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Category: Medical Malpractice

  • Medical Malpractice Lawsuit Tossed Due to Louisiana’s Prescriptive Period

    A man is in the hands of a facility tasked with providing sufficient medical care. Instead of meeting this standard of care and due diligence, the facility fails to adjust the man’s diet, and he chokes on solid food that he should not eat, leading to his death. When his parents and children bring multiple complaints of medical malpractice, his children’s claim gets dismissed despite the apparent negligence of the facility. Why did that happen?

    Joseph Triggs was this very man. While in the care of the Audubon Health and Rehabilitation Center (“Audubon”), Mr. Triggs choked on solid food and died in January 2013. A medical malpractice claim naming Mr. Triggs as the plaintiff was brought eight months after his death, alleging that the facility’s failure to adjust Mr. Triggs’s diet led to his death. Aubudon did not adjust his diet despite difficulty chewing and swallowing solid food. 

    As is the process for medical malpractice in Louisiana, the complaint requested that a medical review panel assess the situation. Nearly twenty-two months after Mr. Triggs passed, a request was made to amend the complaint, adding Mr. Triggs’s children as claimants, along with the decedent’s Estate. Finally, over two-and-a-half years after Mr. Triggs died, the medical review panel unanimously decided that Audubon had been negligent in caring for Mr. Triggs, and Mr. Triggs’s children and Estate filed a lawsuit in the trial court on a claim of medical malpractice. 

    Audubon then raised an exception of prescription, claiming that the time to file a medical malpractice suit had expired. Ultimately, the trial court agreed and dismissed the claim. Mr. Trigg’s children appealed on the allegation that the trial court was wrong in finding that the prescriptive period had run.

    Various codes govern medical malpractice lawsuits in Louisiana. The prescriptive period for medical malpractice lawsuits is laid out in LSA-R.S. 9.5628(A), stating that these cases must be brought within one year of the alleged malpractice or discovery thereof. The Louisiana Medical Malpractice Act (“the MMA”) requires a proposed medical malpractice complaint to be brought before a medical review panel before bringing the claim to court. See LSA-RS 40:1231.8(A)(1)(a). The prescriptive one-year period should be suspended while such medical review is pending and for ninety days after the panel makes an assessment. See LSA-RS 40:1231.8(A)(2)(a). 

    In the present case, the complaint was brought to court more than one year after Mr. Triggs’s death. The complaint was, therefore, only timely if the original claim, in which Mr. Triggs was the only claimant named, permitted the suspension of the prescriptive period until the panel released its finding. The initial claim may have sufficiently suspended the prescription period if it suspended the prescription for all related claims or if the amended complaint is sufficiently related to the original complaint. 

    Mr. Triggs’s children argued that the original complaint, in which they were not named, served to suspend the prescription period for all claims of damage resulting from the alleged negligence. See Truxillo v. Thomas, 2016-2018 (La. App. 4th Cir. 8/31/16), 200 So. 3d 972. The Louisiana court of appeals previously held that the MMA requiring that claimants be named in the review panel request does not indicate that all potential claimants be named for the following claims to be covered by the suspension of the prescription. 

    However, courts have also held in a more recent case, Parks v. Louisiana Guest House, Inc., that a malpractice claim brought by a party, deceased before the medical review panel was convened, did not suspend the prescription period for the decedent’s children’s claim. See Park v. Louisiana Guest House, Inc., 2013-2121, 2013-2122 (La. App. 1st Cir. 9/30/14), 155 So. 3d 609, 613. In Parks, the court more narrowly interpreted the MMA to require that all claimants be named in the medical review request for the prescriptive suspension to apply. As that is the more recent case on point, the court in Trigg’s case relied on the reasoning in Parks to decide that Mr. Triggs’s children should have their claim dismissed, as the prescriptive period had run. 

