Articles Posted in Pain And Suffering Claims

oak-logs-1511548-1-1024x768In Louisiana as in other U.S. states, the doctrine of res judicata – literally “a matter judged” – prevents parties from re-litigating a matter once it has been adjudicated on the merits by a competent tribunal. This prevents prolonged litigation of cases which have been purportedly concluded, thus avoiding an unnecessary waste of time and money. Although for res judicata to apply a judgment must be “final” and adjudged “on the merits,” a settlement agreement in Louisiana is res judicata between the parties and is accorded the same effect as a final judgment. (See Louisiana Workers’ Comp. Corp. v. Betz, 792 So.2d 763, 766 (La. Ct. App. 2001)). In other words, the signing of a settlement agreement can preclude parties from litigating matters specified as settled in the settlement. It goes without saying that parties should be cautious when signing settlement agreements. Illustrative is a case from the Louisiana First Circuit Court of Appeal.

On October 10, 2005, Joseph Brown was injured in a logging accident while in the course and scope of his employment with AM Logging in Tanigipahoa Parish.  Mr. Brown filed a disputed claim for compensation on October 19, 2005 against the appellees in this case, AM logging and its claims administrator, Alternative Service Concepts, L.L.C. On July 14, 2006, AM Logging submitted a report to the Office of Workers’ Compensation (“OWC”), listing injuries to Mr. Brown’s collar bone, left ribs, and back. On July 24, 2009 – almost four years after his original disputed claim – Mr. Brown filed a second disputed claim listing injuries to his shoulder, ribs, back, chest, and neck.

After a hearing on Mr. Brown’s first disputed claim for compensation, the OWC held that Brown sustained a compensable work-related injury in the course and scope of his employment with AM Logging. It also found that Mr. Brown was permanently disabled with no reasonable possibility of rehabilitation through training or education, such that he could attain suitable and gainful employment. In its judgment of March 29, 2010, the OWC ordered AM Logging to pay Brown permanent total disability benefits of $121.00 per week, retroactive to December, 7, 2008 and continuing. It also ordered AM Logging to pay Brown $5,000.00 in penalties and attorney fees.

golden-coins-1426194-1024x768In Louisiana the owners of motor vehicles are required by law to maintain a minimum amount of insurance in case of a collision.  That’s the law and there is no getting around it.  The rational behind it is simple, if you crash your car into someone else there needs to be at least a minimum amount that can be recovered by the other person.  The consequences of not following that law is a bar from recovering the first $15,000 for your injuries and the first $25,000 of any property damage that you incur if you are in a wreck and it’s not your fault.  Those penalties are harsh,  but what happens if you fail to maintain insurance and you still have a note on your vehicle?  Is the note holder left out in the cold for that first $25,000 to repair the car as well?  The following case out of Baton Rouge Louisiana demonstrates what happens in those circumstances.

M&M Financial Services, Inc. held a security interest in Sheilda Hayes’ vehicle and was owed a balance of $11,446.80 on its promissory note.   Unfortunately for Ms. Hayes while driving her that vehicle without insurance Jerry Richard collided with her. Richard was insured by National Automotive Insurance Company, so M&M filed a lawsuit in Baton Rouge seeking to recover the remaining balance on the Hayes’ destroyed vehicle, plus legal interest and attorney fees. Both parties filed motions for summary judgment. In those motions the litigants sought to narrow the issues before the trial court. The defendants, Richard and National, argued that M&M was not entitled to the remaining balance on its note because of Louisiana’s “No Pay, No Play” law which bars recovery for the first $25,000 in property damages sustained by an owner or operator of an uninsured vehicle involved in an accident.  Louisiana Revised Statute 32:866.  However, the trial court didn’t buy that argument and ruled in favor of M&M and granted them their balance of $11,446.80, plus legal interest and attorney fees.

