People trust doctors and hospitals to take care of their health issues.  When someone in the medical community makes a mistake, it can seriously affect a person’s quality of life.  In Louisiana, in order to sue for medical malpractice, a plaintiff must prove what standard of care should have been provided, that the doctor somehow violated that standard, and that by doing so, the doctor caused the plaintiff’s injuries. La.R.S.9:2794.  If the problem with the doctor’s care would not be obvious to the average person, the plaintiff must use an expert witness to prove the claim.  See Pfiffner v. Correa , 643 So.2d 1228

In order to prove a claim of medical malpractice, one generally needs the help of an expert.  A recent decision by the First Circuit Court of Appeals  provides some insight on how this should be done.  In late October 2010, Danny Penn went to a Dr. Luikart at Our Lady of the Lake Regional Medical Center to deal with fevers and other medical problems after a colonoscopy.  He was admitted to the hospital and sent home a few days later.  He was treated with strong antibiotics such as Gentamicin, and this treatment was to continue while he was at home.  A few weeks later he began to experience lengthy periods of dizziness and nausea.  Because of these issues, Mr. Penn was taken off the antibiotic.  Eventually he was diagnosed with Dandy’s Syndrome, a condition of the ear that causes severe issues with balance and often dizziness to the point of disability.   In 2011, Mr. Penn sued the medical services company that had provided the prescribed antibiotics through infusion at his home.  Around that time, a medical review board found no evidence that the doctor or the hospital had failed to provide the necessary care.

In 2013, Mr. Penn filled a petition adding the doctor and hospital to the lawsuit while alleging that he had been prescribed an overdose of the Gentamicin, causing his illness.  In response, the defendants filed a motion for summary judgment to end the case, arguing that Mr. Penn had failed to provide enough evidence to prove his claims.  In response, Mr. Penn argued that the doctors had indeed failed to provide the correct care, including as evidence affidavits from a different doctor and a pharmacist.  In opposition, defendants filed to have the court strike, or remove from the evidence, the affidavits, on the basis that the doctor that had made these claims was not qualified in that particular standard of care, being a cardiologist and not a hospital doctor.  They also argued that this was an argument not brought before the medical board and thus expanding the original claim.  The trial court agreed and struck out this evidence, thus making it impossible to carry on with this argument. As such, the defendants were awarded the summary judgment.  Mr. Penn appealed to the First Circuit Court of Appeals.

Litigating an issue once is a difficult and time consuming process in itself, and having to do so twice would be an unbearable and unfair burden which is the reason for the existence of the doctrine of res judicata. It serves the courts purposes of fairness and efficiency by preventing the relitigation of matters previously litigated and decided on as well as those that should have been raised and litigated in a previous lawsuit. The application of this doctrine is a complicated and lengthy one but the Second Circuit when reviewing a trial courts application of the doctrine in a lawsuit involving teacher Kamithia D. Penton as plaintiff and the Caddo Parish School Board (CPSB) as defendant (with others) was able to do so whilst also addressing a few of the doctrines exceptions.

The lawsuit itself arises out of an injury suffered by Ms. Penton when escorting a bipolar, disruptive and violent student to the school’s office. The injury took place after Ms. Penton had already urged principal Pamela Bloomer to remove the child from the school due to the danger he posed to the staff and other students. Ms. Penton, on October 12, 2011 filed a lawsuit against the child’s divorced parents; Ms. Bloomer and; the CPSB in its capacity as Ms. Bloomer’s employer seeking damages for her personal injuries. State Farm was later added as as a defendant, as the insurer of each parent. In response to the lawsuit CPSB and Ms. Bloomer filed a motion for summary judgment asserting Ms. Penton could not establish an intentional tort and that all of her recovery was in workers compensation and that she had in fact already made the workers compensation claim and received full benefits.

