Pain And Suffering Claims

July 23, 2023

Look Both Ways Before You Cross!: Pedestrian Fault Allocation

crosswalk_pedestrian_crossing_407023-1024x656 People often assume that pedestrians always have the right of way. While this adage is partially true, pedestrians who avoid proper safety protocols can be found more at fault for an injury than the car that struck them. If avoiding physical trauma is not motivation enough to look both ways before crossing the street, the following lawsuit may encourage you to take proactive steps to avoid being hit.

Wilson Jolivette was walking on a service road near Louisiana Highway 90 when he was struck by a passing truck driven by Ray Hebert. Hebert was employed by Hanagriff’s Machine Shop and was driving a large flatbed truck owned by the Shop. Jolivette broke both his wrist and ankle due to the collision. Hebert’s driver’s license documents partial vision loss in one eye, and he testified that he did not see Jolivette walking on the road.

Witnesses to the events described Jolivette walking into the road, being struck by the truck’s side mirror, and spinning into the air. Jolivette admitted that he did not look both ways before crossing the service road and consequently did not see the truck coming. Jolivette sued the Shop for medical expenses, pain and suffering, and loss of earnings. The jury found him 70% at fault for the accident and the Shop at fault for the other 30%. The jury also awarded Jolivette $10,000 for pain and suffering and other awards. Both parties appealed their assignments of fault. Jolivette appealed the $10,000 ruling.

July 18, 2023

Can you Sue a Hospital for Negligently Granting Your Doctor ‘Privileges’?

by Berniard Law Firm

building_hospital_within_931281-1024x683 Amid the potential chaos and life-or-death scenarios in a hospital emergency room, “negligent credentialing” might not immediately come to mind. It’s understandable; after all, numerous nightmare scenarios occupy our thoughts. However, negligent credentialing is an incredibly significant matter that hospitals face regularly.

So what is “negligent credentialing”? It all comes down to whether your doctor has the legitimate credentials to practice medicine at that hospital.

Imagine a chaotic life-or-death situation where someone you love has been rushed into the ER. Your first thought isn’t going to be, “Hm, I wonder if this doctor is board certified?” It’s assumed that if someone’s doing a professional job, they’re qualified to do it. You trust the mechanic changing your car’s oil knows what they’re doing, right? Or that your kid’s teacher has the right qualifications to teach. And your dentist—you’re pretty sure they’re qualified and accredited to poke around your mouth.

July 13, 2023

What Happens When You File a Claim For Workers’ Compensation in the Wrong Court?

by Berniard Law Firm

court_justice_interior_architecture-1024x768 Getting workers’ compensation from an employer is already difficult, but it is even more so when the claim is filed in the wrong court. Although employees are entitled to workers’ compensation, the claim has to be filed in the correct jurisdiction. The following case shows what happens when you are injured while working and attempt to file a claim for workers’ compensation in a state where you were not employed.

Louisiana resident Lemcy Cortez was hired by Triple F Oil Field Service, LLC, to drive trucks in Oklahoma. The day after he arrived in Oklahoma, Cortez was involved in an automobile accident that allegedly led to elbow and back injuries. He filed a Disputed Claim for Compensation in the Louisiana Office of Workers’ Compensation (OWC) against Triple F and its insurer for workers’ compensation benefits which he alleged his employer refused to pay. Triple F and its insurer claimed Cortez lacked subject matter jurisdiction. Triple F believed Cortez was hired in Oklahoma, and Cortez believed he was hired in Louisiana.

Cortez claimed he was hired over the phone in Louisiana, but in his recorded statement to the insurance company’s interviewee, he stated he was hired by Triple F in Oklahoma. Cortez offered two affidavits to support his position that he was hired in Louisiana. In the first, he claimed he contacted Triple F about the job while he was in Louisiana. He claimed he was contacted by Triple F in Louisiana when he was offered the job and accepted it over the phone. In the second, he claimed the company’s Vice President called him to offer him the job, and he knew Cortez lived in Louisiana. In addition, he claimed he understood he had been officially hired by Triple F at that point, and the company had made living arrangements for his move to Oklahoma.

July 12, 2023

Final Judgment Lacking Decretal Language: What Happens to Your Case?

by Berniard Law Firm

school_bus_canada_highway-1024x1024 It is well known that every court order contains a physical copy declaring what the verdict of the case is, otherwise known as a final judgment. However, the order must contain what we call “decretal language.” But what in the world does that mean? The Louisiana Third Circuit Court of Appeal discusses this question and when a final judgment can be amended to contain all the necessary language crucial for the order.