The case was appealed before the 1st Circuit Court of Appeal in Baton Rouge.  The appellate court reversed the judgment in favor of M&M and instead granted the defendants’ motion dismissing the case with prejudice. The appellate court ruled that no issues of material fact are present in this case because all of the parties agree that M&M held a security interest in Hayes’ vehicle and that the vehicle was uninsured at the time of the accident. Therefore, M&M’s financial right is a question of law turning on the interpretation of Louisiana statutes.  The appeals court then went on to evaluate those statutes and discussed how they applied to this facts of this case.

labourer-1436010-1024x762Louisiana worker’s compensation laws allow for injuries to only be charged at the usual cost for treatment. When a worker suffers an injury on the job the amount a hospital receives to pay for treatment may not always cover the cost of the treatment, but the hospital may not be able to recover for these losses.

While working at Beverly Industries, L.L.C. Byron Mitchell Suffered an injury to his back. The treatment for Mitchell’s back required the surgical fusion of three of the disks in his back. The surgery took place at Crescent City Surgical Centre in Metairie, Louisiana. Beverly Industries had worker’s compensation insurance through The Gray Insurance Company.

While Gray made all per diem payments to Crescent City for the surgery, the insurer denied coverage for special reimbursement for the surgery. Mr. Mitchell’s Surgical Procedure cost almost $180,000, and Crescent City sought reimbursement for the full cost of the procedure. The Surgical Center filed a claim for compensation, and a trial was held on December 19th 2012.

the-workers-1500355-1024x683If your hurt on the job your recourse will typically be through the workers compensation system.  Once you are in that system you must play by the rules and follow all orders of the court.  If you don’t your employer does have recourse to seek to limit your benefits.  Such a situation is demonstrated below wherein Mr. Sims refusal to attend adult education lead to a lesson learned in reduction of workers compensation benefits 101.

On October 17th, 2006, Preston Sims, an employee at Willis-Knighton Health System (WK) in Shreveport, Louisiana, sustained a back injury while at work resulting in a herniated disk at L5-S1. His doctor recommended lumbar surgery but his employer refused to pay the cost of the surgery. In September 2011, the Workers’ Compensation Judge (WCJ) ordered WK to approve and pay for the surgery, as well as continue to pay benefits to Mr. Sims. The Judge also signed an order of rehabilitation naming Lenora Maatouk as Mr. Sims’ vocational rehabilitation specialist. Sims was further ordered to participate in an adult education program to obtain his GED, with approval from his treating physician. In March 2012, Mr. Sims underwent a L4-5 and L5-S1 360-degree lumbar fusion, with placement of pedicle screws, followed by a right L5-S1 micro lumbar decompression.

As required by rehabilitation order, Mr. Sims took the adult educational program placement test on October 10, 2011 and on February 4th, 2013 and took the GED exam on January 27th, 2012 and November 8th, 2013 – to no avail. Mr. Sims’ rehabilitation specialist, Ms. Maatouk, informed him that he would need to take the placement exam again before being able to take the GED exam for a third time and additionally recommended that he take remedial classes for approximately six to nine months prior to the GED exam to better prepare himself. Mr. Sims did not enroll in any remedial courses.

independence-day-1436454If you are fortunate enough not to sustain serious injury as a result of someone else’s negligent actions, you may not realize that the compensation for your injuries can be apportioned and spread to other liable parties. Further still, if you were partially responsible for causing your own injury, you will likely see a reduction in the amount of damages you can recover. This was the case for a Ponchatoula High School band student who was injured while on a school-sponsored band trip in Tennessee.

In May 2006, Kent Kinchen, while on a band trip to the Smokey Mountain Music Festival in Gatlinburg, Tennessee, sustained an eye injury after a game involving Airsoft novelty guns, purchased at a tourist shop earlier that day with his fellow classmates. A year later, Kent and his father Barry Kinchen, filed a lawsuit seeking damages against the Tangipahoa Parish School Board for the incident.

