Medical Malpractice

Hospital Not Liable For Negligent Transportation During Hurricane Katrina

Published on: October 22, 2023 | By Berniard Law Firm

hurricane_bob_1991_cyclone-scaled 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.

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

Published on: September 3, 2023 | By Berniard Law Firm

courthouse_311_jarvis_st-scaled 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.

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

Published on: August 18, 2023 | By Berniard Law Firm

paramedics_doll_hospital_medical_0-scaled 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.

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

Published on: August 14, 2023 | By Berniard Law Firm

old_medical_device-scaled 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.

Tutrix Was Proper Party To Bring Legal Malpractice Claim On Behalf of Minor

Published on: August 3, 2023 | By Berniard Law Firm

court_justice_munich_bavaria-scaled A minor is generally unable to bring a lawsuit on their behalf. As seen in the following case, this can lead to disputes about who the proper party is to bring a lawsuit for the minor.

Shannon Jones and Jennifer Brunelle filed a lawsuit against healthcare providers, the manufacturers of a device used in surgery, and loss of consortium claims for their daughter, Haley Jones. They retained an attorney, Gary Roth, to represent them. They settled the medical malpractice claim against one of the defendants. Brunelle received letters appointing her as natural tutrix for their minor daughter, Haley Jones. They then filed a petition in the medical malpractice lawsuit to approve the settlement, which the court granted.

Brunelle then discharged Roth as her attorney and retained attorneys at the Gainsburgh firm. With the new representation, they settled with the medical device manufacturer. The settlement was not finalized until months later. Brunelle claimed her attorneys had committed legal malpractice while negotiating the settlement agreement and caused delays in finalizing it. After extensive disputes related to the underlying facts in the case, the trial court eventually granted the Roth defendants summary judgment motion. It dismissed Brunelle’s legal malpractice claims against the Roth attorneys. Brunelle appealed, claiming the trial court erred in dismissing her claims.

Patient’s Early Post-Operative Dismissal Causes Medical Expert Dilemma

Published on: July 23, 2023 | By Berniard Law Firm

aircraft_carrier_infirmary_hospital-scaled Medical malpractice claims are not always limited to instances during treatment or surgery and may, as one young patient argued, include failures that occur afterward or post-operatively.

Justin Thomas, an eighteen-year-old, aspiring armed serviceman, underwent a right shoulder arthroscopy at Lafayette Surgicare to repair his repeated rotator cuff dislocations. The surgery was considered an outpatient procedure that Thomas’s surgeon, Dr. Otis Drew (Dr. Drew), performed beginning just before 9:00 AM on July 1, 2013, and completed around 11:00 AM the same day. Before and after the surgery, Thomas was given significant anesthesia and medication. By 1:50 PM that afternoon, Thomas was discharged into the care of his parents. Less than six hours later, after Thomas’s mom gave him a prescribed dose of oxycodone, he fell unconscious and was unresponsive to Narcan, so an ambulance arrived at Thomas’ parents’ home taking him back to the hospital, where he lay in a coma for five days. As a result, Thomas experienced brain damage and lost the use of the left side of his body.

In May 2016, a medical review board determined that despite Thomas’s injury, the medical staff, including Dr. Drew, met the required standard of care. Nevertheless, three months later, Thomas filed a lawsuit against Dr. Drew, the anesthesiologist, Lafayette Surgicare, Lafayette Surgery Center, and The Regions Health System of Acadiana. His complaint alleged that he was released too early post-operatively and prescribed extensive anesthesia and heavy narcotic medication that induced him into a coma. In response, Dr. Drew filed a summary judgment motion that the trial court, Fifteenth Judicial District Court Parish of Lafayette, granted, dismissing Thomas’s claims. Thomas appealed to Louisiana’s Third Circuit Court of Appeals (Third Circuit), arguing that the trial court erred in finding that his expert affidavit was inadmissible and did not create a genuine issue of material fact.

Medical Deaths Aren’t Always Medical Malpractice

Published on: July 14, 2023 | By Berniard Law Firm

medical_patch_association_pills-scaled When a patient suffers from harm done to them by the negligence of a health care provider, he may be a victim of medical malpractice. A recent Louisiana Fifth Circuit Court of Appeals case explained why it is not always a case of medical malpractice when an avoidable medical death occurs.

Andrew Moonan fell at home and was taken by ambulance to the emergency room, where an x-ray showed two fractured ribs. Several days after being released, Moonan called Dr. Monte, his primary care doctor, after hours, requesting he return to the hospital. A couple of days later, he collapsed and was taken to the hospital, where he died due to a pulmonary embolism. His wife and son filed a complaint for medical malpractice against Dr. Monte with the Louisiana Division of Administration. The panel unanimously determined Dr. Monte was not negligent and did not breach his standard of care with Moonan.

The Moonans filed a medical malpractice lawsuit against Dr. Monte and his insurer, claiming Dr. Monte breached the standard of care in several ways, including failing to inform Moonan of the risks associated with staying in bed all day and the risk of a pulmonary embolism, allowing his medial technologist to tell Moonan to get up and walk since his condition was not serious, and failing to tell Moonan to return to the emergency room. The jury reached a unanimous verdict in favor of Dr. Monte, and the Moonans filed a motion for a new trial which the trial court denied. The Moonans appealed, claiming the trial judge erred in allowing Dr. Diechmann to testify as an expert because it violated the court’s Scheduling Order, and the judge erred in redacting two parts of the wife’s timeline because it contained crucial information about the credibility of the parties.

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.