Articles Posted in Medical Malpractice

Louisiana’s medical malpractice damage cap, set at $500,000.00 in 1975, could see a significant change in the scope of its application thanks to several lawsuits set to be argued before the Louisiana Supreme Court.

In 1975, the Louisiana Medical Malpractice Act set a $500,000.00 statutory maximum for any amount recoverable as damages (other than medical expenses) in a Louisiana medical malpractice suit.  However, there are instances of negligence which occurs in a medical context that can fall outside of the purview of the Louisiana Medical Malpractice Act.

The Louisiana Supreme Court is currently considering whether a hospital’s “negligent credentialing” of its doctors is subject to the statutory cap of $500,000.00.  In layman’s terms, the Court will decide whether administrative decisions made by hospital personnel are considered malpractice under Louisiana law.

A veteran of both the New Orleans Police Department and the Vietnam War is suing 3M Co. due to an alleged defect in its Bair Hugger Blanket Device that lead to the amputation of his leg.

Lee Edward Peyton filed suit in the U.S. District Court for the Eastern District of Louisiana on March 4 against 3M Co. and Arizant Healthcare Inc., alleging breach of express warranty, design defect, and liability under the Louisiana Products Liability Act.

According to the suit, Peyton underwent total knee joint replacement surgery in his left knee at Omega Hospital in Jefferson Parish.  During the surgery, a Bair Hugger blanket was used keep Peyton warm.  The device utilizes a portable heater/blower connected by a flexible hose to a disposable blanket that is placed on or under a patient to keep them warm by blowing hot air through the tube and blanket onto the patient.

Judith Hayes, a Gretna woman, has filed a lawsuit against Rite Aid, claiming the pharmacy gave her the wrong medication, which caused her collapse in her home and injure her head.

On May 26, 2014, Hayes alleges that she visited the Rite Aid located at 4535 Westbank Expressway in Marrero to receive a prescription for metformin, a diabetes medication.  Hayes claims that, instead of her medication, she was given an antibiotic by the pharmacist on duty, Long H. Nguyen.

On May 31, five days later, the plaintiff claims that she became dizzy after standing up, lost her balance, and stuck her head, resulting in injury.  Hayes has sued Rite Aid Headquarters Corporation, Rite Aid Corporation, Rite Aid Pharmacy and the on-duty pharmacist Nguyen.

When an individual suffers an injury at the hands of another, it can be a devastating experience to both the individual and his or her family. It can impose unforeseen medical costs, result in an inability to work, create a dire financial hardship, or otherwise create a very difficult experience for everyone involved. But this is why we have the civil justice system: to make the victim “whole” by providing a means for obtaining legal relief against the wrongdoer.

In pursuit of fairness and equity, however, the law sometimes recognizes considerations in favor of the wrongdoer. One of the most prominent of these considerations are statutes of limitations—or, as we say here in Louisiana, “prescription”. Prescription describes the procedural device that places a time limit on a plaintiff’s right to pursue a claim. So, for instance, if you were injured as a result of another person’s negligence, you have one year to file the claim in court before prescription bars you from filing the lawsuit altogether. While there are many nuances to this general rule and different prescriptive periods for different causes of action, it generally operates in this way. As mentioned above, prescription works in favor of the wrongdoer and for good reason. It ensures that injured plaintiffs pursue their claims with reasonable diligence, it gives defendants certainty about the timing of a potential claim against them so they can adequately prepare a defense, and it keeps the lawsuit temporally close to when the injury occurred so that potential witnesses and evidence to be presented at trial are still available.

But lawsuits can sometimes get overly complicated, leading to oversights and inaccuracies by parties to the suit, attorneys, and judges. One classic instance of such an oversight is where the plaintiff names the improper defendant in the lawsuit, and in the meantime, prescription on the claim against the proper defendant runs. What happens in this situation? Do the courts let procedural rules trump the overarching goals of equity and fairness in the justice system?

Picture this unlikely scenario: An intoxicated motorist is driving his vehicle at speeds well in excess of the speed limit (let’s say, he’s traveling at 100 mph in a 35 mph zone). As the unsafe motorist approaches a downtown intersection, a jay-walking pedestrian begins to cross the street when it is clearly not her turn (the brilliant-orange “don’t walk” hand is flashing and unmistakable). She has her face buried in the daily newspaper and is wearing headphones, unaware of what’s happening around her. What happens next, as you might have expected, is that the speeding, drunken motorist collides with the inattentive pedestrian, causing her significant injuries and tens of thousands of dollars in hospital bills.

This hypothetical accident was intended to illustrate the legal problem of the “foolhardy” plaintiff–the individual who suffers an injury at the hands of another, though her inattentive, negligent behavior also has contributed to the damage. In layman’s terms, both the motorist and the pedestrian are at fault here. The driver should understand that operating a vehicle at high rates of speed while intoxicated is unsafe and endangers the public. Similarly, the pedestrian should know that she must obey traffic signals and should pay attention to her surroundings as she crosses the street. Thus, both the motorist and the pedestrian have a “duty” to act as a reasonably responsible driver and pedestrian respectively. Under this scenario, however, where both actors to this dramatic collision have breached their duties to act reasonably, causing this accident, who is responsible? Is the pedestrian permitted to recover damages (money) despite having negligently contributed to this accident and her resulting injuries?

Prior to 1980, Louisiana followed the traditional common-law approach to solving the issue of the “foolhardy plaintiff”–a plaintiff whose negligence contributed to his injury. This common-law approach was known as contributory negligence and operated as a total bar to recovery in a negligence action. While it sounds unduly restrictive of a plaintiffs’ ability to bring and maintain actions for injuries they suffered, this comparative negligence regime required more than just showing that the plaintiff contributed in some way to the injury–instead, the plaintiff had to be legally negligent. They must have had a standard of care (a duty), which, when breached, caused and contributed to their injury and was within the scope of foreseeable risk.

The Louisiana Second Circuit Court of Appeals clarified the standard of care to be used in medical malpractice cases involving hospitals and their employees. In Crockham v. Thompson, the Second Circuit ruled that hospitals should be held to a national standard of care in actions for medical malpractice. The Second Circuit also found that hospitals are legally responsible for their employees’ negligence, including the negligence of doctors and nurses who are employees of the hospital.

In Louisiana, the Medical Malpractice Act governs patients’ claims for medical malpractice against private health care providers and their facilities. Under this law, a victim’s recovery from a “qualified healthcare provider,” a provider who pays into Louisiana’s Patient Compensation Fund, is capped at $500,000. If a healthcare provider does not contribute to this fund, then the provider does not receive the protection of this cap.

In medical malpractice litigation, a plaintiff bears the burden of proving her case in court. Specifically, a plaintiff must prove that her healthcare provider breached a standard of care. The plaintiff must further prove that this breach caused the injury in question. The standard of care analysis typically asks whether a medical provider exercised the level of skill and knowledge that is comparable to that exercised by members of the profession under similar conditions and circumstances.

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