Every quarter we provide our readers with an update on select health care and medical malpractice developments. These updates are generally helpful as a quick reference for recent developments or practice pointers for those involved with and/or employed by the health care industry. In these updates, we will note statutory or regulatory changes, and report on health care and medical malpractice litigation and judicial decisions that influence related cases in these areas. Guy C. Curry, Managing Partner
Health Care Updates New Behavioral Health Home Certification by The Joint Commission Susan E. Henning Partner The Joint Commission currently accredits more than 2000 behavioral health care organizations under the Comprehensive Accreditation Manual for Behavioral Health Care. Accreditation is currently available for a variety of behavioral health care services and programs ranging from shelters, counseling programs, and various addiction services, to vocational rehabilitation, training, and supervised or supportive living programs. Beginning January 1, 2014, The Joint Commission will offer a new certification option to recognize the three types of Behavioral Health Homes recognized by the Substance Abuse and Mental Health Services Administration. These include organizations that have successfully integrated both primary physical and behavioral health care services by a single entity, via a partnership where the behavioral health care organization provides the behavioral health services and partners with an entity to provide primary physical health care services on site, or the behavioral health service has a process for facilitated referral to an offsite primary physical health care provider. To achieve optional Certification as a Behavioral Health Home (BHH), the organization or program must meet new requirements related to (continued on page 2)
Health Care Updates New Behavioral Health Certification by the Joint Commission ........................................ Page 1 Issues Regarding the Shortage of Organ Donations ................................. Page 3
medical malpractice LAW Updates Jurisprudential Updates ......................................... Page 5
Focus on the Firm ............................... Pages 4, 9, 11 2013 Legislative Session
Legislative Update on Legislation Regarding Extension of Prescription ........................ Page 8 2013 Legislative Update of Procedural Articles and Health Care Laws ............................. Page 10
PRACTICE Pointers A Primer on eDiscovery - Part III .........…............….. Page 12
Labor and Employment Law Corner OFCCP Adds to Federal Contractors’ Affirmative Action Plan Obligations ....................... Page 15
This update is intended for general informational purposes only. The contents contained herein should not be construed as formal legal advice nor the formation of a lawyer/client relationship. The reader is urged to consult his or her personal attorney concerning specific legal questions and/or situations. This is an advertisement.
page | 2 (continued from page 1)
Care, Treatment and Services, Environment of Care, Human Resources, Information Management, Leadership, Performance Improvement, Records of Care, and Rights and Responsibilities. These new requirements which were pre-published by The Joint Commission on August 2, 2013 include: • Evidence that the BHH has defined the populations served by it. • If the BHH does not provide 24 hour services, it must have written screening triggers that indicate the need for medical history and physical examination, and the BHH must arrange for this to occur on a timely basis.
• The BHH must be able to demonstrate the ability to manage transitions in care and facilitation of each individual’s access to integrated care, treatment or services at all levels and types of care and specialties along the continuum of care. • By meeting specific performance elements, the BHH must demonstrate that its integrated health care team works in partnership with each patient, and as appropriate their family, to provide for continuity of care and to meet social, educational, housing, transportation, financial and other needs, preferences and goals to facilitate progress toward independent living and community integration.
• The BHH must collect assessment data regarding both long and short term physical health care goals, including screening for designated chronic physical health conditions, as well as the individual’s ability to self-manage chronic behavioral and physical health conditions.
• The BHH must demonstrate that it has a process for, and does inspect, test and maintain medical equipment that it owns and operates.
• The BHH must demonstrate that physical and health goals of the individual are identified based on screening, assessment and care, and that treatment or service decisions are collaborative and integrated when more than one discipline is involved in the care or services provided to the individual.
• The BHH must demonstrate that it uses health information technology to support continuity of care, document and track care, support disease management and preventive care, facilitate electronic exchange of information among providers, and support performance improvement.
• The BHH must detail how the organization meets the needs of each individual including how written and verbal communications are tailored to the cultural and physical limitations or circumstances of each individual, and the BHH must evidence a partnership with each individual to achieve planned integrated care outcomes. • The BHH must meet specific requirements to assure that individual detailed plans of care, treatment or services are integrated, tracked and assessed. • The BHH must identify and support the health literacy needs of each individual served by the organization. • The BHH must provide individuals with the ability to contact the BHH to request an appointment, prescription renewal, or advice for urgent health needs 24 hours per day, 7 days per week. • The BHH must meet specific requirements to facilitate provision of urgent health care needs of each individual and provide access to health information within a specified period of time. • The BHH staff must have access to primary physical and behavioral health care clinicians for consultation at all times.
• The BHH must demonstrate that it orients and continually educates staff on behavioral and physical conditions found in the population served by the BHH.
• Leadership of the BHH must establish priorities for performance improvement activities with the involvement of individuals served by the BHH, and must identify clinical practice guidelines and evidencebased practices to evaluate and treat both physical and behavioral conditions, symptoms and diagnoses. • The BHH must demonstrate that it utilizes and compiles data in specific areas to measure and evaluate individual perceptions regarding performance, to improve performance and to demonstrate improved outcomes, individual satisfaction and individual access to care, treatment, services, and to effective communication. • The BHH must meet specific elements of performance with regard to record keeping that serve to establish individual rights to access, interpreting and translation services, meeting goals, collaborative decision making, and choices regarding selection of providers. • The BHH must provide individuals with specific information about the services and functions of the BHH including individual rights and responsibilities tailored to each individual. • By having and implementing policies regarding the use, formulation and education of individuals regarding (continued on page 3)
page | 3 (continued from page 2)
advance directives, the BHH must demonstrate that it addresses decisions made by individuals about their physical health care treatment or services at the end of life.
Issues regarding the Shortage of Organ Donations
These elements by which Behavioral Health Homes may achieve Certification go beyond what is required for Accreditation by The Joint Commission, and Certification offers providers in this area to receive special recognition for having achieved a more fully integrated and successful physical and behavioral health care program. n
Louisiana). However, if an individual does not take these steps, they may also indicate a preference for organ donation in a living will, or family members may donate their organs upon a relativeâ€™s demise. One roadblock to donations by family members may be the failure to discuss preferences as to organ donations prior to the death of a loved one. Organ donation may be further hampered by misunderstandings as to life-saving medical care, pre-existing conditions (for example, cancer, heart disease, diabetes, poor eye sight or cataracts will not prevent one from being a donor), religious issues (all major religions approve of organ and tissue donation), or costs (there is no cost to the donor or their family).