    As is often the case, the biggest obstacle to getting your day in court can be operating by the book. The procedure of the court is strict and can be complicated. Even when the basis of your complaint is valid and supported by external fact-finders, as it was in this case, your case could be dismissed if there is an issue with procedure. You must retain counsel that understands both your case and the ins and outs of legal procedures. Losing your chance to bring a valid cause of action due to filing, documentation, or other procedural issues is something you want to avoid. 

    Additional Sources: Rickerson v. Audubon Health & Rehab. Ctr.

    Written by Berniard Law Firm Blog Writer: Callie Ericksen

    Additional Berniard Law Firm Article on Medical Malpractice and Prescriptive Periods: Late Filing Bars Medical Malpractice Claim Against Tulane-Lakeside Hospital

  • Court Clarifies Use of Differential Diagnosis in Louisiana Medical Malpractice Case

    Does a physician’s use of differential diagnosis raise a medical malpractice issue in Louisiana? That question is at the center of a recent medical malpractice case out of Lake Charles. The Louisiana Third Circuit Court of Appeal addresses liability attached to a method of clinical diagnosis known as a differential diagnosis.  

    On February 23, 2011, after experiencing two seizure-like episodes, Ms. Judith LeBlanc was seen in the emergency room of CHRISTUS Health Southwestern Louisiana (St. Patrick’s Hospital)  by her primary care physician Dr. Lewis. Ms. LeBlanc was being treated for a jaw infection and scheduled for a tooth extraction the next day. Dr. Lewis ordered several tests over the next few days to rule out multiple potential underlying conditions. Although Dr. Lewis made a differential diagnosis that included sepsis as a possibility, Ms. LeBlanc was not treated for sepsis because she displayed no signs of it. Two days after her discharge, Ms. LeBlanc developed seizure activity and cardiopulmonary arrest and eventually passed.  

    A medical malpractice lawsuit was filed by Leblanc’s family. As part of the lawsuit, a Medical Review Panel met and found that neither St. Patrick’s nor Dr. Lewis breached the standard of care. St. Patrick’s and Dr. Lewis relied upon the Medical Review Panel’s findings in filing motions for summary judgment to dismiss the lawsuit.   The Fourteenth Judicial District Court for the Parish of Calcasieu granted those summary judgment motions and Leblanc appealed.  

    In medical malpractice, a defendant must show that there is an absence of factual support for one or more elements essential to a plaintiff’s claim to show that there is no genuine issue of material fact. There are three elements the plaintiff must show, by a preponderance of the evidence: (1) the standard of care applicable; (2) that the defendant breached the standard of care; and (3) that there was a causal connection between the breach and resulting injury. See Djorghi v. Glass, 23 So.3d 996 (La. Ct. App. 2009).    

    Leblanc’s family argued the District Court erred in finding that Dr. Lewis did not diagnose Ms. LeBlanc with sepsis upon hospital admission, even though his treatment plan was to treat sepsis with antibiotics and monitor.  The Third Circuit rejected the plaintiffs’ position that Dr. Lewis diagnosed Ms. LeBlanc with sepsis because of the nature of the differential diagnosis that Dr. Lewis conducted. 

    A differential diagnosis is only a list of potential disorders that could be the cause of presenting symptoms and considers medical and family history. A differential diagnosis is used to help diagnose physical or mental health disorders that cause similar symptoms. Thus, a differential diagnosis (such as sepsis in this case) that has been ruled out does not establish a medical diagnosis for which a standard of care follows. Accordingly, the Third Circuit agreed with the District Court that Dr. Lewis did not breach the standard of care by failing to treat a condition that was merely one of several possible diagnoses.   

    Justice Cook dissented, stating that the majority mischaracterized the issue. Instead, Justice Cook argued that there were genuine issues of material fact left unresolved. Justice Cook pointed to the nature of sepsis and that Ms. LeBlanc showed all but one criterion that is present when classifying someone with sepsis. Justice Cook looked at the evidence to point out that even though Dr. Lewis said he saw no symptoms that Ms. LeBlanc had sepsis, his testimony is fundamentally at odds with Ms. LeBlanc’s own medical record and the Leblancs’ expert testimony.  

