Louisiana Law Blog

By Linda G. Rodrigue

Act 337 of the Regular Session of the 2011 Louisiana Legislature enacted an amendment to Louisiana R.S. 37:1285(A) to add new subsection (A)(32), which provides an additional ground for physicians to be disciplined by the Louisiana State Board of Medical Examiners (the “LSBME”). The new ground relates to a physician holding herself/himself out to the public as being certified by a public or private board or using the phrase “board certified”. In order for a physician to use the phrase “board certified” with the public, all of the following criteria must be met:

(a) The full name of the board from which the physician received certification and the name of the specialty or subspecialty is included in the advertisement;

(b) The board that provides the certification meets any of the following qualifications:

(i) It is a member board of the American Board of Medical Specialties or an American Osteopathic Association certifying board;

(ii) The board has been approved by the LSBME;

(iii) The board requires an Accreditation Council for Graduate Medical Education or American Osteopathic Association approved postgraduate training program that provides complete training in that specialty or subspecialty.

(c) If the physician advertises and does not meet the criteria articulated above, the physician must list his or her qualifications for performing the advertised medical procedure or procedures.

The bill was signed by Governor Jindal on June 29, 2011. It will become effective August 15, 2011.

Complying with this new enactment is important, because failure to do so provides grounds for discipline of a physician, which may include refusal to issue, suspension, revocation, or other disciplinary action against the license of a physician by the LSBME.
 

By Deborah J. Juneau

In Oliver v. Magnolia Clinic, 2010-2785 (La. 3/25/11), 57 So. 3d 308, the Louisiana Supreme Court vacated a Third Circuit ruling that nurse practitioners were not covered by the Louisiana Medical Malpractice Act and did not benefit from the cap on damages. The Supreme Court remanded the case to the Third Circuit for an en banc consideration in order to obtain a majority opinion on the issues presented.

Upon original hearing, two judges of a five judge panel of the Third Circuit ruled the Medical Malpractice Act’s inclusion of nurse practitioners within its ambit violated the equal protection guarantees of the Louisiana Constitution and La. R. S. 40:1299.41(A)(1) and was, therefore, unconstitutional. Two judges on the panel ruled that the inclusion of nurse practitioners as health care providers entitled to the protection of the Medical Malpractice Act did not go into effect until the amendment of the statute in 2009. Because the alleged malpractice of the nurse practitioner occurred in 2000-2001, the statute did not cover the defendant nurse practitioner, and she was not entitled to a cap on the damages awarded at trial.
 

By Jennifer J. Thomas

The United States Supreme Court on March 21, 2011 denied a writ application by a physician who was appealing the lower Federal court’s decision dismissing the physician's civil rights action against the University of Illinois where the physician alleged numerous violations of his constitutional rights. See Abcarian v. McDonald, 617 F.3d 931 (7th Cir. 2010), writ denied, No. 10-913 (2011). The physician had been the head of the Department of Surgery at the University when he was notified that a lawsuit was being contemplated against him due to the death of a former patient. The physician alleged that when the University learned of the potential lawsuit it conspired with other defendants to discredit the physician's reputation and executed a settlement agreement with the deceased's family. The physician further alleged that the settlement agreement was a step in a conspiracy to destroy his reputation because the settlement agreement was entered merely so the defendants could report the settlement of the medical malpractice claim to the Illinois Department of Financial and Professional Regulation and the National Practitioner Databank. The physician filed suit alleging free speech, equal protection and procedural due process claims against the defendants.

On March 21, 2010, the U.S. House of Representatives on almost a straight party-line vote passed two final healthcare reform bills late Sunday night. Initially, the House of Representatives passed H.R. 3950, the Patient Protection and Affordable Care Act, by a vote of 219 to 212.

Following the passage of H.R. 3950, the House of Representatives passed H.R. 4872, the Health Care and Education Affordability Reconciliation Act of 2010, by a vote of 220 to 211. This second bill by the House modifies the Senate bill (H.R. 3590), and H.R. 4872 will serve as the foundation for any changes made by Congress to the current healthcare delivery, payment and insurance system. Some of the insurance-related changes that may have immediate impact include: lifetime caps on coverage end; children can stay on parents’ policies until age 26, and insurance companies can’t cancel coverage except in the case of fraud. A significant issue of addressing the Medicare physician payment formula still remains unresolved, as well as medical liability reform.

The changes addressed in H.R. 4872, sought by House Democrats and President Obama, will be considered by the Senate under budget reconciliation rules requiring a simple majority to pass and send it to President Obama for his signature. Senate Republicans have stated their intention to offer numerous amendments and raise multiple points of order to the legislation. If the H.R. 4872 is changed in any way prior to Senate approval, it must return to the House for an additional vote before President Obama can sign it.
 

By Linda G. Rodrigue

In April, 2009, the United States Court of Appeals for the Sixth Circuit decided in reviewing a Michigan case that the representative of a deceased woman could sue a hospital under EMTALA for allegedly releasing her husband after admission to the hospital, when he was then hallucinating, disoriented, and behaving in a threatening manner toward her when he was brought to the emergency department.  Five days after admission, it was decided that the husband should be transferred to a facility for the acutely mentally ill.  However, the transfer did not occur and he was, instead, released seven days after admission.  Ten days later, he murdered his wife.

By Jennifer J. Thomas

The Louisiana Supreme Court has issued two decisions in the past year, Borel v. Young and Warren v. LAMMICO, which are favorable to Louisiana health care providers. In the Warren case, a potential plaintiff waited almost four years from the date of her father’s death to file a wrongful death and survival claim against the health care providers.  The plaintiff had not participated in the Medical Review Panel or filed a lawsuit within either the one and three year prescriptive periods (a.k.a. statute of limitations) required by La. R.S. 9:5628.  The plaintiff’s mother and sister had already filed a timely complaint with the Louisiana Patients’ Compensation Fund, proceeded with a Medical Review Panel, and subsequently filed a lawsuit.  The issue before the Court was whether the new plaintiff could file her own wrongful death and survival claim that would “relate back” to the original, timely claims of her mother and sister.

