Louisiana Personal Injury Lawyer Blog

Gleason v. Louisiana Dept. of Health and Hospitals is a Medical Malpractice case arising out of the unfortunate death of a 47-year-old severely mentally challenged man, Donnie Gleason. Donnie had been a resident of Northwest since December of 1974 and was nonverbal and incapable of self-medicating, arranging or monitoring his own medical assistance. On December 23, 2002, after two earlier unsuccessful attempts, Donnie was transported to Willis Knighton Medical Center ("Willis Knighton") in Bossier City, to undergo a routine CT scan and EEG after he suffered a seizure. When Donnie returned, he was lethargic and placed in the infirmary.

The documentation of his treatment there showed that Donnie had ingested a foreign object which caused a bowel impaction that precipitated Donnie’s fecal vomiting. Presumably due to his condition, Donnie was unable to expel the vomit and breathed some of the gastric content into his respiratory tract. At Willis Knighton, Donnie was placed on a ventilator in the intensive care unit and diagnosed with bowel obstruction, respiratory failure and aspiration pneumonia relating to the vomit aspiration. After a brief recovery, Donnie once again went into respiratory distressed, was placed on a ventilator, and passed. The staff were unable to revive him.

In Louisiana, medical malpractice complaints must first be filed with the Louisiana Patient’s Compensation Fund before a lawsuit may be commenced. That organization’s medical review panel ruled for the defendants in this action - Northwest (intermediate care facility) and Willis Knighton (hospital) and their doctors and physician’s assistants individually. The panel concluded that the evidence did not support the conclusion that Northwest failed to comply with the appropriate standard of care because they found no evidence that Donnie ingested a foreign object while there. After the panel ruling, Donnie’s family filed suit against Northwest and Willis Knighton. They alleged, among other things, that Northwest’s failure to properly supervise Donnie and his treatment and its failure to recognize the seriousness of his condition and the inadequacy of the monitoring of Donnie’s respiratory status.

To establish a claim for medical malpractice, a plaintiff must prove (1) the standard of care applicable to the defendant; (2) that the defendant breached that standard of care; and (3) that there was a causal connection between the breach and the resulting injury. The testimony of an expert is generally required to establish the applicable standard of care and whether that standard was breached, unless the negligence is so obvious that it can be inferred with expert guidance. Expert testimony is not required, but is typically relied upon to prove causation when its determination is not a matter of common knowledge.

Northwest filed a motion to be summarily dismissed from the case because Donnie’s family initially did not designate any expert and Donnie’s family asked for an extension, which the Court granted. Even after Donnie’s family submitted an unsigned affidavit from an experienced nurse, the Court granted Northwest’s motion on the ground that the affidavit was not enough to establish a breach of the duty of care.

After another adverse ruling, Donnie’s family appealed to the Court of Appeals (“COA”) seeking a new trial, arguing that the Court needed no additional information to determine causation. The COA found that a fact issue remained regarding Northwest’s duty to protect Donnie from the danger that could result from his access to an object which the circumstances indicate he may have swallowed, since Donnie was primarily in Northwest’s custody in the days leading up to the discovery of the object. Moreover, the COA thought the matter should proceed to trial since the causal link between the object’s impaction of Donnie’s bowels also still needed to be resolved.

Unfortunately, Donnie’s family’s attorneys initially failed to get their expert to sign her affidavit, which required much procedural maneuvers at considerable expense and at the risk of having the case thrown out altogether. All of these remedial steps also delayed what compensation may eventually come to Donnie’s family and cost them more in legal fees. Competent legal representation is invaluable in an area as technical and regulated as medical malpractice. The need for expert testimony and the sufficiency of claims making out an allegation of medical malpractice call for seasoned skills and a conscientious and personal touch.

Louisiana law requires all motor vehicle liability insurance policies to extend coverage not only to the insured, but also to any other person with express or implied permission to drive the motor vehicle. Once the insured gives permission, coverage will be denied only if the driver deviates from the permissive use. Consequently, at issue in most lawsuits of this kind is whether the damages caused by the driver are covered by the policy.

A recent case involved Ellen Van, who was driving her car on McReight Street in the city of Bastrop on the same day that minor April Canada was driving a truck owned by the defendant, Steven Ferrell, her live-in boyfriend. April allegedly failed to stop at an intersection and collided with the Van's vehicle. Ellen and her husband, claiming that the collision caused injuries to her back and body, filed suit against Steven Ferrel and his insurer, Safeway Insurance Company of Louisiana. In Ellen T. Van and Ralph E. Van v. Steven Ferrell and Safeway Ins. Co., the lower court granted Safeway's motion for summary judgment on the basis of the affirmative defense of nonpermissive use. Safeway contended that April did not have permission to use the truck on the day in question, and, therefore, the damages caused by the accident were not covered by the policy.

On appeal, the plaintiffs challenged the lower court's determination that there was no genuine issue of material fact in the case. Specifically, the plaintiffs contested that April's implied permission from Ferrell to drive the truck on the day of the accident was an unresolved, material issue in the case. The Louisiana Second Circuit Court of Appeals, agreeing with the plaintiffs, reversed and remanded the lower court's judgment because the deposition testimony established that an issue remained in the case as to whether April had implied permission to drive Ferrell's truck.

Although Ferrell stated April did not have express permission to drive the truck, he conceded at the deposition that the keys and truck were at the house, which were readily accessible to April, and that he never explicitly told April she did not have permission to drive the truck. Moreover, Ferrell's mother Tracy, who also lived at the home, testified that April had occasionally driven the truck unaccompanied; however, she later stated that April only drove the truck with her or another licensed driver. Most significantly, April testified that she drove Ferrell's truck many times around the area where they lived with Ferrell and Tracy's permission. April further testified that since Tracy and Ferrell knew she had to report to work the day of the accident, she believed she had permission to drive the truck to town.

According to the appellate court, the trial court needed to resolve the credibility of the parties' accounts due to the inconsistent deposition testimony. Since a trial is the only appropriate legal forum to resolve issues in a case dependent on credibility determinations, the appellate court concluded that summary judgment was improper.

As this case demonstrates, it is important to have competent representation to successfully appeal an unfavorable judgment. The ability to challenge the court's rulings and force the proper judicial process is something a plaintiff, or defendant, needs to feel confident their attorney can handle.

Continue reading "Court of Appeals Rejects Insurance Company's Defense of Nonpermissive Use in Recent Case " »

On March 13, 2008, Sarah Hollier visited Dr. Gregory Green for treatment of bronchitis. Dr. Green wrote Hollier a prescription, which she took to the Super One Pharmacy in Monroe to have filled. The pharmacist on duty, Katy Buntyn, was not familiar with the particular form of the drug that Dr. Green prescribed because it had been discontinued some four years prior. Buntyn directed her pharmacy technician to phone Dr. Green's office for clarification on how to fill the order. Ultimately, after further confusion over the form of the drug and the dose, Buntyn mistakenly filled the prescription at a dosage which was at more than 2.5 times the "top end" dose indicated on the drug's literature and eight times the dose intended by Dr. Green. When Hollier began taking the medication, she experienced high energy levels, sleeplessness, increased heart rate, and nausea.

Hollier's husband, himself a pharmacist, recognized her symptoms and discovered the erroneous dose after inspecting the prescription bottle. The Holliers reported the problem to the pharmacy and, later, filed suit against the pharmacy and Buntyn. In Louisiana, pharmacists are not subject to the state's Medical Malpractice Act, so the matter was heard in Monroe City Court on September 21, 2009. The trial court entered a judgment for Hollier and awarded her $7,500 in general damages and $827.08 for medical expenses. The defendants appealed, refuting liability.

