Medical Malpractice Jurisprudential Updates. Panelists: Robert J. David Gainsburgh, Benjamin, David, Meunier and Warshauer

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1 Medical Malpractice Jurisprudential Updates Panelists: Robert J. David Gainsburgh, Benjamin, David, Meunier and Warshauer Peter E. Sperling Frilot, LLC 2015 Evidence and Procedure Seminar LOUISIANA JUDICIAL COLLEGE LOUISIANA ASSOCIATION FOR JUSTICE February 26, 2015 Windsor Court Hotel New Orleans, Louisiana

2 MEDICAL MALPRACTICE JURISPRUDENTIAL UPDATES ROBERT J. DAVID PETER E. SPERLING INDEX 1. Admissibility of Medical Review Panel Opinions Loss of Chance Doctrine The Locality Rule and Expert Witness Qualifications Informed Consent Physicians Liability after Settlement with the PCF 6. Patients Compensation Fund s Indemnity Rights

3 ADMISSIBILITY OF MEDICAL REVIEW PANEL OPINIONS Any report of the expert opinion reached by the medical review panel shall be admissible as evidence in any action subsequently brought by the claimant in a court of law, but such expert opinion shall not be conclusive and either party shall have the right to call, at his cost, any member of the medical review panel as a witness. If called, the witness shall be required to appear and testify. A panelist shall have absolute immunity from civil liability for all communications, findings, opinions and conclusions made in the course and scope of duties prescribed by this Part. So reads La.R.S. 40: H, with emphasis supplied. La. R.S. 1:3 instructs that the word shall is mandatory; however, as used in the 40: H, Louisiana jurisprudence suggests shall may otherwise be interpreted, as it is used in 40: (H). Questions of Fact The Louisiana Supreme Court in 2012 held in McGlothlin v. Christus St. Patrick Hospital 1 that despite the mandatory language of 40: (H), a medical review panel opinion was inadmissible where the panel exceeded the scope of its statutory 1 McGlothlin v. Christus St. Patrick Hospital, (La. 7/1/11) 65 So. 3d

4 authority and rendered an opinion based on its determination of the plaintiffs credibility rather than a medical standard. In McGlothlin, following the issuance of the panel s opinion, the plaintiffs filed suit, in which the principal allegations of negligence involved improper handling of the patient that caused her to fall, or to be dropped, and injured. The patient had earlier, during that same hospitalization, undergone successful bilateral total knee replacement surgery, and her initial recovery was uneventful. She was transferred to a rehabilitation unit and showed consistent improvement for eight days. On the eighth day she awoke with left knee pain that was later determined to be caused by a patella dislocation. She subsequently underwent nine surgical procedures and the removal of the prosthesis in her left knee. The McGlothlins claimed that the complications resulted from two post-surgery incidents during which Mrs. McGlothlin was moved/transferred: once from her wheelchair to her hospital bed and once from her wheelchair to a commode. 2 A medical review panel opined that Christus did not breach any applicable standard of care. The reasons set forth as bases for the opinion included the panel s expression that it did not accept the plaintiffs statement of the facts, the opinion concluding: 2 McGlothlin, 65 So. 3d

5 ... we feel that the versions of both of the incidents, by the patient and her family, appear to have numerous inconsistencies. 3 (Bold Emphasis in original; underlining indicative of redaction). It was not disputed that the patient sustained a patella dislocation while under the care of the hospital, nor, among other things, that the morbidly obese bilateral total knee replacement patient was owed the duty of coordination of more than one trained individual before she could be moved. 4 The dispute was over whether the two alleged fall/drop events actually occurred. Prior to the panel opinion s introduction at trial, the trial court granted the plaintiff s motion to eliminate the first sentence of the opinion in its entirety (that found reading no breach ) and the last clause containing the credibility opinion (quoted above), and these parts of the opinion were redacted. Following a jury verdict in the defendant s favor, the Third Circuit reversed and ruled that the panel opinion rendered on the merits in violation of La. R.S. 40:1299.7(G) was not admissible, 5 in either its original or edited version. 6 Significantly, the testifying panelist fully informed the jury 3 McGlothlin, 65 So. 3d at Id. at McGlothlin, 65 SO. 3d at The appellate court determined that the trial court's attempt to redact the offensive language did not cure the panel's violation of its statutory mandate because a clear reading of what remains of the medical review panel's opinion establishes to the reader that the underlying dispute was factual and not legal. McGlothlin, 65 So. 3d at

