Civil Matter

August 20, 2012

Medical Malpractice Claim Arises from Failure to Follow DNR

A do-not-resuscitate order (“DNR”) is a formalized direction to medical personnel that they are forbidden from performing life-saving efforts on an individual who is in need of care. In Jones v. Ruston Louisiana Hospital Company, the decedent filed a DNR, which was kept on record, with the Northern Louisiana Medical Center (“NLMC”) in Ruston, Louisiana. In July of 2009, the decedent was admitted to the NLMC for medical treatment; and six days later, despite the very clear instructions of the DNR, NLMC employees resuscitated him when he went into cardiac arrest. Thereafter, the decedent suffered unnecessary and extensive physical disabilities, requiring rehabilitative treatment for two months until his death.

The decedent’s family members (the “Plaintiffs”) posthumously brought suit against NLMC for the following four claims: (1) reimbursement for medical expenses in connection with his rehabilitation care; (2) physical and mental pain and suffering; (3) loss of enjoyment of life and cognitive decline; and (4) bystander recovery. However, the NLMC fired back with a procedural defect argument that the Plaintiffs skipped a crucial step in bringing the lawsuit. An “exception of prematurity” was filed based on the Louisiana Medical Malpractice Act (“LMMA”), which requires that a case be brought before a medical review panel prior to claims being filed in court when the defendant is a qualified healthcare provider. This exception applies when the underlying alleged conduct of the defendant exists under the LMMA umbrella. Specifically, and most importantly in this case, the claim must be for medical malpractice claim and not general tort liability.

The issue at hand was whether the Plaintiffs’ claims were based on medical malpractice or general tort law. In order to resolve this issue, the court relied on Coleman v. Deno (2002), which established the following six factors: (1) whether the wrong is “treatment related” or caused by failure to exercise professional judgement; (2) whether the wrong requires expert medical evidence to determine whether a standard of care was breached; (3) whether the patient’s condition was assessed; (4) whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities that a hospital is licensed to perform; (5) whether the treatment caused the injury or would have happened without medical care; and (6) whether it was an intentional tort.

August 15, 2012

Injury Due to Workplace Discrimination Handled in Court of Appeals

by Berniard Law Firm

Discrimination in the workplace is unfortunately all too common. But, how do you determine if you might be able to file a claim for workplace discrimination that resulted in a loss of job? Although this is a challenging subject that should be decided for each individual situation, the Court of Appeals for the Fifth Circuit (which includes Louisiana) has come up with a general outline for discrimination cases. This outline might be helpful to determine whether you should bring a case if you feel your workplace has discriminated against you.

It is illegal for an employer to fire an employee because of the employee’s race. If race was a “contributing factor” in the loss of employment then it is illegal, even if there are other, lawful reasons for the termination of employment. There are three major steps to determine whether or not you might have a case for workplace discrimination.

First, the court will decide if the person who was allegedly discriminated against has a “prime facie” case for discrimination. That is, whether the case looks like discrimination on the surface without diving too deep into the facts. The court will base this decision on four qualifications. First, the person allegedly discriminated against must be a member of a protected class. A protected class has been defined by law as race or color, nationality, sex, or religion. However, an individual can be considered a protected class in relation to the particular situation in the workplace. Therefore, an individual can be a protected class even if that individual is not considered a minority in comparison to the general population. Second, he or she must be qualified for the position that they held. Third, he or she must have actually been terminated from employment. Lastly, he or she must have been replaced by someone from outside the protected class in which the person who allegedly discriminated against belongs. Assuming all of these qualifications are met, you can move on to step two.

August 13, 2012

Wrongful Death Claim Based on Fatal Crane Accident Dismissed

by Berniard Law Firm

Death on the job is a sad reality that all too many Louisiana families face. When a loved one dies on the job, the victim’s family is not only left with an emotional hole, but a financial gap as well. Children, siblings and spouses who may have relied on the deceased’s income can face economic hardship. Fortunately, a wrongful death lawsuit can help ease this financial burden.

A wrongful death lawsuit seeks to recover damages a surviving family member or estate has suffered by the negligent death of a family member at the hands of another. Since these suits are brought on behalf of surviving family members, compensation cannot be recovered for injuries that are personal to the deceased. This means that pain and suffering and mental distress damages cannot be recovered through a wrongful death lawsuit. However, lost wages and other financial losses faced by the surviving family can be recovered.

A wrongful death is a death that is caused by the negligent act or omission of another. In certain circumstances, if the death is proven to be caused intentionally, a jury may be more likely to award a larger recovery. However, proving an intentional act can be difficult. This was illustrated recently in a case where a man was fatally wounded aboard a ship when he was struck by a crane load.

August 10, 2012

Jurisdiction for Appeals Important in Louisiana Litigation

by Berniard Law Firm

Jurisdiction and appeals are both complicated subjects that law students spend an entire year studying in law school. The intricacies of jurisdiction and the appeals process are also learned from years of practice in the legal field. One victim discovered this notion out the hard way when he brought suit after a medical incident in Alexandria, Louisiana. Some general background information is helpful before the case is discussed.

