Medical Malpractice

When Do I Need Expert Testimony for a Medical Malpractice Lawsuit?

Published on: June 4, 2023 | By Berniard Law Firm

child_children_doctor_bags-scaled In the event that you find yourself in the challenging position of pursuing a medical malpractice lawsuit against your doctor, the presence of an expert witness becomes paramount. Such a witness is instrumental in establishing the negligence of your treating physician. A recent case originating from the Parish of East Baton Rouge sheds light on the specific qualifications required for expert witnesses in medical malpractice cases and the circumstances in which their testimony may be deemed unnecessary. Join us as we delve into this notable court ruling, which clarifies the vital role of experts and the instances where their expertise may be exempted.

Landon Lee, a 13-month-old, was taken to Our Lady of the Lake Regional Medical Center (OLOL) for respiratory distress and vomiting. He was evaluated in the emergency room and admitted into Pediatric Intensive Care Unit. Unfortunately, his condition worsened even with incubation and life-saving interventions. He was transferred to Ochsner Medical Center via helicopter to be admitted to the Extracorporeal Membrane Oxygenation unit. He was given CPR during transfer but pronounced dead 44 minutes after arriving at Ochsner.

Landon’s mother, Anjel Lee, then filed suit on her and Landon’s behalf against OLOL and Dr. Shannon Boudreaux, the pediatrician and emergency room physician at OLOL, who treated Landon. Lee argued that OLOL and Boudreaux failed to properly care for and treat Landon. OLOL denied the allegations, arguing it was a qualified healthcare provider under the Louisiana Medical Malpractice Act, La. R.S. 40:123.1 provides that qualified healthcare providers have limited liability for malpractice claims. The hospital also denied that any action or inaction on their part was the cause of Landon’s death. Boudreaux also argued that he was a qualified healthcare provider under Louisiana law and was entitled to limited liability.

Experts Testify in Neurosurgery Medical Malpractice Claim

Published on: May 12, 2023 | By Berniard Law Firm

medical_emergency_emergency_ambulance-scaled Medical malpractice claims are brought when a patient is a victim of negligence at the hands of their physician. Due to the nature of this category of claims, stories of medical malpractice are often horror stories showcasing worst-case scenarios. Even further, the most intense medical malpractice claims result in the death of the patient. Understandably, the patient’s family may seek to find responsibility for the death of their loved one. In the following lawsuit, a family fails to show the legal requirements to bring a medical malpractice claim after their family member died during surgery.

The plaintiffs in this lawsuit are the surviving family members of a man who died during brain surgery by the defendant’s physician. The family contends that due to the deceased’s history of cardiac trauma prior to surgery, he should have been evaluated for cardiac fitness before the physician performed the surgery. The trial court found that the expert testimony proffered by three physicians was insufficient to prove that medical malpractice had occurred. The plaintiffs appealed the decision, insisting that the defendant had breached his duty of care by not ordering further cardiac tests.

The plaintiff must establish the elements of a medical malpractice claim to bring the claim successfully. The first element required to be shown is the standard of care at which comparable physicians in Louisiana generally exercise when taking care of their patients. The second required element is that the defendant failed to meet the reasonable care prescribed by the first element or lacked the required knowledge altogether. The third and final element is that the failure to exercise reasonable care caused the plaintiff’s injuries. La. R.S. 9:2794(A).

Mistake, Medical Malpractice, or Misunderstanding Risk?

Published on: May 8, 2023 | By Berniard Law Firm

medicine_pacemaker_surgery_hospital-scaled While much maligned in the popular consciousness, medical malpractice lawsuits serve a vital function in protecting patients’ rights when accessing healthcare. In Louisiana, a successful medical malpractice lawsuit must show the physician being sued had a standard of care for their patient, the physician violated this standard of care, and there was a connection between this violation and the injury suffered by the patient. See La. R.S. 9:2794(A). Though there are several reasons why a medical procedure may go wrong, proving it was the result of a violation of a standard of care can be difficult at best.

