Negligence

July 27, 2016

Speculation Not Enough to Find Electrical Shock from Taser as the Cause-In-Fact for a Subsequent Heart Attack In Shreveport Lawsuit

electric-shock-hazard-1310056-1024x683 On the afternoon of April 13, 2011, Officer J.M. Bassett of the Shreveport Police Department heard loud music coming from a motorcycle parked at 251 E. 72nd in Shreveport Louisiana. When Officer Bassett attempted to make contact with the man, Jessie Scott, Scott became hostile. As the situation escalated, Officer Bassett employed his Taser stun gun and handcuffed Mr. Scott, placing him into custody and transporting Mr. Scott to the police station. At the station, Mr. Scott complained of chest pain and Mr. Scott was taken to the Louisiana State University Health Sciences Center, where it was determined that Mr. Scott was having a heart attack.

Mr. Scott and his wife later filed a lawsuit against the City of Shreveport for the tasing and subsequent heart attack which they alleged was directly caused by the tasing event. After receiving the lawsuit the City of Shreveport filed a motion for summary judgment in which they argued the Scotts failed to produce any medical evidence showing a causal link between Mr. Scott being tased and his heart attack later that day. The district court agreed with the City of Shreveport and dismissed the Scott’s case. They then appealed that ruling to the Second Circuit Appellate Court of Louisiana.

The Appellate Court agreed with the District Court of Caddo that summary judgment in favor of the City dismissing the allegations brought by the Scotts was correct. Summary judgment is proper when there is no genuine issue of material fact for all or part of the relief sought by a litigant. See Samaha v. Rau, 2007-1726 (La. 02/26/08), 977 So. 2d 880. Here, the Scotts are required to provide proof that there is a causal link between the tasing and Mr. Scott’s heart attack, but the Scotts failed to produce such evidence.

July 23, 2016

5 Things You Need to Know About Prilosec and Nexium Lawsuit Claims

by Berniard Law Firm

Prilosec and Nexium Lawsuit Claims
As medications known as PPIs become more and more common and readily available on the open market, the number of medication related injuries, complications and side effects also increase. Nexium and Prilosec have been known to cause serious medical conditions such as heart attack, kidney failure, and bone fractures, and prolonged use can increase the risk for these injuries dramatically. Currently, the number of law suits against the manufacturer of Prilosec and Nexium, AstraZeneca, continues to rise each day as more and more individuals are negatively affected by the drugs the company produces. Here are five things you need to know about these lawsuits against AstraZeneca and Prilosec/Nexium claims.

First, it is important to know that there are many different claims that an individual could have as a result of the use of Nexium or Prilosec. The claims against AstraZeneca have ranged from production of dangerous or defective medications, to insufficient labels warning of the dangers of the drugs, to even illegal marketing strategies which include hiding side effects and dangers from the public. If a loved one or family friend has died after complications arising from the use of Prilosec or Nexium, then a wrongful death claim could also be brought against the company.

Second, as Nexium is available over the counter and without a prescription now, the number of users, and therefore lawsuits, will continue to rise. This also means that a greater number of side effects and a greater variety of complications will also start to emerge. Thus, it is important to seek legal and medical advice if you are experiencing any sort of side effects from either Prilosec or Nexium, and not just the hallmark issues of kidney failure, heart attack and bone fractures. As more studies are being done, more and more side effects are being discovered and attributed to the medications. Be sure to consult a physician as well as a lawyer when preparing to file a lawsuit.

July 13, 2016

Second Circuit Affirms Economic Award after Water Supply Contaminated by Levee District

by Berniard Law Firm

Arguably the most important thing for human health besides air is available and clean water. When people behave carelessly, others can be harmed. A mistake with something as valuable as the water supply can cause any number of injuries to those who rely upon it. Negligence occurs in law where a person or company causes some sort of harm to another by failing to carry out some duty that person or company owes to the public. Louisiana is a comparative fault state, meaning that when multiple parties are found by a court to be responsible for some injury, the court will divide the total amount to be paid by the parties in proportion to how much each party’s actions make that party at fault for the incident. None of those held responsible can escape paying its share just because someone else is more to blame. The court will compare the actions of each person or company to determine who is more to blame when some harm occurs.

