Articles Posted in Pain and Suffering Claims

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A few months after being in a car wreck, the unthinkable happens, and as a result of the accident, your loved one passes away. As you are mourning the loss, you also have to start thinking about your legal options that stem from the crash and the possible avenues you have as a “survivor” of your loved one in order to receive some damages from the liable person. While this seems somewhat callous to talk about, especially in light of the pain you are already in from losing someone close to you, it is necessary to begin thinking about this somewhat quickly if you are going to actually be able to bring a survival action.

First, though, what exactly is a survival action? In simple terms, a survival action is an action for damages (an award of money) for injuries incurred by the deceased right before dying. You can think of a survival action as a lawsuit for injuries incurred that the actual deceased would have been able to bring had he or she not passed away. Since the decedent is not able to bring the suit himself or herself, the decedent’s estate has to bring the suit. This is typically a child or other close relative. (States will specify exactly which family members are allowed to bring a survival action in that state.)

Along with deeming who can bring a survival action, states also specify during what timeframe individuals are allowed to bring such a lawsuit. This is not because the state or the courts do not want individuals to be able to recover, but rather because a timeframe has to be set so that the liable individual does not have an indefinite period of time during which to worry about the possibility of a lawsuit.

If someone is barred from bringing a suit, it is referred to as “prescription.” If someone is “prescribed” from bringing an action, it means that they cannot bring that action. So when is someone barred from bringing a survival action?

In the state of Louisiana, the court and state statutes are pretty clear with regard to the allowable timeframe for bringing a survival action. According to the plain language of LSA-C.C. art. 2315.1, the proper individual can bring a survival action up until one year after the death of the injured person.

Recently one of the Louisiana appellate courts shed further light on this already rather straightforward area of the law. In that case, the defendant tried to argue (and was ruled in favor of in the district court) that the survivor of the deceased only had a year from the actual accident (rather than the death) in which to bring a survival action. The defendant even cited multiple cases in which this was the case; however, the defendant failed to notice the difference between the case at hand and the medical malpractice cases to which it was citing. The two are governed by different statutes.
The survivor also cited to multiple cases. In these cases, the court had affirmed that a survival action could be brought up to a year after the death of an individual and that the action was not automatically prescribed a year after the accident. One of the cases, Domingue v. ABC group, 98-657 (La.App. 3 Cir. 10/28/98), 720 So.2d 806, writ denied, 98-2905 (La.1/15/99), 736 So.2d 210, had very similar facts, and the court ruled in favor of the survivor. This was then again affirmed in some toxic materials exposure and work hazards case. In the case at hand, the deceased individual was involved in a car accident, which is governed by the same statutes as those other lawsuits and is not governed by medical malpractice statutes.

Ultimately, the appellate court found that the applicable statute was quite clear and that in Louisiana a survivor has a year from the date of the death of a loved one rather than from the date of the accident in which to bring a survival action provided that the action had not already been prescribed at the time of death.

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A case arising out of a St. Martin Parish accident has shed light on the responsibility placed on drivers following behind another vehicle. According to Journet v. Mouton out of the Court of Appeal for the Third Circuit, a driver following another vehicle must exercise great care. The case arose out of an accident where a man and his family swerved to miss a slowing sheriff’s deputy, crossed the center line, and slammed into a ditch on the other side of the road. The driver of the vehicle was severely injured and was left quadriplegic.

Reports indicate the deputy was responding to an emergency call but had missed the driveway and was slowing to turn around in another drive. The driver of the following vehicle, who was driving without a license, knew the officer knew him and knew he did not have a license. Therefore, the following driver deliberately chose not to pass the deputy and claimed there were no brake lights and no turn signal used by the deputy. However, the plaintiff’s wife contradicted this testimony, stating that she did see brake lights and a turn signal. The defendants filed for summary judgment, which was granted by the trial court and affirmed by the Court of Appeal.

To reach its decision, the court looked to relevant Louisiana statutes. Most pertinent amongst these is La.R.S. 32:81(A), which states a driver shall not follow another vehicle more closely than is reasonable and shall have regard for the speed of the other vehicle. The court also looked to a Louisiana Supreme Court interpretation of the matter, which held that it is the duty of the following driver to exercise a great deal of care and to keep a safe distance behind the lead car.

