Litigation

May 23, 2010

Court of Appeals Decision Shows How to Prove Medical Malpractice in Louisiana (and how not to)

A recent Louisiana Court of Appeals decision does a good job of explaining the elements of a medical malpractice claim and some pitfalls that might be encountered along the way.

In this case, Jessica Parker of Beau Bridge filed a suit against University Medical Center after she underwent two gall bladder surgeries at the Lafayette hospital in 2002 and 2003. The first surgery was for the removal of Parker’s gall bladder and stones in her common bile duct in November of 2002. In January of 2003 she returned to the hospital complaining of four days of flank pain, nausea, vomiting, and a “foreign body” around the incision site. She was admitted and a second surgery was performed to remove several small stones.

As required by Louisiana law before a medical malpractice case can be filed, Parker requested the formation of a medical review panel, complaining her surgery was botched and two metal clips were left inside her bile duct and caused an obstruction. In June 2005 the panel entered an opinion in favor of the hospital finding the appropriate standard of care was not breached. Following the unfavorable panel decision, Parker filed a lawsuit. The hospital moved for summary judgment and argued that because of the panel opinion and the fact that Parker did not use an expert witness to prove the applicable standard of care and breach there was no issue of material fact as to whether they were entitled to judgment as a matter of law. In opposition, Parker submitted uncertified and incomplete copies of her medical records. Following a hearing the motion for summary judgment was denied but the court instructed Parker that if no evidence was submitted they would dismiss the case. Parker did not appear at a re-hearing in September 2009 and her claims were dismissed and the hospital’s motion was granted. The Court of Appeals affirmed the trial court decision.

May 22, 2010

Discretion Given to Jury’s Award of Damages – Couple in Mid-70s Involved in Three Auto Accidents in Three and a Half Weeks

by Berniard Law Firm

Louisiana’s Supreme Court, in an April 2007 opinion, expounded on the vast discretion an appellate court is to give to a jury’s verdict on review.

From December 2000 to January 2001, Thurman and Rosemary Kaiser, a married couple in their mid-70s, were involved in three auto accidents – one in Jefferson Parish and two in Orleans Parish. Claims the couple may have had regarding the first and third accidents were settled out of court. However, regarding the second accident, which occurred on January 15, 2001, when the couple’s vehicle was rear-ended by Harry Hardin, the couple filed suit. Prior to trial, Hardin stipulated to liability. He later testified that his vehicle hydroplaned into the back of the plaintiffs’ vehicle, causing the accident. The case proceeded to a jury trial on the issue of damages.

After testimony from plaintiffs and defendant, Dr. Donald French, an orthopedic surgeon who treated both of the Kaisers, Paul Van Hoose, a claim representative of State Farm, Dr. Wendy Jamison, a neurologist who treated Mrs. Kaiser, and Dr. Jeffrey Sketchler, an orthopedic surgeon who treated both of the Kaisers, the jury rendered a verdict in favor of the plaintiffs, awarding Mr. Kaiser $6,500 in total damages, including damages for past and future medical expenses as well as general damages, and awarding Mrs. Kaiser $20,000 in total damages for past and future medical expenses as well as general damages.

May 21, 2010

BP’s Estimates for Oil Leak Significantly Lower than Real Amount

by Berniard Law Firm

According to an AP report, BP yesterday admitted that more oil than it originally estimated is leaking into the Gulf. This news, coming roughly one month after the Deepwater Horizon oil rig exploded and sank, is heightening Gulf Coast residents’ worries about the amount of damage likely to occur. A spokesman for BP, Mark Proegler, said that efforts over the weekend to insert a tube into the leaking pipe were successful, and that the tube is now siphoning off 210,000 gallons of oil per day. That figure is more than the total amount of oil BP and the U.S. Coast Guard originally estimated was leaking from the well, and it is clear that the tube is not capturing all the escaping oil. Mr. Proegler declined to estimate how much oil is still spewing into the Gulf, but some scientists who have viewed the underwater videos of the leak have suggested it could be as much as ten times the official estimate.

Meanwhile, crude oil began washing into the marshes on the state’s southeastern tip and the Breton National Wildlife Refuge, where scientists believe oil has killed some rare birds that reside there. “This is the heavy oil that everyone’s been fearing that is here now,” Gov. Bobby Jindal said during a boat tour of the wetlands. According to the National Oceanic and Atmospheric Administration, as of May 17, 29 miles of Louisiana’s coastline had already seen oil.

Adding to concerns over BP’s handling of the disaster are reports of the company’s efforts to limit the public’s view of fouled beaches in Louisiana. CBS news reports when journalists attempted on Tuesday to visit an oil-covered beach in South Pass, they were turned away by BP contractors and two U.S. Coast Guard officers aboard a boat. The officers threatened to arrest the reporters, even though the government had not closed the beach to the public. The reporters captured video of one of the officers saying, “This is [sic] BP’s rules, not ours.”

