Articles Posted in Pain And Suffering Claims

children-at-play-1328051-1024x685There really can be several hazards in a grocery store: rogue carts, other shoppers, scattered merchandise, to name a few.   Even more common is the infamous puddle of water.  Inevitably in a store full of liquids, patrons can slip and fall in a neglected puddle.  But when should the grocery store (or any merchant) be required to compensate a patron for injuries sustained in a slip and fall case?  This was the subject of a recent case out of Marrero, Louisiana.   

Carol Evans was shopping at the Marrero Winn-Dixie when she slipped in a puddle of standing liquid. Ms. Evans brought a lawsuit against Winn-Dixie for her injuries alleging that she slipped in the puddle of liquid in the meat section of the store. The store’s co-director, Mr. Scioneaux, helped Ms. Evans complete an incident report. Subsequently, Mr. Scioneaux successfully tracked down what he believed to be the source of the moisture, a leaking 24-pack of water. He then reviewed surveillance video of the aisle where the incident occurred and saw no evidence of any other injuries. He further testified that the person who had the leaking 24-pack of water in their grocery cart was in the aisle only one minute prior to the accident.  Ms. Evans testified that she did not notice any liquid on the floor until after she fell, and further described it as being clear. She also had no way to account for the length of time it had been present, and there were no prior complaints of water before Ms. Evans sustained her injuries. Winn-Dixie filed a motion for summary judgment, asserting that Ms. Evans could not show that Winn-Dixie had actual or constructive notice of the condition prior to her accident, which was required for a successful case.  The Judicial District Court for the Parish of Jefferson granted Winn-Dixie’s motion for summary judgment based on Ms. Evan’s failure to prove notice as required. Ms. Evans filed an appeal with the  Louisiana Fifth Circuit Court of Appeal.  

Merchants are tasked with the duty of keeping their premises in reasonably safe condition. This means that a merchant must exercise reasonable care in keeping aisles, passageways, and floors free from any hazardous conditions that could reasonably cause injury.  A plaintiff who sustains injuries while lawfully on the merchant’s premises must prove: [1] the condition created an unreasonable risk of harm that was reasonably foreseeable; [2] the merchant was aware of the condition that caused the damage, through either actual or constructive notice, prior to the injury; and [3] the merchant failed to exercise reasonable care to remedy the condition.  See La. R.S. 9:2800.6.  To succeed under a theory of constructive notice, a plaintiff must show that the hazardous condition existed for a period of time that it would have been discovered if the merchant exercised reasonable care. See Trench v. Winn-Dixie Montgomery LLC,  150 So.3d 472,475 (La. Ct. App. 2014). A plaintiff must present “positive evidence” of the existence of the condition prior to the accident.   For employee presence to constitute constructive notice, a plaintiff must show that an employee either knew or should have known of the condition.  The burden of presenting solid evidence in these cases is high; a plaintiff cannot successfully bring a slip and fall case based on speculation.  

Good medical treatment, even in a first-world country, can, unfortunately, be difficult to find.  Doctors make mistakes and sometimes even entire hospitals can be at fault.  In a recent case out of Ouachita Parish, a woman was delayed admission to a hospital for an extended period which ultimately led to her diminished chance of survival.  While relief under several theories of recovery was debated, her survivors were eventually compensated despite opposition from the Louisiana Patients’ Compensation Fund.  

injection-1-1323670-544x1024In November 2002, Ms. Annette Toston died at St. Francis Medical Center from complications from an underlying kidney infection.  Prior to her death, Ms. Toston was a patient at E.A. Conway Hospital where physicians determined she requested a surgical procedure only available at St. Francis.  Ms. Toston arrived at St. Francis on November 25, 2002, however, was not admitted until approximately fifteen hours after arrival.  Ms. Toston subsequently died during the operation.  Following the death of Ms. Toston, her seven children filed suit in the Fourth Judicial District Court.  On July 14, 2014, the Judge entered a judgment in favor of Ms. Toston’s seven children.  The written judgment assessed St. Francis with $100,000, damages and the Louisiana Patient’s Compensation Fund (“PCF”) with $400,000.  The PCF automatically covers all state healthcare providers and caps the recovery of damages against a qualified healthcare provider at $100,000, plus interest per patient per incident.  Any award in excess of the cap is paid directly by the PCF.  St. Francis entered into a settlement agreement with Ms. Toston’s family for the $100,000, under the conditions that it would be released from all liability, and reserving all rights to proceed against the PCF.  