With these rules in mind, the court found the plaintiff knew the deputy’s car was moving slow because he had passed other vehicles and would have passed the deputy if it were not for his fear of being caught driving without a license. The duty of care was therefore on the plaintiff to drive far enough back so as not to create a risk of harm to himself and the driver in front of him. When he could not stop fast enough to prevent hitting the deputy and thus swerved out of the way, the plaintiff breached his duty of care. Thus, the deputy’s actions, whether brake lights and turn signal were working or not, were not the cause of the accident and summary judgment was upheld.

This case highlights the complexities imposed by car accident lawsuits. These situations often require a detailed accident investigation, thorough witness interviews, and close analysis of the statutes and case law that shape the legalities at hand. An experienced accident attorney can help a car accident victim decide the merits of his case and, if the case moves forward, can help the victim fight for the compensation he needs and deserves.

However, it is important to remember these lawsuits must be filed within a certain period of time. Therefore, legal advice should be sought promptly after being injured in a car accident.

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A recent case arising from occurrences in West Carroll Hospital considers the Louisiana and federal antidumping laws. In addition, it also explains the requirements for a case under medical malpractice. Several hospitals were involved in the case, but only two were actually involved in the suit. A woman who had serious kidney and urinary problems was admitted to West Carroll Hospital; however, once the hospital realized that they did not have the specialized equipment to treat her, they desperately tried to find somewhere to transfer her that did have the ability to help her. After several days of miscommunications, the woman died because they could not transfer her fast enough to address her medical issues. Her six daughters then attempted to find some kind of remedy against the hospitals for the wrongful death of their mother.

In Louisiana, La. R.S. 40:2113.4-2113.6, the “antidumping law,” requires hospitals to take patients who need emergency services and live in the territorial area regardless of whether they are able to pay for their care or if they have insurance. Federal law has the same type of requirement under the Emergency Medical Treatment and Active Labor Act. The Emergency Medical Treatment and Active Labor Act even specifies that hospitals cannot turn away patients who have Medicare or Medicaid, and hospitals cannot discriminate based on race, religion, economic status, or national ancestry.

The Emergency Medical Treatment and Active Labor Act further defines “emergency” as a “physical condition which the person in imminent danger of death or permanent disability.” The definition of “emergency services,” then, is “those services which are available in the emergency room and surgical units in order to sustain the person’s life and prevent disablement until the person is in a condition to travel.” Louisiana law requires that the patient be stabilized before they are moved to another facility. However, the Louisiana antidumping law does not permit a private cause of action. That is, an individual cannot sue the hospital for a violation of this law. Even if they could, however, the first hospital, West Carroll, admitted her without incident, so there would be no claim under the antidumping law.

However, federal law prohibits “reverse dumping” as well. The prohibition on reverse dumping requires that a specialized hospital “shall not refuse to accept an appropriate transfer of an individual who requires such specialized capabilities or facilities if the hospital has the capacity to treat the individual.” As a result, the plaintiffs, the patient’s six daughters, would have had a claim under the reverse dumping limitation. Unfortunately, the plaintiffs did not make an argument under federal law, so they could not claim a violation of the reverse dumping prohibition.

Next, the plaintiffs attempted to argue medical malpractice on behalf of both hospitals. In order to prove medical malpractice in Louisiana, they have to show 1) the standard of care required by the hospital; 2) that the hospital violated that standard of care; and 3) that there was a causal connection between the violation and the resulting injury. As a rule, because the average person does not understand the medical field, the appropriate standard of care is usually determined by expert testimony at trial. In this case, however, several experts testified and they were unable to determine not only the standard of care that would have been required, but they also could not pinpoint exactly what caused the patient’s death.

West Carroll admitted the patient, they transferred her to another hospital, Conway, because their superior services would be better able to stabilize her condition. However, once it became apparent that the patient would need surgery, they attempted to move her once again. They tried to get her into St. Francis, and St. Francis initially accepted her, but then later cancelled the acceptance because they did not have a bed open. But, there was some evidence that they actually did have a bed open, and they are unsure why the transfer was cancelled. The experts argued about whether she would have survived if they had not cancelled the transfer.