    The dissent also stressed that Dr. Lewis knew that Ms. LeBlanc had an infection, had written a treatment plan that included administering antibiotics, and then did everything in that treatment plan except for prescribing antibiotics. It was the inclusion of administering antibiotics as part of the treatment plan and that Ms. LeBlanc demonstrated most signs of sepsis that—with plaintiffs’ expert testimony—the dissent believed raised a genuine issue of material fact as to the proper standard of care.  

    While the dissent brought up significant facts for discussion, the Third Circuit opinion came to a different conclusion. Medical malpractice claims can be challenging and require an excellent attorney to clarify the applicable standard of care required for a claim to proceed.    

    Additional Sources: JACQUELINE BRENNER, ET AL. VS. DR. RONALD M. LEWIS, ET AL.  

    Written by Berniard Law Firm Blog Writer: Elisabeth Tidwell 

    Additional Berniard Law Firm Articles on Medical Malpractice: Louisiana Court Finds Medical Malpractice Allegations Broad Enough to Proceed

  • Attorney Jeffrey Berniard makes New Orleans Magazine top lawyers list

    Licensed attorneys in New Orleans were asked which attorney they would recommend to residents in the New Orleans area. Attorney Jeffrey Berniard, of the New Orleans-based Berniard Law Firm, LLC, was named one of the best mass litigation and class action attorneys in New Orleans in the November 2012 issue of the magazine. Propelled into success by holding insurance companies accountable in the wake of Hurricane Katrina, Berniard has built the Berniard Law Firm into one of the premiere personal injury law practices in not only New Orleans, but the entire state of Louisiana. Since Hurricane Katrina, Berniard Law Firm has focused on insurance disputes and class action litigation.

    Jeffrey Berniard has been involved in several high-profile cases, solidifying his expertise in complex high risk litigation. He worked on the highly publicized Deep Water Horizon oil rig case in the Gulf Coast, representing a very large group of individuals affected by the sinking oil rig. In 2008, Berniard Law Firm secured a $35 million dollar settlement for a class of 70,000 members seeking bad faith penalties for tardy payments by a Louisiana insurance company in the wake of Hurricane Katrina and Hurricane Rita. In 2009, the Berniard Law Firm participated in five class actions against insurance companies and corporations. In the process of these major claims, the firm also helped many residents of the Gulf Coast with their personal injury concerns, insurance claims and business disputes.

    – What is Mass Tort Litigation? –
    Mass tort litigation involves a class of civil actions involving multiple plaintiffs who are injured by a defective product, a hazardous substance or some type of disaster. Mass tort actions can be against one or many defendants in either state or federal court. This type of litigation allows several attorneys or even a group of attorneys to represent several injured parties within an individual case. This becomes a much more effective form of litigation that allows for the pooling of resources and ideas.

    Mass tort typically involves a smaller group of individuals typically limited to a certain geographic area. This differs from the class action, which is one lawsuit that is filed by an individual or a small group acting on the behalf of a large group. Class actions tend to be much larger suits and are represented by one class representative who represents the entire class. In mass tort, each individual is treated as such–as individuals. In a class actions, the entire class is treated as one individual. Attorney Jeffrey Berniard and the Berniard Law Firm have extensive experience with both class action and mass tort litigation.

    Contact the Berniard Law Firm today at (888) 550 5000 if you feel that your rights have been violated.

  • What is a Class Action? Who is the “Class?”

    In Jane Doe v. Southern Gyms, LLC arising out of Baton Rouge, Louisiana, a class action suit was filed involving a local branch of the national gym, Anytime Fitness, was accused of taking pictures of 250-300 women changing in a locker room. The plaintiffs filed on behalf of all women who’d used the gym during the time period and the class was certified to proceed to trial.