6 that it had reached its opinion in no small part by discrediting of plaintiff s version and its reliance on the medical records. 7 This tainted the integrity of the trial and led to the reversal, a finding that the plaintiffs carried their burden of proof, and a rendering of judgment. The Supreme Court recognized that the principal issue was whether a panel s opinion is admissible if it resulted from a panel s having exceeded its statutory duty as set forth in La. R.S. 40: (H). Both parties in McGlothlin sought an all or nothing ruling on the admissibility on the panel s opinion the plaintiffs seeking to exclude it in its entirety because of the credibility determinations, the defendant arguing to the contrary because the mandatory language of the statute requires the admission of any and all opinions in their entirety regardless of content. The Court noted that Louisiana circuit courts are clearly split on the admissibility of panel opinions based on panel s credibility determinations, thereby leaving it to resolve the issue. 8 The Court noted that.47(h) reads that any expert opinion of the panel shall be admissible. But, what constitutes an expert opinion under the MMA is clearly defined in Section 7 McGlothlin, 65 So. 3d at Id. at

7 40: (G), which specifies that a panel must render one or more of four categories of opinions, the third of which requires the panel to state whether there exists one or more material issues of fact that do not require expert opinion and that bear on the liability aspect of the case. A panel opinion must decide whether there were any departures from any standards of care unless there is a material issue of fact that does not require expert opinion that bears on liability: In performing this duty, the panel is not permitted to render an opinion on any disputed issue of material fact that does not require their medical expertise. 9 The standard of care was not in dispute in McGlothlin; rather, the primary issue was whether the alleged negligent acts even occurred. 10 The Court found that this was a question of material fact that required no expert medical opinion, and by answering this factual question:... the panel superseded its statutory authority. More significantly, by discrediting plaintiff s evidence, and relying strictly upon the medical records, the panel impermissibly rendered an opinion based on resolution of an issue (that.47(g)(3)) clearly and explicitly reserved for the jury. Simply stated, although a panel may render more than one opinion, the panel in this circumstance was not permitted to render one on whether the hospital s action complied with the applicable standard of care... because there existed a material issue of fact bearing bearing on that very issue of liability, which did not require their medical expertise) McGlothlin, 65 So. 3d at Id. 11 Id. 5

8 The panel s opinion in McGlothlin did not conform to any of the statutory definitions that the law requires but instead made impermissible credibility determinations, thereby removing it from the realm of an expert opinion as contemplated by the MMA and rendering it inadmissible. 12 Nonetheless, the Court determined that any error by the district court s admission of the opinion was rendered harmless by its redaction, making the opinion merely corroborative and cumulative of other properly introduced evidence. The Court also determined that allowing the panelist to testify was not error, by virtue of the great discretion vested in trial courts in determining whether a witness should be allowed to testify as an expert. Moreover, the Court reasoned that because this witness only testified regarding his opinions on causation and breach, as opposed to the panel s impermissible and inadmissible conclusions regarding the same, the trial court did not abuse its discretion. Given the foregoing findings, the Court determined, de novo, that the appellate court erred in concluding that review of the lower court was warranted. The Court then concluded that the jury was presented with conflicting but equally plausible views of how the injury occurred and, therefore, the fact finder s choice between two permissible views of the evidence cannot be manifestly 12 McGlothlin, 65 So. 3d at

