Medical Malpractice

The Delicate Nature of Lawyer Malpractice

Published on: September 17, 2011 | By Berniard Law Firm

Lawyers are professionals and are held to a certain standard of care by the law due to the delicate nature of their work. A lawyer is not required to win every case he or she takes – such a standard would be impractical and impossible to maintain. However, a lawyer must advocate to the best of his or her ability for a client at all times. This includes a myriad functions such as filing documents, arguing before judges and tribunals and negotiating on behalf of clients. If a lawyer fails to live up to a client’s expectations of professionalism and conduct, that client may file suit for malpractice.

To be successful in such a suit the client must prove that the lawyer’s conduct breached the standard of care for an attorney practicing within the jurisdiction. Once malpractice has been alleged and proven, it falls to the attorney to prove that even if he or she had been operating under the standard of care, the client would have lost his or her case. This second burden ensures that clients only collect when they suffer an actual loss.

In Semmes v. Klein, a legal malpractice case originating in St. Tammany Parish, Mr. Klein, the attorney, originally filed a suit on behalf of the wrong person. He realized this error and partially corrected it by withdrawing that suit. However, Mr. Klein failed to file a new suit on behalf of the correct party. Mr. Klein was fortunate because the potential plaintiffs in this case no longer possessed the legal interests that they thought they did by the time the case would have begun.

The facts of this case are confusing at best as they involve corporations and individuals comingling in all manner of contracts and deals. No party in this matter can be held truly blameless because all had a part in gumming up the legal framework in which they were all operating. Due to this confusing legal climate, the trial court did not render a verdict entirely favorable to either party. The trial court dismissed the malpractice claims of the plaintiffs at the defendant’s cost and both parties appealed. On appeal, the trial court’s decision was affirmed.

As professionals must be held accountable for their actions, attorneys are no different and are meant to act on behalf of their clients. This case showcased the type of situation that can arise when an attorney fails to do his or her due diligence. Through a full disclosure of information it could be found that the true interests of the clients may not have been upheld by the attorney in question. In this case, according to the filing of misconduct, Mr. Klein failed to make even the slightest inquiry into the situation in which he was becoming involved. As a result, his clients continued to operate under false assumptions until it was too late.

This case highlights the complexities of insurance litigation, as well. The owner of a particular piece of real property (real estate) insured the property. Then the owner gave the rights to collect the insurance proceeds to a separate entity. After Hurricane Katrina hit, the property was damaged and had to be repaired. Who would do the repairs? Who would actually collect the insurance payouts? Apparently, the answers to these questions were not the same. Enter Mr. Klein. According to his former clients, Klein made the situation worse by failing to behave according to the requisite standard of care. For this, his clients alleged to have suffered a bit of hardship and, in the end, was held accountable in the amount of their legal fees for the malpractice suit against him.

This case demonstrates not only the rules upon attorneys but also the need for clients to hire carefully. By being selective in who represents your case, you prevent not only having your case go poorly but also having to resort to such measures as suing your legal representative.

Court Finds No Insurance Coverage for Negligent Doctor After Medical Injury

Published on: August 1, 2011 | By Berniard Law Firm

As we have discussed previously on our blogs, Louisiana courts apply “ordinary contract principles” when interpreting insurance policies. “Words and phrases used in an insurance policy are to be construed using their plain, ordinary and generally prevailing meaning.” Cadwallader v. Allstate Ins. Co. The U.S. Court of Appeals for the Fifth Circuit, applying Louisiana law, recently utilized this approach when reviewing an appeal in a case involving a tragic medical injury.

Dr. Robert Lee Berry, an anesthesiologist, was employed by Louisiana Anesthesia Associates (“LAA”), a practice that provided anesthesia services to hospitals throughout the state. In March, 2001, Berry’s employment was terminated by Dr. William Preau, a shareholder of LAA, when it was discovered that Berry had been abusing narcotics while on duty. Yet, less than four months later, Preau wrote an unqualified letter of recommendation on Berry’s behalf when Berry applied for a job at the Kadlec Medical Center in Richland, Washington. Preau did not disclose Berry’s known drug use at work or his employment termination from LAA. On November 12, 2002, Berry improperly anesthetized a patient, Kimberly Jones, at Kadlec while under the influence of drugs. As a result of Berry’s mistake, Jones suffered an anoxic brain injury and emerged from the surgery in a permanent vegetative state. Jones’s family sued Kadlec Medical Center and Berry in Washington, ultimately arriving at a settlment with Kadlec for $7.5 million. Kadlec then brought suit against LAA and Preau in the district court for the Eastern District of Louisiana. At that trial, the jury found that Preau had committed “intentional and negligent misrepresentation” by failing to disclose Berry’s drug abuse and employment termination in his recommendation letter. The jury awarded Kadlec damages of over $8 million. This amount reflected Kadlec’s settlement with the Jones family plus approximately $750,000 in attorney’s fees Kadlec incurred defending the suit.

