini acted as the Hospital Director at the time of Smallwood’s death, it was challenging to show that Dr. Hawawini had breached a standard of care. This case centered around whether Pennington had properly established the standard of care and breach with respect to Dr. Hawawini. 

    La. R.S. 40:1231.1 A(13) defines how medical malpractice occurs under Louisiana law. To allege a medical malpractice claim, the plaintiff must prove the three elements outlined in La. R.S. 9:2794 A. First, the plaintiff must establish the ordinary degree of knowledge, skill, or care exercised by physicians licensed to practice in Louisiana. Second, the plaintiff must establish that the defendant doctor lacked that degree of knowledge or skill or failed to exercise reasonable care. Finally, the plaintiff must also show that a lack of knowledge, skill, or reasonable care caused the plaintiff’s injuries. 

    Generally, expert testimony must “establish the applicable standard of care in medical malpractice cases. Schultz v. Guoth. Thus, Pennington retained Dr. Frangipane to testify as an expert to prove the applicable standard of care. Dr. Frangipane was a general surgeon and did not practice in the unique specialties of each named defendant. The trial court, however, allowed Dr. Frangipane to testify because he was qualified enough to be deemed an expert in the field. On appeal, the Fourth Circuit Court of Louisiana looked to determine whether the trial court ruled properly in allowing Dr. Frangipane to testify as an expert. 

    The Fourth Circuit determined that Dr. Frangipane’s expert testimony was proper because his knowledge overlapped the various disciplines of the named defendant doctors. Furthermore, the court indicated that “[g]enerally, the fact that a medical doctor is not a specialist in a particular field applies only to the effect on the weight to be given such testimony, not to its admissibility.” Hubbard v. State, 852 So. 2d 1097 (2003). The Fourth Circuit affirmed the directed verdict for Dr. Hawawini and reversed the directed verdict for the remaining defendants. 

    Home accidents are scary enough without the added fear of medical malpractice once you reach the hospital. A good attorney will fight to ensure that your doctor gives you the proper standard of care during your stay at the hospital or another affiliated facility. 

    Additional Sources: Pennington v. Ochsner Clinic Foundation, 245 So. 3d 58 (2018) 

    Written by Berniard Law Firm Writer Riley Calouette

    Additional Berniard Law Firm Article on Medical Malpractice: Doctors Not Required To Act Perfectly: Determining The Applicable Standard of Care In Medical Malpractice Lawsuits

  • Faulty Foundations: Battling the Dark Side of Medical Innovation – The Defective Medical Device Lawsuit Saga

    Medical professionals are expected to uphold a standard of care in their practice. Unfortunately, life can present us with unfortunate circumstances where this standard is not met. When we experience injuries or worse due to the actions of those responsible for our treatment, healing, or diagnosis, medical malpractice claims can serve as a means to seek compensation and justice.

    In a recent legal battle that captured attention, a lawsuit between Randy A. Roberts, Sr., Johnson & Johnson, Inc., and its subsidiary Ethicon, Inc., took an intriguing turn. Roberts alleges that he suffered injuries caused by a defective medical device manufactured by J&J, leading him to file a product liability lawsuit. However, a district court granted summary judgment in favor of the defendants, prompting an appeal. 

    Roberts claims that during a hernia repair surgery in 2006, a Prolene Hernia System (PHS) produced by J&J was implanted in his body. Subsequently, he experienced debilitating pain, requiring three surgeries in 2015 to remove the PHS due to an infection. Dissatisfied with the outcome, Roberts initiated legal action against J&J, seeking damages under Louisiana law.

    Roberts alleges the medical device implanted in his body was defective, leading to his suffering and subsequent surgeries. He contends that J&J should be held responsible for the injuries and damages he sustained due to the defective product. The trial court applied the standard of review for summary judgment, which involves determining whether there is a genuine dispute of material fact. Fed. R. Civ. P. 56(a). Under this standard, the court reviews all evidence and draws reasonable inferences in favor of the non-moving party. Hanks v. Rogers.

    The Fifth Circuit Court of Appeals carefully examined the evidence presented by both parties. Roberts provided medical records from his 2015 surgeries that confirmed the presence of a PHS, supporting his claim the device was implanted during the 2006 surgery. On the other hand, J&J relied on the 2006 records, which suggested that Roberts had a different product implanted.

    The court emphasized that all evidence and reasonable inferences should be viewed in favor of the non-moving party at the summary judgment stage. In this case, Roberts’ evidence created a genuine dispute of material fact, as it allowed for a reasonable inference the PHS was indeed implanted during the 2006 surgery. The court disagreed with J&J’s argument that the 2006 records should be favored, noting that computer and medical records are not infallible.

    As a result, the Fifth Circuit Court of Appeals vacated the district court’s grant of summary judgment, meaning the initial decision was overturned. The case was remanded to the district court for further proceedings, allowing both parties to present their arguments and evidence.

    In a significant development, the Fifth Circuit Court of Appeals overturned the grant of summary judgment in Roberts’ defective medical device lawsuit against J&J. The court found there was a genuine dispute of material fact, supporting Roberts’ claim that Prolene Hernia System (PHS) was implanted during his surgery. The case was remanded to the district court for further proceedings, allowing both parties to present additional evidence and arguments.

    Additional Source: RANDY A. ROBERTS, SR.; NATASHA ROBERTS v. JOHNSON & JOHNSON, INCORPORATED; ETHICON, INCORPORATED

    Written by Berniard Law Firm Blog Writer: Juliana Greco Additional Berniard Law Firm Article on Louisiana Pain and Suffering cases: Summary Judgment Granted in Medical Malpractice Lawsuit Against Louisiana State University Health Systems and Failure of Hospital Staff to Properly Notify Patient of Device Manufacturer Notice Leads to Medical Malpractice Liability