Pain And Suffering Claims

November 9, 2013

Nursing Home Injury Leads to Medical Malpractice Claim

Recently, an individual from the Parish of St. Tammany was injured as she was transported from a nursing home to another health-care facility. She fell from her wheelchair when the driver had to slam on his brakes. The wheelchair had neither a seatbelt, nor was the wheelchair strapped down in the van. The individual sued her nursing home based on the failure to adequately secure her for her journey. Questions regarding the Louisiana Medical Malpractice Act arose that considered whether the nursing home was a healthcare provider and whether her injury constituted medical malpractice.

The Louisiana Medical Malpractice Act (“Act”) requires that individuals take their medical malpractice complaints against qualified health care providers to a medical review board before taking the claim to a court. The State of Louisiana employs this administrative process because the state is self-insured, and it covers some health-care providers. They want to be sure that a medical malpractice claim exists before it gets into the courtroom. The medical review board generally consists of two healthcare professionals and one attorney. Generally, the healthcare professionals are in the same field as the doctor accused of malpractice. For more information on the medical review panel, see http://www.doa.louisiana.gov/MedReview/index.htm.

If a claimant does not use the medical review panel and tries to take their claim directly to court, then it will be dismissed because it is premature. Dismissing for prematurity is a dilatory exception, which means that it only delays the progress of a lawsuit, but does not defeat the action. In medical malpractice suits, the defendant has the burden of proving that he is entitled to a medical review panel, which only applies to only malpractice, not other tort actions, and that he or she is a qualified medical provider.

October 27, 2013

5th Circuit Rules Wal-Mart Not Liable for Slip-and-Fall Caused by Leaky Roof

by Berniard Law Firm

When a hazardous condition on a merchant’s property causes a slip-and-fall accident, the victim can file suit for his or her injuries. But in Louisiana, the merchant can only be held liable for those injuries if the merchant created the danger or had actual or constructive notice of it before the accident. This law saved Wal-Mart from liability in Gray v. Wal-Mart, a recent case from the Fifth Circuit Court of Appeals.

On September 1, 2008, Hurricane Gustav made landfall near Cocodrie, Louisiana as a Category 2 storm, causing considerable casualties and damages along its track. That day, Louisiana resident Jean Gray was shopping at a Wal-Mart in Pineville. As she was pushing her cart down an aisle, she slipped in a puddle of clear liquid and fell, injuring her right knee. In an internal incident report, a Wal-Mart supervisor identified a hole in the store’s roof as the source of the puddle, an assumption he made based on his knowledge of other leaks in the roof and the heavy rain pouring down outside.

Gray and her husband sued Wal-Mart for her injuries, claiming that she slipped in a puddle of rainwater that had leaked from a hole in the store’s roof. The district court granted summary judgment in favor of Wal-Mart. The Grays appealed, and the case went to the Fifth Circuit.

October 22, 2013

Standing in Wrongful Death Cases: Who May Initiate a Lawsuit?

by Berniard Law Firm

The term wrongful death refers to cases in which the decedent’s death was the fault of another. The other “person” could be one individual, such as someone driving under the influence of drugs or alcohol; it could also be a group of people or a business, such as the decedent’s employers or the manufacturers of a product whose defect or malfunctioning resulted in the user’s death. Wrongful death lawsuits may be initiated by family members of the decedent in order to obtain monetary benefits, such as for wages the decedent would have earned if he were still alive. Before filing a lawsuit, it is important to establish whether the person bringing the case has standing to do so. Standing indicates that the moving party has a sufficient connection to or is substantially affected by the harm being alleged, in this case the wrongful death of the victim.

In order to bring a wrongful death lawsuit, the plaintiff must have standing as a close relative of the deceased. The first family members who would be favored to have standing would be the decedent’s spouse and children. Louisiana Civil Code states that the surviving mother or father of the deceased may only have standing if there is no spouse or child surviving the decedent. If the deceased had no surviving parents, spouse or child, then his or her brothers or sisters would have standing to bring a lawsuit. Finally, if the decedent had no surviving siblings, spouse, parents or children, then his or her grandparents would have standing to file a wrongful death claim. Note that a mother or father who abandoned the decedent while he or she was still a minor would not have standing.

Though children are the first to have standing in a wrongful death case, standing may be challenged when the parentage is called into question. A Louisiana court stated that “a filiation action inherently accompanies an illegitimate child’s wrongful death and survival action.” Thus, children born out of wedlock, that is, to parents who were not married at the time of birth, must be able to prove paternity in order to have standing. According to Louisiana law, a husband will be presumed to be the parent of a child when the child is born within 300 days of the termination of a marriage (300 being considered the maximum possible time of gestation). Outside of this exception, proceedings must be conducted to establish standing.