Both of the hospitals filed for a motion for Summary Judgment. Summary judgment is only appropriate where there are no fact discrepancies and one side could be granted a favorable result based on those facts. Since the court found that the experts did not agree on the cause, they sent the case back down to the lower court so that the lower court could make that determination. However, the court dismissed the claims based on the antidumping laws because there was no private right of action under Louisiana law.

It is important to know which laws allow a private right of action. In addition, diving into the facts to determine the actual cause of medical malpractice claims is equally significant.

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Doctors at the Women and Children’s Hospital in Lake Charles, Louisiana, botched Beverly Lebouef’s surgery in 2003. Eventually Lebouef sought legal advice and brought action against her surgeon. Much later in the pre-trial phase, arguably over a year later, she added a new doctor to his lawsuit who had helped perform one of the surgeries. The question is not about prescribed medication, but “prescription periods” and the accompanying rules.

In Louisiana, no action for damages for injury against any physician or hospital shall be brought unless filed within one year from the fate of the alleged act or negligence or within one year from the date of discovery of the alleged act or negligence. This period is considered a prescriptive period. Prescription commences when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort. A prescriptive period will begin to run even if the injured party does not have actual knowledge, but constructive knowledge. Constructive knowledge is whatever notice is enough to raise awareness and put the injured party on guard and call for inquiry. Such information that should reasonably put the alleged victim on notice is sufficient to start running of the prescription.

Nevertheless, a plaintiff’s mere apprehension that something may be wrong is insufficient to commence the running of prescription unless the plaintiff knew or should have known through the exercise of reasonable diligence that his problem may have been caused by acts of malpractice. The ultimate issue is the reasonableness of the patient’s action or inaction, in light of his education, intelligence, the severity of the symptoms, and the nature of the defendant’s conduct.

However, courts may find that the doctrine of contra non valentem applies. This doctrine is an exception to the general rules of prescription, which means that prescription does not run against a person who is unable to bring an action or a person who for some reason is unable to act. There are four situations in which the doctrine may apply, but let’s focus on the fourth one: (4) where the cause of action was not known or reasonably knowable by the plaintiff, even though his ignorance is not induced by the defendant. This last situation is the one applicable to most medical malpractice cases.

LeBouef’s botched surgery occurred in July 2003. On July 2, 2004, she filed a complaint against Dr. Chua, who had performed one of the surgeries. On November 14, 2005, LeBouef amended her complaint to add Dr. O’Donnell. By the plain reading of the medical malpractice statute, this would be outside the one year prescription period. However, the court held that the doctrine of contra non valentem applied, more specifically, situation number four.

The court found that LeBouef did not know of the cause of action until much later than July 2003. To court pointed to the fact that the surgery report makes no reference to the degree of Dr. O’Donnell’s assistance, even though he was much more than an assistant to the procedure. LeBouef claimed that given her multiple surgeries and following long recovery period, she did not become aware that she might have a medical malpractice claim until the spring of 2004, almost a full year later. She finally contacted an attorney in June of 2004 and by July 2, LeBouef’s attorney had filed a request for a medical review panel with Dr. Chua as the only named defendant. It was not until LeBouef’s attorney took Dr. Chua’s deposition on November 9, 2005 that she became aware of the extent of Dr. O’Donnell’s involvement in the second surgery to repair the problems that arose in the first surgery. Five days later, Dr. O’Donnell was added as a defendant.

Dr. O’Donnell argued that the one year prescription period had run based on the fact that LeBouef knew or should have known he was a participant in the surgery, especially since she hired an medical expert to review her files. Unfortunately, in Dr. Chua’s response to the claim filed against her, Dr. Chua did not point out Dr. O’Donnell’s involvement in the 2003 surgery. Since there was no information pointing to Dr. O’Donnell, LeBouef’s medical expert found nothing in his evaluation of the claim to suggest that anyone other than Dr. Chua has any potential liability. As a result, the prescription period did not start until later, arguably November 9th, for Dr. O’Donnell. Therefore, the appellate court upheld the jury verdict against Dr. O’Donnell and all of his appeals were dismissed.