The Louisiana Second Circuit Court of Appeals ruled on a recent and complex case concerning multiple parties involved in such an accident. In 2006, the Walnut Bayou Water Association was repairing a water supply system that provided water to rural customers. These repairs involved temporarily emptying pipes. Nearby and unknown to Walnut Bayou, employees of the state Fifth Levee District were drawing water from one of these lines to dilute acid used to control weeds. The combination of this pressure on the water system caused the herbicides to be released directly into the water supply. Neither organization had installed devices that would have prevented such a flow into the water lines. Five days later, the poisoned water supply became evident to the several hundred customers of Walnut Bayou. In response to the contaminated water, the water supply was shut off in the area for eight days. Many of those in homes affected by the contamination and lack of water supply combined to sue both organizations as well as their insurers for the contamination and the failure to supply the usable water they were paying for.

Several years later, it was found that not all of the people on the water supply received the contaminated water. Those who had been proven to have gotten contaminated water were involved in a settlement, leaving only those who had been “upstream” of the released contaminants in the lawsuit. These affected customers brought claims for property damage caused by the lack of water, additional costs they suffered in obtaining water from other sources during the shortage and afterward, and for emotional trauma caused by the fear of knowing their water might have been poisoned. Many of these people refused to use the tap water to drink or cook for fear it might still carry traces of the toxic substances. The trial court found that these people would only be able to receive money for the economic losses they suffered. In order to determine how much each person would receive if the court found the organizations responsible, the court chose five of those plaintiffs at random to try their cases. At the end, the court determined that $600 should be awarded to each of the affected people remaining in the lawsuit, and that the Levee district was 75 percent to blame for what had happened, and so would pay most of the costs.

January 16, 2014

Prescription an Integral Element of Lawsuits After Wrongful Death

by Berniard Law Firm

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

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

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

January 12, 2014

Personal Jurisdiction Reviewed in Case With International Implications

by Berniard Law Firm

The U.S. Court of Appeals for the Fifth Circuit affirmed a judge’s dismissal of the People’s Republic of China and a Chinese company, Xiamen, from litigation in the U.S. District Court for the Eastern District of Louisiana. The appeals court agreed with the trial court that the federal judiciary lacked personal jurisdiction and subject matter jurisdiction over the Chinese company and the PRC, respectively. The result was that the district court could not enforce an arbitral award under the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, also known as the New York Convention.

The underlying issue is a contract dispute between Covington Marine Corporation and Xiamen Shipbuilding. Pursuant to their contract’s arbitration clause, the dispute went to arbitration under the rules of the London Maritime Arbitration Association. The tribunal found neither side liable, but issued a separate award requiring Covington to pay 40% of the costs and Xiamen 60%. Xiamen then filed a petition in a Chinese court to have the liability award recognized and enforced. Covington did the same with the costs award.

Meanwhile, Covington appealed to the English High Court. The High Court found Xiamen liable, ordered Xiamen to pay 100% of the costs to Covington, and sent back the case to the tribunal for modification of the award. The arbitral tribunal changed their ruling and Covington petitioned the Chinese court to recognize the new awards.

January 9, 2014

Rear-End Collision Case Examines Liability, Statutes in Louisiana

by Berniard Law Firm

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

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

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

January 7, 2014

Louisiana Medical Malpractice Case Examines Federal Antidumping Laws

by Berniard Law Firm

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

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

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

January 3, 2014

Medical Malpractice Subject to Prescription Limits

by Berniard Law Firm

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

In Louisiana, no action for damages for injury against any physician or hospital shall be brought unless filed within one year from the fate of the alleged act or negligence or within one year from the date of discovery of the alleged act or negligence. This period is considered a prescriptive period. Prescription begins when a plaintiff becomes aware of facts that would suggest to a reasonable person that he or she suffered injury that could be remedied by law. Prescription starts even if the plaintiff does not have actual knowledge, but constructive knowledge, which is the minimum amount of notice required to make the injured plaintiff aware and allow for the injured plaintiff to inquire further. If the notice is enough to make reasonable victim aware, then prescription has begun.

A plaintiff’s apprehension that something is wrong does not start prescription except when the plaintiff knew or should have known through reasonable diligence that the plaintiff’s issues may have resulted from medical malpractice. The crucial issue is the plaintiff’s reasonableness in taking action or not acting, which considers the plaintiff’s education, intelligence, symptom severity and the defendant’s conduct.

December 29, 2013

Rayville Doctor Found to Have Acted Within Standard of Care

by Berniard Law Firm

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

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

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

December 28, 2013

Car Accident Leads to Examination of Mutual Responsibility

by Berniard Law Firm

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

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

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