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Medical Malpractice

Most health care facilities in the New Orleans area are comprised of competent and hardworking professionals. Unfortunately, there are occasions when the treatment provided to a patient falls below acceptable medical practice. When this happens, the patient may be able to file a medical malpractice claim.

A health care provider’s treatment must meet an appropriate standard of care. Generally, all medical care providers must provide the care ordinarily possessed and exercised by members of the profession in good standing in the community. Where an alleged act raises issues peculiar to a medical specialty, the standard of care is that which is ordinarily practiced by those involved in the medical specialty.

Examples of medical malpractice include:

1. Failure to provide a patient with appropriate medical treatment;

2. Incorrectly diagnosing or failing to recognize a medical condition;

3. Unreasonable delay in providing care for a known medical condition.

In a medical malpractice action, the plaintiff must file the action within one year of the date of the incident, or one year from the date the plaintiff knew or, in the exercise of reasonable care, should have known of the existence of the right to action. However, no action can be brought later than three years from the incident. In Louisiana, there is a $500,000 cap on damages, except for medical expenses, for claims of injury or death of a patient.

Finally, please note that not every case in which treatment leads to a bad outcome or unexpected result constitutes medical malpractice — there must be a breach of the standard of care. Just because a treatment does not go as hoped does not always mean that medical malpractice occurred.

If you have any questions regarding medical malpractice, please feel free to contact my office at 504-581-6411 or 877-581-6411.

When a New Orleans resident wants to file a medical malpractice claim, he/she must follow the procedure set forth in the Louisiana Medical Malpractice Act. Under this act, any claim of medical malpractice must be screened by a “medical review panel” before a civil suit can be filed in court.

This medical review panel consists of an attorney and three health care providers. The attorney acts as chairman of the panel, but does not have a vote. The plaintiff and the defendant each select one of the three health care providers. The third health care provider is chosen by agreement of the two providers already selected to the panel.

The role of the medical review panel is to review the evidence and determine if it supports a finding that the defendant violated the standard of care required when treating a patient. If they do find that the physician did not meet the standard of care, then the panel must determine if that violation led to any disability or permanent impairment to the plaintiff. If they do determine that a disability or permanent impairment occurred, then they must evaluate the degree of that disability or impairment.

A civil suit may only be filed after the panel has rendered its decision. A conclusion by the panel that the evidence does not support a finding of medical malpractice does not bar the plaintiff from filing a civil suit. The finding, however, is considered an expert opinion and is admissible as evidence in the court case.

If you have been the victim of medical malpractice and have any questions on how to proceed, please call us at 504-581-6411 or 855-GERTLER. We would be happy to help you.

Nearly all medical malpractice claims in New Orleans must be screened by a Medical Review Panel prior to proceeding to court. The purpose of the Medical Review Panel – which consists of three medical providers – is to render an expert opinion regarding whether the medical provider against whom a claim is being made violated the appropriate standard of medical care. The panel issues a written report, which is admissible as an expert opinion at later court proceedings.

Recently, in McGlothlin v Christus St. Patrick’s Hospital, 2010-2775 (La. 7/1/11), the Louisiana Supreme Court clarified that the purpose of the Medical Review Panel is to determine whether the appropriate standard of medical care was violated and, if so, whether that violation resulted in an injury to the plaintiff. If the panel’s written decision extends into areas not requiring medical expertise, the opinion is not admissible in a court proceeding.

In the case leading to the Louisiana Supreme Court’s decision, the Medical Review Panel submitted a finding that the medical provider had not violated the appropriate standard of care. It reached this conclusion not because of medical proof, however, but because it did not find the testimony of the plaintiff and her family regarding how the injury occurred to be credible. The trial court had allowed a redacted version of the panel’s report to be admitted as evidence at trial, and the medical provider was subsequently found not to have committed malpractice by the jury.

Upon reviewing the case, the Louisiana Supreme Court found that, even its redacted form, the finding of the Medical Review Panel should not have been admitted as evidence. The Court held that the Louisiana Medical Malpractice Act only allowed the panel to express its expert opinion regarding the standard of care and whether it was violated. Issues such as the credibility of a witness do not require expert medical opinion, and are properly the province of the jury – not the medical panel – to determine. As a result, the opinion of the panel should never have been provided to the jury.

While this ruling may be helpful to future plaintiffs, it should be noted that it did not help the plaintiff in this case. The Louisiana Supreme Court also ruled that, based on a review of all the evidence presented at trial, the jury did not err in exonerating the defendant.

If you have been the victim of medical malpractice, we would be happy to help you. Please feel free to call us at 504-581-6411 or 855-GERTLER.

This month, New Orleans residents will be voting on a proposed amendment to the Louisiana State Constitution designed to protect the Patient Compensation Fund. The amendment requires that the funds only be used for payment of medical malpractice claims, and bars state lawmakers from diverting any money in the fund to cover other areas of government spending.