In 2001 when Preau wrote the recommendation letter on Berry’s behalf, LAA was insured under a commercial general liability policy issued by the St. Paul Fire & Marine Insurance Co. The policy covered covered LAA’s shareholders, including Preau. When St. Paul declined coverage of the judgment against Preau in the Kadlec suit, Preau filed an action against St. Paul. Following cross-motions for summary judgment, and the district court entered judgment for Preau. The main issue on appeal was whether the damages that Preau was obligated to pay Kadlec were covered under the policy’s “bodily injury” provision, which defined the term as “any physical harm, including sickness or disease, to the physical health of other persons.” The Fifth Circuit held that characterizing the judgment against Preau as requiring him to pay Kadlec damages for “bodily injury” was inaccurate. Instead, the judgment required Preau to pay economic damages to Kadlec for the losses it suffered due to Preau’s misrepresentation. “The economic damages Kadlec sought for Preau’s tortious misrepresentation are distinct from the damages Jones or any other party might seek for her bodily injuries.” In the court’s view, even though the amount of the damages that Kadlec sought from Preau was directly related to the amount it had paid to defend and settle the Jones family’s claim, the damages were still of the economic variety, and therefore not of the type covered by the St. Paul policy. The court further explained the distinction by noting that Preau’s liability to Kadlec arose from his breach of an independent duty he owed to Kadlec–Preau did not become legally responsible to Kadlec Suit for Jones’s bodily injuries, but rather the losses Kadlec faced due to Preau’s breach. Accordingly, the court reversed the district court’s judgment and remanded with instructions to enter judgment in favor of St. Paul.

Although the courts claim reliance on “ordinary” contract principles when interpreting insurance policies, this case shows how a court’s analysis of a policy–which to most consumers is already a particularly dense and forbidding document–can be anything but straightforward and obvious. If you are in a dispute with an insurance company over coverage, seek counsel from an experienced attorney who can help you navigate the complexities of the policy language and Louisiana case law to determine the strength of your claim.

DePuy Settlements May Offer Spectrum of Opportunities for Recovery

Published on: March 27, 2011 | By Berniard Law Firm

Nearly ten years ago, consumers sued Sulzer Medica for producing defective hip and knee implants. The company ultimately settled with the affected parties. Although the underlying facts of the Sulzer Medica litigation are technically different from those of DePuy, the Sulzer Medica outcome is nevertheless instructive. If anything, the outcome of the Sulzer Medica recall may reflect the outcomes that will emerge in forthcoming DePuy litigation.

For those unfamiliar with the Sulzer Medica situation, here is a brief synopsis:

Sulzer Medica is a Swiss company that produces artificial joint replacements. It has since changed its name to Centerpulse. In December 2000, the company discovered that machinery oil had contaminated some of its knee and hip implant parts. Consequently, affected joint replacement units failed to adhere to the bone of recipients. Sometime in 2000, the company recalled the defective units. affecting approximately 32,000 people in the United States. Many had to undergo revision surgeries to remedy the problem.

Understanding Terms: Claims Based Insurance v. Occurrence Based Insurance

Published on: February 21, 2011 | By Berniard Law Firm

Insurance policy coverage can be very confusing regardless of how simple televisions commercials may claim it can be. Sometimes insurance companies limit their liability by setting a time period within which the policy applies. In other circumstances, insurance policies limit their liability by creating categories of actions that can be instituted against it. For example, if an insurance policy states that it protects a health care provider for one year after the policy begins, this may mean that 366 days later a patient is out of luck if the doctor performs malpractice. Some insurance companies create distinctions on the types of actions that fall under the policy. For example, coverage can extend either based on occurrence or claims.

The distinction here is important, especially as it relates to the time period to bring a claim. If an insurance policy begins on January 1 and ends on December 31, the malpractice occurs on November 10, and the plaintiff files suit in March of the next year, the definitional difference is important. If the policy is occurrence based, the plaintiff will likely have no problem. In an occurrence based policy, coverage extends to any malpractice which occurred within the policy period. In our set of facts, since the malpractice occurred on November 10, it is covered because it is within the policy period. In a claims based policy, coverage extends to any claim that is filed within the insurance coverage period. In this case, although the malpractice took place within the time period of the insurance policy, the claim was not filed until after the coverage period had extinguished. Thus, in out facts, if the policy was claims based, the insurance company would not be liable for the malpractice.

