EXPERTS – In Benjamin v Zeichner, 2012-1763 (La. 4/15/13), 113 So.3d 197, the Louisiana Supreme Court examined the requirements for a physician to qualify as an expert in a medical malpractice case, as set forth in La. R.S. 9:2794(D). At trial, plaintiff sought to introduce the testimony of Dr. Shamblin as an expert witness in general surgery, with specific expertise in bariatric surgery. Dr. Shamblin had relinquished his medical license in Louisiana, and had not renewed his license in Alabama. The trial court refused to qualify Dr. Shamblin as an expert witness and granted defendant’s directed verdict. The Court of Appeal reversed, holding that La. R.S. 9:2794(D) did not specifically require that the expert be licensed at the time of the testimony. The Court held that a physician licensed when the claim arose is qualified under the statute.

The Supreme Court reversed, finding that the statute unambiguously provides that a physician may only qualify as an expert if he “is” licensed to practice medicine. The Court reasoned that the statute’s use of the present tense “is” signifies that the physician only qualifies if he is currently licensed to practice medicine. The Court held that the relevant time for determination of whether Dr. Shamblin met the qualifications of La. R.S. 9:2794 was at the time he was presented for qualification as an expert, i.e. at trial. Therefore, Dr. Shamblin did not qualify as an expert because he was not licensed to practice medicine at the time of trial.

SETTLEMENT – In Feingerts v. State Farm Mutual Automobile Insurance Company, 2013 WL 3214811 (La. Appl. 4 Cir. 6/26/13), the Fourth Circuit upheld the settlement of an attorney fee dispute between the client and multiple sets of attorneys. Mr. Feingerts was injured in an automobile accident and retained multiple sets of attorneys over the course of the litigation. Ultimately, the plaintiff obtained a settlement in the sum of $784,000.00. However, he was unable to reach an agreement with any of his attorneys pertinent to the fees owed.

A full-day mediation was conducted concerning the attorney fee issue. At the end of mediation, a hand-written document was executed by all of the participants. The document was entitled “Fee Dispute Settlement Agreement,” referenced the case docket number and outlined the amount of payment to be made to the settling attorneys. Nevertheless, the plaintiff failed to compensate any of the attorneys after the mediation.

In response to the failure to pay, separate motions to enforce the settlement agreement were filed and granted. On appeal, Feingerts alleged that the handwritten document failed to satisfy the legal requirement for a settlement under Louisiana law because the agreement contained no specific language resolving any claim or waiving any rights. Moreover, he alleged that there was no “concession” made by the attorneys in the agreement such that it was unenforceable.

The Fourth Circuit affirmed and held the agreement valid. It accepted the appellees’ argument that the title of the agreement expressed an intent to settle the fee dispute; therefore, it was unnecessary to include specific release language in the agreement. Citing earlier cases, the Fourth Circuit held that, absent evidence of duress, a mediation agreement signed by the parties constitutes a legal and binding compromise.

PRESCRIPTION – In Milbert v. Answering Bureau, Inc., 2013 WL 3285852 (La. 6/28/13), the Louisiana Supreme Court held that, when a non-healthcare provider is a “joint tortfeasor” with a healthcare provider, the provisions of the Medical Malpractice Act which suspend prescription against the healthcare provider will also suspend prescription against the non-healthcare provider. In Milbert, the plaintiff/patient brought a malpractice claim against the physician. He also sued an answering service (Dexcomm) after it allegedly failed to promptly and accurately forward medical information.

Mr. Milbert fell off of his roof and broke his right ankle. Surgery was performed and he was released and instructed to call his doctors if he had any problems. When his pain level increased, he called the answering service asking that his physician, Dr. Yerger, be notified. When the service failed to receive return calls from the physician, Mr. Milbert went to the hospital emergency and sat for several hours. The answering services’ logs indicated that it employees initially paged the wrong doctor. When the correct doctor was reached, the Milberts had already arrived at the emergency room. Despite Dr. Yerger’s directive to contact him if the Milberts called again, he was not informed of the subsequent phone calls by the Milberts. After several hours in the emergency room, Mr. Milbert was examined and diagnosed with a syndrome of the right leg. At that time, Dr. Yerger was finally contacted and thereafter performed surgery.

Under these facts, the Milberts filed suit against Dr. Yerger, the hospital and other physicians. Among other allegations, the Milberts alleged that the damages suffered could have been prevented had he received prompt medical care after calling the answering service.

After the Medical Review Panel rendered an opinion favorable to the medical providers, the Milberts filed a timely medical malpractice action against various doctors and the hospital and moved to consolidate the claim with the District Court suit filed against Dexcomm. In response, Dexcomm filed a Motion for Summary Judgment asserting that the claims were prescribed. The alleged negligence of Dexcomm occurred on September 7, 2008 but suit was not filed until December 23, 2009. Milberts argued that prescription against Dexcomm was suspended because it was a “joint tortfeasor” with the medical defendants under Louisiana Medical Malpractice Act, specifically citing LSA-R.S. 40:1299.47(A)(2)(a).

Dexcomm’s Motion for Summary Judgment was granted and affirmed on appeal. The Appellate Court concluded that Dexcomm was neither a healthcare provider nor a joint or solidary obligor with any healthcare provider; therefore, it held that the language in Louisiana’s Medical Malpractice Act and its suspension of prescription for joint tortfeasors did not apply.

The Louisiana Supreme Court disagreed. It found that Dexcomm was a “joint tortfeasor” such that the interruption of prescription as to the medical providers equally applied as to Dexcomm.