The motion was granted as to all parties except the father and his insurer, who asserted the affirmative defense of the payment of workers compensation benefits. CPSB then sought intervention to recover the sums already paid and any future sums they may have to pay on Ms. Penton’s behalf. In response Ms. Penton filed the exception of Res Judicata as set forth in La. R.S. 13:4231 stating that the intervention sought to present a claim which CPSB was obligated to bring prior to the dismissal as a compulsory pleading. Before the exception was heard in court on June 16, 2014, a settlement was reached regarding the liability of the father and his insurer for Ms. Penton’s injuries. The claims were dismissed “with prejudice, reserving any and all rights” as they relate to claims by Ms. Penton between her and the CPSB.

Plaintiff Richard Reynolds sustained injuries in a multi-vehicle accident on March 15, 2008, in St. Tammany Parish. Reynolds alleged, amongst other counts, that his insurer, Automobile Club Inter-Insurance Exchange (ACE) and Insurance Auto Auctions Corporation (IA) failed to preserve Reynolds’ vehicle for inspection purposes to determine whether any defects existed, despite being put on notice of the need for preservation. ACE and IA defended themselves by stating there was “no cause of action” for what Reynolds was attempting to sue for, and the Supreme Court of Louisiana granted certiorari, or an order to review the decision of the lower court, to definitively rule on the viability of negligent spoliation of evidence as a cause of action in Louisiana.

Reynolds claimed that both ACE and IA did not preserve Plaintiff’s car despite the fact that they knew of the lawsuit.  Reynolds stated that the defendants knew a lawsuit was going to be filed and therefore had a duty to retain the vehicle in the condition in which they received it.

Negligent Spoliation of evidence, as argued by the Plaintiff, Richard Reynolds, is a claim for recovery due to defendants owing the plaintiff a duty to preserve, maintain, and to refrain from any alienation or destruction of Plaintiff’s vehicle for purposes of his litigation.

When a person dies due to the fault of another, such as in a car accident, the surviving family may seek compensation for their loss by filing a wrongful death claim in civil court. A wrongful death claim is similar to a personal injury claim in which the injured person is no longer available to bring his own case to court. However, if a judge decides that no real facts or evidence support the all the claims within a wrongful death lawsuit, certain claims can be dismissed early on saving both parties and the court from incurring litigation costs for meritless claims. This is what happened to Nancy and Zachary Miller when they filed a wrongful death claim after their son was killed in a tragic accident.

In July 2012, Lafource Parish bicyclist, Ethan Miller, was struck and killed by a vehicle driven by Brent Tauzin. The circumstances surrounding Ethan’s untimely death are undisputed. After spending all day drinking at Lake Verret, Brent and Monica Tauzin (his wife) returned to their home. Upon arriving at their home, Brent told his wife that he was hungry, and she agreed to get him food after she had taken a bath. However, while she was bathing, Brent grew impatient to eat fast food and took the keys to their car from the kitchen counter to go to Burger King. On the way to Burger King, Brent was involved in Ethan’s fatal accident. Brent was arrested the same night for driving while intoxicated, and subsequently pled guilty to negligent homicide.

Ethan’s parents, Nancy and Zachary Miller (the Millers), decided to pursue a claim in civil court and filed a wrongful death suit, naming several defendants: Brent and Monica Tauzin, as well as their car insurer, Allstate Insurance Company, and their home insurer, ASI Lloyds. The Millers argued that Monica had assumed responsibility of her husband by driving him home and failing to secure the car keys when they had arrived home constituted a breach of her duty to prevent her intoxicated husband from driving. In response, Monica filed a motion for summary judgment, stating that she did not breach a legal duty owed to the Millers’ son, nor did she contribute to her husband’s accident. The lower court dismissed the case against Monica, granting Monica’s motion for summary judgment, and the Millers appealed the decision.

Karen and Joe LeBlanc brought a medical malpractice action against Dr. Rezaul Islam. A medical malpractice claim is a specific type of negligence claim in which the plaintiff alleges that a doctor or medical professional failed to act with the level of care they are duty-bound to provide, and that the plaintiff was harmed by the failure.