Lucie E. Thornton Partner Organ donation is certainly not a new idea and through advances in medical technology, organ transplants are now more successful than ever. However, only about 40% of Americans have indicated that they would be an organ donor and this article will deal with issues relating to the shortage of organs available for donation in the United States, and the alternatives that are being suggested as a solution to this serious, chronic shortage of organ donations. The Uniform Anatomical Gift Act of 1973 made organ donation legal through living wills or donor cards, and also made it legal for next-of-kin to make decisions about organ donation for those who had not indicated a preference for themselves. In 1984, the National Organ Transplant Act went into effect. The low rate of organ donors cannot be attributed to lack of knowledge about the process. Louisiana enacted legislation that provides for consent for organ donation via driverâ€™s license, or through a simple registration on the website for the Louisiana Organ Procurement Agency (the independent, not-for-profit organ and tissue recovery agency federally designated as the organ procurement organization for
One way to address the shortage of donated organs is to adjust the way that available organs are distributed. There are different considerations, for example, for providing a donated heart than there are for providing a donated kidney. Usually, for cardiac patients, the younger donors are matched with younger recipients, and priority is often given to healthier patients. Kidney transplants are often handled differently, but this may change. Questions arise as to whether this is an equitable way allocate the short supply of organs, particularly for those older patients who have been waiting for a transplant. Transplant centers may have to reconsider criteria for determining who is allowed on their waiting lists and who has priority. Should the patient with the greatest need receive preference over the person who would most likely benefit for a longer period of time? Should consideration be given to the immigration status of a patient, or whether or not they have a criminal (continued on page 4)
page | 4 (continued from page 3)
record? Should patients with histories of addiction disorders be allowed on transplant lists? Transplant centers often consider the patient’s financial situation, including insurance, and they rarely place a patient over the age of 75 on a transplant list. Geographic considerations can come into play in the distribution of organs, too, although regional distribution of organs has increased along with improvement in organ preservation techniques. There is controversy surrounding the practice of multiple listing, or patients who try to increase their chance of getting an organ transplant by enrolling in more than one transplant center. This often favors patients with more financial resources since an evaluation at a transplant center can cost tens of thousands of dollars. As economic factors come into play, it has also been suggested that perhaps the NOTA should be changed to allow for the sale of organs. Proposals for a regulated market, with the government acting as the purchaser of organs, have been made, and generally met with ethical criticisms. Another suggestion to increase the supply of donated organs focuses on changing the definition of death. In a study done at Kansas State University in 1987 (FOOTNOTE: “Psychological Factors Influencing Decisions to Donate Organs”, Pat McIntyre, Mark A. Barnett, Richard J. Harris, James Shanteau, John Skowrondki, Michael Klassen, Advances in Consumer Research, Volume 14.), it was noted that even though individuals were knowledgeable about transplantation, they remained reluctant to consider donation due to a concern that death may be prematurely
Focus on the Firm
declared for the purpose of obtaining organs for donation (Id., at p. 290). Donations of kidneys, for example, from living donors is another way to address the shortage of organs, and one that met with surprising success in a project known as Chain 124, a label given by the non-profit group National Kidney Registry. It began with a single man who gave the initial kidney, expecting nothing in return. An algorithm was developed and matches made between donors and patients. It has been suggested that an additional 2,000 – 4,000 transplants could occur each year if more people knew about such programs. The NOTA has even been amended to clarify that paired exchanges do not violate federal laws against selling organs. There are other registries beside the National Kidney Register that are approaching the problem of a shortage of organs by seeking to match living donors with patients, unregulated by the government, and getting attention from medical societies that seek to address concerns regarding issues of allocation of the organs, oversight and ethics. Artificial and bioengineered organs are other possible solutions being considered and developed to address the shortage of donated organs. These include organ fabrication through the growth of living cells into complete organs, in an environment outside the human body. While there remains a critical shortage of donated organs, creative and innovative ways are being developed to address this shortage and provide hope to the thousands of people waiting for a transplant. n
Finish Line or Bust:
Curry & Friend Races for the Cure On Saturday, October 26, 2013, Curry & Friend, PLC once again participated in the Susan G. Komen Race for the Cure 5K. The event raises significant funds and awareness for the fight against breast cancer, celebrates breast cancer survivorship and honors those who have lost their battle with the disease. With proceeds going directly to breast cancer screening, treatment, research and education programs in our area, Curry & Friend was proud to sponsor a team for this worthwhile cause. Team “Finish Line or Bust” boasted 39 participants and raised almost $900! n
page | 5
Medical Malpractice Updates damage award of nearly $4 million in favor of a surgeon for alleged improprieties in peer review proceedings. Granger v. Christus Health Central La., 12-1892 (La. 6/28/13), 2013 WL 3287128, rehearing denied. While the Court affirmed the finding of negligent misrepresentation and tortious interference with contract, it vacated the $3 million award for lost income.
Jurisprudential Updates Meredith M. Miceli Partner The following are synopses of notable holdings, some published and some not, rendered since late June, 2013 by Louisiana appellate courts.