In a recent case, Dewayne Wright v. Willis-Knighton Medical, the plaintiff, Ms. Wright suffered cramps, a coma, insulin shock, and stroke as a result of medical malpractice. The mother of the plaintiff filed suit on behalf of Ms. Wright. She filed initial suit against the facility, Willis-Knighton Medical. At a later date she amended her brief and added the ER doctors to the suit as well. Later, the plaintiff discovered that the insurance policy did not include the health care facility and only included the medical practitioners who decided to join under the coverage. The doctors that she added under the amended brief were originally protected by the coverage.

The problem for the plaintiff begins, though, when the insurance company that she sued later based its policy with the doctors on a claims based basis. Only the claims that were filed within the insurance coverage period were covered. Unfortunately for Mr. Wright, the period ended the day before the brief was amended. Mr. Wright argued that because the doctors were employed by Willis-Knighton, they were solidary defendants. However, because the policy did not cover the medical facility there is no legal basis to extend the coverage of the policy more than the contract states. Thus, because the coverage period had expired by the time the claim was brought against the insurance company and doctor, the claim failed to meet the requirement within the policy’s scope and thus must fail in court to make the insurance provider liable for the alleged malpractice.

This case shows that if you feel that your rights have been violated or that you have been injured because of medical malpractice that you should seek legal counsel as soon as possible. By waiting before speaking to an attorney you increase the chance that time may run out on your ability to protect your rights.

Younger Patients Opt for Joint Replacement Surgery, Increased Numbers Affected by Defective Implants Manufactured by DePuy

Published on: February 17, 2011 | By Berniard Law Firm

In January 2011 the Washington Post reported on the recent trend of younger patients opting for joint replacement surgery. In 2008, of the 277,000 hip replacements performed in the United States, 27 percent were conducted on patients ages 45 to 64. That represents an increase of 78 percent for that age group.

One orthopaedic surgeon believes the trend stems from younger peoples’ proactive approach to pain and aging. “Younger people are less willing to accept physical disability than older generations,” Dr. Mary O’Connor, president of the American Association of Knee and Hip Surgeons, said. “[Younger people] don’t want to hear that they should use a cane or they can’t walk or play golf…”

But with increased joint replacement surgeries comes increased risk. Because most replacement joints are expected to last 15 to 20 years, many younger patients will outlive their artificial knees and hips. And when the usefulness of those joints diminishes, a second surgery, known as a revision, is necessary to replace the failing artificial joint with a new one. Revision surgery carries with it increased complications. “If you need a [revision surgery], that surgery is a little more difficult,” Dr. Mary O’Connor explained. Usually when [the implant] fails, it fails because one of the parts loosens…every time you have to revise it, there’s a higher risk of complications.”

Darvon and Darvocet Recall Has Serious Health, Legal Implications

Published on: January 19, 2011 | By Berniard Law Firm

Two of the most highly prescribed painkillers, Darvon and Darvocet, have recently been pulled off the market as a result of the health risk they pose to individuals. Dangerous heart side effects plagued the painkiller for years; however, it was not until November of 2010 that the FDA recommended the painkillers be withdrawn from the market completely. The estimated amount of individuals who have been prescribed such medications is in the millions, especially since Darvocet has been prescribed for over sixty years. The actual amount of people who have been prescribed or have taken either or both of these painkillers may lead to an astounding number, which no one can quite quantify as of yet. While it is sad that a prescription that is supposed to ease the pain of individuals may lead to a person suffering fatal consequences, the legal ramifications of the drug causing these problems is important to understand.

Both types of painkillers have been criticized heavily for over thirty years, without any change or modification until now by the FDA. The common dangers element that exists in both Darvocet and Darvon is the fact they both contain propoxyphene. In fact, the Public Citizen group petitioned the FDA to ban the drug in 1978 and again in 2006. Within that time period, millions of individuals every year were being newly prescribed the painkillers or were continuing to take them, relying on their physicians assurance that the drug was safe and would help ease their pain and discomfort. Yet, in July 2009, an FDA expert advisory committee voted 14-12 to ban the drug as a result of its dangerous side effect.

The FDA overruled the panel, instead conducting more research on the prescriptions dangerous effects. The director of the FDA’s office of new drugs at the Center for Drug Evaluation and Research, John Jenkins, MD, stated, “The drug puts patients at risk of abnormal or even fatal heart rhythm abnormalities.” Further, Jenkins admitted that it is hard to determine exactly how many individuals have passed away due to taking these painkillers, yet, the FDA study shows that more deaths are linked to the drug than to either of two alterative opioid painkillers, tramadol and hydrocodone.