May 21, 2010

Pedestrian Killing near Highway Shows Need for Increased Awareness about Pedestrian-Automobile Safety Laws

by Berniard Law Firm

The roadways are a dangerous place for any individual, regardless if they are driving or merely a pedestrian. Because of environmental dangers as well as a wide variety of mechanical and human errors that can occur as cars drive across this country, it is important to understand the complexities of the law. Accidents involving pedestrians and cars happen all too often and the law does not entirely back the pedestrian in all incidences.

According to the St. Mary and Franklin Banner-Tribune, a pedestrian was struck and killed by an automobile on Saturday April 10th while walking along the U.S. 90 Service Road in western St. Mary Parish. The pedestrian was Danny Gautreaux, 52, of Patterson. Mr. Gautreaux was walking eastward on the westbound lanes of the U.S. 90 at Penn Road around 9 p.m. when he was struck by a 68 year-old woman driving a 2001 Ford Taurus. Louisiana State Police spokesperson Stephen Hammons took the occasion to remind pedestrians that Louisiana state law demands that they walk on sidewalks where sidewalks are provided. When there is no sidewalk, pedestrians are expected to walk on the shoulder of the road against the flow of traffic. Gautreaux was walking in the traffic lane when he was struck. He was pronounced dead at the scene by the St. Mary Parish Coroner. A press release reveals that Gautreaux was believed to be walking from his vehicle which had run out of gas near the site of the crash.

Pedestrians should note that they do not always have the right of way. Under Louisiana law (R.S. 32:211) pedestrians have the right of way in crosswalks whether traffic-control signals are in operation or in place or not. Vehicles are expected to slow down or stop to yield to a pedestrian within a crosswalk but the law also provides that it is unlawful for pedestrians to “walk along and upon an adjacent roadway” where sidewalks are available (R.S.32:215). Where there are no sidewalks, pedestrians walking along a highway are expected to walk only on the left side of the roadway or its shoulder facing approaching traffic. Even if a vehicle happens to break down or run out of gas, pedestrians should not engage in soliciting rides or help by standing in the roadway. (See R.S. 32:216).

May 20, 2010

Importance of Keeping Deadlines: Recent Court of Appeals Abandonment Decision

by Berniard Law Firm

While a plaintiff may have the best case possible, things do not always work out the way they should. Lawsuits don’t just fail on their merits. Sometimes not following procedural deadlines or simply not taking action at all can spell doom as well. In an April 2010 decision, the First Circuit Louisiana Court of Appeals affirmed the dismissal of Shirley W. Fleischmann of Baton Rouge’s claim against Keith Henderson and his insurance company. They did this because three years had gone by with no action taken to move the claim forward, thus bringing into play the Louisiana Abandonment Statute.

The claim arose when Henderson’s car (driven by Jennifer Parker) struck and killed Thomas E. Fleischmann while he was walking along the roadway. Ms. Fleischmann was the victim’s widow and included Henderson and his insurance company as parties in her wrongful death lawsuit filed in April 2002. The State of Louisiana (Department of Transportation) was named as a party as well but was dismissed in 2005 because effective request for service was not made within 90 days of commencement of the action.

In September 2008 Ms. Fleischmann filed a motion for a status conference to declare she intended to move forward against Henderson and his insurance company. In December of that year both parties filed a motion and order to be dismissed from the lawsuit as well because pursuant to LSA-C.C.P. art. 561 no action had been taken for three years. The trial court granted the order. Ms. Fleischmann filed a Motion to Reconsider the Ruling and the matter was heard in court in February 2009. The district court affirmed the dismissal and Ms. Fleischmann appealed claiming that the hearing previously held on the Department of Transportation’s Motion to Dismiss was a step in the prosecution or defense that interrupted tolling on the abandonment of her lawsuit against the other defendants. The Court of Appeals disagreed.

May 19, 2010

Corporal Punishment: Louisiana Court of Appeals Case from 1979, Still Relevant Today

by Berniard Law Firm

The Louisiana Court of Appeals’ 1979 ruling in Thompson v. Iberville Parish School Board provides insight into what factors should be considered when asking if a teacher has inappropriately punished a student. This decision reversed a previous ruling in favor of an Iberville Parish elementary school student and found in favor of the school and teacher.

12 year old Bryan Wilson was in a music class at St. Gabriel Elementary school when his teacher extended his leg and pushed him with his foot in the right buttock. The teacher claimed that it was the easiest way to get the unruly student’s attention and that he had been reprimanded previously to turn around and pay attention to no avail. Bryan on the other hand, claimed the kick was extremely hard, causing him to cry out in pain and even miss several days of school. The trial court found in Bryan’s favor and awarded his mother $500 on his behalf for pain and embarrassment suffered. They found that although corporal punishment was acceptable under Louisiana law (and teachers were provided with limited liability from civil suit), the choice of action went beyond what was considered reasonable. To the trial court, the use of a foot for corporal punishment was unreasonable no matter how much force was involved.

