Civil Matter

July 24, 2023

Is Nursing Home Fall Medical Malpractice or Tort?

disabled_disabled_human_being-1024x734 Many of us provide support to elderly folks in our lives through our time and money. We expect the utmost attention and respect when we send a loved one to a care facility. Sometimes accidents happen, whether by negligence or by accident, that result in injury to patients. Regardless of the cause of injury, a lawsuit can help hold medical professionals responsible for the type of care they provide. The difference between a tort and a medical malpractice claim for nursing home injuries is examined in the following case.

John Lee was a resident at Woldenberg Village nursing home located in New Orleans. Lee was labeled a fall risk and therefore had a fall-detecting device attached to his wheelchair that would sound if he attempted to stand up. When installed correctly, the device is not accessible to the wheelchair user. A nurse found Lee lying on the ground with the alarm device in his hand. Lee’s hip was injured and required surgery due to the fall.

Lee’s estate filed a tort lawsuit against Woldenberg for damages relating to the fall. Woldenberg filed an exception of prematurity because the claims related to medical malpractice and were therefore required to undergo investigation by a medical review panel before litigation. Lee’s estate appealed the lower court’s findings of prematurity.

July 23, 2023

Look Both Ways Before You Cross!: Pedestrian Fault Allocation

by Berniard Law Firm

crosswalk_pedestrian_crossing_407023-1024x656 People often assume that pedestrians always have the right of way. While this adage is partially true, pedestrians who avoid proper safety protocols can be found more at fault for an injury than the car that struck them. If avoiding physical trauma is not motivation enough to look both ways before crossing the street, the following lawsuit may encourage you to take proactive steps to avoid being hit.

Wilson Jolivette was walking on a service road near Louisiana Highway 90 when he was struck by a passing truck driven by Ray Hebert. Hebert was employed by Hanagriff’s Machine Shop and was driving a large flatbed truck owned by the Shop. Jolivette broke both his wrist and ankle due to the collision. Hebert’s driver’s license documents partial vision loss in one eye, and he testified that he did not see Jolivette walking on the road.

Witnesses to the events described Jolivette walking into the road, being struck by the truck’s side mirror, and spinning into the air. Jolivette admitted that he did not look both ways before crossing the service road and consequently did not see the truck coming. Jolivette sued the Shop for medical expenses, pain and suffering, and loss of earnings. The jury found him 70% at fault for the accident and the Shop at fault for the other 30%. The jury also awarded Jolivette $10,000 for pain and suffering and other awards. Both parties appealed their assignments of fault. Jolivette appealed the $10,000 ruling.

July 22, 2023

Appellate Court Affirms Trial Court’s Approval of Settlement Agreement in Property Contamination Lawsuit

by Berniard Law Firm

oil_oil_production_oil-1024x768 Can a trial court’s approval of a settlement agreement in a property contamination lawsuit be upheld without determining remediation requirements and the deposit of funds into the court registry? This question lies at the heart of the following case, which features an appeal of the trial court’s judgment approving a settlement agreement regarding property contamination caused by historic oil and gas operations. The appeal raises issues of statutory interpretation and whether the trial court erred in its application of the law. The resolution of this question has significant implications for the approval process of settlement agreements in similar cases governed by Act 312.

In this case, Certain Insurers appealed the trial court’s approval of a settlement agreement in a property contamination lawsuit. The insurers raised two issues for the court to decide: (1) whether the trial court erred by not determining whether remediation was required before approving the settlement, and (2) if remediation was necessary, whether the court erred by not ordering the deposit of funds into the court registry.

The litigation involved historic oil and gas operations in Jefferson Davis Parish, and the plaintiffs sued Riceland and BP for damages and remediation. Riceland, in turn, filed a third-party demand against Certain Insurers seeking coverage under applicable insurance policies. After years of litigation, the plaintiffs, BP, and Riceland reached a compromise to resolve all claims. The settlement agreement included provisions for remediation by state regulatory standards, and Riceland assigned its rights against Certain Insurers to the plaintiffs.

July 21, 2023

Vicarious Liability Doesn’t Always Extend Liability for an Employees Actions

by Berniard Law Firm

new_zealand_accident_insurance_0-1024x768 Vicarious liability in the context of work-related accidents is a complex legal issue that necessitates careful analysis of the state’s code. The case of Sarah Barber serves as a compelling example of the potential consequences when a government employee causes an accident while performing their job duties. Understanding the nuances of vicarious liability and the specific provisions governing such cases is essential to determine the employer’s liability for the actions of their employees.

