Appeals Court Must Reconsider Louisiana Malpractice Cap Cut

A Louisiana appeals court must reconsider its ruling that the Legislature acted unconstitutionally when it covered nurses who are certified to diagnose illness and prescribe medicine under Louisiana’s $500,000 cap on general malpractice awards, the Louisiana Supreme Court has ruled.

The 3rd Circuit Court of Appeal in Lake Charles overturned a trial judge’s decision cutting the non-medical part of a malpractice award from $6.2 million to $500,000 for a girl whose cancer went undiagnosed through 32 appointments with a nurse practitioner before her first birthday.

Joe and Helena Oliver went to court after their daughter, Taylor, was diagnosed with neuroblastoma. They sued nurse Susan Duhon, saying she had told Helena Oliver that the baby didn’t need to see a doctor.

Taylor is now 10 years old. Diagnosis before her first birthday would have meant a 90 percent chance of a full cure, said the Olivers’ attorney, Todd A. Townsley. He said he doesn’t see the high court’s order as a negative sign, but it will be hard for his clients to go through the appeal again.

The 3rd Circuit will re-hear the case April 27, he said.

Duhon’s attorney, L. Paul Foreman of Lake Charles, had little comment. When asked if the hearing would be a second chance for Duhon to get under the cap, Foreman said: “It sounds like it would be.”

The state’s highest court ruled Friday that all 12 appeal court judges must hear the case. Four of five judges on the panel that ruled last year agreed that the cap shouldn’t apply to Taylor’s case but split about why. That doesn’t amount to the required majority, the Supreme Court said.

Helena Oliver took Taylor to see Duhon several times a month, starting shortly after her birth on Sept. 5, 2000, according to the opinion handed down Nov. 17, 2010 by Judge Sylvia R. Cooks.

She wrote that Duhon had no college degree — just a high-school diploma and a 1974 nursing certification from the hospital which certified her in 1977 as a pediatric nurse practitioner. However, because she already had that certification she was grandfathered in when the state later required nurse practitioners to have both a bachelor of science and a master of science in nursing, Cooks wrote.

Helena Oliver testified that, when she asked to see the doctor who supposedly supervised Duhon, the nurse told her that was needed only if the baby was admitted to a hospital.

“Most nurse practitioners work for doctors,” Townsley said. “It’s a way for a doctor to see more patients.”

However, Duhon opened her own clinic. “She had a doctor who agreed to consult with her if she had a problem. But the doctor didn’t know when she had a problem because the doctor wasn’t on site,” he said.

According to Cooks’ opinion, “The scant medical records maintained by the Magnolia Clinic” show that when she was about 6 months old, “Taylor developed severe bruising around the eyes — one of the telltale signs of childhood neuroblastoma.”

Her mother finally took her to Women & Children’s Hospital in Lake Charles on Nov. 7, 2001, where the doctor listed as Duhon’s supervisor ordered multiple tests and referred the baby to Texas Children’s Hospital, where she was diagnosed, according to the decision.

The girl survived, but tumors spread to her long bones, face, eyes, ears, skull and spine, Cooks wrote. “Her head is abnormally large and misshapen. Her eyes are abnormally large, bulbous, and opaque with cataracts, rendering her legally blind. Her bones have become weakened and brittle … and she struggles each day to overcome learning disabilities.”

Townsley said Taylor can talk and do schoolwork, but her disabilities mean she will never be self-supporting.

“With an award of $500,000, after attorneys’ fees and the expenses of litigation, she’s left with very little money to take care of herself for the rest of her life,” he said.

The jury set her past medical expenses at nearly $630,000, and said she will need nearly $3.4 million in medical care over the rest of her life. The 3rd Circuit upheld Judge Clayton Davis’ ruling that the Louisiana Patients’ Compensation Fund — which appealed the order to pay past bills — must cover all of Taylor’s medical expenses.

The 3rd Circuit ruling said the cap on general damages when applied to a nurse who is acting as a doctor unconstitutionally discriminates against the Olivers “because of the severity of Taylor’s physical condition when compared to other malpractice victims who receive full recovery for their injuries.”

The Supreme Court said a majority of the judges who hear a case must agree, and the ruling did not meet that standard on the principal issues. Two judges agreed with the results but not the reasons; a third dissented.

Judges John D. Saunders and J. David Painter said there wasn’t any reason to decide whether the law was constitutional, because it did not cover nurse practitioners during the year that Duhon treated Taylor.

Judge Shannon J. Gremillion wrote that the cap covered all nurses, so nurse practitioners were included.