The trial court found the School Board partially liable for the injury because “allowing the students the opportunity to purchase various weapons while on the school sponsored trip created an atmosphere that did not provide all students with reasonable supervision…” The trial court awarded the Kinchens $20,000 in “general damages”, which cover mental or physical pain or suffering, inconvenience, loss of gratification or intellectual or physical enjoyment, or other losses of lifestyle that cannot be definitively measured, $14,329.34 in “special damages”, which are damages that can be more readily measured, like medical costs or loss of wages, and awarded Mr. Kinchen $1,000 for related claim of loss of consortium, which refers to the loss of love and affection, companionship, loss of material services, support, etc. The school board, appealed the finding of liability, and the Kinchens appealed the amount of damages, arguing that the amount was “abusively low.”

hole-1576687-1-658x1024Sometimes what you do – or fail to do – before filing a lawsuit, can have a big impact on the final result, as Ross Lynch of Mandeville, Louisiana recently learned. Lynch owns property on Girard Street in Mandeville. Two of his neighbors own a lot directly adjacent to his property that is used by the City of Mandeville as a public parking lot. Overgrown grass and weeds were growing along the fence that separated the two lots. Until filing a lawsuit, Lynch never mentioned this problem to the neighbors or asked them to get rid of the overgrowth, which he considered to be an “obvious nuisance.”

In June 2010, Lynch entered the neighbors’ property without their permission in order to trim the grass and weeds. In the process, Lynch inadvertently fell into a four-foot deep hole that had been hidden by the dense growth. The hole was caused by a broken sewer pipe that belonged to the City of Mandeville. Lynch injured his foot and ankle and filed a lawsuit to get compensation for his injuries and reimbursement for medical bills, naming the property owners and the City of Mandeville as defendants.

Lynch argued that the property owners, as well as the City, had “constructive knowledge” of the dangerous hole on the property before he was injured because the overgrowth of weeds and grass had thoroughly hidden it and it therefore posed an unreasonable risk of danger. “Constructive knowledge” of a dangerous condition refers to the existence of facts that lead to an inference of actual knowledge of the condition.  See La.R.S.9:2800(D).  Lynch also argued that, because the property was used by the City as a public parking lot, it was under the control of the City, as well as of the property owners.

electric-shock-hazard-1310056-1024x683On 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.

old-rusty-ladder-1426340-770x1024In a recent personal injury case, the plaintiff, Angela Lawrence, from Ouachita, Louisiana, sued her 76 year old grandmother Dorothy Dell Sanders and Allstate Insurance Company, for injuries sustained when Ms. Lawrence fell from the top of a ladder after cleaning her grandmother’s roof. Ms. Lawrence was no stranger to the task her grandmother asked her to complete. From the age of 15 until the time of the accident, Ms. Lawrence had performed the task of going up a ladder and cleaning her grandmother’s roof approximately 20-24 times. Although on the day of the accident, the circumstances changed. The usual ladder that Ms. Lawrence normally used was stolen, so Ms. Lawrence elected to use an older, shorter ladder than usual. Ms. Lawrence did not tell her grandmother that she did not want to use this replacement ladder and elected to clean the roof even though her grandmother, Ms. Sanders, was not insistent that the job be completed immediately.

After her fall Ms. Lawrence filed a lawsuit against her grandmother and her homeowners’s insurance company.  In that lawsuit Ms. Lawrence claimed that the ladder was defective and that her grandmother, Ms. Sanders, was negligent in letting Ms. Lawrence use a defective ladder. As the claimant in the lawsuit, Ms. Lawrence not only needed to allege the injuries caused to her by the defendants, she must also prove her injuries were the fault of the defendants. Ms. Lawrence’s only evidence was her own deposition, her statement to the court about what happened.

Ms. Lawrence alleged that she was injured due to the dangerous and defective condition of the ladder, which caused her to fall and sustain injuries to her wrist, neck and back.  Ms. Lawrence testified that she thought the ladder fell by “someone not holding it” but did not ask for her aunt or grandmother to hold the ladder for her. After the accident, AllState conducted an investigation and determined that the ladder was not damaged. As it stood, it was Ms. Lawrence’s word that the ladder was defective against AllState’s investigation, and Ms. Lawrence’s words alone were not enough for the case to withstand a filing for a summary judgment by the Defendants.  