Sarah Barber (Barber) was driving her car with passengers on Highway 107 in Pineville, Louisiana, when her car collided with Larry Jeane (Jeane), heading northbound on the highway. The collision occurred when Jeane’s car crossed the median and hit Barber’s vehicle. Mr. Jeane succumbed to injuries, while Barber’s passengers sustained severe injuries. The passengers in Barber’s vehicle filed a lawsuit against the City of Pineville, its insurer, and several other defendants.

The primary issue discussed in this case was whether the State was vicariously liable for the accident caused by Jeane because he was on the job as a state Marshal when the accident happened. The Plaintiffs claimed the state was vicariously liable for Jeane’s actions since Jeane’s job is directed by the State Legislature. For the passengers to be successful in their vicarious liability claim, they needed to show the state was responsible for the Marshal’s actions under La. C. C. art. 2320 and La. R.S. 42:1441.4.

July 20, 2023

Time is of the Essence in Medical Malpractice Lawsuits

by Berniard Law Firm

time_take_time_cosmetics-1024x652 When it comes to medical malpractice, time can be both a friend and a foe. Trusting doctors to safeguard the well-being of our loved ones makes the process of bringing a lawsuit challenging and emotionally charged. Yet, within the legal field, there exist specific time frames and procedural intricacies that can make or break a case. Once the clock runs out on a particular timeframe, a lawsuit is deemed barred, leaving individuals without recourse. In the midst of this intricate dance between justice and time, the story of Rita Foster and her family shines a light on the importance of understanding legal procedures and seeking qualified legal representation.

In August of 2012, Rita Foster was hospitalized, during which time Dr. Olisa, a physician at Ochsner Health System, ordered that Foster have a CT scan of her chest. When a 2-centimeter speculated appeared on her lung, Olisa recommended that Foster have a follow-up CT scan in three to six months. Foster’s children (plaintiffs) claimed there was no documentation of this recommendation in any medical records and thus contributed to Foster not obtaining the recommended follow-up for the CT scan of her chest.

In the following days and years, Foster was treated for other issues by multiple physicians and healthcare providers working within and outside the Ochsner Health System, with no other communication to order a repeat CT scan.

July 19, 2023

Seeking Justice After a Car Accident: The Importance of Legal Representation for Fair Compensation

by Berniard Law Firm

accident_car_accident_car-1024x683 Being involved in a car accident is unfortunate, especially when it leaves you with long-term pain and suffering. If your injuries are a direct result of a car accident, you may be entitled to compensation from those who caused them. Rather than risk representing yourself in the legal process and walking away with little to nothing, you need to be represented by a qualified attorney who can assist in getting you the damages you deserve.

Brenda Brown was stopped at a red light when she was rear-ended. The driver of the other vehicle was Homer Sargent, who had been employed by Evans Environmental and Geological Science and Management. Both vehicles were rentals from Enterprise Car Rental.

Brown claimed the car accident caused her numerous personal injuries, entitling her to compensation for not only past, present, and future physical pain and suffering, but also past, present, and future lost wages and earnings. Additionally, she argued she was entitled to damages for her diminished quality of life as well as for severe emotional and mental anguish.

July 17, 2023

Proving Racial Discrimination Claims: The Role of Essential Evidence in Workplace Litigation

by Berniard Law Firm

taiwan_shilin_district_court-1024x768 Racial discrimination in the workplace is a pressing issue that demands attention and action within our legal system. However, bringing a claim of racial discrimination or a hostile work environment requires the ability to substantiate crucial factors. The following case highlights the significance of providing essential evidence when pursuing racial discrimination or hostile work environment claims.

Bobby Whitlock was terminated by his Monroe employer, Lazer Spot, Inc. after it claimed he left the vicinity of a loading dock while the light remained red. Next, Whitlock filed a claim with the Equal Employment Opportunity Commission. Two years later, Whitlock, who is African American, filed a claim against Lazer Spot, Inc., alleging both a hostile work environment and racial discrimination. Lazer Spot, Inc. then filed to dismiss Whitlock’s motion, arguing that his challenges did not state a claim. Next, the U.S. District Court for the Western District of Louisiana granted Lazer Spot, Inc.’s motion to dismiss and found Whitlock did not state a claim for either his discriminatory discharge allegation or his hostile work environment complaint. This appeal to the U.S. Fifth Circuit Court of Appeal follows.