By Vance A. Gibbs

In this day and age, everyone communicates by e-mail, on a laptop, desktop, Blackberry or other electronic device. But what about communication between a physician and a patient?  

Is this permissible? Acceptable under existing law and practice? Recommended?

By Deborah Juneau

The Louisiana Supreme Court issued its new opinion after a rehearing in Borel v. Young, again affirming the Third Circuit’s ruling and dismissing the lawsuit against late-added physician defendants, but on different grounds. The supreme court’s decision on rehearing solved an apparent dilemma for the plaintiffs created by the original opinion: the plaintiffs were precluded from filing suit until after the medical review panel had rendered an opinion but, in any case, were required to file suit within three years of the alleged medical malpractice. Since the three year period could not be suspended during the pendency of the medical review panel, the plaintiffs faced the possibility that their claims would be barred by the three-year peremptive period before the panel convened to consider their claims.

By Deborah Juneau

The Louisiana Supreme Court recently held in Borel v. Young that La. R. S. 9:5826(A) provided for both a one year prescriptive period and a three year peremptive period to file a claim for medical malpractice. The decision in Borel made it clear that a plaintiff had to file suit against a health care provider no later than three years from the date of the alleged act, omission, or negligence giving rise to the claim. Otherwise, the plaintiff’s action would be extinguished, and all rights to pursue the action would be lost. This ruling was favorable to health care providers, as it protected them from stale claims being brought years after the date of the alleged malpractice. However, the Louisiana Supreme Court granted a rehearing of the Borel v. Young case on May 21, and it remains to be seen whether the current ruling will stand or whether it will be modified or vacated.

La. R. S. 9:5826(A) governs the time limitations in which a party may bring a medical malpractice action against a health care provider. To understand the significance of the Borel ruling, one must understand the crucial difference between a prescriptive period and a peremptive period. A prescriptive period designates the deadline by which an action must be brought. However, prescriptive periods can be suspended, interrupted, or renounced by a variety of occurrences. Peremption is defined as a period of time fixed by law for the existence of a right. Unlike a prescriptive period, a peremptive period cannot be renounced, interrupted or suspended. Therefore, the right to bring an action against a health care provider would cease to exist if not timely exercised within three years after the date of the alleged act, omission or negligence.

by Randy R. Cangelosi

On February 2, 2007, the Louisiana Supreme Court vacated [Footnote] two decisions out of the Louisiana Third Circuit (Lake Charles), Taylor v. Clement and Arrington v. Galen-Med., Inc. et al. Taylor/Arrington garnered much attention in September 2006 when the Third Circuit declared Louisiana's medical malpractice cap, La. R.S. 40:1299.42(B) (a statute that has survived countless constitutional challenges since its enactment in the mid-1970s), unconstitutional. The Third Circuit reasoned that the $500,000 cap on damages did not provide the plaintiffs with "an adequate remedy" when considering the purported diminution of the cap over time due to inflation. The adequate remedy challenge to the constitutionality of a statute is derived from Article I, Section 22 of the Louisiana Constitution. Under current law, the $500,000 cap does not include future medical care costs and related expenses; it does, however, include pain and suffering, lost wages and other damages. 

by Jason R. Cashio

As most are aware, the Third Circuit Court of Appeal in Lake Charles recently ruled the medical malpractice cap unconstitutional.  The decision will be reviewed by the Louisiana Supreme Court, a process that could take anywhere from three to twelve months.  In the meantime, the cap is still applicable.

By comparison, the majority of states have some form of cap on noneconomic damages according to the National Conference of State Legislatures as of 2005.  Louisiana is one of those states.  Ten states cap nonecomomic damages for medical malpractice claims with caps ranging from $150,000 to $1 million.  Twenty-two states have some form of cap on noneconomic damages, although not specifically limited to medical malpractice claims.  Out of these 32 states, 11 also have a form of cap on punitive damages.

A minority of states either constitutionally prohibit limits on damage awards, have state supreme court decisions finding such caps unconstitutional, prohibit caps on damages by statute, or simply have no limitations.  Whether Louisiana joins the minority of states depends on the ruling of the Louisiana Supreme Court.  We will continue to monitor the proceedings with the Louisiana Supreme Court and report any future ruling as soon as it is available.

By: Clay J. Countryman

          The Centers for Medicare and Medicaid Services (“CMS”) recently issued an advisory opinion on November 6, 2006 regarding the physician recruitment exception in the federal physician self-referral law, commonly know as the Stark Law. CMS specifically addressed whether a physician who would spend up to 20% of their time practicing outside of the recruiting hospital’s geographic service area would meet the relocation requirement of the physician recruitment exception to the Stark Law.

          Under the proposed recruitment arrangement, the recruiting hospital would provide the following loans to the physician directly:

                     (1)      A loan for the payment of the physicians moving and relocation expenses, which would be forgiven after 1 year;

                     (2)      A loan equal to the physicians first year medical malpractice premium not to exceed $10,000.00, which would be forgivable over 3 years; and

                     (3)      A loan to repay the physicians medical school loans, which would be forgivable over a 3 year period.

          The recruiting hospital would provide no other compensation that either the practice to the physician is joining or to the physician in connection with the proposed recruitment arrangement. In addition, the forgiveness of the loans would be based on the physician meeting certain service and other commitments.