October 11, 2013

Procedure Needs to Be Followed in Personal Injury Cases

by Berniard Law Firm

When a legal issue goes to trial attorneys on both sides must abide by the rules of evidence. These rules pertain to how witnesses may be questioned and which evidence may be admitted. An error in any of these areas may lead to an objection which may be upheld by the judge. However, sometimes the judge allows evidence that the Court of Appeal finds inappropriate. When this happens, the entire case may have to start over again. This is the situation for one case arising out of an accident in Lafayette.

In Cawthorne v. Fogelman, an accident occurred when the defendant turned right out of a drive and into the road’s outer lane, but struck the plaintiff’s vehicle. The plaintiff suffered severe neck and back injuries as a result of the collision. This lawsuit was subsequently filed. According to court documents, the defendant checked the road before turning out of the drive, saw no oncoming cars in the lane he was turning into, and saw no vehicles in the inside lane with their blinker on. After hearing testimony from expert witnesses the jury found for the defendant.

On appeal to the Court of Appeal for the Third Circuit, the plaintiff asserted the trial court erred in allowing the defendant’s deposition to be admitted into evidence in place of the defendant’s live testimony. In other words, a written transcription of the defendant’s statements was made available to the jury, but the defendant was not physically present to be questioned by the plaintiff and to be seen and heard by the jury.

October 10, 2013

Medical Malpractice Cases Require Timely Legal Action

by Berniard Law Firm

Unfortunately, medical malpractice happens all too often. Doctors misdiagnose conditions, prescribe wrong medications, and make surgical errors. Victims of this negligence can face serious injuries including permanent disability requiring long-term care. In the worst cases, the victim dies. While these harms are physically painful, they can also be emotionally trying, throwing a victim into a tailspin of depression. Making matters worse, financial consequences bear down on these victims in the form of costly medical bills. Fortunately, a medical malpractice lawsuit can help these victims obtain compensation for their damages, but only if filed in a timely matter. However, strict rules exist as to how quickly such a suit must be brought. A recent decision by the Court of Appeal for the Second Circuit in Louisiana addressed this issue.

In Davidson v. Glenwood Resolution Authority, Inc., a metal piece of a retractor was accidentally left inside a patient after a 2006 abdominal surgery. However, at the time, neither the doctor nor the patient was aware of the foreign object being left inside the patient. Three months after the surgery, the patient began to feel something sharp in his abdomen that he knew should not have been there. A month after that, the patient had a CT scan after an auto accident which showed the presence of metal within the patient. The doctor who conducted the original surgery was contacted and he, in turn, contacted the patient, but the patient said he felt fine and he did not want to mess with whatever was problematic. It was not until two years later, in 2008, after an MRI was conducted that the patient actually discovered the presence of the metal object. Within a year of that test, in 2009, the patient filed a medical malpractice lawsuit.

In Louisiana, a medical malpractice lawsuit must be brought within one year of the alleged act or within one year from the date of discovery of the act, omission, or neglect. (La. R.S. 9:5628(A)) This means that once the victim obtains actual or constructive notice of the harmful act, the one year clock starts running. Constructive knowledge exists when facts indicate to a reasonable person that he is a victim of a tort. As interpreted by the Supreme Court in Campo, constructive knowledge is whatever is enough to excite attention and puts the plaintiff on guard and calls for inquiry.

October 9, 2013

Louisiana Wrongful Death Summary Judgment Overturned on Appeal

by Berniard Law Firm

If you have ever been selected to serve as a juror, you know that the jury’s job in a trial is to hear the facts and arguments presented by both parties to a case and to make an informed judgment based on the evidence. In criminal cases, the jury is asked to assess the state or federal government’s case against the defendant and determine his guilt or innocence. In civil cases, the jury evaluates a dispute between two parties, and determines whether one party must compensate the other for damages caused.

Before a civil lawsuit reaches the trial stage, either party to the case may file a motion for summary judgment. Summary judgment is when the court dismisses the case and rules in favor of the moving party (the party making the motion), on the grounds that there were no triable issues of material fact presented. “No triable issues” means that all reasonable-minded persons would come to the same conclusion after weighing the evidence presented.

A verdict for summary judgment can be hard to overcome on an appeal, as the court will be reviewing the facts in the light most favorable to the party opposing the appeal. Additionally, Louisiana legislature expressly favors the summary judgment procedure, as it saves the time and cost of a jury trial. Nonetheless, there are certain types of cases that by their nature should not be settled by summary judgment. An example of such a case would be Bryan and Madison Manis’ wrongful death lawsuit, in which the Louisiana Fifth Circuit of Appeal overruled a verdict for summary judgment in favor of the defendants.

October 6, 2013

Summary Judgment Obstacle for Delayed Suit in Medical Malpractice Case

by Berniard Law Firm

Put simply, summary judgment is a decision rendered by a court for one party and against another without the litigation of a full trial. According to the Louisiana Supreme Court, summary judgment is appropriate when all relevant facts are brought before the court, the relevant facts are undisputed, and the sole remaining issue relates to the legal conclusion to be drawn from the facts. As you can probably understand, arguing for or against a party’s motion for summary judgment is not only a complex process, but also one that carries much risk.