In July 2007, Karen told Dr. Islam of intermittent pain in her chest, progressively spreading down her arms. Dr. Islam ordered blood work and various tests, which indicated that Karen had a heart attack in the last two years. Dr. Islam recommended a surgical procedure on her left heart, as well as some exploratory surgery: a carotid angiogram and vertebral angiogram. He explained this to Karen, who agreed and signed the consent form. The consent form listed the carotid angiogram, but did not mention the vertebral angiogram. The form explained possible risks of the procedures, including stroke in rare cases.

After the carotid angiogram, Karen was nauseous and vomited. She said that she was alert, and she appeared to have full control over her limbs. Dr. Islam administered a drug for the vomiting. By 1:00 p.m., Karen said she felt better and was no longer nauseous. Her neurological exam indicated that she was normal. Dr. Islam declared her stable and sent her home, telling to return in the morning for follow-up, and to call anytime if there was a problem.

Mental and physical disability is a trying issue for families that can cause incredible stress, especially when the person suffering from these infirmities is unwilling or unable to recognize their condition.  Further, when the person is mentally unable to manage their health, personal, financial, and business affairs, legals steps must be taken to protect those interests and counsel from an excellent lawyer can mitigate some of the pain and stress such a situation can cause a family.  The Foster family faced just such a situation when Mrs. Patricia Foster suffered a ruptured brain aneurysm during surgery and as a result of brain injury no longer was able to live independently, care for herself, or make sound personal and financial decisions.  Her husband, Mr. Billy Joe Foster, thus sought a full interdiction so that he could make legal decisions on her behalf.  The trial court took testimony from Mr. Foster’s doctors and her family members and ruled that full interdiction was warranted.  Mrs. Foster appealed and the Louisiana First Circuit Court of Appeal upheld the full interdiction order.

An interdiction in Louisiana is a process whereby a concerned party requests that a court holds hearings to determine whether a person is unable to make reasoned decisions about personal and property matters.  If a court finds that interdiction is warranted, the court will appoint someone to make decisions for them.  A full interdiction is warranted when a court determines that the person in question is unable to competently make decisions about their personal affairs and their property.   “A court may order the full interdiction of a natural person of the age of majority, or an emancipated minor, who due to an infirmity, is unable consistently to make reasoned decisions regarding the care of his person and property, or to communicate those decisions, and whose interests cannot be protected by less restrictive means.  LSA-C.C. art. 389.  Essentially, a court will look to testimony of family members and doctors to determine whether a medical or other condition renders a person unable to make decisions in a reasoned manner, placing their interests at risk.  The person petitioning the court for the interdiction bears the burden of proving the interdiction is necessary by clear and convincing evidence.  LSA-C.C.P. art. 4548.

After Ms. Foster suffered the ruptured brain aneurysm, her family felt that she had become a different person and was acting strangely and illogically.  She began acting unreasonably and became fixated upon a man she knew from her past but had not spoken to in over fifty years.  Mr. Foster and their three sons all supported the interdiction based on these allegations because they had all seen the changed behavior in a formerly stable and reasonable person.  Mrs. Foster’s brother and sister also testified that Mrs. Foster had become an irrational person and supported Mr. Foster as consistently acting within her interests, thus making him a suitable legal guardian.  Further, Mrs. Foster’s physicians also supported interdiction.  Mrs. Foster’s medical psychologist testified that Mrs. Foster had admitted to trying to jump out of a moving car on two separate occasions.  The doctor testified that Mrs. Foster consistently acted illogically and that her obsession with a man from her past was delusional and a result of her condition.  A court appointed doctor who evaluated Mrs. Foster also came to the same conclusions and did not believe that Mrs. Foster would be able to live independently.