The PCF appealed to the Louisiana Second Circuit Court of Appeal.   The PCF argued that the Trial Court erred in finding St. Francis liable in Ms. Toston’s death.  The PCF also argued that the Trial Court erred in finding that St. Francis breached the standard of care during Ms. Toston’s transfer to St. Francis. Additionally, the PCF challenged the damages award, arguing that Ms. Toston could not have had a close relationship with her children because of the ages and locations of her children.  

supermarket-kart-1-1413356-1024x683In any lawsuit, the party seeking relief must carry its burden by proving every element of the claim or claims which it has raised. By doing so, the party satisfies to the court that it is entitled to the relief which it seeks. One such element pivotal to all claims for workers’ compensation benefits is that the alleged injury arose out of and during employment.  Proving a work-related injury solely on the injured person’s testimony can, however, doom a workers’ compensation case. This is a lesson that workers’ compensation claimant Isaac Garcia, who worked for Rouses Market in Metairie, Louisiana, learned the hard way.

In early November of 2013, Mr. Garcia filed a claim for failure to pay benefits, naming both Rouses Enterprises, Inc., as well as its insurer, Strategic Comp, for a work-related injury he allegedly sustained while working for Rouses Market in Metairie. Mr. Garcia claimed that on September 15, 2013, while moving a box during work he felt a sharp and immediate pain, beginning in his wrist and right thigh, and radiating to his lower back. The incident was not witnessed by anyone other than Mr. Garcia himself. Mr. Garcia returned to work for a brief period, but left work shortly after the incident.  Mr. Garcia failed to inform his supervisor of the injury out of fear of termination. This was in direct violation of Rouses’ policy which required all on the job injuries to be reported immediately.

In the days that followed, Mr. Garcia spoke with his supervisor over the phone but again failed to mention the injury sustained on September 15. On September 20, the day before Mr. Garcia’s next shift, the pain had escalated to the point that Mr. Garcia considered seeking medical attention at the emergency room, but decided to consult an attorney first. The attorney referred Mr. Garcia to a doctor who found Mr. Garcia’s condition consistent with lumbar disc displacement. Mr. Garcia saw a second doctor in relation to medication for pain management. Finally, on September 24, 2013, more than a week after Mr. Garcia’s injury and subsequent to seeking medical treatment, Mr. Garcia returned to Rouses and filled out an accident report in relation to the September 15 injury. Yet Mr. Garcia failed to disclose neck and back injuries he sustained approximately a year and a half prior to being hired by Rouses. Ultimately, Rouses and Strategic Comp denied Mr. Garcia any form of workers’ compensation benefits. The claim was submitted to the Workers’ Compensation Judge (“WCJ”) who found Mr. Garcia was not entitled to benefits, a decision which was later upheld by the Louisiana Fifth Circuit Court of Appeal.

historical-medical-devices-3-1566087-1024x678Upon entering a facility for medical treatment, we all hope that we will be treated properly. However, what happens when a medical or health care professional deviates from the profession’s standards? What happens if there is a mistake in the diagnosis or treatment? Such victims certainly have an opportunity to seek redress however sometimes a jury verdict can prove disappointing.  This case out of Jefferson Parish demonstrates what happens when a trial court jury does not get the proper instructions necessary for deciding a complex medical malpractice claim in Louisiana.

Doris Greathouse was admitted to East Jefferson General Hospital on June 2, 2008 for elective heart surgery. Shortly after Dr. Cougle and CRNA Wilkinson intubated Mrs. Greathouse, she suffered cardiac arrest and her brain was deprived of oxygen. Mrs. Greathouse was transferred to the Intensive Care Unit with fatal brain damage until her family removed her life support. Mrs. Greathouse’s children then filed a wrongful death and survival action against Dr. Cougle and Ms. Wilkinson alleging that they committed medical malpractice resulting in their mother’s injuries and death.   