The Patient Compensation Fund was created 37 years ago as part of Louisiana’s efforts to manage costs associated with medical malpractice claims. All damages in medical malpractice claims involving government-operated medical providers are paid through this fund – up to the statutory cap of $500,000. Private medical providers who choose to participate in the fund are responsible for the first $100,000 in damages from any medical malpractice claim. Any amount awarded above that – up to the same statutory cap – is paid out of the Patient Compensation Fund. For individuals who have suffered long term injury as at the result of medical malpractice, the fund also pays future medical expenses.

Surcharges paid by health care providers who wish to participate in this program provide the finances supporting the fund. Given Louisiana’s fiscal condition, there has been growing concern that the state government may eventually seek to use money held in the Patient Compensation Fund to cover financial shortfalls in other areas of government spending. The proposed constitutional amendment would ban such action.

If you have been the victim of medical malpractice, we would be happy to answer your questions. Please call us at 504-581-6411 or 855-GERTLER.

What Sort Of Acts Constitute Dental Malpractice?

While not every minor mistake made by a New Orleans dentist in the course of treatment constitutes dental malpractice, individuals injured by the negligent conduct of – or substandard care provided by – a dentist, dental assistant or oral surgeon may be entitled to compensation.

Generally, what is required to prove dental malpractice is governed by the same rules surrounding other types of medical malpractice. These include a requirement that the dental practitioner provide a patient with an acceptable level of care. Dentists are not required to be perfect, but they are required to provide at least the same level of care that a practical and prudent dentist would provide. If a dentist fails to provide this level of care and it leads to the patient suffering a significant injury, the dentist may be required to pay for the damages.

The variety of specific actions that may be classified as dental malpractice under these criteria is very broad. A non-exhaustive list of the more common forms of dental malpractice would include the following:

Performing surgery or treatment on the wrong site;
Making mistakes during surgery leading to the requirement for additional surgery;
Causing oral infections through unsanitary conditions;
Errors when performing root canals or installing crowns that lead to patient injury;
Misdiagnosis of an oral disease, such as cancer, or the failure to diagnosis an obvious oral disease; and
Mistakes in treatment leading to nerve injury and facial paralysis.
This list is only a sample of the acts that may constitute dental malpractice. If you have suffered a noteworthy injury during dental treatment, you may wish to consult with an experienced dental malpractice attorney to determine if you are entitled to compensation. If you have any questions we can help you with, please feel free to call us at 504-581-6411 or 855-GERTLER.

When a New Orleans resident wishes to pursue a medical malpractice claim, Louisiana law requires that the matter be screened by a Medical Review Panel before proceeding. While an adverse opinion from the Medical Review Panel does not bar an injured person from pursuing a medical malpractice lawsuit, the opinion of the panel is admissible in later court proceedings.

The Medical Review Panel does not function like a court of law. There is no live testimony or cross-examination of witnesses. Instead, the parties are required to submit all evidence they wish the panel to consider in written form. If a party believes that the testimony of any of the parties or witnesses is necessary for the Medical Review Panel’s determination, depositions may be taken prior to the Medical Review Panel being convened. A transcript of this deposition testimony may then be submitted to the panel.

The other evidence that the panel may consider is broader than that usually seen in court. While it includes the relevant medical records of the injured party and any reports of medical experts submitted, the parties may also submit excerpts from medical books and treatises that they believe the panel should consider. A copy of all of the evidence submitted must be provided to each member of the panel, and all parties involved are to be given complete access to all material submitted. If the panel finds that additional information is needed, it is empowered to request and obtain all information necessary to render a determination.

The Medical Review Panel also is allowed to consult with other medical authorities when reviewing the matter. If it chooses to do so, however, all parties involved must be provided with the names of these medical authorities and given an opportunity to depose them.

If you have been the victim of medical malpractice, please rely upon our experience to help you. We can be reached at 504-581-6411 or 855-GERTLER and would be happy to answer your questions.

For the most part, the medical practitioners of New Orleans are hardworking, conscientious individuals who make a diligent effort to do their best for their patients. While this does not mean that they never make mistakes, Louisiana’s laws do attempt to protect doctors and other medical providers by placing limitations on when they may be successfully sued for medical malpractice.

First, the individual claiming to have been injured must be able to prove that – as a result of the medical provider’s error or failure to act – he or she suffered an injury that would not otherwise have occurred. Even when a mistake is made, if it does not result in any actual harm to the patient, then there is no basis for the patient receiving financial compensation for an injury.

Second, even if an injury did occur as a result of a medical provider’s mistake in treatment or diagnosis, this fact alone does not necessary lead to a successful medical malpractice lawsuit. Instead, the burden is on the injured person to prove that the treatment provided by the medical provider was substandard.

To accomplish this, the injured person must be able to present evidence establishing either (1) the knowledge or skill level expected of someone licensed in the relevant medical field, or (2) the degree of care ordinarily exercised by a medical provider in that field. Once this baseline for the level of expected knowledge and care has been established, the injured person then must prove that the provider either did not have the required degree of knowledge or skill, or that the provider failed to use the expected degree of care in the application of that skill.