Upon appeal, in the Third Circuit Court of Appeal in the State of Louisiana, Cedrick Laundry alleged that his son, Sengal, was injured when the school bus he was riding hit a curb and ran into a pothole. Defendants (the School Board and others) filed for summary judgment as they believed they were not responsible for Sengal’s injuries.

Summary judgment is when there is no genuine issue of material fact as it pertains to the case. Under Rule 56(a) of the Federal Rules of Civil Procedure, if the School Board cannot prove its case, the court will dismiss it. The trial court granted their motion for summary judgment but did not state the dismissal of any or all of the claims against the School. The judgment simply stated:

July 11, 2023

When Is a Company Required to Pay for Certain Medical Treatments for Injured Longshore Employees?

by Berniard Law Firm

vessels_beach_brazil_pier-1024x768 Suffering an on-the-job injury is a challenging experience that involves physical recovery and navigating the complexities of the worker’s compensation system. Determining when and how to return to work can be daunting in such situations. The questions surrounding medical examinations and the responsibility of companies to provide additional medical advice or inspections when an employee is injured are examined in the following case.

A longshore foreman, Alexander Scott, injured his hip and lower back when he was hit from behind by a forklift at work. His employer, Port America, set him up with Dr. Steiner, a Physician, to review his injuries. Dr. Steiner told Scott that he reached maximum medical improvement, did not need additional treatment, and was physically fine to continue working. However, Scott was uncomfortable returning to work because he insisted he was still in pain.

Opting not to return to work, Scott sought another doctor’s opinion, Dr. Bostick, who advised him against resuming his employment duties due to his condition. Scott revisited Dr. Steiner, but no additional treatment was provided as his complaints were deemed subjective. Dr. Bostick reiterated his recommendation that Scott abstain from work due to an altered gait, suggesting further physical therapy.

July 10, 2023

Lafayette Court Denied Retaliatory Discharge Claim, Instead Found Employer to be “Very Accommodating”

by Berniard Law Firm

washington_dc_fire_ems-1024x683 In the face of a potentially unlawful termination from your job, navigating the legal landscape can be daunting. If you suspect that you have been fired unjustly, it is essential to understand the critical elements required to bring a lawsuit against your employer for wrongful or retaliatory discharge. A recent Lafayette Parish case highlights the essential evidence to support a retaliatory discharge claim. It highlights the importance of seeking legal guidance when faced with such a situation. By delving into the details of this case, we can uncover the necessary proof required to establish a compelling retaliatory discharge case and empower individuals to protect their rights in the workplace.

Pashine Broussard suffered a workplace accident while employed at Our Lady of Lourdes Regional Medical Center (“Lourdes”). Since the accident in 2006, Lourdes paid Broussard’s medical bills and accommodated her various restrictions, including allowing other employees to perform the tasks she could no longer accomplish until 2010. At that time, Broussard’s surgeon took her off work completely.

Broussard then met with Lourdes to discuss workers’ compensation indemnity benefits. Lourdes, however, informed Broussard that her time to seek these benefits had expired, as her injury occurred over four years ago; however, Broussard was approved to take a leave of absence, expiring in January of 2011. Broussard signed the acknowledgment of the leave time and then subsequently filed a workers’ compensation claim, the latter of which was ultimately denied.

July 9, 2023

Endymion Parade-Goer’s Claim Dismissed as Untimely

by Berniard Law Firm

mardi_gras_parade_new_1-1024x683 New Orleans is well-known for extravagant and entertaining Mardi Gras parades. What happens when an unknown tortfeasor injures someone during a parade? As the following case demonstrates, the claimant only has a certain amount of time to bring a lawsuit against the wrongful party, or they risk dismissal of the claim.

Lillie Love claimed she was injured during a parade of the Gentilly Carnival Club, Inc., d/b/a Krewe of Endymion (“Endymion”), when a float driver hit a metal barricade in front of her. Love then filed a lawsuit against Endymion, its insurer, Certain Underwriters at Lloyd’s, London (“Underwriters”), and the unknown driver of the float. Later, Love amended her claim to include Barry Daigle, the driver, and Daigle’s employer, Blaine Kern Artists, Inc. (“BKA”).