This “time window” is a crucial aspect of medical malpractice claims and serves many purposes. If the prescription period rules were different, it would force malpractice victims to name every doctor on the medical record in order to satisfy the prescription requirement. This would create problematic public policy in that it would require a plaintiff to name any and every doctor not only on her medical record, but even doctors peripherally associated with the procedures. To deny a plaintiff the right to rely on the content of a medical record and require a blanket filing would be burdensome as well. Understanding your rights under the medical malpractice statute is half the battle, but financial hardship as a result of medical malpractice prescription technicalities can be prevented.

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Going to the hospital can be an unsettling experience. There are many ways treatment can go wrong and result in serious injury or death. Medical conditions can be misdiagnosed or wrongly diagnosed, wrong prescriptions or doses can be prescribed, and surgical errors can occur. When these mistakes happen and a medical malpractice lawsuit is filed against a doctor and hospital, the trier of fact must determine three elements in order to decide whether or not medical malpractice occurred, which often requires a careful examination of a doctor’s standard of care.

In a recent case heard by the Court of Appeal for the Second Circuit, Crockham v. Thompson, a woman filed a medical malpractice lawsuit against her mother’s doctor and hospital after her mother died from a brain hemorrhage induced by high blood pressure. According to the lawsuit, the mother had been paraplegic for 20 years and often suffered from bowel blockages. In this instance, the woman went to the hospital to have a blockage removed, but failed to get better after the operation was completed. The plaintiff took her mother back to the hospital where she was given oral medication for her high blood pressure, but she later suffered the stroke and her family chose to take her off life support.

In her wrongful death claim against the doctor, the plaintiff in this case claimed the doctor breached his duty of care to the deceased. The plaintiff claimed the blood pressure medication should have been given intravenously rather than by pill because the pill would have bypassed her mother’s non-functioning bowel. Also, the plaintiff suggested the standard of care had been breached because the doctor failed to make his daily round in the morning, failed to admit the patient to the ICU, and failed to develop a cardiovascular profile for the patient. The plaintiff supported her argument with the fact that the hospital’s medical board had found the doctor breached the standard of care. However, at trial, a jury found for the doctor and denied the plaintiff compensation. The Court of Appeal affirmed.

For a medical malpractice case to succeed, several factors must be proven. First, a duty of care must be proven and the standard of care must be established. Then, a plaintiff must show there was a breach of that duty of care and injuries resulted. If these elements can be established, then the plaintiff may receive compensation that can be used to pay medical expenses, lost wages, and compensate for pain and suffering. Yet, proving all of these elements can be quite difficult.

The reason why the ruling in Crockham v. Thompson was upheld is because the standard of care was properly assessed. Medical professionals are not held to a standard of absolute precision. Instead, doctors’ actions are evaluated by their reasonableness under the circumstances so long as they are in line with the knowledge and skill held under the ordinary care exercised by other licensed physicians in Louisiana. If the doctor is a professional, then the standard of care is evaluated based on the knowledge, skill, and reasonableness of an ordinary specialist in that field. After hearing testimony from several expert witnesses, the jury found the testimony of a family practice instructor at LSU to be persuasive. That testimony stated that the doctor gave the patient oral medication because the bowel blockage had been removed, the bowels sounded like they were working, a doctor’s daily rounds do not have to occur in the morning, and the medication created drops in the patient’s blood pressure thus alleviating the need to admit her to the ICU.

In many medical malpractice cases, expert witnesses are necessary to establish the standard of care and to evaluate whether or not that standard was upheld. An experienced attorney can help a client find reputable experts who will support his case.

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We’ve all been there: you’re running late for work, so you rush out the door and into your car. You drive ever so slightly above the speed limit, and all the traffic lights you come across are green. Fortune seems to be on your side. Suddenly, a car seemingly comes out of nowhere and hits you. Are you partially to blame because you were in a rush and drove over the speed limit? If you are liable, how does it affect your ability to collect damages from the other driver and his or her insurance company?