DePuy Had Time to Recall Device, Chose to Not Notify Public

Published on: January 13, 2011 | By Berniard Law Firm

This blog has noted several times that DePuy knew of the likely failure rates of its ASR hip implants several years before the medical device manufacturer issued its 2010 recall of the product. In light of this knowledge, DePuy nevertheless waited years before it decided to remedy the dangerous situation caused by its defective hip implants. Instead, it chose to shift the blame for reported problems elsewhere before finally initiating the recall.

New evidence has been uncovered showing that DePuy had received credible notification of its ASR hip implant failure rates as far back as 2007. According to The Independent, the Australian joint registry, the second largest registry of its kind in the world, informed DePuy of identified problems in seven separate reports. One of the most striking findings made by the registry was the higher than usual amount of revision surgeries needed to replace previously-implanted ASR hip units. DePuy sat on this knowledge until 2009, when the company finally withdrew the ASR hip implants from the Australian marketplace, citing “commercial reasons.” DePuy initially blamed the Australian joint registry findings on “imprecise surgical techniques” by doctors, but was forced to retreat from that position in response to the multiple reports of problems sent the company’s way.

Director of the Australian joint registry, Stephen Graves, has since stated DePuy behaved “irresponsibly and very badly.” Graves warns, “This is why regulators should not rely so heavily on manufacturer data. It is a complete untruth that DePuy did not have reason to withdraw the ASR before now; we have been telling them since 2007, but they allowed it to be used on thousands of people.”

Artificial Hip Recall Shows Dangers of a Broken Medical Implant System

Published on: January 11, 2011 | By Berniard Law Firm

The A.S.R., or Aritcular Surface Replacement, artificial hip was promoted by Johnson and Johnson as a breakthrough in design that would last 15 years or more and provide patients with more natural movement. Now, the device has been recalled due to patients developing inexplicable pain and surgeons discovering mysterious masses of dead tissue in patients who are having the device replaced. DePuy Orthopedics, the Johnson and Johnson unit responsible for the hip and the largest maker of replacement hips worldwide, maintained that the hip was working for a long time despite warnings that it was a failure.

As pointed out in a recent New York Times article, the trouble with the hip is an indicator of a bigger problem: a piecemeal, broken medical implant system. Critical implants are sold without going through medical trials and testing or gaining FDA approval if the device resembles an implant that has already been approved. Theoretically, this allows manufacturers to make small changes to devices without having to jump through approval hoops; however, according to experts, it has also created a loophole that allows manufacturers to bundle an unapproved component into an existing design and sell it with minimal testing.

This is what happened with the A.S.R. as DePuy announced late last year that it was phasing the device out. However, the company blamed lagging sales rather than safety issues. In a recent statement an official stated that, “We believe we made the appropriate decision to recall at the appropriate time given the available information.”

Louisiana Residents With Personal Injury Questions

Published on: April 18, 2010 | By Berniard Law Firm

For those Louisiana residents, whether you live in Lake Charles, Shreveport, Baton Rouge, New Orleans, Kentwood or any other of the great cities across this state, looking for more information on their possible personal injury claim, check out our blog dedicated to these legal matters:

Louisiana Personal Injury Blog

This blog discusses the legal issues relating to Admiralty/Maritime law, Animal/Dog Bites, Car Accidents, Chemical/Industrial Spills, the intricacies of Expert Testimony, Insurance Disputes, employee rights under the Jones Act, Legal Duty, Civil Lawsuits, Criminal prosecution, Medical Malpractice, Mesothelioma/Asbestos, Motorcycle Injury, Negligence, Offshore Accidents, Product Defects, Chinese Drywall, Strict Liability, Workers’ Compensation and Wrongful Death. All of these issues are crucial to citizens rights and residents of Louisiana.

Louisiana law regarding embryo care

Published on: October 3, 2009 | By Berniard Law Firm

When handling frozen embryos, as previously discussed, there is a specific duty of care owed by the hospital to the parents to maintain the embryos properly and sufficiently so as to preserve them from harm and maintain them for usage by the donor couple. In Louisiana, lawyers have been filing lawsuits regarding a mixup at Ochsner Hospital Elmwood in which a mislabeling matter led to what may end up being a complete disposal of a number of embryos because of a lack of screening that also occurred.

ABC recently profiled a series of mishaps, including that in Louisiana, occurring in the world of in vitro fertilization. With loose regulations, there is a huge possibility of error, as is the case here.

Louisiana law clearly stipulate facets involved in the adoption or change of possession regarding frozen embryos. It does this to try to protect families from the improper transfer of an embryo to another individual, among other reasons. The law states