Endymion then filed a motion for summary judgment, claiming that Love could not meet her burden of proof under La. R.S.9:2796(A), which requires, in part, for the claimant to prove a deliberate and wanton act or gross negligence on the part of the parade krewe or organization. The Civil District Court for the Parish of Orleans granted Endymion’s motion and dismissed Love’s claims against it.

July 8, 2023

Dermatologist Not Liable For Patient’s Fall After Procedure In Louisiana Lawsuit

by Berniard Law Firm

examining_patients_dvids112692-1024x680 Medical malpractice claims typically involve allegations of negligence during a medical procedure. However, the following case presents a unique scenario where the alleged injury occurred after the procedure was completed. It examines the legal considerations and challenges in such situations, emphasizing the importance of evidence and expert testimony in establishing a breach of the applicable standard of care.

Kay Hanagriff received two punch biopsies at Dr. Shondra Smith’s dermatology office. While receiving the biopsies, Hanagriff told Smith she felt queasy. Smith told the nurse to put an ice pack on Hanagriff’s neck. After the nurse placed the ice pack on her neck, Hanagriff said she was feeling better. After the procedure, Smith told Hanagriff to lie flat on the exam table and had her staff monitor Hanagriff. Hanagriff ignored the staff’s instructions not to try to get off the exam table without assistance and claimed she fell and hurt her neck.

Hanagriff filed a complaint with the Louisiana Patient’s Compensation Fund. The medical review panel found neither Smith nor her staff breached the appropriate standard of care in their treatment of Hanagriff. Hanagriff then filed a lawsuit against Smith and her professional liability insurance carrier. At trial, the jury found against Hanagriff. Hanagriff appealed. She claimed the jury erred in finding Smith and her staff did not violate the applicable standard of care, and the evidence did not support the jury’s findings.

July 7, 2023

City’s Liability for a Child’s Fall on a Defective Sidewalk

by Berniard Law Firm

man_person_street_sidewalk-1024x683 Parents can imagine all sorts of dangerous situations their children could find themselves in walking to school – kidnappings, getting hit by a car, bullying. But what happens if the cause of the injury was a defective sidewalk the city was supposed to maintain? Can the city be held liable? The following case examines the liability of a city when a teenager is injured due to a defective sidewalk in front of her high school.

While fifteen-year-old Cora Minix was walking to her high school in Rayne, Louisiana, she fell on a sidewalk in front of the school and was injured. Her parents filed a lawsuit against the City of Rayne, claiming the sidewalk’s concrete was cracked and shifted as Minix walked on it, causing her to fall.

The city claimed the sidewalk’s condition was open and obvious and not unreasonably dangerous. At a trial, the court ruled in favor of the City of Rayne, finding the sidewalk’s defect was open and obvious and did not present an unreasonable risk of harm. Further, the city did not have actual or constructive knowledge of the sidewalk’s defect. The Minixes appealed.

July 5, 2023

Doctors Not Required To Act Perfectly: Determining The Applicable Standard of Care In Medical Malpractice Lawsuits

by Berniard Law Firm

ship_s_doctor_doctor-1024x672 If your doctor makes an obvious mistake in a surgery, you might think you can succeed in a medical malpractice lawsuit against the doctor. However, Louisiana law does not require a doctor to act perfectly. Therefore, if you are considering bringing a medical malpractice lawsuit against a medical professional, you must understand the applicable standard of care you are required to prove they did not satisfy. This case illustrates how the standard of care a doctor is required to follow depends on the existing circumstances.

Martin Van Buren suffered from kidney disease and underwent a kidney transplant as a young adult. Approximately 12 years later, he suffered additional health problems. While at a hospital in Monroe, Louisiana, he suffered a large gastrointestinal bleed.

While Van Buren was in the ICU, Dr. Claude B. Minor, Jr. was asked to do an emergency surgical consult. When Minor entered the hospital room, Van Buren vomited blood and went into cardiac arrest. Minor stabilized Van Buren and took him to surgery to remove the ulcer. Minor told Van Buren’s mother it was unlikely Van Buren would survive the procedure. After Minor removed the part of the stomach with the ulcer, Van Buren started to bleed in his intestines. While dealing with that complication, Minor reconnected the stomach to the incorrect part of the bowel, which made it so Van Buren could not absorb food. This resulted in diarrhea, malnutrition, and excessive weight loss. The error was later identified and corrected by a different doctor.