Pursuant to La. R.S. 40:1299.47(B)(1)(a)(i), health care providers in Louisiana cannot be sued for medical malpractice under the the Medical Malpractice Act (“MMA”) unless the plaintiff submits a complaint to a Medical Review Panel (“Panel”), composed of three healthcare providers and an attorney. The Panel’s sole duty is to express its expert opinion as to whether the evidence supports the conclusion that the defendants complied with the standards of care. See La. R.S. 40:1299.47(G). The Panel may not render an opinion on any disputed issue of material fact that does not require its medical expertise. See La. R.S. 40:1299.47(H).

concert-1436178-1024x768What starts out as an entertaining night out for a concert with friends, ends with painful injuries.  Instead of enjoying your favorite music with companions, you must go to the hospital to treat injuries sustained due to negligent maintenance of the concert venue.  You are now recovering from your injuries and are faced with medical expenses.  You know that you shouldn’t be responsible for the medical bills; after all, you are hurt because someone failed to do their job.  But who exactly is responsible?  Determining the party responsible for personal injuries was a recent issue in a case out of Baton Rouge.

In March of 2006, Ms. Shannon Rodrigue went to a concert with her friends at the Riverside Performing Centroplex in Baton Rouge, Louisiana.  As Ms. Rodrigue and her friends waited in line to enter the Centroplex, a Spectator Management Group (“SMG”) employee instructed the group to go around the side of the building and go down a flight of stairs in order to get their seats.  As the group proceeded to head down the stairs, Ms. Rodrigue missed a step and fell down the flight of stairs.  The fall was the result of a poorly lit stairwell.  Ms. Rodrigue sustained several injuries to her head, back, neck, knees, and wrists.

Ms. Rodrigue filed a lawsuit against several parties whom she believed were responsible for the poorly lit stairwell that ultimately led to her injuries.  The parties included the Centroplex, the Centroplex’s insurer, and the City of Baton Rouge-Parish of East Baton Rouge; SMG and its insurer.  In response to Ms. Rodrigue’s filing of the lawsuit, SMG and its insurer filed a motion to have Ms. Rodrigue’s lawsuit against them dismissed.  SMG asserted that Ms. Rodrigue had no claim against them and their insurance company because they did not have custody of the stairwell where Ms. Rodrigue fell.  SMG further claimed that even though Ms. Rodrigue and her friends were directed to the stairwell by one of its employees, SMG was not aware of the lighting situation of the stairwell before her fall. The  District Court for the Parish of East Baton Rouge granted SMG’s motion and Ms. Rodrigue’s claims against it were dismissed.  Ms. Rodrigue appealed to the Louisiana First Circuit Court of Appeal.  

management-school-3-1524193-1024x348School bullying is a commonly discussed problem in our generation.  Parents are often faced with dilemmas on how to protect their children and instruct them in dealing with bullies at school.  In earlier eras perhaps this was considered a problem for the individual family to bear alone.  In a recent case out of Plain Dealing, Louisiana however, the Louisiana Second Circuit Court of Appeal affirmed that school teachers and the school board can now be held liable for such bullying and its effects.  

On December 10, 2012, a fourth-grade boy, J.B., at Carrier Martin Elementary School in Plain Dealing, Louisiana broke his arm during playground recess when three boys knocked him to the ground to keep him from tattling. J.B.’s parents filed a lawsuit on behalf of their son against the Bossier Parish School Board (“Board”), and teacher Tricia Huckaby seeking damages. After a trial before the Judicial District Court for the Parish of Bossier, Louisiana, the jury found in favor of the parents and awarded $125,000 in general damages, $12,674.14 in special damages, and $25,000 to the mother for the loss of consortium for a grand total of $166,784.63 with legal interest. The Board appealed the finding of liability and argued that the award was excessive.