The Court of Appeals disagreed, however, and reversed the judgment, pointing to the lack of evidence of any serious injury. Bryan was examined by the school principal and a doctor that same day and there was no visible evidence of injury, nor did any abnormality appear on an x-ray. In addition, evidence had been presented at trial that Bryan was a normal, healthy child who did have a tendency to act up at school. The Court of Appeals found that although there were few situations where a kick, no matter how light, would be reasonable, this was one and that the teacher merely acted to get Bryan’s attention, not inflict pain.

May 18, 2010

BP, the Oil Protection Act and Claims for Lost Wages/Property Damage

by Berniard Law Firm

In the face of the looming oil slick many estuaries and fishing grounds are being closed, leaving hundreds of Louisiana fishermen out of work. As the oil pours into the Gulf, many fishermen are wondering what’s next. While many questions are still up in the air there are a number of issues that fishermen need to be aware of.

The Oil Pollution Act of 1990

The Oil Pollution Act is a federal law that, among other things, allows an affected fisherman to file a claim against BP for his lost profits caused by the oil spill in addition to any other claims he has (i.e. property damage).

May 17, 2010

Employment Options for Fisherman Affected by BP Oil Spill

by Berniard Law Firm

With so many fishermen left out of work, individuals throughout the Gulf Coast are beginning to worry about their future. The Oil Pollution Act provides a legal solution but the ensuing lawsuits will not be helpful in the present. There are two British Petroleum programs that affected fishermen need to be aware of: their claims program and the Vessel of Opportunity program (VOP). These programs can provide immediate assistance for unemployed fishermen.

On its website and in many press releases BP has promised to take full responsibility for the damages that the oil spill has caused. This has included paying out lost-wages claims to fishermen. Under this program fishermen can recover a month in lost wages. Be aware that this recovery is handled by BP, not the National Pollution Funds Center or a court. BP will make a three-year average of a claimant’s income between January and March and pay a one month settlement. This settlement can affect a fisherman’s recovery if he later decides to sue. Currently the pay outs are around $5,000. You can contact their claim center at 1-800-440-0858. If you are not satisfied with their resolution, then you can contact the National Pollution Funds Center at 1-800-280-7118.

BP is also taking on paid volunteers to help in the clean up effort under their “Vessel of Opportunity Program.” Through this program BP employs fishermen to deploy booms in order to stem the flood of oil. BP provides much of the equipment and training to those taking part. While BP will pay fishermen who take part, it is unclear how many boats BP will hire. The last count was around 700, far less than the number of fishermen who are now unemployed.

May 16, 2010

What You Should Know About Boat Damage Claims Under the Oil Pollution Act (OPA)

by Berniard Law Firm

In light of some of the more current events affecting citizens of Louisiana, it is important to know and understand property rights resulting from personal property damages from oil spills. Especially in the Gulf region where this event seems to be more common than it should be, you may be entilted to compensation for damaged property. Most personal propety damage as a result of an oil spill will be compensated, but it becomes complex when boats become damaged from an oil spill.

Recently, we discussed the availability of funds under the Oil Pollution Act (OPA) and the Oil Spill Liability Trust Fund (OSLTF) for compensating Louisiana residents who suffer property damage as the result of an oil spill. Claims for oil damage to boats are treated as a separate category from other types of personal property under the OPA.

According to the U.S. Coast Guard’s National Pollution Funds Center web site, the owner of a boat can submit a claim for the cost of removing oil stains from his vessel (including its interior furnishings like upholstery and carpeting) so that the boat is restored to its pre-fouled condition. Claims can also be filed for damage to mechanical parts of the boat, such as an outboard motor, rudder, anchor winch, etc. Oil spills can seriously impact the value of a boat and lead to substantial deterioration of the usability of a boat.

May 15, 2010

What You Should Know About Property Damage Claims Under the Oil Pollution Act

by Berniard Law Firm

In a previous post, we explored the role of the Oil Pollution Act (OPA) and the Oil Spill Liability Trust Fund (OSLTF) in compensating Louisiana residents who incur oil removal and clean-up costs. These funds are also available for coastal residents who suffer property damage as a result of an oil spill.

According to the U.S. Coast Guard’s National Pollution Funds Center web site, the OPA permits filings for oil-related losses to real and personal property. Real property damage is defined as “injury to or economic losses resulting from destruction of land or buildings.” For example, the owner of oil-fouled waterfront property can file for reimbursement of the costs to restore the property to its pre-spill condition. Or, if the owner decides to sell the property without restoring it, he can submit a claim for the difference between its pre-spill assessed value and the reduced price he receives for the fouled property after the spill.

Personal property damage is “injury to or economic losses resulting from damages to other types property you own or lease besides real property.” For instance, a fisherman can submit a claim for the cost of cleaning or replacing a shrimp net, fishing tackle, or clothing that is fouled by oil.