    To understand what “the class was certified” means, it is important to understand what a class action suit is the reasons why we allow class actions in the first place. Class action suits are a useful tool in litigation in that it can bring together large numbers of substantially similar or identical claims into a single proceeding. This contributes to judicial efficiency as often times the type of cases litigated as class actions can have as many as thousands of plaintiffs. Assuming each of these cases was large enough to be worth bringing to court individually, there would be substantial amounts of duplicated effort by each party. However, the real value of class actions is in allowing cases that normally would be too small to litigate individually to have their day in court. If a case involves a real injustice to thousands of people, but the actual per person damages is relatively small it would be too costly to vindicate their claims.

    In this case, the class proposed was:

    all females who physically entered the women’s restroom/locker room/ changing room at Anytime Fitness, 200 Government Street, Baton Rouge, LA 70802 from November 1, 2009, through and including April 5 2010.

    The rules that govern class actions require that several hurdles be met before a class can be certified (allowed) to proceed: there must be enough members that litigating separately is impractical; the questions of law and facts in the case common to the parties; the class representative’s claims must be typical of the claims of the class; they are able to protect the interests of the entire class, and finally the class must be able to be adequately defined so the court can be satisfied that the suit will end the dispute.

    This case is noteworthy because the actual size of the class is fairly small. The gym operator admitted to videotaping on only 10-15 occasions. While any number of women may have been victims during these periods, the class itself was certified for any woman using the gym during a nearly 6 month period. There is no rule that states the minimum number of plaintiffs required for a class action, but the appeals court did not give a rousing endorsement for the “numerosity” (size) of the class in this case, they merely deferred to the trial court judgment on the matter. What was particularly noteworthy was the court weighed concerns beyond just the actual numbers of women involved. An additional factor was evidence that the gym allowed members from around the country to use it and thus the plaintiffs might not all have been locals which would have substantially increased the burden to litigate separately. Had all the women been locals, it is possible the court would have required “joinder” or just combining separate cases rather than allowing a representative in a class action suit.

    Most people have been involved in a class action suit and may not have even been aware of it. Generally, each member of the class is required to be notified to give them the opportunity to opt-out of (or into) the class. This will typically be done via a postcard by mail. Thousands of these cards are thrown away without being read yearly but they can entitle plaintiffs to small to moderate cash settlements without ever setting foot in a courtroom, as you are being represented by the person bringing the suit!

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  • Happy Mardi Gras!

    As a Louisiana law firm, our practice takes great pride and enjoyment from Fat Tuesday and all of the history that follows. For all of our readers in the New Orleans area, have a safe and happy holiday.

    Postings will resume shortly. In the meantime, laissez les bon temps rouler!

  • Difficulty in Setting Aside Insurance Release Forms and Settlements

    Settlements are an important part of the legal process. They save time, money, allow the parties to negotiate their own terms, and, above all, they keep the parties from having to go to court to litigate their claims. In the case of settling with insurance companies, the companies like to avoid court because it not only costs them time and money, but also may negatively affect their reputation in the community. As such, it is common practice for an injured person to sign a release form after they receive settlement money. This release form bars the person injured from any future claims against the insurance company. Both parties usually end up happy in this situation because the person who was injured gets some compensation and the insurance company avoids the negative effects of going to court.

    What happens if an injured person settles and signs a release form before they realize how badly they are injured? For example, perhaps an individual thinks they only bruised their ribs, but actually suffered from more long term effects such as kidney injuries. In that case, the injuries are likely to be much more expensive than both parties originally anticipated. Then, the injured individual does not have enough money to cover medical expenses and the insurance company gets out of paying for the extra expenses.

    In Louisiana, a general release will not necessarily bar recovery for aspects of the claim that the release was not intended to cover. However, most releases are very broad in that they cover any existing injuries and injuries that may occur because of the accident in the future. Louisiana law only allows settlements to be set aside if there was an error when the settlement was signed. Two major mistakes could set aside a settlement: 1) the injured party was mistaken as to what he or she was signing even if there was no fraud involved, or 2) the injured party did not fully understand the nature of the rights being released or that they did not intend to release certain rights. A settlement can also be set aside if there is fraud or misrepresentation involved.