Defense Verdict on Informed Consent Claim Reinstated The Louisiana First Circuit reversed a judgment notwithstanding the verdict motion (“JNOV”) in favor of plaintiff, who alleged that her discectomy surgery, which was performed by defendant surgeon and for which he did not obtain her informed consent, worsened her symptoms. Cobb v. Mitchell, 12-1032 (La. App. 1 Cir. 6/27/13), 121 So.3d 692. The trial court had granted the JNOV on the informed consent claim (pursuant to La. R.S. 40:1299.40, which was applicable at the relevant time). Plaintiff argued that the defendant surgeon had not himself performed the procedure, but the appellate court pointed out that the provider performing the procedure need not himself or herself consent the patient when consent is given under Section E of the former statute. The court held that a reasonable juror could have found for the defendant provider, as the executed consent form set forth the nature and purpose of the procedure, together with the known risks and alternative treatments; acknowledged that such disclosure had been made and that all questions about the procedure had been answered in a satisfactory manner; and was signed by the patient. Further, the record was devoid of evidence that consent was induced by a misrepresentation of fact. The defense verdict was reinstated. La. Supreme Court Finds for Physician in Peer Review Action, But Slashes Nearly $4M Lost Income Award The Louisiana Supreme Court granted certiorari to review a
Plaintiff, a cardiac surgeon, had several heated discussions with nursing staff and other physicians involved in the care of a particular patient at defendant hospital. The following day, the hospital’s board and executive committees summarily suspended plaintiff for three weeks pending investigation. After the suspension, plaintiff’s clinical privileges were restored, but a letter of reprimand was placed in his permanent record. Plaintiff requested that the letter be removed and that a hearing be granted on the summary suspension. The requests were denied. Finding that the unprofessional behavior of plaintiff was a contributing factor that adversely affected patient care, plaintiff was placed on a six-month supervised probation and required to self-refer for an anger management evaluation, failing which, his staff membership and privileges would be revoked. Plaintiff did not self-refer and, ultimately, his membership and privileges were revoked. The physician then sued the hospital under several theories of recovery, including negligent misrepresentation, fraud, and tortious interference with contract. After a nine-day trial, the jury found for plaintiff, awarding him $1 million in general damages and $2.9 million in loss of past income. The Louisiana Supreme Court found no manifest error in the jury’s finding that the defendant hospital’s peer review was taken with malice rather than in the reasonable belief that the action was in furtherance of quality health care or warranted by the known and, thus, the hospital was not entitled to immunity under the Health Care Quality Improvement Act (“HCQIA”), 42 U.S.C.A. §11101 et seq., or the state’s peer review statute, La. R. S. 13:3715.3(C). The Court also ruled that the evidence was sufficient to support the jury’s finding that the hospital breached its contract with plaintiff and that an award of damages was warranted; plaintiff was not apprised of his right to a hearing, pursuant to hospital bylaws, when the Medical Executive Committee recommended his automatic revocation upon his failure to self-refer for anger management issues and failed to have a post-suspension hearing, as requested. To the extent jury found the staff physician’s loss of income from a hospital practice was caused by the hospital’s actions, such a finding (continued on page 6)
page | 6 (continued from page 5)
of causation was manifestly erroneous. The plaintiff did not assert that he was prevented from attending any patients following reinstatement of his clinical privileges, and he did not know of the hospital’s decision to automatically revoke his medical staff membership until after he made a voluntary decision to withdraw from his practice at hospital.
Expert’s Fees for Out-of-Court Services Must Be Proved by Competent Evidence The Louisiana First Circuit vacated a trial court judgment awarding expert fees to the prevailing defendant physician and remanded the matter. Henkel v. Gboloo, 12-1948 (La. App. 1 Cir. 7/30/13), 2013 WL 3958360. The lower court had dismissed plaintiff’s malpractice claims against defendant after a two day bench trial. On defendant’s motion to tax expert costs, the judge, without hearing, assessed plaintiff with nearly all of the requested fees. The First Circuit found this to be improper, holding that, under La. R.S. 13:3666, the trial court erred in assessing defendant’s expert witness fees to plaintiff based solely on invoices submitted by defendant and unsupported by any testimony at trial or at the hearing on the motion to tax costs. The court explained: “If a rule under La. R.S. 13:3666 seeks to set the value on the time the expert witness was before the court, that value may be determined by the court on the basis of its observation of and experience with the expert witness at trial, without further proof. However, if the rule seeks to value the total time employed by the expert, for example, time gathering facts necessary for his testimony, time spent away from regular duties while waiting to testify, or if the party seeks a fee outside of that normally charged by similar experts in that field, then the plaintiff in rule must prove by competent evidence, what service and expertise the expert rendered in addition to that observed by the
trial court. . . . The mere assertions of an attorney and the expert via the submitted bill (or invoice), even in conjunction with an expert’s affidavit attesting to the correctness and truth of the billing statement, are not sufficient to support a court’s award of out-of-court work costs.” Hurricane Katrina Claims Again Found Outside of Scope of Medical Malpractice Act The Louisiana Fourth Circuit reversed a trial court’s granting of defendant hospital’s Exception of Prematurity in Hurricane Katrina related survival and wrongful death action. Burandt v. Pendleton Mem.Methodist Hosp., 130049 (La. App. 4 Cir. 8/7/13), 123 So.3d 236. In light of the Louisiana Supreme Court’s decision in LaCoste v. Pendleton Methodist Hosp., 07–0008, (La.9/5/07), 966 So.2d 519, and the Fourth Circuit’s own decisions in Mineo v. Underwriters at Lloyds, London, 07–0514, (La.App. 4 Cir. 10/22/08), 997 So.2d 187, and Montalbano v. Buffman Inc., 11–0753, (La. App. 4 Cir. 3/21/12), 90 So.3d 503, and the court’s own analysis per Coleman v. Deno, 01–1517, (La.1/25/02), 813 So.2d 303, the court held that plaintiff’s claims against the hospital for failure to plan, supervise, and evacuate, failure to perform non-medical duties, and abandonment did not sound in medical malpractice under the Medical Malpractice Act, La. R.S. 40:1299.41 et seq., and, thus did not need to be submitted to a medical review panel. Again, Hospital Not a “Merchant” in Slip and Fall Case The Louisiana Second Circuit affirmed its prior holdings that a hospital is not a “merchant” under La. R.S. 9:2800.6, and, thus, hospital liability in a slip and fall case falls under general negligence standards. Grinnell v St. Francis Medical Center, Inc., 48,249 (La. App. 2 Cir. 8/21/13), 2013 WL 4451069. Under general negligence standards, a hospital owes a duty to its visitors to exercise reasonable care to keep the premises in a safe condition commensurate with the particular circumstances; but the duty owed is less than that owed by a merchant. This duty involves the reasonableness of the measures taken by the hospital to monitor its premises for spills caused by other members of the public passing through the hospital. Directions Found in Medical Product’s Label and Packaging Not Conclusive of Standard of Care The appellate court affirmed a bench trial finding in favor of defendant physician in a malpractice suit brought by the wife and children of decedent patient who died of strep sepsis. Ekendahl v. Louisiana Med. Mut.Ins. Co., 48,374 (La. App 2 Cir. 8/28/13), 2013 WL 4552323. Plaintiffs alleged that (continued on page 7)
page | 7 (continued from page 6)
the defendant family practitioner failed to order a culture of decedent’s throat following a negative strep test, despite the test manufacturer’s directions in the package insert to do so. The Second Circuit held that a manufacturer’s warning is evidence, but not conclusive evidence, of a standard of care. The expert testimony at trial here, through live witnesses and the medical literature supporting their opinions, demonstrated definitively that a throat culture following the negative test was not the standard of care. Factual Allegations Must Raise Right to Relief Above Speculative Level The United States District Court for the Western District granted Motion to Dismiss plaintiffs’ claims for failure to state a claim against defendant, the manufacturer of Dilantin, which plaintiffs alleged caused decedent to contract Stevens-Johnson Syndrome and, ultimately, die. Kennedy v. Pfizer,Inc., 2013 WL 4590331 (W.D. La.). The court ruled that certain of plaintiffs’ product liability claims fell outside the Louisiana Product Liability Act’s exclusive theories of liability and that each of the claims brought pursuant to the LPLA had insufficient factual support and thus failed to satisfy the Rule 12(b)(6) pleading standard. (“While a complaint attacked by a Rule 12(b)(6) does not need to detail factual allegations in order to avoid dismissal, plaintiffs’ factual allegations must be enough to raise a right to relief above the speculative level.”)