In Louisiana as in other U.S. states, the doctrine of res judicata – literally “a matter judged” – prevents parties from re-litigating a matter once it has been adjudicated on the merits by a competent tribunal. This prevents prolonged litigation of cases which have been purportedly concluded, thus avoiding an unnecessary waste of time and money. Although for res judicata to apply a judgment must be “final” and adjudged “on the merits,” a settlement agreement in Louisiana is res judicata between the parties and is accorded the same effect as a final judgment. (See Louisiana Workers’ Comp. Corp. v. Betz, 792 So.2d 763, 766 (La. Ct. App. 2001)). In other words, the signing of a settlement agreement can preclude parties from litigating matters specified as settled in the settlement. It goes without saying that parties should be cautious when signing settlement agreements. Illustrative is a case from the Louisiana First Circuit Court of Appeal.

On October 10, 2005, Joseph Brown was injured in a logging accident while in the course and scope of his employment with AM Logging in Tanigipahoa Parish.  Mr. Brown filed a disputed claim for compensation on October 19, 2005 against the appellees in this case, AM logging and its claims administrator, Alternative Service Concepts, L.L.C. On July 14, 2006, AM Logging submitted a report to the Office of Workers’ Compensation (“OWC”), listing injuries to Mr. Brown’s collar bone, left ribs, and back. On July 24, 2009 – almost four years after his original disputed claim – Mr. Brown filed a second disputed claim listing injuries to his shoulder, ribs, back, chest, and neck.

After a hearing on Mr. Brown’s first disputed claim for compensation, the OWC held that Brown sustained a compensable work-related injury in the course and scope of his employment with AM Logging. It also found that Mr. Brown was permanently disabled with no reasonable possibility of rehabilitation through training or education, such that he could attain suitable and gainful employment. In its judgment of March 29, 2010, the OWC ordered AM Logging to pay Brown permanent total disability benefits of $121.00 per week, retroactive to December, 7, 2008 and continuing. It also ordered AM Logging to pay Brown $5,000.00 in penalties and attorney fees.

When seeking legal relief, plaintiffs will face procedural hurdles during litigation. Defendants can and will often use procedural mechanisms to avoid liability for claims brought against them. This is the nature of the game, and skilled attorneys are masters of the rules governing the conduct of civil trials. Procedural law differs from substantive law (i.e. torts, contracts, property) in that the former provides the rules for applying substantive law for live disputes. Procedural mechanisms set guidelines for what evidence the court may hear, how evidence should be interpreted, and burdens of proof. One such procedural mechanism commonly used by litigants is the “motion for summary judgment.” A recent decision of the Louisiana First Circuit Court of Appeal discusses the motion for summary judgment and the requisite burdens of proof for parties filing or opposing such motions.

On March 11, 2006, a tanker truck belonging to John Williams was delivering fuel to Mr. Preston Payton’s dredging operation near Independence, Louisiana when it picked up a cable securing the dredge in the gravel pit. The dredge sunk beneath the murky water. Mr. Payton filed a lawsuit against named defendants Mr. Williams; Republic Vanguard Insurance Company, Mr. Williams’ insurer; Texas General Agency, Republic Vanguards adjusting agency; and Randy Anny, who leased the gravel pit where the accident took place. Mr. Payton’s Petition claimed that the defendants entered into a settlement agreement with him and agreed to pay him $256,714.86 as replacement for his dredge. Mr. Payton’s Petition also claimed that instead of paying him directly, Republic Vanguard and Texas General made the settlement check payable to Mr. Anny, who was obligated to pay Mr. Payton. According to Mr. Payton’s petition, the check used by Mr. Anny to pay him was drawn from an account with insufficient funds.

The Trial Court granted Republic Vanguard’s and Texas General’s motion for summary judgment which alleged that Mr. Payton failed to produce sufficient evidence showing that Mr. Anny acted as their agent. Mr. Payton appealed.