    Louisiana Civil Code Article 1953 defines fraud as “. . . misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss of inconvenience to the other. Fraud may also result from silence or inaction.” In order to determine if there is fraud involving a release, which is also a contract, the court will only look to the document itself to determine if fraud is evident. Evidence of fraud in this situation could include any intentionally incorrect statement of material fact, such as stating items that are not covered by the insurance company when those items are actually covered.

    A recent case gives an excellent example of a settlement with an insurance company. In that case, an individual fell off a tractor and injured himself. Two insurance companies provided compensation for injuries relating to his fall. Once each insurance company provided compensation, they each had the injured party sign a release form to keep him from filing claims against them in the future should the injuries be worse than originally anticipated.

    The injured individual did have complications with his injuries and tried to get the settlements set aside so that he could get more money based on the coverage, but because he signed the release forms and there was no evidence of fraud, the court would not set aside the settlement agreements. The court stated that the injured individual knew exactly what he was releasing and there was no mistake in the settlement. The insurance companies both provided clear statements of what they did and did not cover and provided compensation for the things they did cover. The release statements specifically said that the injured party could not sue again for the same fall even if the injuries got worse, so he could not file claims again.

    One lesson to take away from this example is that it might be helpful to find out the extent of your injuries before you enter into any settlements or sign any release forms.

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  • Court Explains the Requirements of a Settlement Agreement

    Recently, in the State of Louisiana Court of Appeal for the Third Circuit, a case was decided that effectively laid out the requirements of a settlement agreement. These requirements are especially important because many cases are settled before they get to court. In fact, settlement is often preferable because it saves a significant amount of time, money, and it allows the parties to reach a compromise that they not only come up with themselves, but that is also acceptable to both parties. That way, the parties share the benefits instead of there being a clear-cut loser and clear-cut winner as is usually the situation should a case go to trial.

    In this case, an individual was seeking to enforce a settlement agreement with an insurance company regarding a life insurance policy. The life insurance policy involved three beneficiaries; however, it was unclear as to when the money should go to each beneficiary. There may have been a contingent beneficiary. That is, the policy was set up so that if one of the beneficiaries had passed away prior to the money dispersion, then it would go to a different beneficiary. However, the insurance company was unsure of this stipulation, so they did not give out any money at all.

    As a result of all of this confusion, one of the beneficiaries entered into negotiations with the insurance company in order to get at least some money out of the life insurance policy. Louisiana Civil Code, Article 3071, defines compromise as “a contract whereby the parties, through concession made by one or more of them, settle a dispute or an uncertainty concerning an obligation or other legal relationship.” Therefore, the parties in this case sought to compromise regarding the payment of the insurance policy.

    In addition to defining compromise, the Court also points out that the settlement agreement must be in writing and signed by both parties as required by Louisiana Civil Code Article 3072. In this case, there was an oral agreement, but when the parties attempted to put the terms in writing, there was still dispute regarding the agreeability of quite a few of the terms of the settlement. They created drafts and sent them back and forth, but nothing was ever finalized by way of a signature from either party. The Court recognizes that there are no other cases where a settlement was validated even though neither party signed the final settlement agreement.

    The Court also goes on to explain that contracts, which are the basis of a compromise, require that there be a “meeting of the minds.” That is, both parties should completely understand and agree to the terms in the contract. The contract embodies the intention of both parties and if the intention of both sides is not fully included in the settlement, then that settlement cannot be valid. In this case, both sides described other terms that were either not included in the agreement or that appeared, but they did not approve of their inclusion in the settlement. The Court notes that there was no “acceptance and acquiescent from both parties” in this case.

    Although the settlement agreement can be included in more than one document, it is apparent that there was no such agreement. It based this conclusion on the testimony of both parties, lack of signature on the settlement agreement, and other communications between the parties at the negotiation stages in this case (such as letters between the attorneys that expressed displeasure with terms in the agreement). Therefore, the Court concluded that a settlement agreement did not actually exist and that it could not enforce a settlement agreement that does not actually exist.