In order for a court to hear a case, that court must have jurisdiction over it. Jurisdiction is defined as the authority to hear a case and it is granted by the United State Constitution or by statute. Jurisdiction needs to be determined at each level as it goes through the either the federal or state court system.

The District Court hears most federal claims first because it is usually considered the lowest federal court. After a case goes through the lower court then the defendant typically has the right to appeal if the judgment that was rendered at the District Court was not favorable to his case. The Court of Appeals then needs to determine whether it has jurisdiction over that particular appeal.

August 8, 2012

Lawsuit Over Speech Rights and City Interests Shows Need for Competent Attorney

by Berniard Law Firm

Louisiana court dockets are packed. Judges are over-worked. This means that judges have little patience for frivolous lawsuits or claims that are not clearly defined. When claims are muddled, a judge may have difficulty discerning what issues are to be analyzed. This murky analysis can lead to erroneous conclusions that can lead meritorious claims to be dismissed. One of these cases was recently under consideration in the Court of Appeals for the Fifth Circuit.

In this case, a South Padre Island restaurant owner brought suit against the city when city ordinances denied his desire to place an advertisement on a moored boat. The district and appellate courts found the claim to be ever-changing. Parties were added and removed and the claims themselves changed frequently. The lawsuit brought forth claims ranging from First, Fifth and Fourteenth Amendment violations to violations of Texas law. This muddied lawsuit caused the court confusion and led them to approach the case in a way that the plaintiff may not have intended.

The main issue in this case, according to the court, was whether or not the plaintiff had standing with regards to a First Amendment claim. In order for an individual to have Article III standing, a plaintiff must show an injury in fact that is concrete and particularized and actual or imminent; a causal connection between the injury and the conduct alleged in the complaint; and the likelihood that a favorable decision will redress the injury.

August 6, 2012

Boat Swell Accident Provides Look Into Res Judicata

by Berniard Law Firm

The first element of an independent action in equity that allows an individual to bypass res judicata analyzes whether the judge’s determination in the original case was truly fair and made in good conscience. When a judge shows bias, as in the boat swell case, the judge’s decision is likely swayed and not independent. This is unfair to the losing party and therefore helps a claim bypass res judicata.

The second element requires that the original case claim have merit. If the claim is frivolous, then there is no reason for the court to negate res judicata and grant a new trial. This again protects judicial efficiency and duplicitous suits. When determining the merit of the underlying suit, a judge will simply read the complaint to see if it makes an actual claim that, if true, would lead to recovery. In the boat swell case, the personal injury claim did have merit and thus satisfied this prong.

The third element requires courts to determine whether fraud was a reason that the losing party did not prevail in the underlying case. Similar to the first element, fraud is likely to sway a judge’s decision to the detriment of the losing party. This is what happened in the boat swell case as the judge’s decision was basically bought with lavish hunting trips.

August 1, 2012

Houma Boat Swell Accident Victim Convinces Court of Appeals to Bypass Res Judicata

by Berniard Law Firm

Though courts are busy and judges have overflowing dockets, our justice system requires courts to find time to hear cases worthy of adjudicating. This means that judges must be as efficient as possible. One way of doing this is to require claimants to converge all of their complaints into a single lawsuit. Failure to do this will bar a claimant from bringing a second lawsuit against the same party. This legal theory based in civil procedure is known as res judicata. It seeks to maintain judicial efficiency and protect litigants from facing duplicitous lawsuit from the same claimant. This important principle is important to understand for anyone going forward in a lawsuit because it could prevent a claimant from asserting any material claims against a wrong-doer that were not asserted in the first legal action.

Though courts are assumed to be honest, deceit and bias can seep into the legal fabric. When this occurs, the justice system must reanalyze the applicability of res judicata. One illustrative example of an instance like this took place recently in the United States District Court for the Eastern District of Louisiana. The issue was complicated and was later resolved by the United States Court of Appeals for the Fifth Circuit.

The case in question involved a personal injury lawsuit where a yacht’s boat swells threw another boat into the air and injured a woman in that boat. That injured woman filed suit against the yacht owners and their insurance company. At trial, the judge found for the defendants, essentially stating that the defendant’s expert witness was more reliable than the plaintiff’s expert.

July 30, 2012

Belle Chasse Mold Case Shines Light on Expert Testimony

by Berniard Law Firm

Southern Louisiana is known for its historic buildings, easy going attitude and humid climate. Though these ingredients mix well for a great place to live or vacation, they can wreak havoc on the health and safety of residents’ homes and work places. This was the case recently in Belle Chasse. There, an individual who rented an office for her business discovered the building contained toxic mold that posed serious health risks. The problem needed immediate remediation. After being contacted, the property owners began removal of the mold. However, the mold, according to the tenant, was so exacerbated that she was forced to abandon the office. The tenant then filed suit against the landlords and their insurance company seeking compensation for business and health related damages.