9 erroneous or clearly wrong, and reasonable evaluations of credibility and inferences should not be disturbed upon review. 13 Therefore, despite the panel having superseded its authority, any error in the admission of its opinion was rendered harmless by the redaction of the offending language, especially in light of other evidence that was corroborative and properly admitted into evidence. The appellate court did not err in finding the opinion inadmissible, but it did err in ruling that its admission perverted the integrity of the trial, but further commenting that the redaction of the offending language, in this instance, cured the error. Finding no manifest error, the Supreme Court reversed the appellate court s judgment and reinstated the judgment of the district court. In Whittington v. Savoy, 14 the Third Circuit held that a medical review panel had violated the statutory requirements of La. R.S. 40: (G) by ignoring an issue of material fact and rendering an opinion on the merits, despite the existence of the issue of fact. 15 In addressing the defendant s argument concerning the absolute admissibility of panel opinions, the court ruled: However, that provision presupposes the validity of the opinion itself. In this case, the opinion rendered by the 13 McGlothlin, 65 So. 3d at 1231 (citing Rosell v. ESCO, 549 So.2d 840 (La. 1989)). 14 Whittington v. Savoy, (La. App. 3d Cir. 5/31/06), 931 So. 2d Id. at

10 Medical Review Panel did not meet the requirements of La. R.S. 40: (G)(3). 16 (emphasis added). The panel opinion was inadmissible because the panel simply accepted the surgeon's position which was a material issue of fact bearing on surgeon's liability which did not require expert opinion for its determination. 17 In 2008 the Supreme Court in Samaha v. Rau, 18 stressed the admissibility of the panel opinion, stating it was admissible [as] expert medical evidence that may be used to support or oppose any subsequent medical malpractice suit, but then remarked: As with any other expert testimony or evidence, the medical review panel opinion is subject to review and contestation by an opposing viewpoint. 19 It seems the 2008 Samaha s review and contestation phrase suggested the ruling it ultimately issued in the 2011 McGlothlin case: Panel opinions are not bluntly admissible. A Panel Exceeds its Authority In Cockerham v. LaSalle Nursing Home, 20 a medical review panel found that the defendants met the standard of care. The 16 Whittington, 931 So. 2d at Id. at Samaha v. Rau, , (La. 2/26/08), 977 So. 2d Id. at Cockerham v. LaSalle Nursing Home, Inc., (La. App. 3d Cir. 5/3/06),930 So. 2d

11 panel s opinion also included the following, additional finding regarding causation:... nor does the evidence support the conclusion that the defendants actions were causative, in whole or in part, of the damages alleged to have been sustained herein. 21 The plaintiffs filed a motion in limine to redact the causation statement from the panel s opinion because it exceeded the statutory authority of the panel in pronouncing on causation when found no malpractice. The trial court granted the motion. 22 The defendants argued, on appeal, that there was no statutory or jurisprudential support for the trial court s ruling. The Court of Appeal disagreed and held that La. R.S. 40: (G)(2) mandates that only when a panel finds that a healthcare provider departed from the standard of care is the panel allowed to reach the issue of causation. 23 Once a panel concludes that there was no departure from the standard of care, 39.1 requires that the panel s analysis end, and the trial court s redaction of the panel s opinion was affirmed. 21 Cockerham, 930 So. 2d at Id. at Id. at

12 A FAIR RESULT? In Fanguy v. Lexington Insurance Company, 24 Dr. Vernon Carriere, after being nominated by the defendant, Dr. Michael Graham, swore the oath to participate in a Medical Review Panel. The oath recites: (5)Before entering upon their duties, each voting panelist shall subscribe before a notary public the following oath: I, (name) do solemnly swear/affirm that I will faithfully perform the duties of medical review panel member to the best of my ability and without partiality to favoritism of any kind. I acknowledge that I represent neither side and that it is my lawful duty to serve with complete impartiality and to render a decision in accordance with law and the evidence. 25 The panel unanimously exculpated Dr. Graham, following which a lawsuit was filed. The plaintiff then produced prima facie and unrebutted evidence that Carriere and Graham had an undisclosed (and unknown to the plaintiff) financial relationship and moved to exclude the panel opinion and the testimony of all three panelists. The trial court granted a motion to exclude Carriere s testimony but denied the motion to exclude the panel opinion or the testimony of the two other physician-members of the panel Fanguy v. Lexington Insurance Company, (La. 4/1/13) 110 So. 3d La.R.S. 40: C.(5) 26 Fanguy, 110 So. 3d at