IMG_1314-1024x768When a Louisiana resident is injured, she should consider filing a lawsuit against the person, group, or organization whose negligent or intentional acts were a proximate cause of the injury. However many potential plaintiffs do not realize that there may be several other persons and entities, not readily perceptible to the layman, who could be added as defendants and help ensure the plaintiff’s just compensation. Additional defendants can be extremely helpful when a plaintiff is going after substantial compensation because there will be more individuals to help pay out the sum should one or more parties be unable to pay a judgment due to bankruptcy or some other issue. Accordingly when Kenneth Truxillo was injured while attending pre-game festivities at Champions Square, the outdoor entertainment area bordering the Mercedes Benz Superdome, he did not just seek compensation from the owners of the Superdome but added several other defendants that he believed shared responsibility for his injuries.

According to Mr. Truxillo, while he was attending pre-game festivities at Champions Square before a home football game he was struck in the head by a large stucco column that had fallen over. He sustained several injuries and sought damages from several defendants, claiming that the stucco column that struck him created an unreasonably dangerous condition. The defendants included: The Louisiana Stadium and Exposition District, owners of the Superdome; SMG, the company that operates the Superdome and the property on which it is located; Mardi Gras Productions, the company that owned the stucco column that allegedly fell onto Mr. Truxillo; and Centerplate, a food and beverage service provider with whom Mardi Gras Productions contracted and provided the stucco column on the day of the alleged event.

In trial court, Mardi Gras Productions filed a motion for summary judgment, arguing that it was not liable for Mr. Truxillo’s injuries because it neither had custody, control, or garde over the area in which the stucco column struck Mr. Truxillo, nor over the column itself. Summary judgment is a ruling made by a judge in a court of law, and is granted only if the pleadings, depositions, answers to interrogatories, and admissions together with affidavits, if any, admitted for the purposes of the motion for summary judgment show that there is no genuine issue as to material fact and that the moving party is entitled to judgment as a matter of law.

surgeon-3-1504757-1024x906Prescription is a legal doctrine that serves to prevent people from filing lawsuits after a specified lapse of time has passed.  The public policy behind the idea of prescription is not to prevent people who have been harmed from receiving relief.  Instead, prescription is meant to allow someone who has caused harm piece of mind knowing that they cannot be sued after the passage of a certain period of time.  Prescription allows lawsuits to be brought up to a certain time after the events leading to a lawsuit have occurred.  These time limits are commonly specified in the specific texts of the laws they serve.  

Prescription is a doctrine that often comes into conflict between parties to a lawsuit when one side amends their original complaint after the designated time for prescription has already lapsed.  These amendments often include either new parties or claims.   The question that courts must decide is whether these amended complaints “relate back” to the original complaints in order for the amended complaint to move forward.  This question was central to the conflict in the case of Correro v. Caldwell, a medical malpractice lawsuit arising out of the Fourth Judicial District Court for the Parish of Ouachita.  

The facts of this case revolve around the plaintiff, Carolyn Correro.  On April 22, 2011, Correro fractured her left hip after a fall.  She was taken by ambulance to IASIS Glenwood Regional Medical Center, L.P. (“Glenwood”).  At the hospital, the fracture of her left hip was verified and she was scheduled for surgery to repair the fracture two days later.  During preparation for the surgery, her right hip was misidentified as the injured hip.  Correro was positioned on the wrong side when she was brought into the operating room.  As a result, a doctor began surgery on Correro’s right hip.  A few minutes into the surgery, after the doctor had made his incision, the surgical team realized they made a mistake.  The surgical team closed the incorrect incision and flipped Ms. Correro over onto her left side and the surgery continued on the injured left hip without further incident.  

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