    Obtaining settlement agreements can be somewhat complicated because they involve getting both sides to agree to many different terms. However, they are very valuable because they allow the parties to avoid trial and get their conflicts resolved quickly. The Berniard Law Firm is always interested in solving our clients’ problems quickly and effectively.

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  • Contract Dispute Resolution in Louisiana

    The state of Louisiana, like many other states, has very specific requirements that the judicial branch uses to help interpret contracts when the parties are in dispute. Generally, the court likes to stay out of contracts because the right to contract without interference from the government is something that the American society greatly cherishes. The ability to contract is a basic fundamental right that is guaranteed by the Fourteenth Amendment. The court will usually only interfere if there is a dispute or if the contract was in some way illegal. Therefore, it is very important to have a contract that is well written and that all parties understand completely.

    If the court has to step in to work with a contract, then it will follow a few select guidelines. The ultimate goal of the court is to determine the common intent of the parties and enforce the contract in that way. In order to determine the intent, the court will look to the contract itself. In contracts that include terms of art or very technical requirements, the court will look to the common use of the word within that trade. For example, some trades include quantity information that is always larger than actually stated; think of a “baker’s dozen.” Even though twelve is technically considered a dozen, a contract between bakers may actually mean thirteen. This notion disregards the fact that in any other contract that is not between bakers, a dozen would equal twelve.

    The court will also consider the contract in its entirety, not just a few sections or a single disputed term. It will determine what outcome is practical for both parties and technical terms will be given their technical meaning. In addition, if a word has more than one meaning, then the court will defer to the meaning that will carry out the goal of the contract. Consider a simple example. If a grocery store contracts to receive bananas and they receive plastic bananas instead of real bananas, the court will likely conclude that the other party providing the plastic bananas was at fault because the definition of a banana is commonly a consumable food, especially if it is going to be sold at a grocery store. The contract did not say that the grocery store wanted edible bananas, but the court will assume this information because the outcome becomes ridiculous without this assumption.

    The court will generally try to stay within the language of the contract when attempting to resolve disputes. When the contract is clear and doesn’t lead to ridiculous consequences, then external evidence provided by the parties to show an alternative intent cannot be considered. The contract’s wording is therefore very important. However, if the contract is not clear or is ridiculous, then the court can consider some outside evidence in order to determine the common intent of the parties. In our banana example, if the grocery store has always ordered real bananas from this seller and has never requested plastic bananas from this seller, then that information could be considered in the court’s analysis.

    The court has a means to determine whether the meaning of the contract is clear or not. Obviously if a term or issue is missing from the contract entirely, then the court will most likely deem the issue to be unclear or ambiguous. In addition, the court will also reason that an issue is ambiguous when “the language used in the contract is uncertain or is fairly susceptible to more than one interpretation.” If this is the case, then the outside evidence can be used to determine what the intent of both parties actually is.

    A well written contract will convey the intention of both parties and will define all of its questionable terms so that there is no contention in the future. Sometimes, one party does not think a term in unclear when it actually is, so a conflict will arise. Competent attorneys are needed to create a well written contract and deal with conflict.

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  • Summary Judgment Summarily Dismissed by Third Circuit in Vehicle Accident Case

    A summary judgment is rendered when a trial court decides that there are no genuine issues of material fact that need to be determined. “Manifestly erroneous” is the high standard under which summary judgments are reversed on appeal. Summary judgments are cheaper and less time consuming than full blown trials; they are a means toward the end of judicial expediency, a goal that becomes increasingly important to our judicial system over time. Despite the importance of this procedural device, many cases do not call for summary judgment. Sometimes trial courts grant full or partial summary judgments in error and are reversed. That is what occurred in the case of Jagneux v. Frohn, which you can read here.