On September 2, 2008, Daniel Milbert fell off of a roof and broke his ankle. Shortly thereafter, Mr. Milbert received surgery to repair his ankle at the Lafayette General Medical Center and was placed on a pain pump. After speaking to one of his doctors about an increase in pain following his discharge from the hospital, Mr. Milbert was instructed to call if the pain worsened. After attempting to contact doctors at the medical center, Mr. Milbert and his wife were required to leave messages with Dexcomm, an answering service in Lafayette. After Mr. Milbert was diagnosed with compartment syndrome and had to undergo surgery, he and his wife filed suit against Dexcomm on December 23, 2009. Accordingly, Dexcomm filed a motion for summary judgment alleging that the right of recovery had expired. At trial, the court agreed with Dexcomm and granted the motion for summary judgment.

Mr. Milbert and his wife appealed.

October 3, 2013

Lack of Evidence Leads to Failed Suit Against Employer for Workplace Incident

by Berniard Law Firm

On July 12, 2006, Raymond Alex, Sr., a structure carpenter for the BNSF Railway was driving a company boom to a work site in Mermentau. Around 3 p.m., Mr. Alex stopped at an intersection, was rear-ended by a large tractor-trailer rig driven by Edward Zenon, Jr. As a result of the accident, Mr. Alex alleged he suffered injuries to his neck with radiating pain down his right arm and hand. He was given injections in his neck at first, but ultimately required cervical spine surgery.

In July 2007, Mr. Alex sued Mr. Zenon, the lessor of the tractor/trailer, PACCAR Leasing Company, and his employer, Creole Fermentation. After some initial discovery, Mr. Alex settled with the defendants.

Two years after his previous suit, Mr. Alex decided to sue his employer, BNSF, under the Federal Employer’s Liability Act (FELA). In his petition, Mr. Alex alleged that BNSF was negligent for failing to provide a reasonably safe place to work, failing to warn him of dangerous conditions and providing a poorly designed truck for him to work in.

October 1, 2013

Dispute Over Responsibility in Accident at Apartment Complex

by Berniard Law Firm

Every first year law student learns about negligence in their tort law class. Negligence claims are some of the most common claims brought in civil court. In order for a defendant to be found liable for negligence, it must be shown that the defendant owed the plaintiff a duty of care, which can also be refered to as a duty to protect. This means that the defendant has to have some level of responsibility for protecting the plaintiff from harm. If the defendant has no duty of care, then they cannot be held liable for negligence. The plaintiff has to prove that the defendant owed them that duty of care.

Sometimes it is easy to determine whether or not a defendant owed a plaintiff a duty of care. For instance, medical malpractice suits are often refered to as professional negligence since a doctor or nurse owes their patient a duty of care regarding their medical treatments. Likewise a lawyer owes his client a duty of care regarding their legal representation. But sometimes, a major point of contention in a lawsuit is whether such a duty of care exists at all. The case of Ponceti v. First Lake Properties shows what happens when a plaintiff cannot show that the defendant owed them a duty of care.

Ms. Ponceti and her daughter, Kaitlynn, lived in an apartment complex in Mandeville owned by First Lake Properties. One day Kaitlynn was riding her scooter in the courtyard of the complex. A teenager was riding his bike in the courtyard at the same time, and lost control of his bike while popping a wheelie. He hit Kaitlynn with his bike and injured her leg.

September 27, 2013

Fifth Circuit Sides with Plaintiff in Jones Act suit for Injuries Sustained on Sea Vessel

by Berniard Law Firm

The Jones Act deals with injuries suffered by employees working on American sea-going vessels and their rights to workers’ compensation for those injuries. The Act requires employers to “maintain a reasonably safe work environment.” Another important feature of the Jones Act is that not only is the employer liable for the negligence of their employees, but also any amount of negligence on the employer’s part will result in some level of liability. In other words, in a Jones Act case, if one employee negligently injures another, both the offendin employee and their employer are liable.

The case of Martinez v. Offshore Specialty Fabricators, Inc. deals with a Jones Act claim and really brings to light how important it is to obtain quality legal representation. Mr. Martinez was a seaman employed by Offshore Specialty Fabricators as a mechanic. On May 26, 2008, he and his supervisor, Mr. Smith, went aboard a ship owned by Offshore to repair a defective winch. Both Martinez and Smith testified that the work space was very cramped and required them to bend over while swinging a sledgehammer for almost an hour when suddenly Martinez felt a pop in his neck. Smith testified that he saw Martinez visibly twitch and asked what was wrong. Martinez informed him that something was wrong with his neck, and Smith immediately told him stop working.

Shortly after the injury he told an on-board medic about soreness in his arm due to using the sledgehammer. Two days later Martinez visited another medic and told him that he was unable to move his head or jaw without shooting pain in his neck and shoulder. He was also interviewed by a claims adjuster hired by Offshore and told the adjuster that his injury was due to the cramped working conditions and hammering.