The Second Circuit first reviewed the elements of general negligence, but then noted that a "pharmacist has a duty to fill a prescription correctly and to warn the patient or to notify the prescribing physician of an excessive dosage or of obvious inadequacies on the face of the prescription which create a substantial risk of harm to the patient." Buntyn argued that she met this duty by calling Dr. Green's office to inquire about the prescription. But the court disagreed that this action was sufficient to discharge her duty; instead, "the fact that the package insert lists the top end of an initial daily dosage of [the drug] at 9 mg should have aroused Ms. Buntyn’s suspicions that a 24 mg initial daily dosage was excessive." At that point, reasoned the court, Buntyn "should have inquired further." Thus, the court could not find that trial court committed manifest error in finding that Buntyn breached her duty to Hollier by supplying the extremely high dose of the drug, and affirmed the judgment.

The Hollier case makes clear that the law considers a patient's health paramount. Even if some or all of the fault for an erroneous prescription can be traced back to the doctor, a pharmacist is still required to use independent judgment when filling a prescription. Circumstances such as a particularly high or low dose, a call for a drug that's unrelated to the patient's condition, or other irregularity should trigger the pharmacist to investigate further before dispensing the medication. The Hollier case suggests that simply confirming with the ordering doctor may not be sufficient when other common resources, such as the drug manufacturer's package insert, suggest that the doctor's orders are unsafe or inappropriate.

Continue reading "Prescription Drug Overdose Leads Court to Review Pharmacist's Standard of Care " »

During litigation, competent legal counsel must make efforts to concentrate on two things. First, legal counsel must make sure that all of the most recent cases, statutes, and regulations are being used for litigation. It is embarrassing for legal counsel and risky for a client to proceed before court with expired or outdated law. The impact of such a scenario could mean the prolonging of litigation and a negative overall perception towards the case from the judge. Second, competent legal counsel must pay very close attention to procedural steps needed for successful litigation. This means that all motions and requests for evidence must be made in a timely manner. The art of litigation requires a very structural approach with one step occurring before the next. If one step within the process is missed, misconstrued, or untimely, the result could spell the end of litigation and the client's claim.

The reason for such strict adherence to procedural steps is due to an effort to expedite an already heavily time-burdened legal system. The procedural steps facilitate quick and systematic approaches to litigation. In a recent case, Percival Franklin v. Allstate Insurance Co., the plaintiff was dealt a blow by the implications of untimely filing.

The case began as many other vehicle-based legal issues do. There was an accident, which was followed by an injury to one of the passengers. The plaintiff in the case sued the driver of the other vehicle and that driver's auto insurance. During the litigation process, the defendants filed certain exceptions with the trial court. After review, the trial court agreed to the exceptions and the trial was deemed over at that point. The exceptions were sustained on March 29, 2010. The notice of judgment was mailed on April 7, 2010. On May 24, 2010, plaintiff filed for a new trial which was denied on June 2, 2010. The notice of judgment of this decision was mailed on June 7, 2010. On August 13, 2010, plaintiff filed a motion for appeal. The trial court granted this motion on August 17, 2010. The Appellate court asked the plaintiff why it should not dismiss the appeal as being untimely. Plaintiff stated that under LA.CodeCiv.P.art 2087, the appeal was timely because it was filed within 58 days of the trial court's denial of a new trial. Before reaching its judgment, the Appellate Court described errors in the way the plaintiff viewed the applicable dates. Plaintiff cites that the new trial was denied on June 7, 2010 and that the motion for appeal was filed on August 5. The Court stated that, based on the record, the new trial was denied on June 7 and the appeal was filed on August 13.

Louisiana Code of Civil Procedure Article 1974 states, "[t]he delay for applying for a new trial shall be seven days, exclusive of legal holidays. The delay for applying for a new trial commences to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment as required by article 1913. This means that after a judgment has been rendered, the plaintiff or defendant, which ever party is making the motion, has seven days to file for new trial, excluding legal holidays. LA.Code Civ.P.art 2087(A)(1) provides that when no motion for a new trial has timely been filed that a devolutive appeal may be taken within 60 days after the expiration of the delay for applying for a new trial. The applicable dates are once again summarized: Judge signed the order sustaining exceptions on March 29, this judgment was mailed on April 7, the delay for new trial expired on April 16, plaintiff filed a motion for new trial on May 24. Thus, we see why the motion for a new trial was rejected by the trial court. The delay for new trial expired on April 16, thus the delay for filing a motion for a devolutive appeal, under LA. Code Civ.P.art 2087(A)(1), expired on June 15, 2010. Plaintiff filed for appeal on August 13, 2010, well beyond the time allowed to file a motion for appeal under Louisiana procedural law. Thus, the Appellate Court dismissed the appeal.

The benefit of competent legal counsel is that legal counsel can help a client traverse the complex procedural framework of the legal system. This helps clients put forth the best claims in a timely fashion. Call the Berniard Law Firm to speak with counsel that can help you with legal advice regarding any claim you may have.

According to Houma Today, a 17-year-old boy from Cut Off was killed on October 22nd when the car he was riding in struck a utility pole. The boy, Edward Domingue, and his 15-year-old girlfriend were going to pick up pizza and movies when she lost control of the vehicle. Questions remain regarding why the girl was driving since she did not have a driver's license. Further, the girl's mother and owner of the vehicle, Gillian Reynolds, adamantly stated that she would not allow her daughter to drive. While the facts are still not clear, civil liability for the accident and Domingue's death are also still up in the air.

Louisiana Revised Statute 32:52 states that no person shall operate a vehicle or allow another person to operate a vehicle owned or controlled by him if the driver is unlicensed. However, the simple fact that doing so is a statutory violation does not necessarily imply that the owner, or the unlicensed driver, was negligent. In Enlow v. Blaney, the Louisiana Third Circuit held that even though a 14-year-old was not licensed to drive, the fact that the vehicle's owner allowed her to drive without a license was "immaterial and irrelevant" to the issue of negligence where her "conduct in driving without a license was not a cause-in-fact of the accident." Following its rationale in Enlow, the Third Circuit ruled that even when the owner allows an unlicensed minor to drive her vehicle, she will not be liable for a resulting accident where evidence suggests that the minor was competent to drive and the fact the driver was unlicensed is not the cause-in-fact of the accident.

However, under general common law principles, if the owner knowingly allows a person who is incompetent to drive, such as by repeated instances of negligent or reckless conduct, the owner may be liable for negligence. This usually requires that the incompetent driver be "on a mission" for the owner, acting as the owner's agent or employee, or the owner is negligent for entrusting his vehicle to the incompetent driver. In order to establish negligent entrustment, a plaintiff must show that the vehicle's owner knew or should have known that the borrower is incompetent to drive. One case of particular interest is the 1993 case of Jones v. Western Preferred Casualty Co. In that case, the Louisiana First Circuit found that a 19-year-old vehicle owner did not negligently entrust his car to a 13-year-old where the 13-year-old had only driven a few times before, had been drinking, and the 19-year-old had never met the 13-year-old before that day.