A school board, through its agents and teachers, owes a duty of reasonable supervision over students pursuant to La. C.C. art. 2320.  For liability to be imposed on a school board for inadequate supervision of students, there must be (1) proof of negligence and (2) proof of a causal connection between the negligent supervision and the resulting damage to a student. See  Creekbaum v. Livingston Parish School Board, 80 So. 3d 771 (La. Ct. App. 2011).   The standard of care required by the school supervisors over the students is only what would be expected of a reasonably prudent person in same or similar circumstances. The risk of injury had to be both foreseeable and preventable if a requisite degree of supervision had been exercised.  In awarding damages, a jury is empowered with great discretion and the award will only rarely be disturbed on appeal if an abuse of discretion is found.  

big-toys-4-big-boys-1435926-1024x744Workers’ compensation pays for an employee’s medical expenses and lost wages when an employee is injured on the job. But what happens when an employee is injured while performing his or her job in a manner not approved of by the employer? Recently, a Court of Appeal for the State of Louisiana addressed this issue in a case involving a man from St. Landry Parish.

Herbert Marshall, an employee for Courvelle Toyota, injured his back picking up an automobile transmission during work. Mr. Marshall was directed to take a truck with a liftgate, pick up a transmission from a repair shop, and deliver that transmission back to the dealership. He was instructed to take the lift gate truck because the transmission was over four hundred pounds. Mr. Marshall took a standard van instead, claiming that the liftgate was not working on the truck. When Mr. Marshall arrived at the repair shop, he enlisted the help of a repair shop worker to lift the transmission into the van. It was during this lifting where Mr. Marshall felt a “pop” in his back. When he returned to the dealership, Mr. Marshall was helped by another employee to unload the transmission. Mr. Marshall made no mention of his back pain to anyone that day.

Mr. Marshall reported the accident to his boss days after the injury. After reporting the accident, Mr. Marshall saw several doctors and underwent several different treatments. Mr. Marshall also received multiple drug tests. On two drug tests, he tested positive for cocaine. Mr. Marshall claimed that these tests were a false positive and that the test actually picked up his use of lidocaine for his tooth pain. On subsequent tests, Mr. Marshall tested negative to having cocaine in his system. Mr. Marshall requested workers’ compensation benefits from Courvelle Toyota to pay for his medical bills and lost wages. Courvelle Toyota denied those requests citing the fact that Mr. Marshall did not use the lift gate truck as instructed by Courvell Toyota. Mr. Marshall then filed a disputed claim for benefits with the Office of Workers’ Compensation, where he sought wage benefits, medical treatment, penalties, and attorney fees.

thick-metal-welding-mask-for-protecting-the-eyes-1632419-1024x784Under Louisiana law, an employee who is injured while on the job is entitled to “vocational rehabilitation services” (services that help an individual overcome his or her own physical or mental disability in order for that individual to return to work) provided by a vocational rehabilitation counselor. La. R.S. 23:1226 (2016). While an injured employee is entitled to a vocational rehabilitation counselor, is the employee able to dictate his or her own rules and requirements that the vocational rehabilitation counselor must follow? And if an employee is unhappy with the performance of his or her vocational rehabilitation counselor, then what can he or she do to remove that person?

Ellis Hargrave was injured while working for the Louisiana Department of Transportation and Development (“DOTD”). After the injury, DOTD began providing vocational rehabilitation services to Mr. Hargrave. After juggling multiple vocational rehabilitation counselors, DOTD finally settled on assigning Elier Diaz to Mr. Hargrave. Before their first meeting, Mr. Hargrave’s attorney sent a letter containing ten conditions that Mr. Diaz had to agree to before Mr. Hargrave would allow counseling services. The purpose of these conditions was to make Mr. Diaz put Mr. Hargrave’s interests over the interests of DOTD. Mr. Diaz declined to agree with the ten conditions. Mr. Diaz sent a letter to Mr. Hargrave, explaining that he will uphold the standards of the applicable law but declined to agree to any of the extra standards or conditions demanded. Even though the parties disagreed about the ten conditions, an initial evaluation meeting took place with Mr. Diaz, Mr. Hargrave, and Mr. Hargrave’s attorney. The disagreement over the ten conditions eventually led to litigation. This issue eventually ended up at the Supreme Court of Louisiana where it held that nothing in Louisiana law required that a rehabilitation counselor must agree to certain conditions prior to providing vocational rehabilitation services. Hargrave v. State, 100 So.3d 786, 793 (La. 2012).