Laura McKinney of Shreveport, Louisiana, faced those very questions after she collided with another driver on the morning of July 23, 2009. She was running late for her 6:00 a.m. shift at Holy Angels Residential Facilities, and the accident occurred just as she turned into its parking lot. A co-worker was leaving the parking lot and cut across several empty parking spaces to enter the main travel lane when she collided with McKinney. Neither party reported any injuries at the time, but McKinney developed left knee pain three weeks later and was diagnosed with a left knee contusion. She subsequently filed a lawsuit against the other driver and her insurance company.

At trial, several witnesses to the accident provided vital eyewitness accounts to help the court determine who was at fault. One witness testified that it appeared that McKinney was driving faster than the parking lot’s signed speed limit of 15 miles per hour. Another witness, however, testified that she did not think McKinney was driving above the speed limit. After weighing the evidence, the trial court ruled that McKinney was 40 percent at fault and the other driver was 60 percent at fault. McKinney’s damages award was therefore reduced by 40 percent, and the trial court entered a judgment in her favor in the amount of $7,632.60. McKinney appealed, arguing that the trial court erred in finding that she was 40 percent at fault and that the trial court also erred in awarding her an excessively low amount of damages.

The Second Circuit Court of Appeal rejected both arguments and affirmed the trial court’s judgment in its entirety. The Second Circuit first addressed McKinney’s argument against the trial court’s apportionment of fault. It noted that such an apportionment is a factual determination that can only be reversed if it was “clearly wrong.” If the trial court’s fault apportionment was reasonable in light of the complete factual record, then the Second Circuit cannot reverse, even if it is convinced that it would have weighed the evidence differently and come to the opposite conclusion. Because the trial court has the discretion to credit one witness over another and because it was reasonable to infer that McKinney “was acting in haste” since she was running late to work, the trial court was not clearly wrong in determining that McKinney was 40 percent at fault. With respect to her second argument regarding damages, the Second Circuit found that McKinney did not present any evidence that the trial court abused its vast discretion in setting the amount of her damages award. Indeed, she was not unable to work because of the accident, and she did not require any pain management beyond a few sessions of physical therapy. It therefore affirmed the judgment of the trial court in its entirety.

If you have been in a car accident, contact the Berniard Law Firm. Providing the best experts in personal injuries and insurance disputes, our law firm can handle all of your litigation needs.

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Imagine taking your mother to the emergency room for abdominal pain and vomiting. A CT scan and x-ray do not reveal any serious medical issues, and blood work merely shows that her potassium level is low. But within a few hours, she is dead. Now imagine witnessing her death – seeing her break out in convulsions, foam at the mouth, gasp for breath, and lose consciousness.

Such was the experience of one of Virginia Martin’s thirteen adult children. Ms. Martin’s daughter, Betty Farmer, brought her to the emergency room after Ms. Martin complained of abdominal pain, vomiting, and diarrhea. Ms. Martin was 69 years old, and she was otherwise in very good health at the time of her hospital visit. She did not have any heart problems or other serious health-related issues.

The ER physician determined that she suffered from simple gastroenteritis. A chest x-ray came back normal. Ms. Martin began to receive pain medication via an IV, and her blood work revealed that her potassium was low. A CT was performed and showed that there were no abdominal abnormalities that could have caused her gastric distress. Ms. Martin returned from the CT scan to the ER at 9:35 p.m. By 9:44, Ms. Martin started convulsing, her face turned red, she began to foam at the mouth, and her eyes rolled into the back of her head. She lost consciousness, and efforts to resuscitate her failed. Her cause of death was listed as acute cardiac arrhythmia and arteriosclerotic heart disease.

There were conflicting accounts of what happened between 9:35 p.m. and 9:44 p.m. According to Betty Farmer, a nurse entered her mother’s ER room around that time and administered undiluted potassium directly into her mother’s IV port. A medical expert testified that injecting undiluted potassium is “like putting acid in the vein,” as it would cause significant pain and burning and would disrupt the electrical activity that controls a normal heart rhythm. In fact, because of the lethal nature of undiluted potassium, Ms. Martin’s medical center had issued a written directive a few years prior that all potassium be removed from all patient care areas. The expert also testified that Ms. Martin’s reaction was consistent with an IV push of undiluted potassium. Her convulsions started within 60 seconds of the IV push, and she was no longer breathing within 90 seconds.