In the 1953 appellate case Nelson v. Carriere, the Louisiana Third Circuit held that age or inexperience driving cannot "brand" someone incompetent to drive a vehicle or be presumptive evidence of negligence. This is not the case in all jurisdictions. For example, courts of several states including Illinois and Alabama automatically presume that a vehicle owner was negligent in entrusting her vehicle to an unlicensed driver. See, e.g., Chiniche v. Smith (Ala. 1979). In Louisiana, proof of inexperience, past negligence or reckless in driving, or failure to obey driving laws can provide evidence of incompetence but, as noted previously, cannot create a presumption of negligence or negligent entrustment.

Additionally, it is unlikely that Mr. Domingue's conduct in allowing his unlicensed girlfriend to drive will reduce her or her mother's civil liability. In Faulk v. Champagne, the Louisiana Third Circuit found that a passenger was not liable for permitting an unlicensed driver to operate a vehicle since the passenger had no legal duty to prevent the driver from driving and the passenger did not know or should have known that the driver was incompetent. It is not clear whether this was the case here. However, neither Mr. Domingue's girlfriend nor her mother will automatically be negligent simply because she was unlicensed. Instead, a court will consider inexperience as one of many factors in deciding any civil liability.

If you or someone you know was involved in a vehicle accident with unclear liability, consult with an attorney today in order to preserve your legal rights.

On the evening of August 2, 2005, Latiffany Dunn slowed her car as she approached the intersection of Pearl and Washington Streets in Homer, Louisiana. As she came to a stop, a vehicle driven by Latonya Harris pulled up beside Dunn's vehicle. Shatara Harris, Latonya's sister, was a passenger in Latonya's vehicle. Shatara got out of the car and approached Latiffany's vehicle. The two women argued, and Shatara took a swing at Latiffany. As Shatara walked back to Latonya's vehicle, Latiffany drove off and then circled back. As it passed by, Latiffany's car clipped the open passenger door of Latonya's vehicle. Shatara, who was attempting to get into the car at the same time, was injured when the door slammed closed against her. Latiffany did not stop her car, but instead drove to the Claiborne Parish Sheriff's Department where she filed a report about the incident. A sheriff's deputy interviewed Latiffany, transported her to the Homer Police Station, and then arrested her on a charge of aggravated second degree battery. Latiffany later pled guilty to simple battery. Shatara filed suit against Latiffany and her auto insurance carrier, U.S. Agencies Casualty Insurance Company, Inc. for damages arising from her injuries. U.S. Agencies filed a motion for summary judgment on the grounds that Latiffany intentionally struck Latonya's vehicle, which would have excluded coverage by the terms of the policy. The trial court granted the motion and dismissed U.S. Agencies from the suit; Shatara appealed.

Under Louisiana law, an insurer may limit the coverage it provides by the terms of its policy, but the insurer has the burden of proving that the facts and circumstances support the exclusion. Furthermore, "a summary judgment declaring a lack of coverage under an insurance policy is not appropriate unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts, under which coverage could be provided." The policy provision that U.S. Agencies pointed to excluded coverage for bodily injury or property damage "caused by an intentional act" or "caused ... while engaged in the commission of a crime." U.S. Agencies argued that Latiffany committed a crime (as established by her guilty plea to the battery charge) and also that she intentionally struck Latonya's vehicle to injure Shatara.

With respect to the crime exclusion, the Second Circuit noted that the policy defined "crime" as "any felony or any action to flee from, evade or avoid arrest or detection by the police or other law enforcement agency" (emphasis added). The court concluded that the crime exception was inapplicable because Latiffany's guilty plea to simple battery--a misdemeanor offense--did not fit the policy's definition. Furthermore, the court explained that Latiffany's guilty plea was not determinative as to her intent to strike Shatara. While a guilty plea from a criminal matter is admissible in a civil case, it is not conclusive evidence. The court acknowledged that "summary judgment is appropriate only if there is no factual dispute as to intent," which, after reviewing the trial record, was "not the case here." The court reasoned, "we cannot say as a matter of fact that the record shows [Latiffany] intended to hit either Latonya's vehicle or Shatara with her vehicle... Even though Latiffany pled guilty to simple battery, we find that the record shows that a genuine issue of material fact exists as to whether Latiffany's actions constituted an intentional act." Accordingly, the court reversed the trial court's granting of summary judgment and remanded the matter for further proceedings.

The Harris case reflects Louisiana's position that "exclusionary provisions are to be strictly construed against the insurer with any ambiguity construed in favor of the insured." Presumably, this is to help protect consumers who purchase insurance by preventing insurance companies from attempting to avoid coverage through vague language in the policy. Insurance companies will nevertheless put forth whatever arguments may be available to avoid payouts, so a plaintiff should always obtain experienced counsel when pursuing an auto accident or other claim where a defendant's liablility policy is in place.

Continue reading "Homer Car Wreck Case Examines Insurance Policy's Treatment of Intentional Injury" »

According to state police, and reports in LaPlace's L'Observateur, two men died and two others were injured in a car accident a little over a month ago on Louisiana Highway 3127 in Wallace.

At about 5:14 p.m. on Friday, September 24th, James Davis and Kerry Rodrigue of Plaquemine were killed when the Chevy Silverado they were riding in collided with an unoccupied, parked vehicle. Neither of the men were wearing a seat belt. Colby Landry, the driver of the truck, and front passenger Reggie Daigle sustained moderate injuries, and consequently, were wearing seat belts. According to investigators, Landry was trying to pass another vehicle when he lost control of the truck and crashed into the other vehicle, which was parked on the shoulder of the highway. Speed appears to be a factor in the crash.

This tragic accident brings questions to mind as to what liability attaches to a driver who acts negligently to bring about the death of his passengers? Also, in Louisiana, is liability reduced at all if the two passengers who were negligent themselves in not wearing their seat belts?

Here, the families of the deceased passengers may be able to bring a claim against the driver if the evidence supports that he is at fault for the accident, that is, if he acted negligently. Negligence occurs when someone's action falls below the appropriate standard of care for a given situation and that action or inaction hurts someone else, to which they owed a duty. A driver has a duty his passengers (and other drivers on the road) to obey the law and drive at an appropriate level of speed. If he did not, and that action was the actual and proximate cause of the passengers' deaths, he was negligent. A variety of damages can be collected in this type of wrongful death action, including: funeral and medical expenses (actual damages), as well as compensation for the wages the victims would have earned, and compensation for pain and suffering.

In addition, Louisiana is a pure comparative negligence state. La. Civ. Code Ann. Art. 2323. This means that individuals' damages are reduced by whatever percentage they are deemed at fault for an accident. So, if the driver is found to be 80% at fault for the death of his two passengers due to his negligent behavior, but the deceased passengers are found to be 20% at fault for not wearing their seat belts, damages the survivors of the passengers can collect from the driver will be limited to 80% of the total damages recoverable. The question is, does not wearing a seat belt constitute negligent behavior? There is a good chance it might..

Under Louisiana law, seat belt use is mandatory for anyone riding in a car. If an individual breaks a law, it is easier to prove that they have acted negligently under the doctrine of negligence per se. While in a typical negligence action, it must be proven that the defendant owed a duty to the claimant and that duty was breached, causing injury to the claimant, in a negligence per se case the elements of duty and breach are presumed. Now obviously, no one will be bringing a negligence claim against the deceased drivers arguing they are at fault for the accident here. However, their negligent action would be taken into account when it is time to apportion fault between the parties.

If you were injured in an accident and are not to blame, it is important to choose an attorney who will be able to convince a court that you were not at all fault for any of the damages, in order to maximize your recovery. At the Berniard law firm our attorneys are experts in accident injury law and would be happy to talk to you about your case.