To be successful with a motion to dismiss claim, the Court of Appeal found, under law, that a complaint has to have adequate factual matter to bring a claim of relief that is facially plausible, including when a plaintiff pleads facts that permits the court to reasonably infer the defendant was liable for the alleged misconduct. See Bell Atl. Corp. v. Twombly.

July 16, 2023

Who Pays Who? Important Distinctions in Defining Insurance Terms

by Berniard Law Firm

tug_boat_barge_towing-1024x681 The language used in insurance policies can hold immense significance when determining the resulting coverage and payouts. In a compelling case involving three tug boats, the M/V Miss Dorothy, the M/V Angela Rae, and the M/V Freedom, an unfortunate collision prompted a dispute over insurance claims. As insurers of the Miss Dorothy sought compensation from the owners of the Angela Rae, the crux of the matter revolved around the interpretation of key terms within the insurance policies. The court’s analysis focused on the definition of “tow” and the parties’ intent, underscoring the critical role that precise language plays in insurance contracts. This case serves as a powerful reminder to both drafters and signers of insurance policies that every word holds weight and can shape the outcome of a claim.

Three tug boats, the M/V Miss Dorothy, the M/V Angela Rae, and the M/V Freedom, plied the Mississippi River with a barge boat in tow. The Angela Rae and the Freedom were positioned behind the barge, and the Miss Dorothy was positioned in front. The Angela Rae was designated as the ‘lead tug’, with the other boats acting as ‘assisting tugs.’

In an unfortunate turn of events, the Miss Dorothy collided with a portion of the Sunshine Bridge’s fender. The Miss Dorothy subsequently sank, resulting in a total loss of the ship and its machinery on board. In the ensuing dispute over insurance claims, the insurers of the Miss Dorothy sued the owners of the Angela Rae in its capacity as the lead tug. The two insurers of the Angela Rae, Atlantic Specialty Insurance Company (“Atlantic Specialty”) and P & I Underwriters (“P & I”), both filed motions averring the insurance responsibility to the other, claiming that the other’s policy should be paid out instead of their own.

July 15, 2023

The Who, When, and How of Obtaining Murder Investigation Records in Louisiana

by Berniard Law Firm

table_wood_record_notebook-1024x681 The 1985 murder of Denise Porter by stabbing was a horrific tragedy with life-altering ramifications for her husband, Joel, a Louisiana attorney. It also provides an example of how records from a criminal investigation can and cannot be requested.

In Louisiana, immediate family members (i.e., the surviving spouse, children, grandchildren, or siblings) of a person who died of unnatural causes are entitled to obtain, after ten years has elapsed, unlimited access to investigative records pertaining to the death. La. R.S. 44:3(F).

While the statute provides a straightforward answer to who can obtain these records and when they can be requested, the element of how the information can be accessed created complications for Joel Porter. Record requests must accord with the limitations defined in other applicable laws, for example, Louisiana Code of Evidence, articles 507 and 508, explaining how attorneys can be approached about privileged information.

July 14, 2023

What happens if a roofer is injured while putting a new roof on your house?

by Berniard Law Firm

roofers_job_people_roof-1024x683 When accidents occur on a construction site, questions of liability and responsibility arise, leaving property owners wondering about their potential legal obligations. In a compelling lawsuit from Alexandria, Louisiana, the issue of whether a homeowner can be held liable for injuries sustained by a roofer while working on their property takes center stage. The case of Robert Schram v. Ronnie Waters provides valuable insights into this perplexing matter, shedding light on the factors determining a homeowner’s liability when a roofer falls from their roof.

Robert Schram, an employee of Dan Baker, slipped and fell while working on a tin roof. He fell while trying to catch a nail gun thrown from the ground causing him to break his ankle. He sued the property owner, Ronnie Waters, and his insurer Colony Specialty Insurance Company (Colony), claiming Waters was liable for his injuries because he was supposed to provide the necessary safety materials for the job.

The trial court granted Colony’s and Waters’s joint motion for summary judgment to dismiss the claims, which found no genuine issue of fact on the question of Waters’s liability. Schram appealed, claiming the trial judge committed a legal error in his decision because there are three issues of material fact concerning Waters’s negligence.