13 Plaintiff s writ application to the Fifth Circuit was granted, and the opinion and the testimony of the panelists were excluded, the court reasoning that it was illogical to allow any of this evidence, as the entire medical review process was tainted by Dr. Carriere's participation. 27 Defendants writ application to the Supreme Court was granted. In a per curiam, the Court wrote: While we are unable to say the lower courts committed error in finding that undisclosed financial relationship between Dr. Carriere and Dr. Graham presented the appearance of impropriety, which vitiated Dr. Carriere s oath of impartiality and thereby tainted the MRP proceedings, we believe that justice would best be served by ordering the reconstitution of the MRP with different physicianmembers and allowing that new panel to deliberate and issue an opinion on the issues presented in this case. Accordingly, we affirm the decision of the appellate court, in part, and reverse the appellate court, in part, insofar as it failed to order that a new MRP be impaneled; we remand this matter to the district court for further proceedings in accordance with the foregoing. 28 Mrs. Fanguy was injured in The medical review panel issued its opinion in The plaintiffs discovered the disqualifying information in The Supreme Court s opinion was rendered in April 2013, after a four and one-half year delay 27 Fanguy, 110 So. 3d at 128 (quoting Fanguy v. Lexington Insurance Company, (La. App. 5th Cir. 11/13/12) 105 So. 3d 848)(internal quotations omitted). 28 Id. 11

14 from the date she first requested a medical review panel request; then the case began anew. Seemingly, then a party, whether plaintiff or defendant/a prospective panelist may intentionally participate in violating a panelist s oath of office and, if found out, suffer no consequence other than to allow the guilty party to begin the panel process anew. 12

15 LOSS OF A CHANCE DOCTRINE I. What is Loss of Chance? The loss of chance doctrine permits a medical malpractice plaintiff to recover for either the loss of a chance of survival or the loss of a chance of obtaining a better result when the healthcare provider s negligence failed to alter the course of a patient s preexisting condition. The plaintiff need not prove that the patient would have survived or recovered but for the defendant's malpractice in a loss of chance claim. However, the plaintiff must prove there was a reduction in his or chance of survival or for a better result. II. The Development of the Loss of Chance Doctrine in Louisiana Jurisprudence 1. Early Beginnings of the Loss of Chance Doctrine In Hastings v. Baton Rouge Gen. Hosp., 498 So.2d 713 (La. 1986), the Louisiana Supreme Court opened the door to loss of chance claims. In that medical malpractice case, a man was taken into the emergency room with stab wounds to the neck. It was determined he needed to undergo an emergent thoracotomy at a different hospital; however, the emergency room physician never transferred the patient and he passed away. The trial court granted a directed verdict in favor of the defendants finding the patient s wounds was the cause-in-fact of his death, and not the hospital s failure to transfer. On review, the Louisiana Supreme Court significantly held the plaintiff is not required to shoulder the impossible task of proving that surgery would have saved Cedric Hastings' life. It was only necessary to show a reasonable probability that the procedure would have been lifesaving in these circumstances. Id. at 722. The court remanded the case for a trial on the merits. Id. 2. The Louisiana Supreme Court s Seminal Loss of Chance Case Smith v. State, Dept. of Health & Hosp., (La. 6/25/96); 676 So.2d 543 is oft regarded as the seminal loss of chance case in Louisiana jurisprudence. In Smith, a patient underwent a routine pre-op chest x-ray before foot surgery. Although the x-ray revealed a mass in his right trachea, the hospital staff failed to inform the patient of the x-ray results. The patient returned to the hospital fifteen months later, and a chest x-ray on that date showed the mass had doubled in size. During this visit, the patient learned of the earlier x-ray report for the first time. Further testing revealed that the mass was cancer and the patient died four months later after undergoing chemotherapy. The patient s survivors filed a medical malpractice action seeking survival and wrongful death damages. The trial court determined the plaintiffs did not meet their burden of proving the fifteen month delay in treatment caused the patient s death or a loss of a chance of survival when the patient had outlived statistical averages for the type of cancer he had. Id. at 548. The Louisiana Court of Appeal for the Second Circuit noted expert testimony at trial indicated the 13