In 2012, an independent contractor, Charles Kamrath, contracted with Creek Services, LLC to move one of their bulldozers. Kamrath had previously moved the same bulldozer with his trailer without any complications. On February 24th of 2012, Kamrath loaded the bulldozer to his trailer and commenced the transportation to Hammond, Louisiana. Unfortunately, the flatbed from the trailer detached and struck an oncoming car driven by Alice Lewis on Cullom Road in Springfield, Louisiana. The impact resulted in severe injuries to Lewis and she subsequently died shortly thereafter.

Lewis’ family, the plaintiffs, filed a wrongful death lawsuit in Livingston parish against not only Kamrath and Creek Services, but also their insurance companies Allstate and Houston Specialty. The defendants, Creek Services and Houston Specialty, claimed that Creek Services was not vicariously liable (which means they argued they were not responsible for the acts of Kamrath) for the wrongful death of Lewis under the doctrine of respondeat superior. In plain English, the defendants sought to release Creek Services of any liability because of a lack of an employee/employer relationship between Kamrath and Creek Services. In cases such as this one, whether a worker is labeled as an independent contractor or an employee is incredibly important. Such a determination is a question of fact, and different liabilities attach under each label. If Kamrath is an employee, then the doctrine of respondeat superior says that the employer, Creek Services, will be liable for damages, while Kamrath will be released of it. See La. Civ. Code art. 2320.  If, however, Kamrath is an independent contractor (the determination of which is made through a variety of court imposed factors listed below), Creek Service’s liability will be severed, and Kamrath will be the party solely responsible for the plaintiffís incurred damages.

An exception to the lack of liability on the part of the employer exists even if the worker is determined to be an independent contractor.  See Triplette v. Exxon Corp., 554 So.2d 1361, 1362 (La. App. 1st Cir. 1989). This exception states that the employer may be held liable if it maintains operational control over the activity in question. The most important aspect is whether the employer retained the right to exercise control over the work. Thus, actual control is not necessary. In the determination of whether an independent contractor relationship exists, courts have routinely examined the following factors: a valid contractual relationship between the parties; work is of an independent nature; the contract allows for the work to be done per the contractor’s methods without any control or direction from anyone else; an agreed upon price for the services; and the duration of the work is for a specific amount of time and not subject to termination at will by either of the parties.

Throughout the last century asbestos was used in many products as an insulator from heat.  Countless workers in the 1940s, 50s, 60s and beyond were exposed to asbestos fibers as part of their daily work.  Those fibers can lie dormant for decades prior to forming mesothelioma cancer that then can metastasis throughout the body.  Once mesothelioma is discovered typically a lawsuit follows in which every possible workplace in which the person was exposed is included as a defendant.  However not all defendants will remain in the lawsuit until trial.  Some will get out by filing motions in which they argue the facts do not support their inclusion in the proceedings.  The following mesothelioma lawsuit out of Shreveport shows what happens when the facts of a case do not support the Plaintiff’s allegations as to certain parties fault.

An employee of Parish Caddo sued his employer after being diagnosed with Mesothelioma in 2013 due to asbestos exposure. William H. Jordan alleged that his employer, R. F. Zimmerman & Company, Inc., was negligent or strictly liable for withholding knowledge of the dangers of asbestos exposure, failing to provide a safe work environment, and failing to protect him from the unreasonably dangerous conditions created by the asbestos on its premises and within its care, custody, or control.

Jordan also joined Progressive Care Center (“PCC”), A/K/A Virginia Hall Nursing Home, among others, as one of the defendants on whose premises he did jobs for. Jordan subsequently died a mere month after he filed his lawsuit. His immediate family was substituted as plaintiffs and asserted survival and wrongful death actions against the defendants. Prior to his premature death, Jordan alleged in a deposition that he worked part-time for Zimmerman during the 1950s and early 1960s, helping his friend James Yates with asbestos installation jobs. The work at the then Virginia Hall Nursing Home involved covering water lines during the construction of the building. The pipes were wrapped with a one-piece asbestos covering that was slit down the middle so it could be fitted around the pipes. Jordan further stated that the materials were already there when he began the job and that he did not see any Virginia Hall employees or take directions from anyone while installing the pipes.