In Louisiana, a study shows that crash rates continue to rise for drivers under the age of 25 despite outlawing text messaging while driving. In three other states, crash rates were shown to have actually increased after the enactment of anti-texting laws, and, in all four states researched, there were no reductions in crashes after the enactment of these laws.

The study, conducted by the Highway Loss Data Institute (HLDI), was carried out in Louisiana, California, Minnesota, and Washington. Researchers compared statistics of crashes before and after the texting bans were enacted in these states. The four states' data was then compared to the states that do not have texting bans. The results were obviously not the expectation of lawmakers and has left many troubled by what can be done to counter the dangers technology is creating.

HLDI says that one possible explanation for the increasing negligence and rise in crash levels could be that people are continuing to text in spite of these laws.

Adrian Lund, president of the HLDI and the Insurance Institute for Highway Safety, suggests that noncompliance with the laws specifically is not the reason for the spike in crashes, but perhaps how people may be trying to hide their behavior. He suggests, rather, that the increase in negligence could be due to drivers hiding from plain view their text messaging activities. "If drivers were disregarding the bans, then the crash patterns should have remained steady. So clearly drivers did respond to the bans somehow, and what they might have been doing was moving their phones down and out of sight when they texted, in recognition that what they were doing was illegal. This could exacerbate the risk of texting by taking drivers' eyes further down from the road and for a longer time."

The applicable text ban Louisiana statute is Title 32, Chapter 1, Part IV, Subpart L, Sec. 32:300.5 that states: "A.(1) [...N]o person shall operate any motor vehicle upon any public road or highway of this state while using a wireless telecommunications device to write, send, or read a text-based communication." The statute provides exceptions to police officers, firefighters, and emergency vehicle operators while engaging in the performance of their duties. The statute also does not apply to those drivers who, among other exceptions listed in the statute, are (1) texting to summon medical or other emergency help, or are (2) using a global positioning device for navigation. Pursuant to the statute, the first violation is punishable by a fine of up to one hundred seventy-five dollars ($175). Subsequent violations are punishable by fines of not more than five hundred dollars ($500). Moreover, by law, any violation is considered a moving violation.

Another Louisiana statute specifically targets minors in Title 32, Chapter 1, Part IV, Subpart L, Sec. 32:300.7: "B. [...N]o person who is seventeen years of age or younger shall operate a motor vehicle on any public road or highway in this state while using any wireless telecommunications device to engage in a call or write, send or read a text-based communication." Like the prior statute, certain exceptions are permitted. For example, a minor can use a wireless communications device (more commonly known as a cell phone or smart phone) to report a (1) traffic accident, (2) medical emergency, (3) serious road hazard, (4) situation where minor's personal safety is in jeopardy, or (5) criminal act against the minor or another person. A minor may also use a cell/smart phone if the motor vehicle is lawfully parked. Violation of the statute carries fines, which are slightly less than the statute directed to all drivers. The first violation is punishable by a fine of up to one hundred dollars ($100). Subsequent violations are punishable by fines of not more than two hundred fifty dollars ($250). If the minor is involved in a motor vehicle accident while using a wireless communications device, then the applicable fine is doubled. Violations of this statute are considered non-moving violations.

If you or someone you know is involved in an accident in Louisiana, including when the accident is caused by the careless use of cell/smart phones while driving, remember that you will need an experienced and knowledgeable attorney to assist you in navigating the complexities of the law so that you are compensated for your injuries. The courts tend to rely heavily upon criminal punishments relating to an accident when coming to their judgment of responsibility in civil proceedings, and anyone injured due to the negligence of another driver, especially one texting, should be compensated for the damage they've suffered due to the accident.

Continue reading "Negligence on the Rise in Louisiana in Spite of Texting Ban" »

After having faced a significant heart-related scare and receiving a stent implant, many patients are now facing a rather unbelievable reality: it has been discovered that doctors across the nation have been performing unnecessary surgical procedures in order to financially benefit. Doctors, implanting the device intended to unblock clogged heart vessels, are now accused of recommending the procedure in order to bill private and government health insurers for unnecessary medical procedures. A stent is essentially a mesh tube that is inserted most commonly inside the heart and then expanded, using a small balloon to open blocked arteries that prevent blood flow to heart muscle. Despite the fact that stents are a medical breakthrough, it seems as though many individuals are having these devices implanted without having any need for them. While some might believe this does not have any significant drawbacks, the reality is that the procedure implanting them, and the devices themselves, expose patients to a risk of future medical complications due to the fact they have an unnecessary foreign device inserted into their body.

As a result of these discoveries, numerous doctors all over the United States are currently being investigated or indicted, even sentenced to prison for performing unnecessary procedures on individuals. The main criminal charge these medical professionals face is health care fraud. Many times, this situation would go unnoticed if it were not for the hundreds of patient complaints pouring into the hospital boards, motivating investigations into why the doctors have performed so many of these specific procedures on individuals. One investigation of Dr. Mark Midei, of Maryland, led the Maryland Medical Board to hold that Medei was involved in "gross overutilization of health care services... and willfully making a false report or record in the practice of medicine." One statistic in particular leads some to believe that Dr. Midei is not alone in this practice: the number of stent procedures has almost tripled within the past ten years. What's more, the number of patients receiving this type of implant has increased steadily every year since 1993, and continues to rise.

Additionally, in Lafayette, Louisiana, in 2009, Dr. Mehmood Petel, formerly of Our Lady of Lourdes Hospital and Lafayette General Hospital in Louisiana, was convicted of 51 counts of fraudulent medical procedures and received the maximum sentence of ten years in a federal state penitentiary. Over 75 patients charged Dr. Patel with fraud and of performing unnecessary heart stent procedures on them. Testifying experts, as well as the Department of Justice, revealed that the majority of the patients who received such implant had little or no disease. Patel was also found to have falsified patient symptoms in medical records, including specific symptoms such as heart pain. The amount of money that Patel billed insurers was astronomical; between 1999-2003, Patel billed Medicare and provate insurance companies more than $3 million, pocketing more than $500,000.

In order to prove health care fraud, a certain set of facts need to be proven. Specifically, to convict a "defendant of health care fraud, the government has to prove beyond a reasonable doubt that he knowingly and willfully executed, or attempted to execute: a scheme or artifice --

(1.) To defraud any health care benefit program; or

(2.) To obtain, by means of false or fraudulent pretenses, representations, or promises, any of the money or property owned by, or under the custody or control of, any health care benefit program in connection with the delivery of or payment for health care benefits, items, or services."
(United States v. Refert, 519 F.3d 752, 758 (8 Cir. 2008).

The issue many courts are facing is that the Medical Review Boards have expressed the desire to handle these situations themselves, absent the legal system. This presents patients with the dilemma of communicating what they have gone through and not receiving adequate compensation or justice at the end of the day. In fact, many Medical Review Boards feel that peer review solves any potential problems such as the unnecessary heart stent procedures. However, it has not been until recently that the sting procedures were investigated and/or prosecuted. The New York Times recently reported that stents are a profitable, big business within the medical field — manufacturers such as Johnson & Johnson (who are currently facing legal problems over their recalled hip implant devices) sold over $3 billion worth of stents last year alone. That number has steadily increased along with the incomes of the Doctor's who consistently utilize them.

If a person has had a heart stent implanted within the last ten years, exploration into their medical history and condition may be necessary. The old adage, "It is better to be safe than sorry," may be applied to individual's going through this situation. Instead of experiencing the fear that the heart stent may not have been necessary, allow a legal representative to explore the situation and clarify what is going on. However, they do not have to rely on the Medical Review Boards alone, having legal representation may help to protect their rights as well as ease a stressful situation into a manageable one.

