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.
Thursday, October 8, 2009
Wednesday, October 7, 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...
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...
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