MSJ Affidavits of Defendant’s Own Experts Create Issues of Fact, Precluding Summary Judgment In this neurosurgery malpractice case removed to federal court on diversity, the court denied plaintiffs’ Motion for Partial Summary Judgment on liability despite plaintiffs’ introduction of a Medical Review Panel Opinion finding breach of the standard of care, affidavits from two panelists, and affidavits from other medical experts. Barnett v. Patwardhan, 2013 WL 4681230 (W.D. La.). Affidavits which
defendants submitted from their own experts created an issue of fact as to breach. As to plaintiffs’ informed consent claim, the defendant physician’s own affidavit that he in fact discussed the procedure at issue with the patient was also sufficient to preclude summary judgment on that cause of action. Statute Excluding Abortion from MMA Coverage Ruled Constitutional Physicians licensed to perform abortions in Louisiana brought a civil rights action under 42 U.S.C.A. § 1983 against the Patient’s Compensation Fund Oversight Board (“PCF”) and the Fund’s director, challenging the constitutionality of La. R.S. 9:2800.12 (as amended by Act 825 in 1997), which, at Section C(2), excludes purported malpractice involving abortions from coverage under the Louisiana Medical Malpractice Act, La. R.S. 40:1299.41 et seq., and which, at Section A, allegedly creates a strict liability cause of action against abortion providers. (Section A provides that “[a]ny person who performs an abortion is liable to the mother of the unborn child for any damage occasioned or precipitated by the abortion”; defines “damage” to include “injuries suffered or damages occasioned by the unborn child”; and provides that a consent form “does not negate this cause of action . . . .”) K.P., Hope Med. Grp. for Women v. LeBlanc, 729 F.3d 427 (5th Cir. 2013). The three providers faced a medical malpractice claim brought by their patient for malpractice related to her abortion, and the PCF notified the providers that the MMA did not apply to the claim under Act 825. A convoluted procedural history led to this review by the U.S. Fifth Circuit, which ultimately reversed the lower court’s finding of unconstitutionality. The Fifth Circuit held that Section C(2) is constitutional: (1) Section C(2) is rationally related to the promotion of informed consent, a legitimate end, and, thus, does not deny plaintiffs equal protection of the laws; and (2) The law does not impose an undue burden on a woman’s right to choose (“By subsection (C)(2), a health care provider sued under subsection (A) is not entitled to the benefits of the Malpractice Act. This exemption may make it difficult—perhaps prohibitively difficult—for those providers to obtain the relevant insurance. [S]ubsection (C) (2)’s limitation on the Malpractice Act is merely a ‘means of unequal subsidization of abortion and other medical services.’ And while ‘government may not place obstacles in the path of a woman’s exercise of her freedom of choice, it need not remove those’ obstacles, like Louisiana’s dearth of affordable insurance, that are “not of [the government’s] own creation.”). The court also dismissed plaintiffs’ claim as to Section A for want of jurisdiction. (continued on page 8)
page | 8 (continued from page 7)
Court Notes Pro Se Status of Plaintiff, But Cannot Ignore Evidentiary Requirements as Court of Record Four years after the subject surgery, pro se plaintiff filed a medical malpractice action against the orthopaedist who repaired her ankle fracture, but case was dismissed as prescribed, as affirmed on appeal. Wells v. Webb, 48,479 (La. App. 2 Cir. 9/25/13), 2013 WL 5346304. She claimed to have discovered the malpractice only nine months before filing. Citing Borel v. Young, 07-419 (La. 7/1/08), 989 So.2d 42, the Second Circuit affirmed granting of defendants’ prescription exception, stating that the discovery rule does not suspend the three-year limit of La. R.S. 9:5628 (“[H] owever, even as to claims filed within one year from the
date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.”) The court made special note of plaintiff’s pro se status: We are sensitive to Ms. Wells’s pro se status and hold her pleadings to less stringent standards than those filed by a lawyer. She contends that she lost because of facts she did not present in the trial court. However, the appellate court is a court of record; we may not review evidence that is not in the appellate record or receive new evidence. n
Legislative Updates you can’t proactively extend a prescriptive period that has not yet commenced. But, you can get successive 1-year extensions of a prescriptive period that has begun to run, but has not yet run out. • New Article 3505.1 provides that the extension, to be valid, must be express and in writing, i.e., either by (a) authentic act, (b) act under private signature, or, even in certain circumstances, (c) an electronic transmission. Note: The act may be unilateral by the obligor; it does not require a signature of the obligee in order to be valid.