The nurse that allegedly administered the undiluted potassium offered a different tale. She argued that any injection would have gone into Ms. Martin’s tissue and not her vein because her IV line had been infiltrated. The medical center also argued that undiluted potassium was not available in the ER at the time of Ms. Martin’s death. While undiluted potassium was obtainable from the on-site pharmacy, there was no record that undiluted potassium had been given to Ms. Martin’s nurse.

Ms. Martin’s 13 children filed a lawsuit against the medical center, alleging that the potassium IV push caused their mother’s cardiac arrest. A jury ruled in their favor, finding that the medical center breached the standard of care in its treatment of Ms. Martin. It awarded her 13 children survival damages of $250,000, but no wrongful death damages or funeral expenses. Her children sought the latter two on appeal, while the medical center sought a reversal of the jury’s verdict and survival damages award.

The Second Circuit Court of Appeal affirmed the liability verdict and survival damages award, and it also awarded $60,000 in wrongful death damages to each of Ms. Martin’s 13 children and $6,833.72 in funeral expenses. Regarding liability, a jury’s factual determinations can be reversed only if the record establishes that its findings were manifestly erroneous and without a reasonable factual basis. A jury is entitled to great deference in its choice between two conflicting views of the evidence. The Second Circuit therefore determined that the jury had a reasonable basis for concluding that the medical center breached the standard of care based on Ms. Martin’s reaction and the jury’s credibility determination of the testimonies of Ms. Martin’s daughter and Ms. Martin’s nurse. The liability judgment was accordingly upheld.

Likewise, the survival damages award was upheld. Survival damages are awarded if the evidence demonstrates that the deceased suffered pain or suffering leading up to the time of death, and it is a factual determination as to whether pain or suffering actually occurred. Because the jury’s factual determination was reasonable, it was not clearly erroneous, and therefore the award was upheld.

But the Second Circuit amended the jury’s judgment to include wrongful death damages and funeral expenses. Wrongful death damages were warranted because Ms. Martin’s 13 children put forth evidence demonstrating their loss of love, affection, and support from their mother. The Second Circuit determined that “Ms. Martin spent an inordinate amount of love and energy helping and supporting her children in different ways,” and so it awarded each of her 13 children $60,000 in wrongful death damages. It also awarded funeral expenses in the amount of $6,833.72.

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In Louisiana, a civil law doctrine known as “prescription” limits the amount of time that may pass before someone files a lawsuit. Prescription is the extinction of a right of recovery and occurs due to a failure to exercise that right over a period of time. In other states, this doctrine may be referred to as a statute of limitations or a statute of repose. Louisiana’s prescription period for filing a lawsuit based upon personal injury is one year. Often this doctrine is not an issue in litigation, but in a recent case in St. Tammany Parish, one doctor’s objection of prescription has fundamentally altered the life of a woman, alleging to have suffered from medical malpractice.

On November 21, 2008, Glenda DeBram was hospitalized by her attending physician, Dr. Keshelava, after complaining of painful urination, fever, and cough. On October 15, 2009, pursuant to LSA-R.S. 40:1299.47(A)(2)(a), Ms. DeBram filed a request for a medical review panel with the Patient’s Compensation Fund. According to her request, Ms. DeBram alleged that St. Tammany Parish Hospital and Dr. Keshelava fell below the standard of care owed to her between November 21, 2008 and October 20, 2009. Subsequently, Dr. Keshelava filed a peremptory exception raising the objection of prescription, arguing that Ms. DeBram’s complaint was prescribed on its face as it was filed on January 29, 2010, which was more than one year following her discharge from the hospital stay during which she claims Dr. Keshelava and the hospital breached the standard of care. As such, on September 16, 2010, the trial court sustained the exception and dismissed Ms. DeBram’s medical malpractice claims.