In March 2007, Alsie Thomas underwent surgery to install a pacemaker in his heart. Dr. Sergio Barrios conducted the surgery. While usually, the pacemaker is installed with three leads placed in the right atrium, right ventricle, and coronary sinus behind the heart. Dr. Barrios instead inserted the first lead in the opposite direction into the left ventricle and the second lead into the aorta instead of the right atrium, with the third lead being installed correctly. After the leads were installed, Dr. Barrios conducted several tests and determined that while there were some abnormal readings, the procedure appeared successful. Subsequent evaluations at the hospital also indicated the pacemaker had been positioned correctly.

However, five days after the surgery, Alsie suffered a stroke, which was diagnosed as a lack of blood flow due to an obstruction of a blood vessel. Throughout the rest of March and through April, Alsie continued to suffer from bouts of heart issues, but subsequent X-rays and scans showed the pacemaker appeared to be placed in the correct location.

Underlying Medical Conditions, Can You Claim Res Ipsa Loquitur in a Lawsuit?

Published on: May 6, 2023 | By Berniard Law Firm

vcc_broadway_hi_res-scaled You think that when you’re being taken care of by hospital personnel, you are in safe hands and do not have to fear for your safety. However, if you are injured when being moved from a hospital cart to your bed, can you claim negligence based on res ipsa loquitur? The Fifth Circuit Court of Appeals addresses this question and the difficulties in recovering damages if you have an underlying preexisting condition.

Joshua Rice was a patient at Cornerstone Hospital for over a year before passing away in May 2012. Joshua’s father, Tommy Rice, brought a negligence suit against Cornerstone, claiming the staff entangled Joshua’s leg and arm when they moved him from a hospital cart to his bed. He suffered a fracture in his hip and shoulder as a result.

Believing they were not liable for Rice’s injuries, Cornerstone filed a motion for summary judgment. Under Rule 56(a) of the Federal Rules of Civil Procedure, a court should grant summary judgment when there is no genuine dispute of any material fact. If a plaintiff such as Rice cannot prove his case at trial, then a court will dismiss it.

What kind of Evidence is Needed to Prove Future Medical Benefits in a Medical Malpractice Lawsuit?

Published on: April 28, 2023 | By Berniard Law Firm

medical_instruments_examination_424729-scaled After a medical malpractice-induced injury, patients may need significant awards of damages to cover the expenses of a resulting disability. A case in Shreveport shows how to present substantial evidence of an ongoing need for care. It also helps answer the question; What kind of Evidence is Needed to Prove Future Medical Benefits in a Medical Malpractice Lawsuit?

In 2007, Dr. Anil Nanda operated on Barbara Wise to address weakness in her right shoulder. Unfortunately, during the surgery, Dr. Nanda accidentally made a small tear in the membrane covering the spinal cord. Although Dr. Nanda attempted to seal the tear, Barbara experienced ongoing post-surgical weakness in her upper and lower extremities. When Wise and her husband brought up her symptoms to Dr. Nanda at follow-up appointments, he told them that these complications were normal and would eventually go away. However, when the weakness persisted, Dr. Nanda ordered an MRI, which showed a spinal fluid leak putting pressure on Wise’s spinal cord. Although Dr. Nanda corrected the tear in a second surgery, Wise continued to suffer severe weakness in her extremities that required aggressive rehabilitation.

Wise filed a medical malpractice lawsuit against Dr. Nanda and Louisiana State University Health Sciences Center to recover the costs incurred due to her condition. She was awarded $1,355,740 for medical expenses and benefits between the injury and verdict, 2) $1,054,776 for future medical expenses 3) $517,000 for lost wages, and $250,000 for pain and suffering. LSU appealed the award of costs between the injury and verdict and lost wages.