Legislative Update on new law regarding extensions of prescription Susan R. Laporte Partner The 2013 Louisiana Legislature enacted changes to Louisiana’s law regarding prescription to permit the extension (or “tolling”) of prescriptive deadlines by agreement of the parties. The changes were accomplished by enacting five new articles to the Civil Code, to be numbered Articles 3505 and 3505.1 through 3505.4. All of those new articles became law effective August 1, 2013. Here’s a synopsis of the new articles. • New Article 3505 allows the parties to extend for up to one year a prescriptive period that has already begun to run, but has not yet accrued. In other words, you can’t extend a prescriptive period that has already expired, and
• New Article 3505.2 provides that the period of extension “commences to run on the date of the juridical act granting it.” The Article is, unfortunately, ambiguous, as to whether “date” was the date of signing of an extension (which signing? first? last?), or the date of effectiveness designated by the parties. That will presumably have to be ironed out either by amendment or by the courts. Individuals involved in drafting the new articles have indicated that the article was intended to respect the parties’ choice of date, i.e., the effectiveness date. Of critical importance is that you must know the date on which your extension starts in order to know when it ends. • New Article 3505.3 deals with the effects of an extension agreed to by only one or more but not all solidary obligors: the extension only applies to the obligor(s) who grant(s) it; the prescriptive period is not extended with regard to any other solidary obligors, who may be released from the obligation of prescription. he other obligors may be (continued on page 9)
page | 9 (continued from page 8)
released from the obligation by prescription if the original prescriptive period runs before suit is filed. Thus, if only one solidary obligor grants an extension of prescription, that obligor can be on the hook for the whole obligation and lose any rights of contribution against the co-obligors. Additionally, an obligor’s agreement to extend prescription binds his surety, but a surety’s agreement to extend prescription does not bind the obligor. On a practical level, this may have application in indemnity agreements: can the surety prohibit the obligor from extending the prescriptive period and binding the surety? • Finally, under new Article 3505.4, the extended prescriptive period can be interrupted (i.e., it starts anew when the interruption ends) or suspended (i.e., the remainder of
the applicable prescriptive period is in effect after the suspension ends), just like the original prescriptive period. In addition to adopting these new Civil Code articles, the 2013 Legislature also amended Article 2041. That article is in the section of the Civil Code dealing with the Revocatory Action (Article 2036), an action that basically permits an obligee to attack any act of an obligor that “causes or increases the obligor’s insolvency.” The obligee has one year to bring an action to annul the obligor’s act that caused or increased its/her/his insolvency; a peremptive period of three years from the date of the act applies. Per the amendment, if the obligor’s act rises to the level of fraud, the three-year peremptive period doesn’t apply. n
Focus on the Firm Curry & Friend, PLC is pleased to announce that Meredith M. Miceli and Barbara L. Bossetta have been named Partners of the firm. Meredith utilizes her exceptional legal research and writing skills to bolster the firm’s Medical Malpractice and Health Care Defense team. Her practice focuses on defending physicians, nurses, hospitals, psychiatric facilities, therapists and other allied health care personnel in medical malpractice and health care matters.
Barbara utilizes her exceptional case management and litigation defense skills to bolster the firm’s Environmental and Toxic Tort team. Her ability to immerse herself in the subject matter, history and culture of the firm’s clients in order to learn their industry and provide them with the best possible representation makes her an invaluable asset to the firm. (continued on page 10)
page | 10
a judgment (but not the substance). A hearing is not required, however, if all parties consent to the change, or if the court or the party who is submitting the proposed amendment certifies that the proposal was provided to all parties at least five days before the amendment occurs, and no opposition has been received.
2013 Legislative Update of Procedural Articles and health care laws Heather M. Valliant Partner The 2013 Regular Legislative Session resulted in several amendments to Louisiana’s Code of Civil Procedure, the additional protection of newborns by imposing requirements on health care facilities, and laws enacted in anticipation of the Affordable Care Act.: Jury trial Act 391 amends Code of Civil Procedure Article 1732 to provide exceptions to the general rule that jury trials are not allowed when the plaintiff’s cause of action does not exceed $50,000. Under the new rule, if the plaintiff admits within 60 days of the date of trial that his cause of action does not exceed $50,000, the defendant or some other party still maybe entitled to trial by jury if that party has otherwise complied with the procedural requirements for requesting a jury trial. This exception does not apply, however, if the plaintiff’s late admission is due to the settlement or dismissal of one or more claims or parties within 60 days of the date of trial. New trial Act 78 amends Article 1979 to require a court to specify each of its reasons for granting a new trial. The requirement that a court decide a motion for new trial within ten days of its submission has not changed. The amendment to Article 1979dovetails with Article 1917, which mandates that a court provide written findings of fact and reasons for judgment when a party requests it within 10 days of the transmission of the judgment to the parties. Altering or amending judgment Article 1951 now requires a contradictory hearing before altering or amending the phraseology or calculations in
Confirmation of default judgment Article 1702 is amended to provide that confirmation of a default judgment requires not just prima facie proof of plaintiff’s claim, but also that supporting evidence be admitted on the record before confirmation of default. The change was enacted to grant litigants a right of judicial review “based upon a complete record of all evidence upon which the judgment is based.” Without a complete record of the evidence presented to the trial court, meaningful appellate review of default judgments may be impaired. Venue Act 78 amends Article 45 to include Code of Civil Procedure Articles 84, 86, and 87 as venue articles that govern venue “exclusively” in the event of a conflict with Article 42 or Articles 71 through 77. Articles 84, 86, and 87, which deal with venue in very specific circumstances, were not listed in Article 45 originally, because they were added after the Code of Civil Procedure was enacted in 1960. Moreover, Article 85 was not included in the list because it provides for multiple venues for actions against domestic corporations with a revoked charter and franchise. Louisiana Health Plan Cessation Because of federal legislation that will soon prohibit health insurance providers in the individual market from denying applicants based on their preexisting health conditions, the Louisiana Health Plan, which currently exists to provide health coverage to those very parties, will cease enrollment and coverage by December 31, 2013, as long as there is at least one individual health insurance company authorized to provide coverage as of January 1, 2014. Act 325 enacts La. R.S. 22:1201 (H), 1205 (C)(7), and 1215.1, and repeals 22:1209 and 1210. All claims for reimbursement from the Louisiana Health Plan for services provided must be filed by the earlier of (1) 180 days after the plan coverage ends on December 31, 2013, or (2) 365 days after the date of service giving rise to the claim. In addition, La. R.S. 1215.1 (A) provides that any action against the plan, the board, the employees of the plan, or any combination thereof shall be subject to a peremptive period ending on December 31, 2014, at which time the right to assert a cause of action shall be extinguished. 1215.1 (B) states that policyholders (continued on page 11)