Continue reading "Heart Stent Procedures Done Without any Need" »

In 2009, over 800 people were killed in motor vehicle crashes in Louisiana. An additional 73,000 persons were injured in car crashes. The applicability of these statistics are obvious: you and too many other drivers and passengers are at risk every time you get on the road in Louisiana. However, there are steps you can take to protect yourself each time you get in a vehicle that can increase your safety and limit the effects of a crash on your health and the health of others in the car.

Sadly, almost 50% of fatal car crashes involve alcohol. A conviction for driving under the influence of drugs and/or alcohol results in a mandatory ignition interlock hardship license and additional penalties including, but not limited to, a permanent criminal record, 6 months in jail, $1,000 fine plus court costs, and losing your driver’s license for 90 days. Furthermore, after three misdemeanor DUI convictions, these charges become felonies. Felonies are even more serious than misdemeanors and involve harsher penalties. These very real criminal penalties pale in comparison to the financial and emotional hardships those who cause a serious accident while impaired will suffer.

While hazards like a drunk driver are, at times, nearly impossible to avoid, there are some things you can do to protect yourself and your passengers while you are driving. Efforts that will minimize your exposure to serious harm include, but are not limited to, driving the speed limit, wearing your seat belt, and, when appropriate, wearing a safety helmet. Safety helmets reduce the risk of death by 29% and the risk of fatal head injury by 40%. It is important that you make sure that you and all of your passengers are wearing your seat belts before you start driving because more than 65% of drivers who are killed in crashes were not wearing their safety belts. Young drivers and passengers are especially resistant to wearing seat belts. A Louisiana study shows that 14% of all high school students report that they rarely or never wear seat belts when riding with someone else. By making sure you and your teen wear your seat belts, you will be saving money not only through perks like those offered by car insurers but overall as a taxpayer. Louisiana residents spend almost $6 billion annually paying for car crashes, which comes out to about $2,000 per licensed driver. If all residents of this state were to make sure to secure their seatbelt before driving, a lot of money could be saved solely through practicing safe driving techniques.

A majority of accidents on the roads are just that: accidents. Unavoidable and merely a reality due to unforeseen circumstances, these incidences have a wide variety of results that almost always require some sort of legal process, whether an insurance investigation or litigation. However, drunk or reckless driving almost always requires either the driver, or the victim(s), to pursue legal action due to the devastating consequences involved. Should you be in an accident with a drunk driver, we hope that you utilized the simple tips mentioned in this blog regarding a seat belt and careful driving as these will often mitigate the personal damage caused. Not every injury is avoidable, though, and it is important that, if you are injured in a drunk driving accident, you retain the best legal counsel available to insure your damages, however great, are compensated.

Continue reading "Louisiana Car Accident Statistics Show Safety Precautions Necessary When Driving " »

The Berniard Law Firm is proud to announce the release of an innovative new iPhone application that can be considered a must-have for individuals in the Gulf Coast. With extensive versatility and options including multiple contact points for our attorneys, as well as consistent site updates that will keep you informed of legal developments as they become available. Released October 26, we recommend everyone download the application in order to stay abreast of a variety of issues that relate to them.

In the works for some time, and with an update already planned, the Berniard Law Firm iPhone app puts law matters that are important to Louisiana residents in the palm of their hands. Constantly refreshing, with updates relating to our website, this application is an effort by our firm to allow our friends and clients quick access and up-to-date information for their daily lives. Whether using the application to send our firm a legal question or to call our offices, we strongly encourage anyone that wants an attorney and a wealth of legal information at your fingertips.

Specifically, the Berniard Law Firm Injury Attorney iPhone App provides users
- Entry page to record important details in the event of an accident
- Minimal size installed (only 3.1 MBs)
- Practice area explanations
- Quick jumps to consistently updated blogs
- Fast contact information to speak with an attorney

One feature that is extremely important and valuable in the Berniard Injury Attorney App is the entry page. Composed of data input fields that target inherently important details of an accident, using this portion of the application can help you make sure you record all of the necessary information at a time in which it maybe be difficult to remember. Providing an easy, step-by-step accident guide, this application can even include a picture with the information report with a simple tap.

For more information on how to download this application, or to discuss your legal rights regarding an issue that you are facing currently, contact our offices today. The Berniard Law Firm would happily discuss with you what opportunities you may have within the realm of the law, as well as give you a free consultation in regards to how we can best get you the justice you deserve.

To download the application, click here.

On Saturday, July 24, 2010, tragedy struck in East Feliciana Parish as a 9-year-old girl died in a car accident. Reports state that the young girl, Tobiya Kato, was killed when the car driven by her mother, Jamet Kato, veered off the road and flipped before coming to a rest on its roof in a wooded area. This tragic event serves as a reminder of the importance of all passengers wearing seatbelts, especially young children seated in the back of a vehicle.

According to reports, the young girl, whom was seated in the back seat, was thrown from the vehicle during the accident due to not wearing her seatbelt. Police noted that in addition to the 9-year old girl, three other children, ages 6, 5, and 2, were also in the back of the vehicle, not wearing seatbelts, when the accident occurred. However, Jamet Kato, along with a 12-year-old sitting in the front seat, were both wearing their seatbelts at the time and only suffered minor to moderate injuries in the crash.

The sheer number of deaths that could be prevented by properly buckling up in a vehicle are staggering. According to NHTSA's study, in 2008 there were 25,351 accidents involving the death of passengers in the United States. Of those, 12,865, or 50.7%, passengers were not utilizing safety restraint devices, such as a seat belt or car seat for younger children. The statistics for Louisiana residents are similarly shocking. Of the 669 passenger deaths in 2008, 59.2%, or roughly 400 passengers, died in accidents in which they were not buckled.

Accidents like this serve as a reminder for all individuals to wear seat belts when riding in a car, whether in the front or back seat. Restraint devices, such as a seat belt or car seat for younger and smaller children, serve to protect the individual in the event of an accident. Beyond this, though, is the fact that there is a very real legal duty on the part of a parent, guardian, babysitter, etc., to make sure that minors are properly restrained in a vehicle. This legal duty can lead to a significant share of liability in the event of an accident like the one mentioned above. Failing to make sure that a child is properly buckled into a vehicle can lead to both criminal and civil court consequences that could have been avoided with a couple seconds of effort.

When a parent or babysitter fails to remind children, whether in the back or front seats, to buckle in, they may be breaching a duty owed to protect their young passengers due to negligence. This means that the driver must not only remind children to buckle in, but also ensure that children are actually buckled in, before driving. The state laws around the country may vary slightly, but the consensus remains that it is the adult driver's responsibility to ensure the safety of the young passengers. In addition, criminal charges may be brought against adult drivers that endanger the welfare of young children unable to know the dangers of failing to buckle in. The importance of wearing a seatbelt is clear: whether you are a parent, relative, or babysitter, always ensure that children are buckled before leaving the driveway. The obvious physical harm from not doing so is substantial and the legal consequences afterwards are clear and considerable.

If your child is injured in an accident such as this, an attorney that specializes in these areas can help you determine any remedies that you might have.