The prescriptive period for a medical malpractice claim is contained in LSA-R.S. 9:5628A, which provides, in pertinent part:

No action for damages for injury or death against any physician … [or] … hospital … whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, 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 statute above sets forth two prescriptive limits within which to bring a medical malpractice action namely one year from the date of the alleged act or one year from the date of discovery with a three year limitation from the date of the alleged act. According to the Louisiana Supreme Court, “if prescription is evidence on the face of the pleadings, the burden shifts to the plaintiff to show that the act has not prescribed.” Moreover, “[t]he plaintiff’s petition cannot be considered prescribed on its face if the plaintiff’s pleadings make a prima facie showing that it was filed within one year from the date of discovery and within a period of three years from the date of the alleged act, omission, or neglect.”

In the instant case, Ms. DeBram’s complaints or presented facts did not contain any allegations regarding an inability to discover the alleged malpractice acts against Dr. Keshelava. Therefore, contrary to the precedent set forth in the Campo case, Ms. DeBram failed to “allege any facts with particularity that indicated that the injury and its causal relationship to the alleged misconduct against Dr. Keshelava were not apparent or discoverable until within the year the suit was filed.” After reviewing Ms. DeBram’s supplemental and amending complaints, the Louisiana First Circuit Court of Appeals agreed with the trial court that the prescription was evidence on the face of the pleadings and that the burden shifted to Ms. DeBram to show that the action against Dr. Keshelava and the hospital was not prescribed.

According to the Court of Appeals, the Ms. DeBram’s initial complaint referred only to her initial admission to the hospital and the amending complaint contains no allegations regarding any additional treatment by Dr. Keshelava. Thus, the First Circuit found that the amended complaint did not allege facts sufficient to constitute a continuing tort against Dr. Keshelava. Further, the Court of Appeals found Ms. DeBram’s argument that she received incomplete records from the hospital, and it was not until she received said records on October 5, 2009, that there was any indication that something was wrong to be unconvincing. Thus, the First Circuit affirmed the judgment of the trial court and upheld the dismissal of Ms. DeBram’s claims against the hospital and Dr. Keshelava.

As you can see, in order to be viable, any legal malpractice action must be commenced within the time limits set forth in LSA-R.S. 9:5628A. If you do not file a legal malpractice lawsuit before the expiration of the prescription, your lawsuit will be forever barred. Thus, it is essential that you talk to a lawyer and make sure you understand how prescription applies to your case.

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Under the respondeat superior legal theory, an employer can be held liable for his employees’ acts that occur within his scope of employment. This means that a truck company, for example, may be held responsible for an accident caused by one its drivers who was speeding or intoxicated while driving his route. This doctrine can be complicated when questions arise as to whether or not the employee was within the scope of his employment, or whether the person who caused the injurious accident was in fact an employee.

To determine scope of employment, one must look to what the employer pays the employee to do and what, exactly, the employee was doing when the accident occured. If a truck driver deviated from his route to go to a bar, for example, then it will likely be determined the driver was engaged in frolic for his own benefit and therefore was not within the scope of his employment. This means if an accident occurs while that truck driver is on his way to the bar, then the truck company will not be held liable. If, on the other hand, the truck driver had to deviate from his standard route because of a flooded road, then the detour is still considered to be to the employer’s benefit and within his scope of employment. An accident that occurs while on detour will still be imputed to the truck company.

A recently decided case by Court of Appeal for the First Circuit helps illustrate issues of determining the employee/employer relationship. The importance of this aspect is if the party responsible for the accident is found to be an independent contractor rather than an employee, liability cannot be placed on the employer. So, in the case heard on appeal by the First Circuit, a woman who was injured by the negligent driving of a delivery van driver sought to join the subcontracting broker and the delivery service that hired the individuals responsible for the accident. To determine whether an independent contractor relationship existed, the court looked to case law and the facts before it.

According to case law, several factors must be considered to determine whether an employee or independent contractor relationship exists. The most important factor is the amount of control exercised by the employer over the worker. An independent contractor typically has freedom of action and choice when it comes to the task to be performed, often leaving the independent contractor to decide his own methods without employer supervision. Also, an independent contractor is typically subject to a specific price for an overall undertaking that is specific in duration, rather being subject to termination at will.