16 patient had lost some chance of survival by not receiving earlier treatment and reversed the trial court. Id. On writ of certiorari, the Louisiana Supreme Court established that the loss of a chance is a distinct, cognizable injury from wrongful death, holding plaintiffs proved by a preponderance of the evidence that the negligence deprived [the patient] a chance of survival, a loss for which the [hospital] must respond in damages. The Court further held plaintiffs were not required to prove a reasonable or substantial chance of survival. The issues in loss of a chance of survival cases are whether the tort victim lost any chance of survival because of the defendant s negligence. Id. at 547. Thus, the patient s survivors were not barred from recovering damages even though the chance of survival at the time of the initial x-ray was less than 50%. 3. The Post-Smith Expansion of the Loss of a Chance Doctrine Since the Louisiana Supreme Court s Smith Opinion in 1996, Louisiana courts routinely acknowledge that the loss of chance doctrine also includes the loss of chance for a better outcome, and not just the loss of chance of survival. Examples include: a. Loss of Chance to Avoid Amputation In Graham v. Willis Knighton Med. Ctr., (La. 9/9/97), 699 So.2d 365, the Louisiana Supreme Court extended the scope of the loss of chance doctrine to include the loss of a chance for a better outcome. There, the plaintiff sustained a gunshot wound to his abdomen and underwent emergency surgery. However, the general surgeon failed to summon the on-call vascular surgeon to revascularize the patient s leg upon completion of an intestinal repair and ultimately, his leg was amputated. The Louisiana Supreme Court affirmed the patient was entitled to damages for the loss of chance of saving his leg from amputation. Id. at 373. b. Loss of Chance to Avoid an Additional Medical Procedure In Holtzclaw v. Ochsner Clinic, P.C., (La. App. 5 Cir. 10/29/02); 831 So.2d 495, the plaintiff's intestine was perforated during a colonoscopy for removal of polyps. Although the patient reported symptoms indicative of a perforation to a nurse, she did not notify the treating physician. Antibiotics were not administered until after an 18-hour delay, and the patient required a colostomy. The Louisiana Court of Appeal for the Fifth Circuit affirmed that the evidence supported a finding that the nurse's negligence resulted in the plaintiff's lost opportunity to avoid the colostomy. Id. c. Loss of Chance for a Better Recovery from Surgery In Bianchi v. Kufoy, (La. App. 3 Cir. 12/8/10); 53 So.3d 530, the plaintiff exhibited unusual symptoms of pain, swelling, redness and loss of vision following cataract surgery. The physician who performed the procedure failed to treat the symptoms and also failed 14

17 to refer the patient to a specialist. The patient subsequently lost almost all of his vision in the affected eye. When viewing the totality of the evidence, the Louisiana Court of Appeal for the Third Circuit determined there was sufficient proof that the physician s negligence diminished the patient s chance for a better recovery from the traumatic and complicated cataract surgery. Id. at Common Loss of Chance Claims A review of Louisiana jurisprudence indicates that the loss of a chance claims are more commonly seen in certain types of medical malpractice cases, including: a. Failure to Diagnose Cancer - Stroud v. Golson, 741 So.2d 182 (La. App. 2 Cir. 1999), writ denied 744 So.2d 1286 (La. 1999) (Loss of chance for failure to diagnose lung cancer) -Claudet v. Weyrich, (La. App. 4 Cir. 9/28/95), 662 So.2d 131 (alleged failure of doctor to timely diagnose breast cancer) b. Failure to properly manage a patient s stroke, including administration of Tissue Plasminogen Activator (t-pa) -Coulon v. Creel, (La. App. 5 Cir. 5/14/14); 142 So.3d 79 (loss of chance for a better recovery from ischemic stroke) c. Failure to Diagnose and Properly Manage a Myocardial Infarction (heart attack) -Braud v. Woodland Village L.L.C., (La. App. 4 Cir. 12/8/10); 54 So.3d 745 (loss of chance of survival claim for nursing home personnel s inaction during resident s heart attack) III. The Elements of a Loss of Chance Claim To prevail in a loss of chance claim, the plaintiff must establish: 1. The patient had a chance of survival or recovery at the time of the alleged medical malpractice; 2. The healthcare provider s action or inaction deprived the patient of all or part of that chance (causation); The plaintiff must prove causation by a preponderance of the evidence, that is, it is more likely than not (or, there is greater than a 50% chance), that the malpractice deprived the victim of all or part of that chance. The plaintiff does not have to prove that the patient would have survived or completely recovered if properly treated. 15