In Pearl River on July 9, an 18-wheel truck blew out a tire and crossed over into oncoming traffic killing four people. The accident at the Louisiana/Mississippi state line occurred when the driver of the semi was driving northbound on I-59 and lost control of the vehicle after the tire blew out. The semi crossed the center median, and in what state police describe as an almost head on collision, the semi collided into a Dodge Ram pickup and led to both vehicles sliding off the road. While all four individuals in the truck were killed, the driver of the semi suffered minor to moderate injuries. The driver of the semi was from Montgomery, Texas and the four passengers in the Dodge Ram pickup were from Carriere, Mississippi. For his part in the accident, the driver of the semi was charged with careless operation and four counts of negligent homicide.

It is important to know that while negligent homicide is a criminal charge, suit may also be filed under a wrongful death cause of action for the four victims that were killed in the accident. Historically under common law, wrongful death was not available and only criminal law was an option. Under statutory law however, a person can be held responsible in civil court in addition to criminal court for wrongful death. Wrongful death statutes provide a legal remedy for wrongfully causing the death of another human being. The applicable Louisiana Civil Code wrongful death statute is under Book 3, Title 5, Chapter 3, Article 2315.2 and states, "If a person dies due to the fault of another, suit may be brought [...] to recover damages which they sustained as a result of the death."

In civil court, the basis for wrongful death is negligence. In a case of negligence, the plaintiff must prove a duty to conform to a standard of conduct, a breach of that duty, that the breach was the actual and proximate cause of the injury, and damages. If a claim is brought in negligence, the driver is held to a "reasonable person" standard of care. The question to ask is, "Would a reasonable person behave this way under the same or similar circumstances?"

A finding of negligence in this matter requires an attorney to investigate whether the the accident was due to the driver's negligent operation of his vehicle, or whether the semi driver negligently maintained or inspected the vehicle. Investigation of negligently maintaining the vehicle requires that the cars are examined and that the evidence is preserved.

If the driver is not found to be negligent, the plaintiff may also have a products liability claim for the tire blowout. Under a products liability cause of action, the focus is on the supplier's liability for a product that caused physical harm to a person or to property. For products liability the same injury may be brought on several theories including intentional torts, negligence, strict liability, or liability based on breach of an express or implied warranty.

Claims may also be filed for property damage that was sustained by the vehicles involved in the accident. Property damage is recoverable in negligence. The damages that are recoverable in negligence cases are compensatory rather than punitive.

Although the parties in this accident were from Texas and Mississippi, the fact that the accident occurred in Louisiana will allow a lawsuit to be brought in Louisiana court.

Continue reading "Fatal Collision in Pearl River Illustrates Elements of Semi-Truck Negligence" »

In the town of Duson, a mother of a child slain in a car accident is frustrated and discouraged by the legal system after years of delay in the prosecution of the responsible driver. What's more, there now remains the possibility that charges may be lessened against the man charged in her son's death. This situation is an extremely unfortunate one but does illustrate the differences between civil and criminal litigation, as well as the standards involved.

21-year-old Shawn Lancon was killed when the driver of the vehicle in which he was a passenger drove their vehicle into oncoming traffic while attempting to make a left turn. The driver, the man charged in Lancon's death, was under the influence of alcohol and drugs at the time of the accident. This accident took place in 2007. Three years later, delays in going to trial are still anticipated and now the defense is trying to lessen the criminal charges from vehicular homocide to a first-offense OWI. The OWI charge comes with considerably less jail-time, leading to the anger being expressed in the community.

The reasons for all of these issues are varying. The defense is attempting to lessen the criminal charges by insisting that the blood alcohol level is not high enough for a vehicular homicide, and also that the positive drug test should be excluded because the drugs detected by the drug test does not prove that the drugs were "active" at the time of the accident. Procedural delay is slowing the calendar for trial, due to courts having to postpone cases in Lafayette, Acadia, and Vermillion parishes due to a legal dispute within the court system regarding the allotment of judges.

The delay is importantly going to also delay the plaintiff's ability to sue in civil court.
After a criminal conviction, the plaintiff is often able to bring suit in civil court under
negligence and wrongful death causes of action. In civil court, the plaintiff may bring suit under a negligence cause of action. In a case of negligence, the plaintiff must prove a duty to conform to a standard of conduct, a breach of that duty, that the breach was the acual and proximate cause of the injury, and damages.

Also under civil law, wrongful death statutes provide a legal remedy for being responsible for the death of another human being. Historically, under common law, a wrongful death cause of action was not available and only criminal law was an option. Under statutory law, however, a person can be held responsible in civil court in addition to criminal court for wrongful death.

The applicable Louisiana Civil Code wrongful death statute is under Book 3, Title 5, Chapter 3, Article 2315.2. The Code Article states

If a person dies due to the fault of another, suit may be brought [...] to recover damages which they sustained as a result of the death." Under the statute, among the claimants that may bring suit under the statute include the mother of the deceased child in this case.

The burden of proof in a civil case is also a lesser standard when compared to criminal cases. In a civil case, the plaintiff must prove guilt by a preponderance of the evidence. For example, in a negligence case the plaintiff must establish by a preponderance of the evidence that a duty of care has been breached. The burden of proof in a criminal case has a much higher threshold. In a criminal case the plaintiff must prove guilt beyond a reasonable doubt. The lower threshold when suing the responsible party directly makes it easier for the plaintiff to recover in civil court.

If you have a case in criminal court, remember that a civil case can also be brought and that you will need a knowledgeable attorney experienced in civil law matters to assist you in recovering the damages that you deserve.

John C. Elliott, 26, of Zavalla, Texas was driving a 1999 GMC pickup east on LA.8 and he lost control while passing another vehicle in a curve. He collided with several trees before the truck stopped on La. 8 facing the other direction. Elliot was injured seriously and taken to Lake Charles Memorial Hospital. There were two passengers in the car.

As reported in the Leesville Daily Leader

His two passengers,19-year-old Susie Dixon and an infant, both of Zavalla, Texas, suffered minor injuries and were transported to Byrd Regional Hospital.

Police believe Elliott was impaired by narcotics. He was charged with driving while impaired, child endangerment, careless operation, no driver’s license, and passing in a no passing zone.

In addition to having to deal with criminal charges, Elliott will most likely face civil repercussions from the accident. In Louisiana the person found to be at fault for an automobile accident is financially responsible for all damages created by the accident. Damages that can be collected include compensation for medical expenses, property damage, and pain and suffering. The situation as to who is at fault may be more complicated when there are two drivers who contribute to the accident. Because Louisiana is a comparative fault state if an injured party is found to be partially at fault for his accident, his damages are reduced by his percentage of fault.

Here, however, there was only one car involved in the accident. If the driver, is found to have acted negligently in causing the accident he will be found at fault and will be liable for injuries to his two passengers. Negligence means that the driver’s standard of care fell below that a reasonable person would be expected to exercise in the situation. Negligence has several elements, proving them requires research and an excellent understanding of the facts of the case. There are other places to look for support for a fault finding as well. For example, if a police report has been filed and there is any mention of a traffic law violation or careless driving it can show the driver was at fault.

A civil lawsuit is very different from criminal charges. A criminal case is filed by a state prosecutor and if convicted the defendant can face fines, incarceration, or other penalties. If a defendant is found guilty in a civil suit they must pay restitution to the plaintiff who was injured by their negligent action. In a civil lawsuit the plaintiff must prove by ‘preponderance of the evidence’ that the defendant committed the negligent action and that the action caused damages. Preponderance of the evidence means that the plaintiff’s version of the facts is more likely to be true than not true. This standard is lower than the standard required to be successful in a criminal case.