In other words, if a medical provider was properly trained and acted diligently but an injury occurred anyway, that provider usually cannot be successfully sued.

If you have suffered an injury due to a medical provider’s error but do not know if you should proceed with a lawsuit, you should consult with an experienced medical malpractice attorney who can assist you in determining the proper course of action. We can be reached at 504-581-6411 or 855-GERTLER and would happy to help you.

What Is Lost Chance Of Survival?

Lost chance of survival is an issue that may arise in New Orleans medical malpractice lawsuits where the patient has passed away.  In cases where a patient — because of his or her medical condition — may have died regardless of medical treatment, damages can still be awarded if the doctor’s negligence caused the patient to lose a chance of survival.

A lost chance of survival in any degree may be compensated in damages. The Louisiana Supreme Court has ruled that to establish a connection between the patient’s death and the defendant’s medical malpractice, the survivor need only prove that the defendant’s medical negligence resulted in the patient’s chance of survival being reduced.  It is not necessary to prove that the patient would have survived if properly treated.

When considering the amount of damages to award for a loss of chance of survival, the jury is allowed to consider the survivor’s loss of support, loss of love and affection, and other wrongful death damages.  None of this, however, is as relevant as evidence of the lost percentage chance of survival at the time of the malpractice.  Such evidence will almost always require the testimony of a medical expert who can assess both the patient’s chance of having survived if properly treated and how much that chance was reduced.

A jury may also consider the significance of the reduction in the chance of survival.  For example, a survivor may argue that a ten percent reduction in chance of survival that lowers the likelihood of surviving from ten percent to zero is more significant than a ten percent reduction lowering the chance of survival from fifty percent to forty percent, because the patient was left with no chance of surviving.  Whether the patient would have lived longer if not for the medical malpractice may also be a factor in damages, even if he or she were unlikely to ultimately survive.

If you or a loved one has been the victim of medical malpractice, we would be happy to answer your questions.  Please call us at 504-581-6411 or 855-GERTLER.

What Is A Medical Review Panel?

For a New Orleans resident to file a medical malpractice claim, the procedure set forth in the Louisiana Medical Malpractice Act must be followed.  The Louisiana Medical Malpractice Act requires that any claim of medical malpractice be screened by a “medical review panel” before a lawsuit to recover damages can be filed in court.

A medical review panel is composed of three health care providers and is administered by an attorney chairman. The attorney chairman does not have a vote and merely acts to facilitate the panel.  The injured person and the medical provider being accused of malpractice each select one of the three health care providers.  Once those two panel members are selected, they must agree upon who will be the third health care provider selected to the panel.

The purpose of the medical review panel is to review the evidence and determine if it supports a finding that the defendant violated the necessary standard of care in treating a patient.  If they conclude that the physician did not meet the standard of care, then they also must determine if the violation resulted in any injuries, disability or permanent impairment to the patient.  If they determine that an injury, disability or permanent impairment did occur, then they must evaluate the degree of that disability or impairment.

Although a civil suit in a medical malpractice case cannot be filed until after the panel has reached its decision, a conclusion that the evidence does not support a finding of medical malpractice does not bar the patient from filing a civil lawsuit. The finding, however, is considered an expert opinion and is admissible as evidence in the court case.

If you have been the victim of medical malpractice and have any questions on how to proceed, please call us at 504-581-6411 or 855-GERTLER.  We would be happy to help you.

What Acts Are Considered Medical Malpractice?

Most of New Orleans’ health care providers are competent and hardworking professionals.  This does not mean, however, that there are not subpar providers or occasions when the treatment provided to a patient falls below the acceptable standard of care for medical providers.  When this happens, the patient may be able to pursue a medical malpractice claim.

The medical treatment provided by a health care provider is required to meet the appropriate standard of care.  Not every case in which treatment leads to a bad outcome or unexpected result constitutes medical malpractice — there must be a breach of the standard of care.   

In general, medical care providers must provide the care ordinarily possessed and exercised by members of their profession who are in good standing in the community.  In cases where treatment involves issues particular to a specific medical specialty, the standard of care required is that which is ordinarily practiced by those involved in that medical specialty.

Specific examples of medical malpractice include:

1.  Failure to provide a patient with appropriate medical treatment;

2.  Incorrectly diagnosing or failing to recognize a medical condition;

3.  Unreasonable delay in providing care for a known medical condition.

In a medical malpractice lawsuit, the injured party must file the action within one year of the date of the malpractice.  If the injury caused by the malpractice was not immediately apparent, this deadline is extended to within one year from the date the plaintiff knew or, in the exercise of reasonable care, should have known of the existence of the right to action.  However, no action can be brought later than three years from the incident.  In Louisiana, there is a $500,000 cap on damages, except for medical expenses, for claims of injury or death of a patient.

If you have any questions regarding medical malpractice, please feel free to contact us at 504-581-6411 or 855-GERTLER.