18 However, causation cannot be presumed in loss of chance claims. The Louisiana Supreme Court has expressly noted that [a]llowing recovery for the loss of a chance of survival is not a change or a relaxation of the usual burden of proof by a preponderance of the evidence. Smith v. State, (La. 06/25/96), 676 So.2d 543, The value of the lost chance, which is the only item of damages at issue in such a case (damages are discussed in more detail infra). IV. Expert Testimony 1. Expert Testimony Is Required Expert testimony is necessary to prove the standard of care and causation in a medical malpractice action alleging the patient was deprived of a chance of survival. Russo v. Bratton, (La. App. 4 Cir. 6/29/95), 657 So.2d The More Probable Than Not Standard The expert s testimony must establish it is more probable than not that the action or inaction was negligent resulting in a loss in chance of survival. See, e.g., Thoulion v. Jeanfreau, (La. App. 4 Cir. 6/20/01); 794 So.2d No Requirement to Quantify Loss of Chance Percentage In Johnson v. Foti, (La. App. 4 Cir. 4/9/03); 844 So.2d 1050, the Louisiana Court of Appeal for the Fourth Circuit determined it was not reversible error when the plaintiffs failed to introduce evidence establishing the specific numerical percentage of the loss of a chance. Only evidence that there was a loss of some chance is required to meet the burden of proof. Id. at Dueling Expert Witnesses When there are two expert witnesses giving conflicting testimony in loss of chance of survival cases, the evaluation of and resolution of conflicts in expert testimony are factual issues for the trier of fact. Gaudia v. Mann, (La. App. 5 Cir. 5/22/12); 98 So.3d 364. The jury verdict form should allow the jury to consider the concept of the loss of the chance of survival separately from wrongful death when there is dueling expert testimony regarding the percentage of the loss. See, e.g., Braud v. Woodland Village L.L.C., (La. App. 4 Cir. 12/8/10); 54 So.3d 745. V. Damages There will be one blank on the verdict interrogatory form where the jury is asked to quantify as a lump sum award the value of the lost chance, taking into account the entire record and the usual factors evaluated by jurors as for any other item of general damages. 16