page | 11 (continued from page 10)
or providers must make all appeals within the guidelines of the policy, and no appeal may be commenced after September 30, 2014. Protection for Newborns Act 159 amends La. R.S. 40:2022 to require hospitals to offer pertussis (whooping cough) vaccines to parents of newborns rather than just providing information regarding pertussis, as previously required. If the parent or parents decline the vaccine, the hospital “shall provide” educational information issued by the Department of Health and Hospitals on the pertussis disease. The hospital is not required to offer the vaccine to any person who has already received it or to anyone for whom it would be medically inappropriate, however. In addition, Act 407 adds La. R.S. 40:1300.363 to require all birthing facilities to conduct pulse oximetry screening, a non-invasive test that estimates the percentage of hemoglobin in the blood, in order to detect congenital heart defects and critical congenital heart disease, unless the screening is prohibited by the parent or guardian of the newborn. Requirements for a physician performing an abortion La. R.S. 40:1299.35.1 now requires that a physician performing an abortion be licensed to practice in Louisiana and to have completed (or be enrolled in) a residency in obstetrics and gynecology or family medicine. Additionally, any outpatient abortion facility that knowingly or
negligently employs or contracts with a person who does not meet these requirements is subject to having its license denied, non-renewed, or revoked by the Department of Health and Hospitals. La. R.S. 1299.35.2 provides that the physician administering drugs or chemicals to induce the abortion must remain “in the same room and in the physical presence of the pregnant woman when the drug or chemical is initially administered or dispensed.” Finally, La. R.S. 40:1299.35.19 indicates that, in addition to fines and possible imprisonment, a violation of these new laws may result in a civil malpractice case, including one filed by the woman on whom the abortion was performed. Class actions Act 254 amends Code of Civil Procedure Articles 591 and 592 to further clarify the prerequisites for a establishing a class action. Article 591 A(5), which provides that a class “is or may be defined in terms of ascertainable criteria, such that a court may determine the constituency of the class for purposes of the conclusiveness of the judgment that may be rendered,” has been amended to indicate that this prerequisite is not satisfied “if it is necessary for the court to inquire into the merits of each potential class member’s cause of action to determine whether an individual falls within the defined class.” Article 592 A(3) has also been amended to add subsection (b), which provides that the proponent of the class “shall have the burden of proof to establish that all requirements of Article 591 of this Code have been satisfied.” n
Focus on the Firm in America Honoree 2013 Curry & Friend, PLC would like to congratulate its Managing Partner, Guy C. Curry, selected following an exhaustive and rigorous peer review survey for inclusion in the 2013 edition of The Best Lawyers in America® in the practice area of Medical Malpractice Law - Defendants. This annual, advertisement-free publication has been described by The American Lawyer as “the most respected referral list of attorneys in practice.” We applaud this professional achievement, and celebrate Guy’s accomplishment and success. n
page | 12
PRACTICE Pointers to produce the documents that you plan to rely on either to prosecute your case or defend against the other party’s claims.
A Primer on eDiscovery – Part III Susan R. Laporte Partner In this issue, we continue a series of short articles on eDiscovery. We hope you find these discussions informative and useful.
In Part One of this eDiscovery series, we reviewed your first tasks in managing eDiscovery: “Locate” and “Identify” the possibly relevant discoverable electronically stored information (“ESI”), by assembling an eDiscovery Response Team and identifying your document Custodians. Part Two in this series addressed your next critical step: “Preserve” the ESI. This article addresses the third, and possibly most challenging, task in eDiscovery: “Production” of materials responsive to discovery requests or necessary to prove your case or defense. REVIEW & PRODUCTION OF ESI By now, you’ve located, identified, assembled and preserved all possibly relevant ESI. But how do you go about determining what portion of that ESI is relevant to the claims and issues in a particular lawsuit? How do you go about identifying privileged materials and shielding them from production? And, is the very process you use to identify and produce documents in itself discoverable, or is it something you would prefer to shield as work product? The process of producing electronic documents is rife with all of these issues. If you’re in federal court, Federal Rule of Civil Procedure 26(a) requires that you must promptly identify or produce ESI, documents and tangible things in your possession, custody or control that you may use to support your claims or defenses. State courts may have a similar rule, but as every litigator knows, even without a specific rule, you need
Anyone familiar with production of paper documents has had the experience of reviewing sometimes voluminous client files, followed by the eventual identification and copying of those documents that you and your legal team consider “relevant,” and the withholding or protection of documents that are deemed privileged. The difference between production of paper documents and the production of ESI lies in both the volume of potentially relevant or responsive materials, and the “intangible” or electronic nature of the documents. You can’t put your hands on them and divide them into stacks, or put sticky tags on them, or pull some from a folder and leave others behind. Those processes now have to be done through an equivalent electronic procedure. Two main methods have emerged to assist the practitioner in review and production of ESI: (1) the “Key Word Search” and (2) Predictive Coding. This article will discuss the use of the “Key Word Search” and our column next month will discuss the use of Predictive Coding. Whether you use a Key Word Search or Predictive Coding, you will want to be sure that the jurisdiction in which your case is being tried approves your chosen methodology. Most courts have adopted and approved of key word searching; not all have embraced predictive coding. The production of ESI differs from the production of paper documents in another fashion: the “format” in which the materials will be produced. A paper document is produced as another paper document, i.e., a photocopy. But ESI may be produced in several different formats: • “Native” form indicates production is in the electronic format, i.e., in the format that your computer system uses to store and retrieve electronic data. The USDC for the District of Maryland defines Native Files as “ESI in the electronic format of the application in which such ESI is normally created, viewed, and/or modified.” • Another form would be hard or printed copies of electronic documents. For example, an email message could be printed out, and the printed page would be produced. • Still another form would be to print electronic documents, then scan them back to pdf format for production. (continued on page 13)
