The Louisiana Supreme Court has denied Ochsner's writ application!

On Friday, September 24, 2010, the Louisiana Supreme Court denied Ochsner's writ application. Thus, the claims of the couples affected by Ochsner's labeling and administrative errors will not be subject to the Louisiana Medical Malpractice Act.

Louisiana Fifth Circuit Court of Appeal Denies Ochsner's Writ

The Louisiana Fifth Circuit Court of Appeal has denied Ochsner's writ, which sought review of the district court's decision to deny Ochsner's Exception of Prematurity. Ochnser has now filed a writ application with the Louisiana Supreme Court, which argues that the plaintiffs' claims should be subject to the Louisiana Medical Malpractice Act--a result which would statutorily "cap" the plaintiffs' available damages and subject the claims to a stricter statute of limitations period.

The plaintffs argue that their claims--which seek damages for the mishandling and/or mislabeling of their human embryos--do not constitute "medical malpractice." Rather, the claims sound in general negligence and should not be subject to the Louisiana Medical Malpractice Act.

Plaintiffs' Liaison Counsel

Kara Hadican Samuels and Robert J. David have been appointed by the Court as Plaintiffs' Liaison Counsel in the Ochsner Fertility Clinic case, which concerns the mislabeling and mishandling of human embryos by the Ochsner Fertility Clinic. In addition, the Court has entered a case management order that requires the parties to proceed towards a December, 2010 class certification hearing. We have received Ochsner's document production, including audits of the facility, and will soon begin taking depositions to determine whether and to what extent common issues of law and fact exist among the various class members, many of whom are still unrepresented.

Plaintiffs Prevail Re Ochsner's Exception of Prematurity

This morning, we received the Court’s judgment denying Ochsner’s exception of prematurity. The effect of the judgment is threefold: Plaintiffs are not required to present their claims to a medical review panel, Plaintiffs’ claims are not limited to $500,000, and Plaintiffs whose embryos were mishandled prior to August 2006 are NOT precluded from pursuing their claims under the LMMA’s statute of limitations!

We expect that Ochsner will appeal this ruling.

Judge Grants Plaintiffs' Motion to Expedite

Today, the court granted our Motion to Expedite the Defendant's Exception of Prematurity. The court will hear argument on whether these claims should be governed by the Louisiana Medical Malpractice Act on November 3, 2009.

The judge will hear argument on Plaintiffs' Motion to Restrict Communications Between Ochsner and Unrepresented Parties on October 13, 2009.

Ochsner Fertility Clinic Litigation

On September 25, 2009, Ochsner Fertility Clinic announced that it was shutting down its New Orleans facility indefinitely, after the results of an internal audit revealed systemic problems with the labeling and storing of human embryos.

Prior to the hospital's announcement, on July 30, 2009, Robert J. David and I filed the first class action lawsuit against Ochsner Fertility Clinic on behalf of our clients, Heather and Duane Hebert. Mr. and Mrs. Hebert were contacted by the hospital in August, 2008 and informed that the facility had stored their embryos in the same canister as other couples' embryos, but was unable to tell whose was whose.

We began investigating the case and learned that the FDA conducted an audit of Ochsner's IVF facility in June 2007 and reported the results of infectious disease testing deficiencies in January, 2008. Ochsner's embryologist, Vince Williams, was not terminated until the following year.

This past Friday afternoon, Ochsner Fertility Clinic filed a dilatory exception of prematurity with the Court, essentially arguing that class plaintiffs' claims are premature because they must proceed under the Louisiana Medical Malpractice Act [LMMA] and be submitted to a review panel first. For those unfamiliar, Louisiana has some of the strictest medical malpractice laws in the country. The LMMA provides a statutory "cap" on the damages recoverable to plaintiffs, forces plaintiffs to present their claims to a medical review panel prior to filing suit, and contains a particularly harsh statute of limitations (or as Louisiana lawyers know it, "prescriptive period").

The statute of limitations for medical malpractice in Louisiana is one (1) year from the date of the alleged act, omission, or neglect, or one (1) year from the date of discovery of the alleged act; however, no action shall be filed beyond three (3) years from the date of the alleged act, omission, or neglect.

This means that in no event can a "qualified healthcare provider" be held liable for malpractice, no matter how blatant, if it occurs three years after the date of the negligent act--regardless of when plaintiff discovered it.

The hospital wants the claims to be governed by the LMMA because it will: (1) limit the recovery of the individual class members; and (2) eliminate the hospital's exposure for claims earlier than three years from when plaintiffs filed suit.

Essentially, if the court grants the defendant's exception and holds that the claims are governed by the LMMA, the hospital will be able to walk away from its liability for any negligence that it committed prior to July 30, 2006.

We are waiting to find out when the court will have a hearing on this critical issue...