    The defendants in this case convinced the trial court that no issues of fact existed that required litigating. Their legal journey was not over though due to the plaintiff’s appeal. The court of appeals applied the standard promulgated by the Louisiana Supreme Court. This Louisiana Supreme Court’s standard initially places the burden of proof on the party that is moving for a summary judgment. The moving party must prove that one or more elements of the adverse party’s claim or defense lacks any factual support on the record so far. The opposing party is then granted an opportunity to prove that there have been facts alleged that support that party’s position. At the time of summary judgment the record is sparse so a granting of summary judgment represents a finding by the court that no facts supporting a particular party’s, in this case the plaintiff’s, position.

    The appellate court reversed the trial court’s decision in this case because it found that the issue of whether Mrs. Kling, a defendant in this case, was the driver of the white SUV at the time that it, at least partially, caused the accident at issue in this case. Because there was conflicting evidence about where Mrs. Kling was and whether or not she was actually in control of the car at the time of the accident, summary judgment was not the right choice in this case. The trial court is not to weigh the merits of the case when addressing summary judgment. Summary judgment is only appropriate in cases where no potentially meritorious case is presented by one of the parties.

    Judicial efficiency is a desirable goal at this point in history. America is an incredibly litigious society and with good reason. Science and technology move faster now than ever before and this leads to more pernicious injuries becoming increasingly common. Society functions better when injured people are compensated. This is even more true when injured people are compensated quickly and at minimal expense to society. However, as important as these goals are, the pursuit of the truth is the most important aim of our justice system. When the truth of a matter is in question, it falls to our trial courts with their judges and juries to put together an authoritative version of events. This version, when properly decided, becomes the truth for all intents and purposes. When there is no need to conduct an exhaustive search for truth, summary judgment becomes necessary and expedient.

    Summary judgments take up less of a court’s time than a trial. Because of this, summary judgments allow a court to hear more cases in less time. This benefits society as a whole. Frequently, American and Louisiana courts have a substantial backlog of cases. This prevents swift access to the justice that many people require. Summary judgment and other procedural and dispute resolution devices that avoid full trials aid in mitigating this abundant caseload. The case of Jagneux v. Frohn was not one in which summary judgment was appropriate but many cases are decided this way every day saving time, money and stress for our judges and juries.

    For help navigating the legal system and potentially winning a summary judgment of your own, call the Berniard Law Firm toll-free at 504-521-6000.

  • Personal Injury Case Delves into Medical Malpractice Difficulties

    The following very interesting and compelling question by plaintiffs, and the contingent commentary by the court, is articulated in this appeal to the Second Circuit Court of Appeals in Louisiana: “Does a diagnosis by a doctor rendering a second and correct opinion, equate to a per se reasonable belief that the previous treating physicians committed medical malpractice?”
    This question arises in the context of the Second Circuit’s consideration of the plaintiff’s appeal of the trial courts “judgment of defendants, sustaining an exception of prescription as to the malpractice claim filed by Joseph Lee Amos prior to his death and granting summary judgment which dismissed their wrongful death claim.” The purpose of this paper is to discuss the question posed by the plaintiff and the Second Circuit’s response to that question.

    On April 12, 1999, Joseph Lee Amos had his first appointment with Dr. Rebecca Crouch: he was experiencing “occasional rectal bleeding.” Mr. Amos “repeatedly complained of similar symptoms in his subsequent visits to Dr. Crouch.” Mr. Amos claims that “when he was under Dr. Crouch’s care, he was continually ‘hurting a lot’ and that the blood was ‘bright red’…The physicians report states that Mr. Amos said that Rebecca Crouch checked down there ‘and (Mr. Amos) was told everything was okay.” His final appointment with Dr. Crouch was on January 3, 2000.

    On January 11th, 2000 Mr. Amos went to another physician to seek a second opinion due to Mr. Amos’s “questions about the quality (or lack thereof) of Dr. Crouch’s medical treatment.” This visit to another doctor resulted in a diagnosis of colorectal cancer and subsequent treatment for the condition. On April 6, 2001 Amos filed a medical malpractice complaint with the Patient’s Compensation Fund against Dr. Crouch and her insurance company for her “failure to recommend and conduct the proper diagnostic testing called for by Mr. Amos’s symptoms, which delayed an accurate diagnosis and treatment of his disease.”