page | 13 (continued from page 12)
The trend appears to require that the data be produced in the form in which it is ordinarily used in the course of business. See Covad Communications Co. v. Revonet, Inc., 254 F.R.D. 147 (D.D.C. 2008)(Defendant required to produce its e-mail in their native format; defendant did not print out its e-mails in the course of daily operations, and they could be copied and produced in native format with a couple of key strokes). The Federal Rules of Civil Procedure (“FRCP”) provide that the parties may agree upon the form in which ESI shall be produced, and that only one form of production is required. See FRCP Rule 34 (b)(2)(E)(iii). Faced with these variables, you and your opponent need some ground rules for how to conduct eDiscovery. In federal courts, these ground rules are decided through a process known as the “Meet and Confer.” Meet and Confer Federal Rule of Civil Procedure Rule 26(f) requires parties to confer about preserving discoverable information and to develop a proposed discovery plan addressing, among other points, discovery of electronically stored information (ESI) and the form or forms in which it should be produced. This conference, and the overall exchange of information about electronic discovery, has come to be called “Meet and Confer.” The Meet and Confer allows counsel to discuss a number of important eDiscovery topics, including: • The type of information technology systems in use and the persons most knowledgeable in their operation; • The Preservation of electronically stored information that may be relevant to the litigation via litigation hold or regular retention systems; • The scope of the electronic records sought (i.e. e-mail, voice mail, archived data, back-up or disaster recovery data, laptops, personal computers, PDA’s, deleted data); • The format in which production will occur (will records be produced in “native” or searchable format, or image only? Is metadata sought?); • Whether the requesting party seeks to conduct any testing or sampling of the producing party’s IT system; • The burdens and expenses that the producing party will face based on the Rule 26(b)(2) factors, and how they may be reduced (i.e., limiting the time period for which discovery is sought, limiting the amount of hours the producing party must spend searching, compiling and reviewing electronic records, using sampling to search, rather than searching all records, shifting to the producing party some of the
production costs); • The amount of pre-production privilege review that is reasonable for the producing party to undertake, and measures to preserve post-production assertion of privilege within a reasonable time; and • Any protective orders or confidentiality orders that should be in place regarding who may have access to information that is produced. Hopson v. Mayor & City Council of Baltimore, 232 F.R.D. 228, 245 (D. Md. 2005).
Two federal district courts have issued guidelines outlining counsel’s “Meet and Confer” responsibilities with respect to ESI. See “In Re: Electronically Stored Information” by the U.S.D.C. for the District of Maryland and “Guidelines for Discovery of Electronically Stored Information (ESI)” by the U.S.D.C. for the District of Kansas. Both of these references are publicly available. The District of Maryland’s document also includes a list of the instructions to be included in a litigation hold notice. In addition to the foregoing list of matters that the Hopson v. Mayor & City Council of Baltimore court considered necessary topics for the “Meet and Confer,” the U.S.D.C. for the District of Maryland adds the following (some of which it recommends for exchange prior to the Meet and Confer): • Information relating to the network design, types of databases, database “dictionaries,” access control list, security access logs, rights of individuals to access the system and specific files and applications, the ESI document retention policy, an organizational chart for information systems personnel, of the backup and systems recovery routines, including but not limited to, tape rotation and destruction/overwrite policy. • Preservation of ESI during the pendency of the lawsuit; • Post-production issues regarding privileges; • Identification of ESI that is not “reasonably accessible” without undue burden or cost, and the anticipated costs and efforts involved in retrieving that ESI.
(continued on page 14)
page | 14 (continued from page 13)
These lists, alone, provide ample evidence that the world of eDiscovery presents many challenges not found in the realm of paper document production. Although a state court may not have adopted rules requiring that opposing counsel Meet and Confer about the production of ESI, it is useful nonetheless to consider whether it may be to your advantage to address these issues with your opponent at the start of the discovery process, rather than find out later that there were unaddressed ESI issues that could have resulted in a different production outcome. MASTERING THE TECHNICAL CHALLENGE: or “SO MUCH ESI, SO LITTLE TIME!” “De-Duplication” or Know When To Call In The Experts! The thorough search of ESI may require assistance of a “forensic computer specialist,” i.e., an expert. A specialist can assist you in filtering data, producing an authentic electronic “native format” duplicate, and “de-duplicating” data to eliminate redundant copies of materials. If you’re wondering about “de-duplicating”, just ask yourself how many people received a copy of the last policy memo that you distributed. If several of those people are on the list of key “custodians” with respect to a particular claim, then your e-mail attaching that memo may occur multiple times in the preserved ESI. De-duplication and creation of an authentic copy of your ESI without the redundant exact duplicates will spare you the need to review that same e-mail multiple times. Explaining the processes by which de-duplicating is accomplished falls within the realm of computer experts. When you need one, hire one. As someone once said, the only thing more expensive than hiring the right expert is hiring, or relying on, an amateur. Using “Key Word” Searches Searching documents for “Key Words” is a long-standing method for review of electronic documents. This process comes with more pitfalls than many attorneys care to acknowledge. It also requires powerful software capable of text recognition. As mentioned above, the text must also be “searchable” or converted by a process known as “OCR” into searchable text. Many electronic documents are not “word-searchable.” They may exist in a format that does not allow the content to be searched as text. Again, a good eDiscovery vendor may be able to help you overcome that hurdle. The more invidious trap of “Key Word” searching is that OCR stands for “Optical Character Recognition.” 1 eDiscovery & Digital Evidence, Section 8.3 (WestlawNext).