In the case at hand, the court found an independent contractor relationship existed, and thus held that the employers could not be held liable. In addition to having signed an independent contractor agreement, which is not itself dispositive, the workers in question had very little communication with the employers. Instead, the workers set their own delivery routes and schedules and worked when necessary. Therefore, since the employers lacked an exercise of control over the employees, they could not be held responsible for the employees’ acts.

Lawsuits involving accidents can be extremely complicated, especially when the negligent driver is operating a company vehicle. A competent, experienced attorney can walk a victim through the lawsuit process and help determine if compensation is achievable from the employee, the employer, or both. If you have been injured in a car accident, please contact the Berniard Law Firm.

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Work-related injuries, especially in construction, are not uncommon. However, the outcomes in workers’ compensation cases vary because the contractual relationship between the parties is often not clear. Under Louisiana law, workers’ compensation is provided to an employee if they’re injured by an accident “arising out of” and “in the course of” his employment with a statutory employer. However, the issue centers on whether the defendant is a statutory employer thereby limiting the plaintiff to workers’ compensation as their sole remedy. If a valid, written contract recognizes the existence of a statutory employer relationship, it creates a rebuttable presumption; this requires careful interpretation of the terms of the contract.

On August 12, 2008, Louis Fox (hereinafter “plaintiff”), employee of Foster Wheeler North America Corp. (hereinafter “Foster”), was assisting with the installation of boiler units at the Rodemacher Power Station near Lena. While working inside a cyclone tower, the plaintiff alleged that he sustained an injury when an object fell from above striking his head and neck. The plaintiff sought damages beyond workers’ compensation against several defendants including CLECO Power (hereinafter “CLECO”), owner of the power station, and general contractor Shaw Constructors, Inc. (hereinafter “Shaw”).

The installation of the boiler units was the result of a written contract between CLECO Power, owner of the station, and Shaw Constructors, Inc. As general contractor, Shaw selected Stone and Webster, Inc. (hereinafter “Stone”) to take charge of engineering and procurement services. Stone then entered into a purchase order agreement with Foster for the sale and installation of the boiler units.

The issue in the lawsuit was whether Shaw entered directly into a subcontract with Foster when Stone entered into the purchase order agreement thereby making Shaw the plaintiff’s statutory employer. The trial court cited two circumstances when a statutory employer relationship is created: (1) under the “two contract” theory (a.k.a. standing in the “middle” of the two contracts) and (2) the existence of a written contract recognizing the principal as the statutory employer. Shaw based its statutory immunity on the two contract theory. The two contract theory is applicable when (i) the principal enters into a contract with a third party; (ii) pursuant to that contract, work must be performed; and (iii) in order for the principal to fulfill its contractual obligation to perform the work, the principal enters into a subcontract for all or part of the work performed.

The trial court focused on the third element after concluding there was no question the first two elements were met because Shaw entered into a contract with CLECO and, pursuant to that general contract, work was performed. The plaintiff argued Shaw entered into a subcontract with Stone, who then subcontracted part of its work to Foster. The trial court however determined that Foster contracted with Shaw after citing a provision in the Corporate Guaranty that read in-part “Whereas, Purchaser (Stone) as agent for contractor (Shaw) and FWNA (Foster Wheeler) have entered into that certain purchase order for two CFB Boilers.” The court concluded this provision made clear that Stone was acting on behalf and for the benefit of Shaw, as the principal of Stone and granted Shaw and CLECO summary judgment.

The Court of Appeals, Third Circuit, affirmed the summary judgment motion for similar reasons. First, in the “Consent to Assignment” document included in the Stone- Foster agreement the court noted that it listed CLECO Power as owner, Shaw as contractor, and Foster as subcontractor. The court found this document clearly indicated that Foster was a subcontractor of Shaw. In addition, the provision in the Shaw-Stone contract authorized Stone to be responsible for “procurement services” and therefore empowered Stone to act on behalf of Shaw. Thus, the plaintiff was limited to workers’ compensation damages because Shaw was their statutory employer.

This case is a valuable reminder for injured workers to review the terms of their employment contract before seeking damages beyond workers’ compensation from an employer. An effective review of an employment contract should be conducted under the guidance of an attorney. If you’re an injured worker and looking for legal counsel, contact the Berniard Law Firm for immediate assistance from an experienced attorney.