Supreme Court rules for hospital and doc in forum shopping claim

Steve Korris Oct. 27, 2010, 5:21am


Orleans Parish District Judge Sidney Cates kept a wrongful death case that belonged 300 miles away, the Supreme Court of Louisiana decided on Oct. 19.

All seven Justices transferred a claim against Lincoln General Hospital and physician Hao Nguyen to Lincoln Parish courthouse in Ruston.

"Both defendants and plaintiff reside in Lincoln Parish, all acts of alleged malpractice took place in Lincoln Parish, and the most important witnesses reside in or near Lincoln Parish," Justice Jeannette Knoll wrote.

"Given the lengthy distance and travel time between Ruston to New Orleans, the parties and witnesses would likely incur considerable expense and inconvenience if this case were heard in Orleans Parish," she wrote.

By declaring Orleans Parish inconvenient, Knoll avoided the knotty problem of deciding whether plaintiff Latisha Holland chose the wrong venue.

"Where venue is disputed, but one forum is clearly more convenient, a court may rule first on a forum non conveniens motion in the interests of judicial efficiency," she wrote.

Holland's daughter, Mar'Kirney, was born prematurely in 1999 with hydrocephalus, a pooling of spinal fluid in the brain.

Doctors at Tulane Hospital inserted a shunt to drain the fluid, and they adjusted the shunt at least twice in five years.

In 2004, Latisha Holland brought Mar'Kirney to Lincoln General emergency room.

Nguyen diagnosed a respiratory infection, wrote a prescription, and discharged her.

Mother and daughter returned the next day, and Mar'Kirney stopped breathing.

Lincoln doctors called Tulane doctors and arranged a transfer.

She died within 24 hours of arrival at Tulane.

In 2008, a medical review panel decided that neither the hospital nor the doctor breached the standard of care.

She sued the hospital and the doctor in Orleans Parish last year.

Lincoln General and Nguyen filed exceptions to improper venue and moved for transfer pursuant to forum non conveniens.

Cates overruled the exceptions and denied transfer.

Lincoln General and Nguyen petitioned Fourth Circuit appeal judges in New Orleans for supervisory writs against Cates, and the Fourth Circuit denied them.

Lincoln General and Nguyen appealed to the Supreme Court, where their lawyers argued their case on Sept. 9.

For Lincoln General, Robert Robison of Baton Rouge said nurses would have to travel 300 miles to testify and doctors would miss days of practice.

He called it a classic case of forum shopping.

Knoll asked if there were witnesses in New Orleans.

Robison said Holland listed some but their testimony would be irrelevant.

Knoll asked if the child had been in New Orleans for medical reasons throughout her life, and Robison said yes.

For Holland, Juan Tramontana of Monroe said the death made the venue appropriate.

He said he would need testimony from Tulane doctors.

Justice John Weimer said, "That's all kind of background testimony. They are not going to dispute any of that."

Weimer said critical testimony would come from the treating physician.

Tramontana said doctors in New Orleans would testify on the standard of care.

As Robison rebutted him, Knoll said, "Would you agree that when that child died, the mother suffered damages?"

Robison said yes.

Although Knoll appeared more receptive to Holland's case than her colleagues, she wrote the opinion granting the transfer.

Knoll wrote that Louisiana law presumes a plaintiff's own domicile is convenient.

She found little doubt that litigating in Orleans Parish would cause a significant burden on both defendants.

She wrote that medical panel review members Ken Miller, E.L. Edwards and Curtis Balius reside in north Louisiana.

She wrote that plaintiffs listed 33 witnesses in the New Orleans area but didn't show who they are, where they live or the subjects of their testimony.

"The convenience of the north Louisiana witnesses should therefore be weighted more heavily than the convenience of those witnesses who may testify as to background matters not directly related to the alleged malpractice," she wrote.

It didn't impress her that plaintiff experts live in New Orleans, for she perceived that lawyers could obtain jurisdiction anywhere by hiring a witness there.

"Allowing forum shopping of this sort could severely undermine the principal goals of the forum non conveniens doctrine," she wrote.

David Nelson of Monroe represented Nguyen.

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