documents may not contain those “Key Words” you decided would be clues to the relevant materials. The variety and ambiguity of language is truly staggering, and the writers and creators of electronic documents are often less precise in their use of language than we, the reviewers, may wish. A critical message attaching a critical document may say only: “Per our discussion over lunch.” No one will be Key Word searching for “lunch” unless there is some other reason a lunch meeting or event was particularly relevant. Or the message may be simply: “as we discussed…”. If you’ve ever tried a Key Word search in a database to locate a document that you authored personally, you may have been surprised to find just how cleverly your message did not say anything that would later be considered “key” for purposes of document and information retrieval. In addition, misspellings, variations, and abbreviations can complicate this seemingly straight-forward search methodology. Certain eDiscovery vendors offer free publications, including suggestions regarding Key Word searching. Those vendors can also be helpful in developing Key Words that may be most effective in filtering the ESI for relevant materials and those responsive to discovery requests. A Key Word search for names of counsel may, for example, help you identify documents that are potentially privileged. Other forms of searching may again require an expert’s assistance. These other methodologies include: (a) conceptual search; (b) probabilistic search models; (c) “fuzzy” search models; (d) clustering; and (e) concept and categorization. We’ll take a look at these alternatives and the search methodology known as “Predictive Coding” in Part Four of this series. Know When To Call In The Experts! Yes, although this is already mentioned once above, it bears repeating: know when to call in the experts. Both litigant and counsel need to know when to obtain assistance in this very technical field of endeavor. After all, most of us are now accustomed to relying on “IT” personnel as a routine part of our business. In fact, your regular in-house “IT” personnel may be the one who can best assist you in these issues, or may, with training, become the one best suited for most “routine” eDiscovery issues. As with engaging any type of expert, experience will help you learn the type of expert that matters most to your particular project, and the costs that are reasonable. But when it’s time to “call in the experts,” it is probably better to do so than risk the sanctions for failing to meet your eDiscovery duties. n
page | 15
Labor & Employment Law Corner In this section, we will summarize recent developments in labor and employment law matters of interest to the environmental community.
labor force, as updated annually by OFCCP (currently 8%), as a benchmark, or may establish their own benchmark using a combination of data from the Bureau of Labor Statistics, Veterans’ Employment and Training Service and the contractor’s unique hiring circumstances.
FEDERAL CONTRACTORS’ MUST NOW SET GOALS AND TIMETABLES FOR HIRING VETERANS AND THE DISABLED Gerald “Jerry” J. Huffman, Jr. Partner In late September, the Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) issued final rules increasing affirmative action requirements and burdens on federal contractors and subcontractors. Previously, contractors were required to take affirmative action to hire and promote individuals in those groups but not required, as for minorities and females, to collect data regarding applicants, hires and promotions. But under the new regulations, federal contractors and subcontractors must: • Set a 7% Utilization Goal for Qualified Individuals with a Disability for each job group. If the contractor has 100 or fewer employees, the 7% goal applies to the contractor’s entire workforce, rather than each job group. OFCCP states that this is not a quota and failure to meet the disability utilization goal will not, by itself, constitute a violation of the regulation. However, OFCCP requires contractors to conduct an annual utilization analysis to find deficient areas and determine specific actions to rectify identified problems. • Establish Hiring Benchmarks for Veterans. Without setting a specific utilization goal for hiring veterans, OFCCP will require federal contractors to establish hiring benchmarks each year for protected veterans. Contractors may choose to use the national percentage of veterans in the civilian
• Collect and Retain Comparison Data on Disabled and Veteran Applicants and Employees. Contractors and subcontractors must now document the number of disabled workers and veterans who applied for jobs and the number hired. The data must be compiled annually and retained by the contractor for three years in order to track trends and measure outreach efforts. • Ask Applicants and Employees to Self-Identify as Individuals with a Disability and as a Veteran. Employers must invite applicants at both the pre-offer and post-offer stage to self-identify themselves as individuals with a disability and as veterans. Invitations must also be sent to current employees to self-identify at least every five years. The OFCCP offers sample self-identification language. • Mandated Equal Opportunity Clause in Subcontracts. Contractors must include specific language to incorporate the equal opportunity clause into subcontracts so that subcontractors know their responsibilities as federal contractors. • Provide OFCCP Access to Records. Contractors must allow OFCCP to review documents related to a focused review or compliance check either on-site or off-site, at OFCCP’s option. OFCCP can request that contractors reveal all formats in which they maintain records and then request the records in whatever format OFCCP chooses. Compliance May Be Complicated To comply with these new regulations, employers are required to ask whether applicants and employees consider themselves to be disabled so it can be known whether they have met the 7% “goal” by workgroup. An applicant is not going to be required to answer the question. Studies have shown that only about 50% of those with disabilities are likely to self-identify. To overcome this reluctance, the OFCCP suggests that employers designate individuals as disabled, even if they decline to self-identify, where the disability is obvious or the employer knows about the disability. Such a designation creates a risk that an (continued on page 16)
page | 16 (continued from page 15)
employer could be subject to a discrimination claim under the Americans with Disabilities Act that it had regarded an employee as disabled, even if in fact no disability existed To minimize exposure to such claims, employers should take care to keep all such designations strictly confidential from supervisors and managers. Clearly, such data could be grossly inaccurate. But the OFCCP has stated, in the preamble to the new rules, that even inaccurate data which greatly underreports the number of disabled applicants and employees will still assist the contractor and the OFCCP to evaluate the contractor’s hiring and selection process. Effective Date of the Disability and Veterans Affirmative Action Final Rules The new requirements become effective on March 24, 2014 for all annual plans starting after that date. Accordingly, if an employer’s current plan is in effect at that time, it need not comply with the new regulations until the next cycle of their affirmative action plan. For veterans, the affirmative action obligations apply to employers with federal contracts and subcontracts that exceed $100,000 in value. The contracttriggering level for coverage under the rules concerning disabled persons is $10,000. Further information can be found at the OFCCP’s website: http://www.dol.gov/ofccp/. n
Health Care Legal Team Contributors Guy C. Curry Managing Partner, New Orleans email@example.com Susan E. Henning Partner, New Orleans firstname.lastname@example.org Gerald “Jerry” J. Huffman, Jr. Partner, Covington email@example.com Susan R. Laporte Partner, New Orleans firstname.lastname@example.org Lucie E. Thornton Partner, Covington email@example.com Heather M. Valliant Partner, New Orleans firstname.lastname@example.org Meredith M. Miceli Partner, New Orleans email@example.com