The State of Louisiana Court of Appeal, Third Circuit (“Louisiana Appellate Court”), in its May 2, 2018 opinion, reversed its previous opinion and thereby revived a Louisiana medical malpractice lawsuit, finding that the trial court had erred in granting summary judgment to the defendant hospital.
The Lousiana medical malpractice appeal was originally heard before a three-judge panel of the Louisiana Appellate Court, which decided two-to-one that summary judgment was properly granted to the defendant hospital. The Louisiana medical malpractice plaintiff subsequently filed an application for rehearing before the Louisiana Appellate Court, which granted the request after a new judge was elected to the bench. After oral argument, two judges proposed to reverse the judgment of the trial court and one judge proposed to dissent from that decision. Therefore, the case was resubmitted and argued to a panel of five judges prior to rendition of judgment, pursuant to La.Const. art. 5, §8(B).
Luck Of The Draw?
After a review of the affidavits and depositions during the rehearing process, the three-to-two majority of the five-judge rehearing panel adopted as its opinion the dissenting opinion from the original hearing, which found that at minimum, there are questions of material fact as to whether the hospital personnel in both the ER and Intensive Care Unit promptly and correctly reported the severity and intensity of the patient’s headaches and deteriorating condition to her attending physician. Thus, the five-judge rehearing panel agreed with the original dissenting opinion that stated that “in a case such as this, it will be up to the jury to assess credibility and weigh the evidence, decide the facts, and assign liability, if any, to the doctor and hospital.”
The dissent to the most recent, May 2, 2018 opinion, stated, in part: “A properly constituted panel of this court agreed with the trial court, and correctly found that the claims against the hospital and its nurses should be dismissed on summary judgment … both [expert] doctors testified that they were not experts in the fields of nursing care and/or hospital standards/procedures, and thus could not provide expert opinions on those issues [i.e., nursing standard of care and causation] … Witnesses who concede that they are not experts cannot provide material expert testimony, and answers to hypothetical questions not based entirely on fact cannot create a genuine issue of fact … Our task as a reviewing court is clear and simple: we review the record to determine the applicable standard of care, and whether there is any evidence suggesting that the standard of care was breached. A review of this record manifests two truths. First, multiple experts in the field of nursing care unanimously found that these defendants did not fall below the standard of care. Second, no experts empaneled or tendered in the field of nursing care provided any evidence that these defendants breached the standard of care … For these reasons … I would affirm the trial court and grant the defendant’s motion for summary judgment. I respectfully dissent.”
Source Flournoy v. Our Lady of Lourdes Regional Medical Center, 17-81.
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