19 1. Loss of Chance Damages in Connection with Wrongful Death A plaintiff may not recover both wrongful death damages and damages for loss of a chance of survival. In cases where it is questionable to what extent the defendant's negligence contributed to the death, a plaintiff must prove the patient had more than a 50% chance of survival in order to recover wrongful death damages. Bolton v. Willis-Knighton Med. Ctr., No. 47,923-CA, 2013 WL (La. App. 2 Cir. Apr. 4, 2013). 2. Valuation of Loss of Chance of Claims Lump Sum Approach a. Loss of Chance of Survival In Smith v. State Department of Health & Hospitals, (La. 6/25/96); 676 So.2d 543, the Louisiana Supreme Court addressed the method of valuation of the damages recoverable for the loss of a chance of survival, and expressly rejected the percentage probability approach utilized by the appellate court. Under the percentage probability approach, the jury calculates the total hypothetical value of the damages for wrongful death, and multiplies that figure by the percentage of the loss of the chance. For example, if a jury determines a patient would have suffered wrongful death damages valued at $1 million dollars, and the alleged medical malpractice deprived the plaintiff of a 20% chance of survival, the plaintiff is awarded $200,000 for the loss of a chance of survival claim. However, the Louisiana Supreme Court established in Smith, the valuation of the loss of chances should NOT be an equation, stating the loss of a less-than-even chance of survival is a distinct injury compensable as general damages which cannot be calculated with mathematical certainty. Id. at 548. The jury can calculate the lost chance of survival without going through the illusory exercise of setting a value for the wrongful death or survival claims and then mechanically reducing that amount by some consensus of the expert estimates of the percentage chance of survival. Id. at Thus, the Smith court employed a so-called lump sum approach in which the factfinder, judge or jury, [is] to focus on the chance of survival lost on account of malpractice as a distinct compensable injury and to value the lost chance as a lump sum award based on all the evidence in the record, as is done for any other item of general damages. Id. at 549. In practice, the lump sum approach allows the jury to subjectively determine the proper value of a lost chance without extensive guidance from the court. An abundance of evidence and factors may be considered, including expert testimony regarding the percentage of the chance lost or other wrongful damages, such as the patient could have lived longer but for the malpractice and the shock and emotional distress the plaintiff sustained when learning of the lost chance. Id. at The plaintiff may also present evidence of loss of support, love, and affection. Id. b. Loss of Chance of a Better Outcome In Graham v. Willis-Knighton Med. Ctr., (La. 9/9/97); 699 So.2d 365, the Louisiana Supreme Court expressly utilized the lump sum valuation approach in a loss of a 17

20 better outcome context. There, a delay in surgery caused the patient to lose an estimated twenty to thirty-three chance of saving his leg from amputation. The patient settled with the surgeon for $100,000 (thereby admitting liability), and pursued a claim for excess damages against the Patient's Compensation Fund. The trial court dismissed the claim. The appellate court reversed, awarding $469,000 for loss of leg, subject to a $100,000 credit for the settlement. On review, the Louisiana Supreme Court determined the $469,000 award would have been reasonable for the loss of the leg, but not the loss of a chance. Considering all the factors from the record, including but not limited to the percentage of the loss of a chance, it determined $140,000, subject to a $100,000 credit, to be more reasonable and amended the judgment accordingly. See Id. at 373. Similarly, in Hargroder v. Unkel, (La. 2 Cir. 10/29/04); 888 So.2d 953, the Louisiana Court of Appeal for the Second Circuit considered all of the evidence, rather than applying a mathematical equation, when determining the appropriateness of an award. In Hargroder, the patient brought a medical malpractice action alleging the defendant doctor's negligence in treating his stroke led to a loss of a chance of a better outcome. Expert testimony was introduced that the failure to administer t-pa deprived the plaintiff of some chance of preventing the spread of damage from the stroke. The jury awarded $150,000 in general damages. In reviewing the record, the Louisiana Court of Appeal for the Second Circuit stressed that there was little evidence of the percentage of disability that the plaintiff suffered as a result of the stroke. Although the jury did not abuse its discretion in finding that the plaintiff lost some chance for a better outcome, the award was excessively high in light of the evidence. Accordingly, the Second Circuit reduced the damages award to $75,000. Id. at Notably, loss of consortium damages may be included in the general damages award for loss of a better outcome case. See, e.g., Bianchi v. Kufoy, (La. App. 3 Cir. 12/8/10); 53 So.3d Quantum of Loss of Chance Awards It is difficult to make generalizations regarding the quantum of awards for loss of chance cases given the jury s vast discretion and the subjective nature of the factors considered. Indeed, the Louisiana Court of Appeal for the Fourth Circuit has expressly noted that the damages award may, but need not be correlated to a specific percentage of a loss of a chance. Johnson v. Foti, (La. App. 4 Cir. 4/9/03); 844 So.2d Examples: a. Loss of a Chance of Survival Awards In Benefield v. Sibley, (La. App. 2 Cir. 7/9/08); 988 So.2d 279, a registered nurse failed to a notify the treating physician in a timely fashion when she observed that the patient 18

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