The importance of this case lies in its examination of expert testimony. In this instance, the tenant sought to have her doctor testify that her chronic fatigue syndrome and other health conditions were directly related to the toxic mold in her office. The landlords claimed it would be erroneous for the court to classify the doctor as an expert and asked that the lawsuit be excused. The court agreed with the landlords and, on appeal, so did the Court of Appeal for the Fourth Circuit.

Expert testimony is governed by the Daubert rule. According to this rule, in order for expert testimony to be heard it must be deemed to be relevant and reliable. The Supreme Court in Daubert provided that relevancy and reliability are determined by a set of factors: (1) testability of the scientific theory; (2) whether the theory has been subject to peer review; (3) knowledge of the theory’s rate of error; and (4) whether the theory has gained general acceptance within the scientific community. These factors are non-exclusive, but provide a solid framework for courts when determining whether to allow an “expert’s” testimony.

July 27, 2012

Train Accident Tests Requirements of Accident Liability

by Berniard Law Firm

Doyle, a resident of Eunice, Louisiana, lost his appeal of the summary judgment verdict denying him damages resulting from injuries he received in an automobile-train accident. On March 5, 2009, Doyle finished up an evening of cards with friends and a half pint of whiskey before getting in his car to drive home. While he was crossing the train tracks, a train owned by Union Pacific Railroad Co. collided with his car. When Doyle’s blood alcohol level (BAC) was tested at the hospital, it measured .108% – the legal limit in Louisiana is .08%. A toxicologist testifying for the defense argues that his BAC at the time of the accident would have been well above a level associated with mental and physical impairment. This impairment significantly increased his risk of ending up in a car accident.

As a result of this intoxication, unfortunately Louisiana Statute § 9:2798.4 bars Doyle’s claim. The statute does not permit recovery to a driver if the driver was (a) legally intoxicated, (b) more than twenty-fiver percent negligent, and (c) his or her negligence was a contributing factor in the accident. Many states have similar laws on their books due to the public policy concerns of allowing an intoxicated person to recover for injuries that resulted from his own voluntary intoxication. If someone chose to drive while intoxicated, why should the other party have to pay for the drunk driver’s negligent behavior? However, in order to prevent injustice, most of these laws have a requirement that the intoxicated person’s actions be somewhat negligent and that that negligence be a relevant factor of the accident.

Doyle admitted that he hadn’t looked for the train when he crossed. The crossing was marked with lights and there is evidence that the lights were flashing and the train honked its horn to warn of its approach, despite Doyle’s argument to the contrary. The first responder to the scene, a police officer, testified that the lights were working when he arrived and the event recorder on the train showed the engineer began blowing the horn 25 seconds before the collision. These two signals would have alerted a reasonable person to the train’s proximity. The trial court concluded and the appellate court affirmed that no reasonable juror could come to the conclusion that Doyle was less than 25% negligent in the cause of his own accident due to his intoxicated state and his failure to look properly for an incoming train while crossing the tracks. While the train company could be considered at fault in this case, Doyle was also at fault for driving while impaired under alcohol. Since no reasonable juror could find in Doyle’s favor in this case, summary judgment was appropriate.

July 23, 2012

Precarious Louisiana Rental Situation Leads to Tenancy Debate

by Berniard Law Firm

Rental situations are often particularly hairy, with unfortunate stories emerging of how renters can be put into uncomfortable circumstances due to issues with the property. A landlord in Ouachita Parish, Louisiana, lost his appeal of the landlord liability judgment against him. While the landlord was able to collect some of the back-due rent owed to him, he is still liable for damages to a tenant who was injured in his apartment.

Green, a tenant in a building owned by Erwin Enterprises, reported a leak from his bathroom ceiling to his apartment manager on October 1, 2008. While a maintenance employee was dispatched the next day to fix the leak, the employee could not do so without bringing in some outside assistance and left the premises without taking any action to fix the problem. Four days later while Green was sitting on the toilet, the bathroom ceiling caved in on the tenant, causing him to jump up in surprise and slip on the water coming down above. After slipping on the water, Green suffered injuries to his back, legs, and foot, resulting in multiple doctor appointments over the next month to fix the problem.

Landlords are liable for defects in their buildings that result in injury if the building was in the landlord’s custody, that the building containing a effect presented an unreasonable risk of harm to others, that this defect caused the damage and that the landlord knew or should have known of the defective condition. In this case, the building was owned by the landlord company, and the Erwin knew of the defect since it had been reported to him several days earlier. The trial court determined that this leak in the bathroom ceiling was the cause of Green’s injuries and constituted an unreasonable risk of harm. Erwin appealed the judgment, claiming that the court erred in determining that the ceiling falling was the proximate cause of Green’s injuries.