If you have been injured in a car accident and believe that your injuries were caused by the negligent action of another person, you may be entitled to be compensated. It is vital that you have a hardworking, dedicated attorney on your side.

In certain situations, a person that witnessed another get physically injured has a legal claim against the person that caused the physical injury—even when the witness suffered only mental anguish, without any direct physical injury. The rule allowing this recovery is known as the bystander recovery rule.

Louisiana’s bystander recovery is governed by Louisiana Civil Code Article 2315.6 and the Louisiana Supreme Court case of Trahan v. McManus. As stated in Trahan, the bystander recovery rule does not "compensate for the anguish and distress that normally accompany an injury to a loved one under all circumstances." Rather, the bystander recovery rule is more limited and has four requirements in order for a bystander to recover damages for his mental anguish from witnessing another’s injuries.

Those four elements are:

1. The bystander must be closely related to the injured person. Specifically, the bystander must be the spouse, parent, grandparent, child or grandchild of the injured person.
2. The injured person must suffer a significantly grave harm so that it’s reasonable to expect the bystander to suffer serious mental anguish or emotional distress from witnessing the incident.
3. "The bystander’s mental anguish or emotional distress must be severe, debilitating, and foreseeable," as quoted from Article 2315.6.
4. The bystander’s mental distress must immediately, or almost immediately, follow witnessing the defendant’s actions that caused the direct victim’s injury.

The best way to explain the basics of the bystander recovery rule is by example. A good example of failing to satisfy the bystander rule is the Trahan case. In Trahan, a child was in the hospital. The doctor negligently elected to not treat the child and told his parents that the child would be fine. The parents then took the child home, where he later died.

Although the first three requirements of the bystander rule were met, the fourth requirement was not: The parent’s mental anguish from witnessing their child die occurred well after the doctor’s negligent failure to provide medical treatment. "There was no observable harm to the direct victim that arose at the time of the negligent failure to treat, and no contemporaneous awareness of harm caused by the negligence."

Conversely, the following is a good example of satisfying the four elements of the bystander recovery rule. A mother is playing in her front yard with her eight year old son. A drunk driver veers off the road and into their yard, killing the child but leaving the mother untouched. Unlike the Trahan example above, here, the mother suffers from mental anguish immediately after the defendant’s action of crashing his car into her son.

If you’ve witnessed a traumatic event and, as a result, suffered mental anguish, it’s imperative that you seek legal representation. Cases involving bystander recovery involve many legal questions, such as whether the mental anguish was foreseeable, whether the mental anguish was sufficiently contemporaneous and more.

Continue reading "Understanding the Law: Bystander Recovery After Tragedy Strikes" »

In 2010 the St. Landry Sheriff's Department welcomed a traffic accident reconstruction expert among its team as Captain Brian Hundley successfully completed a course on accident investigation and reconstruction. Especially in fatal accidents or in cases where there are no eye-witnesses, car crash experts can play a pivotal role in determining the most probable explanation for how the accident occurred.

In an investigation, a crash reconstruction expert must rely heavily on evidence gathered by the police at the accident scene. Although the expert can consider a variety of physical evidence, including the road layout and traffic markings, tire skid marks, and the damaged vehicles themselves that remain after the occurrence of the crash, much of the expert’s analysis must be based on observations made after the event. For this reason, it is critical that police officers who respond to an accident scene are extremely diligent in preserving and recording evidence once the medical needs of the victims are addressed.

The reconstruction expert will review photographs of the roadway and vehicles and obtain detailed measurements of the site in order to create a diagram of the situation. This diagram is important for establishing the vehicles’ positions both before and after the impact.

The expert will also observe the various environmental factors that can influence the safe operation of vehicles. Common roadway factors include the surface material of the road, the slope of the lane, traffic signals and signage, the curve of the road, the presence of guard rails or other barriers, proximity to bridges, tunnels, or other structures, objects that impede the view of oncoming traffic, and whether the road itself has been properly maintained. Hazards such as potholes, pavement cracks, and debris can substantially impact roadway safety, and government authorities are required to observe certain standards aimed at reducing these dangers. Weather is also a major factor in motor accidents, and so the expert will look for this information on the police report and will also attempt to confirm the police officer’s observations by consulting local weather reports. Similarly, lighting (or the lack of it) plays a significant role in night-time collisions, and the expert will take note of any street lamps or other sources of illumination at or around the scene to confirm the information in the police report.

The crash expert’s advanced knowledge of physics and mathematics is applied to all the physical evidence he or she can gather. In addition, the expert will review and analyze all eye-witness statements taken by the police and, when possible, speak directly to witnesses to confirm their observations. The expert may also check the drivers’ motor vehicle records for evidence of inexperience or violation history in an effort to reach a conclusion about how the accident occurred.

Although many traffic accident reconstruction experts like Captain Hundley work for local law enforcement departments, some are also available in the private market to support car crash victims and their attorneys in lawsuits against negligent drivers. An expert’s opinion can dramatically influence the outcome of a case, particularly when the expert can establish credibility with the jury and serve as a resource for explaining complex matters related to the physics of the crash.

A reconstruction expert is of little value to a victim, however, if the expert cannot substantiate his or her education, credentials and experience for the court. In the next post on this topic, we will explore the role of the trial court in evaluating the qualifications of these experts, and highlight the reasons it is critical that accident victims work with an attorney who understands what to look for when hiring one of these experts.

Continue reading "St. Landry Parish Car Crash Expert's Duties Help Police Understand How Accidents Happen" »

Fleeing the scene of an escalating argument, a driver injured two persons when he ran over them with his car. The incident happened in Minden on February 7, as reported by Jana Ryan. Local authorities believed the victims were merely bystanders and were not part of the argument. After brandishing a gun, the driver attempted to leave in his car, and he ran over the bystanders while trying to back away. The driver was later arrested on criminal charges of aggravated assault and aggravated battery stemming from the incident.

Events like this one often bring criminal charges against the person who injures another. However, the driver in this case may also be civilly liable to the injured victims; that is, in addition any criminal conviction, a court can hold him financially responsible for the injuries that resulted from his actions. To be held civilly, or financially, liable to a victim, generally a person’s actions must be the legal cause of the victim’s injury. The law does not even require that the person have intentionally injured a victim; a careless, or negligent, act may be sufficient to establish liability.

It is important to keep in mind, though, that criminal law and civil liability are administered very differently and that criminal convictions and civil remedies are distinct under Louisiana law. A conviction by a criminal court does not automatically ensure that a civil court will hold a convicted defendant financially liable for the injuries he caused. Nor will a person found innocent be guaranteed immunity from civil liability. Each type of court requires attorneys to establish different elements, and criminal courts require them to prove those elements with more certainty. This is true even if key words, such as "assault" and "battery," seem to mean essentially the same thing in each court.

The crucial point to remember is that a person’s actions in one instance may result in both criminal and civil liability. The two are distinct arms of the legal system. The fact that one arm has administered its form of justice does not prevent the other arm from doing the same. If you have been injured by a person who was arrested for those actions, you may be entitled to financial compensation from that person as well.

Continue reading "Hit-and-run Incident Illustrates Civil and Criminal Trial Issues" »

Victim John Deshotels learned the hard way what happens when you don't have a an attorney represent you in an accident injury claim. He took his case to trial unrepresented and lost. Even after getting an attorney the damage was done and he lost again in a recent Court of Appeals decision.