    The medical review panel rendered a decision on February 3, 2003. In the decision the panel articulated the appropriate standard of care in Mr. Amos’s circumstances. The panel determined that Dr. Crouch should have “recommended further evaluation and diagnostic tests, including but not limited to ordering a barium enema with proctoscopy or a complete colonoscopy”. The panel deferred the issue of breach due to some contested issues of fact. One of the issues was Dr. Crouch’s claim that she repeatedly recommended these tests; while Amos denied that she made those recommendations.

    Mr. Amos filed a lawsuit on April 26 2003. The trial court granted summary judgment, but the decision was reversed and remanded by the Second Circuit. Upon remand the defendants filed an exception of prescription, claiming that “the filing of the initial medical review complaint was untimely.”

    The defendants claim that prescription began to run on January 11, when Amos visited another doctor for a second opinion. The plaintiff’s claim that May 1, 2001 is the earliest date that prescription should begin to toll, since this is the date that Dr. Crouch terminated her doctor/patient relationship with Mr. Amos. Louisiana Revised Statute 9:5628(A) is as follows:

    “No action for damages for injury or death against any physician, chiropractor, nurse, licensed midwife practitioner, dentist, psychologist, optometrist, hospital or nursing home duly licensed under the laws of this state, or community blood center or tissue bank as defined in R.S. 40:1299.41(A), whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.”

    The question “does a diagnosis by a doctor rendering a second and correct opinion, equate to a per se reasonable belief that the previous treating physicians committed medical malpractice” can be interpreted in more than one way. The inquiry is directed towards the belief of the patient that is receiving the treatment. A clearer articulation of the question would be “does a diagnosis by a doctor rendering a second and correct opinion about a patient, equate to a per se reasonable belief on the part of the patient that the previous treating physicians committed medical malpractice?”. The Second Circuit determined that the answer depends “on the particular circumstances of each case.”

    In the present case, the issue between the two parties is fundamentally whether Mr. Amos claim is permitted by the prescription statute. The disputed matter is when the statute begins to toll: did Mr. Amos file his claim “within one year from the date of discovery of the alleged act, omission, or neglect.” “Prescription begins when a plaintiff obtains actual or constructive knowledge of facts indicative to a reasonable person that he or she is the victim of a tort… Constructive knowledge is notice enough to excite attention, to put the injured party on guard, and to call for inquiry.”

    Mr. Amos was a 61 year old man who was working for Dry Crouch as a custodian while he was seeing her as a patient. The plaintiffs claim that this personal relationship, Mr. Amos’s age, and his relative unsophistication, all indicate that “Mr. Amos had a more personal trusting relationship with Dr. Crouch than he would have had with an unfamiliar physician.” The plaintiff’s argue that Mr. Amos had no reason to question Dry Crouch’s opinion until she terminated her relationship with him after a phone call on May 1 2000… The ultimate issue is the reasonableness of the patient’s action or inaction, in light of his education, intelligence, the severity of the symptoms, and the nature of the defendant’s conduct.”

    The defendants argue that Mr. Amos had “constructive knowledge that he was the victim of a tort” when he procured the second opinion and was provided with the diagnosis of cancer. They argue that although Mr. Amos had a special and trusting relationship with Dr. Crouch, this “does not translate into being unaware that the medical care he received from his doctor/employer was substandard.”

    The Second Circuit considered the “circumstances” in the case, and affirmed the trial court’s decision: “the conclusion of the trial court that Mr. Amos had notice enough to excite attention, to put him on guard and call for inquiry when his cancer was diagnosed on January 11, 2000 is not clearly in error or manifestly wrong”. Ultimately, the decision confirms the statement made regarding the lack of a “bright line rule,” and sets the precedent for future situations like this; that a determination of prescription in cases of second medical opinions will not automatically render the first per se evidence of malpractice.