While the long litigation process over one issue ended, another one soon began. Mr. Hargrave filed another claim with the Workers’ Compensation Judge (“WCJ”) asking the WCJ to remove Mr. Diaz as vocational rehabilitation counselor because Mr. Diaz violated Louisiana law. At trial, Mr. Hargrave asserted that Mr. Diaz violated Louisiana law when he met with DOTD without allowing Mr. Hargrave or his counsel to attend and that Mr. Diaz violated Louisiana law when he stated that Mr. Hargrave and his attorney agreed to the meeting. The WCJ disagreed, holding that Mr. Diaz did not violate Louisiana law. Mr. Hargrave appealed.

concrete-tiles-1140575-575x1024Be it alleged abuses in the welfare system or lying on their tax return, individuals abusing the system has been a hot button issue for the past couple of years. But what happens when someone gets caught? How does the law handle the people who abuse the system? Recently, a Louisiana Court of Appeal held that concealing previous injuries resulted in a forfeiture of workers’ compensation benefits (insurance that pays wages and medical costs for an injury occurring while at work) and the payment of restitution (compensation ordered by the court for restoration of money to its rightful owner) for a Saint Martinville concrete finishing business owner.

Darrell Wiltz is the sole owner of Wallace Wiltz Concrete, Inc. He worked as both the manager of the business and as one of the laborers for the company. On October 21, 2009, Mr. Wiltz was lifting a tool used in the concrete finishing business when he allegedly injured his lower back. He filed a claim with LUBA, the workers’ compensation insurance provider for Wallace Wiltz Concrete. Initially, LUBA only paid for some of Mr. Wiltz’s medical treatment and did not pay any wage benefits. But after Mr. Wiltz inquired with LUBA why all of his medical treatment and wage benefits were not being paid, LUBA sent an adjuster to record a statement from Mr. Wiltz. In the statement to the adjuster, Mr. Wiltz admitted to previously having one minor back injury. He also denied being in any vehicle accidents. Based on these statements, LUBA began approving all the medical treatment benefits and started paying Mr. Wiltz total temporary disability benefits.

On April 6, 2010, LUBA performed a claim index search on Mr. Wiltz which revealed that Mr. Wiltz had been involved in at least two vehicle accidents. LUBA then obtained Mr. Wiltz medical records which indicated that Mr. Wiltz had undergone at least three MRI’s of his lower back due to complaints of pain. The medical records also indicated that Mr. Wiltz had various disc issues such as bulges or herniations in his lower back and one medical provider diagnosed him with lumbar disc disease.

old-abandon-farm-house-1408741-1024x768A good lawyer must be on top of his or her case. Not only must a lawyer know the facts of the case and the applicable law, but the lawyer must also meet certain deadlines and procedure requirements by the court. While little activity on a case might mean it has gone stale, no activity at all can mean abandonment, which is exactly what happened to one plaintiff in Jefferson Parish.

George Segerstrom brought a personal injury claim against police officer Desmond Julian and the City of New Orleans. Mr. Segerstrom alleged that Officer Julian crashed into him with a police car. Three years after Mr. Segerstrom’s filing of the case, the City of New Orleans filed a motion asking the trial court to consider the case abandoned and dismiss the action. The trial court agreed with the City of New Orleans, finding the case abandoned and dismissing it.

Abandonment occurs when there is inactivity in a case for three or more years. La. C.C.P. art. 561. If a lawsuit is considered by abandoned, then the trial court must dismiss the case. Abandonment is automatic and a side cannot “breathe new life into the [case]” once the case is abandoned. Clark v. State Farm Mut. Auto. Ins. Co., 785 So.2d 779, 784, 789 (La. 2001). Acceptable ways to ensure that a case stays active is by filing motions, going through discovery (the information gathering part of a trial), and other formal trial procedures.