Louisiana Medical Malpractice Lawsuit by Dental Patient Fails at Appeals Court

Published on: April 13, 2023 | By Berniard Law Firm

dentist_dental_dentistry_teeth-scaled Appeals from trial court decisions can be costly, especially if the result is again not decided in your favor. Tara Lorraine (“Ms. Lorraine”), a dental patient at Bluebonnet Dental Care, L.L.C., learned this the hard way after appealing a jury verdict decided against her. The Louisiana Court of Appeals for the First Circuit (“First Circuit”) affirmed that jury verdict and assigned costs of the appeal to be paid by Ms. Lorraine. The following case shows the difficulty in proceeding with a medical malpractice lawsuit in Louisiana based on alleged substandard dental procedures.

Ms. Lorraine alleged that her injuries occurred during several dental treatments over several months. First, on January 21, 2010, Ms. Lorraine accused Dr. Ross Quartano (“Dr. Quartano”) of spilling etchant on her throat, which left her with a permanent scar. Then, on April 30, 2010, she accused Dr. Louis Lamendola (“Dr. Lamendola”) of extracting one of her teeth without her consent. Finally, Ms. Lorraine claimed that Dr. Andre Bruni (“Dr. Bruni”) and Dr. Quartano failed to remove substantial underlying decay before they filled some of her teeth, causing her such extreme pain that eventually, she had to seek additional help from a different dentist.

Subsequently, Ms. Lorraine filed a complaint with Louisiana’s Patient Compensation Fund, asking for a medical review panel of each of the three doctors. Upon reviewing Ms. Lorraine’s complaint, the medical review panel found that there was no evidence to support a breach of the standard of care as it related to Dr. Quartano and Dr. Bruni and that a material fact existed regarding Ms. Lorraine’s informed consent with Dr. Lamendola’s removal of her tooth. Thus it did not necessitate an opinion from the medical review panel. However, despite these findings, Ms. Lorraine filed a lawsuit against the same three doctors in the 19th Judicial District Court. Like the medical review panel, the jury found that Ms. Lorraine failed to prove the breach of standards of care. Therefore, the court entered a judgment in favor of the doctors, dismissing Ms. Lorraine’s claims and denying her request for a new trial.

What If You’re Unable to Pay a Bond Required by Law?

Published on: April 9, 2023 | By Berniard Law Firm

hospital_corridor_operating_room-scaled Filing a medical malpractice lawsuit in Louisiana requires the plaintiff to pay a bond before the medical review panel is conducted. But what do you do when you cannot pay the bond? Is there a way to still proceed with your case? The following medical malpractice lawsuit out of Jefferson Parish shows that if you are granted pauper status under La. C.C.P. art. 5181, you could be relieved of the bond requirement.

Delores and Elvorn Tate filed a medical malpractice lawsuit against Ochsner Clinic Foundation for personal injuries and other damages. The Tates alleged the negligent placement of an IV into Delores’s left hand during her hospitalization at Ochsner Hospital caused her injuries. Following the submission of Tate’s lawsuit, Ochsner filed a motion for the Tates to post a bond for all the costs of the medical review panel.

Louisiana law requires those filing a medical malpractice lawsuit to post a cash or surety bond. The amount of the bond must be approved by the court. After the lawsuit, the bond will be forfeited to the defendant’s healthcare provider for reimbursement of the costs of the medical review panel if the Defendant wins. However, if the defendant is found liable, they will be required to reimburse the claimant an amount equal to the bond. La. R.S. 40:1299.47(I)(2)(c).

Medical Malpractice Lawsuit Tossed Due to Louisiana’s Prescriptive Period

Published on: March 7, 2023 | By Berniard Law Firm

hourglass_time_hours_sand-scaled 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.

Court Clarifies Use of Differential Diagnosis in Louisiana Medical Malpractice Case

Published on: February 20, 2023 | By Berniard Law Firm

building_hospital_enschede_931283-scaled 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.

Attorney Jeffrey Berniard makes New Orleans Magazine top lawyers list

Published on: April 4, 2013 | By Berniard Law Firm

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.

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