Medical Malpractice: Can failure to communicate test results be medical malpractice?

“Jury: A group of 12 people, who, having lied to the judge about their health, hearing, and business engagements, have failed to fool him.” - Henry Louis MenckenCongratulations, you have been selected for jury duty. As American as baseball, jury duty is a pillar of the American system of justice, and you can step right up and participate-if you are qualified. In this two-part series, we outline the qualifications and exemptions for potential jurors in Louisiana.In Louisiana, “all qualified citizens shall have the opportunity to be considered for jury service in the district courts of Louisiana and shall have an obligation to serve as jurors when summoned for that purpose, and that no citizen shall be excluded from jury service in the district courts of Louisiana on account of race, color, religion, sex, national origin or economic status.” La. Sup. Ct. R. 25To serve as a juror for a civil or criminal case, you must meet the following criteria:

1. Be both a citizen of the United States and Louisiana who has resided within the parish in which he or she is to serve for at least one year immediately preceding his jury service.
2. Be at least eighteen years of age.
3. Be able to read, write, and speak the English language and be possessed of sufficient knowledge of the English language.
4. Not be under interdiction or incapable of serving as a juror because of a mental or physical infirmity, provided that no person shall be deemed incompetent solely because of the loss of hearing in any degree.
5. Not be under indictment for a felony nor have been convicted of a felony for which he has not been pardoned by the governor. C.Cr.P. art. 401, La. Rev. Stat. Ann. § 13:3041.

If you receive a jury duty notice and do not meet one of the above requirements, you are encouraged to contact the jury commissioner’s office. Who knows, you may be free in time for the first pitch.

InNiang v. Dryades YMCA School of Commerce, Inc., 19-0425 (La. App. 4 Cir.12/4/19), - - - So.3d - - -, the Fourth Circuit declined to expand the “loss ofchance of survival” cause of action to non-medical defendants. Despite astatute which arguably supported such a cause of action under case facts, theFourth Circuit felt constrained to reject the claim.

OnMarch 7, 2017, Mouhamadou Niang collapsed while playing basketball at aYMCA. Mrs. Niang was certified in cardiac life support, and requested anautomated external defibrillator (“AED”) to attempt to resuscitation. Mrs. Niang was advised that an AED machine was not available. Thereafter,Mr. Niang was transported to University Medical Center where he died on March11, 2017 secondary to cardiac arrest.

Mrs.Niang sued the YMCA for failing to have an AED machine on premises and assertedmultiple claims including a loss of chance of survival claim. Shecontended that the lack of the defibrillator contributed to her husband’sdeath. Under La. R. S. 40:1137.3, all “physical fitness facilities” suchas the YMCA are required to have an AED available.

TheYMCA filed a Motion for Partial Summary Judgment which was granted. Inits reasons, the trial court held that the “loss of chance” cause of action waslimited to claims raised in a medical malpractice context. The FourthCircuit affirmed.

TheFourth Circuit found that, although styled as a Motion for Partial SummaryJudgment, the YMCA had actually raised an Exception of No Cause of Action andtherefore analyzed the issue as a pure question of law. The FourthCircuit reviewed prior Louisiana Supreme Court decisions providing a right torecover damages for a loss of chance of survival in the medical malpracticecontext including the decision in Hastings v. Baton Rouge Gen. Hosp., 498So.2d 713 (La. 1986). In Hastings, the Louisiana Supreme Courtidentified a cause of action where a stab wound victim with weak vital signswas transferred from the hospital after the patient lacked insurance. The Hastingscourt commented on the reduced burden of proof in such cases:

“The law does not require the plaintiff to prove to a certainty that the patient would have lived had he received more prompt diagnosis and treatment for the condition causing the death.”

TheFourth Circuit identified no cases directly “on point” when the defendant wasnot a medical practitioner. Therefore, the Fourth Circuit gaveconsideration to a noted Oklahoma decision in Hardy v. Southwestern BellTel. Co., 910 P.2d 1024 (Okla. 1996) which addressed the issue. Thecourt in Hardy considered the public policy implications associated withexpanding the loss of chance of survival claim to non-medical cases andreasoned that the policy concerns which justify a reduced burden of causationin medical malpractice claims do not transfer to ordinary negligencecases. The cause of action against medical providers is supported by the“special relationship” of the physician and the patient. No suchrelationship exists in a non-medical setting.

Citingto Hardy, the Niang court determined that allowing a loss ofchance of survival claim with general negligence would allow for improperspeculation as to a person’s chance of survival. Identifying nocontrolling cases and the lack of any statute creating a cause of action innon-medical malpractice cases, the Niang court concluded that loss ofchance of survival claims are not supported outside of the medical context.

Collin is a Keogh Cox partner who litigates injury,commercial, and legal malpractice disputes. He lives in nearby Zachary,Louisiana with his wife Melissa and three all too active children. He is anoutdoorsman, a league tennis player, a cook, and a hobbyist writer.

During week seven of the 2025 Regular Session, Louisiana Governor Jeff Landry signed the following bills into law:

HB450 legislatively overrules Housley v. Cerise, 579 So. 2d 973 (La. 1991) (which provided a presumption of medical causation where plaintiff had no pre-existing history) and became effective upon signature by the governor. The Act has prospective application only and shall not apply to causes of action arising prior to the effective date.

HB434 modifies “No Pay/No Play” and bars uninsured motorists from recovering for the first $100,000.00 of bodily injury and the first $100,000.00 of property damage based on any cause or right of action arising out of an automobile accident. The Act allows for an uninsured motorist, who institutes an action to recover damages, regardless of fault, and is awarded an amount equal to or less than $100,000.00, to be held liable for all court costs incurred by all parties to the action. The Act’s effective date is August 1, 2025.

HB436 bars unauthorized aliens from recovering general damages and past and future wages for damages arising from an automobile accident. The Act does not apply to a claim made against an uninsured or underinsured motorist policy which names the unauthorized alien as an insured. The Act’s effective date is August 1, 2025.

HB431 provides for modified comparative fault and bars claimants, who are found greater than or equal to 51% at fault, from recovering for damages. If fault attributable to the claimant is less than 51%, the amount recoverable shall be reduced in proportion to the fault attributable to the claimant. The bill does not say whether this applies only to auto claims. We expect this will be clarified. The Act’s effective date is January 1, 2026.

HB549 requires a premium discount for policyholders of commercial motor vehicles with installed dashboard cameras and telematic systems and who meet the other requirements enumerated in the Act. The Act’s effective date is January 1, 2026.

HB148 requires insurance companies to display prior premium amounts in close proximity to the renewal premium. The Act also provides for rate filing standards and methods and changes the process by which the insurance commissioner can disapprove a rate if he determines it is excessive, inadequate or unfairly discriminatory. The Act’s effective date is August 1, 2025.