Plaintiff John Deshotels appealed the trial court's granting of involuntary dismissal of his case against Nicholas J. Fontenot and his insurance company. Deshotels alleged he was rear ended by a car driven by Fontenot and injured.The case went to trial and following Deshotels' presentation of his evidence, the insurance company moved for involuntary dismissal pursuant to La. Code Civ.P. art. 1672 (B)

Louisiana Code of Civil Procedure Article 1672 (B) states:

In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party... may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

Trial courts have discretion to grant an involuntary dismissal if, after weighing the evidence, they determine the plaintiff has not proved their claim by a preponderance of the evidence, or the "more likely than not" standard.

In this case Deshotels was able to establish at trial that he and Fontenot were in an accident and that Fontenot had $5300 worth of repairs done to his vehicle. The parties' stories conflict as to how the accident occurred. Deshotels testified that he suffered pain over his entire body after the accident and went to see Dr. Tommy Fontenot complaining of extreme redness on his left ankle and extreme pain in his neck. Deshotels also testified that he took hydrocodone for the pain. However, he was unable to produce bills for doctor visits or his medication. The evidence was insufficient to prove that Fontenot acted negligently, and the Court of Appeals found that the trial court did not err in that finding.

The Court of Appeals also disagreed with Deshotels argument that the trial court should have allowed him to introduce the traffic ticket Fontenot received after the accident. It is well established that a civil traffic citation is inadmissable to show a party was charged with a traffic violation.

Car accident victims may feel they have an open and shut negligence case against someone who has hit and injured them. However, proving the elements of negligence requires factual investigation, potential expert witnesses, and importantly, an attorney well versed in the law and pitfalls that could potentially arise. If a plaintiff does not prove that it is more likely than not a defendant acted below the appropriate standard of care and that action caused injury and damages, the case could be dismissed, as happened here. If you have been injured in a car accident, it is very important that you have an accomplished, experienced attorney to help you navigate the often messy legal waters.

Ouachita Parish deputies arrested Brandon Martin, of West Monroe, for driving while intoxicated, “DWI,” on Sunday, February 21. While this incident might seem relatively commonplace, a few aspects of Martin’s arrest make it noteworthy. According to a report by the staff at The News Star:
“When [the deputies] found [Martin], they said he was lying in the rear of the vehicle on top of musical equipment. Two people in the front seat said Martin had been driving.

Deputies said Martin declined a field sobriety test, but submitted to a chemical test that showed his blood alcohol content at .184. A blood alcohol level of .08 is considered intoxicated in Louisiana. The arrest report showed Martin was charged with DWI in 2005, 2007 and 2009.” (emphasis added)

Those emphasized passages make this arrest extraordinary. Mr. Martin was behind the wheel with a blood alcohol content more than twice the legal limit in Louisiana. Even worse, Martin should have known better because he had previously been arrested on multiple occasions for the same conduct. But instead he chose to drive his car while severely intoxicated – again.

Fortunately for area drivers, authorities got Martin off the road this time before he caused an accident and serious injury to others. That may not be the case if Martin is allowed to drive drunk again or if other repeat DWI offenders like Brandon Martin get behind the wheel drunk. According to The Center for Disease Control's statistics, alcohol-impaired crashes accounted for almost one-third (32%) of all traffic-related deaths in the U.S. in 2008.

In addition to criminal punishment, these drivers should pay for the injuries they cause. A person who drives a car while intoxicated is presumed to be acting negligently. Therefore, a person injured as a result of a drunk driver’s conduct may be entitled to receive damages to pay for injuries caused by that driver. Drivers with particularly egregious conduct, like Brandon Martin, might also be liable for punitive damages. A court or jury can award that type of damages as a way of punishing a defendant for his extraordinarily bad conduct. Punitive damages are above and beyond any compensatory damages awarded - damages that reflect the actual cost of a plaintiff's injuries.

Most people probably consider themselves safe drivers, and feel comfortable with their skills behind the wheel. The unfortunate reality, though, is that even the safest drivers can be injured by the negligent conduct of another. Driving does not have to be dangerous. However, people who choose to get drunk then get on the road dramatically reduce the safety of roads and highways for all others who need to use them.

We count on local authorities to keep folks like that off the road. But if you have been injured by a drunk driver or if you would like to speak with someone about your legal rights, the attorneys at The Berniard Law Firm are available to answer any questions you might have.

Have a Great St. Patrick's Day but please do not Drink and Drive.

28 year old Arlandus Albertlee Green, Jr. of Minden has been arrested and charged with running down two people with his car.

Green, also known as Lance, has been accused of aggravated battery and aggravated assault. As reported in the Bossier Press Tribune and Minden Press Herald’s nwlanews.com,

Minden Police Chief T.C. Bloxom said on February 7, Green and Lamario Elkins began arguing on Sheppard Street. During the argument, Green pulled a Jimenez 9 mm and pointed it at Elkins.

‘Green got into his Monte Carlo and put it in reverse,’ said Bloxom. “He then drove backwards and ran into two bystanders.”

The bystanders, Jane Sneed and Bobby Tobin were taken to Minden Medical Center with contusions and released later the same day. The argument apparently centered around a female.

Car accidents can take many different forms. Others beyond merely drivers and passengers are sometimes injured. Here, two innocent bystanders suffered injuries when Mr. Green backed into them. While Mr. Green has been arrested he may also face civil consequences for his actions.

Under Louisiana law someone injured in a car accident that was not their fault should not suffer financially at all because of the accident. The responsible party and their insurance company can be found liable damages, including: current and future medical expenses, lost wages for time spent in the hospital or recovery, and possibly even damages for pain and suffering. Civil liability may exist regardless of the outcome of criminal charges.

A finding of fault in an auto accident typically requires that the defendant driver acted negligently. This means that the driver must have had a duty of care to the injured party or parties, breached the duty, and the injuries were caused by the breach. Causation in itself requires both cause in fact, (the injury would not have occurred but for the breach) and proximate cause. Proximate cause entails that the negligent act was not too remote from the injuries. That is, it must have been reasonably forseeable that the injuries would result from the breach.

Each element of a liability claim has its own legal nuance. As such, proving fault through negligence in an auto accident case can be difficult and complex. If you have been injured in an auto accident that was not your fault you need an attorney with significant experience in this area of the law.

Continue reading "Minden Man Arrested for Running Down Two People With his Car " »

As reported by the Advocate and WBRZ News Louisiana, police now have a suspect in the hit and run that killed 20 year old Mikel Carson on January 31st. According to an arrest warrant, Christian J. Cvitanovich of Melairie is wanted for striking down Carson with his 2005 Ford Expedition. At the time, Carson was walking down 1-10 to check on a woman involved in an unrelated vehicle crash.

According to the article,

Investigators with the Police Department’s Traffic Homicide Unit were told on Feb. 4 that the Expedition had been taken to a Metairie body shop... with the assistance of the Jefferson Parish Sheriff’s Office, the vehicle was impounded that afternoon and returned to Baton Rouge for further examination.

Mr. Cvitanovich may face more than just criminal charges as a result of the incident. Mr. Carson's family may also be able to collect damages in a wrongful death lawsuit. A wrongful death claim can be brought if a victim is killed as a result of the negligence or other improper conduct of another person or entity. Although the deceased person will not be able to benefit from the claim, their survivors can receive compensation.

Generally, for a successful wrongful death claim, three elements of proof for a successful claim must be proven: 1) the victim's death was caused by the a wrongful act of the defendant, 2) there is a surviving spouse, children, or beneficiaries to collect on the claim, and 3) the victim's death resulted in monetary damages.

Continue reading "Baton Rouge Hit and Run accident may lead to further court action" »