Articles Posted in Wrongful Death

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black-train-on-rail-and-showing-smoke-72594-1024x727Everyone has experienced or knows about a situation in which a governmental body was liable for damages or injuries caused. When suing a city in Louisiana, there must be some evidentiary support for the elements required under La. R.S. 9:2800. Otherwise, cities would be getting sued for every crack in the sidewalk that someone tripped over. While the situation in this case was more serious than a crack in the sidewalk, there are limits, all the same, to ensure that the city is not liable for another’s wrongdoing. The question in this case is who is responsible for the failure to maintain proper signage at railroad tracks? And if the signage is not enough who is held responsible?

In this case, TG was working as an engineer on a Union Pacific train that was traveling north on a path that would cross Cedar Street in Grosse Tete, Louisiana. DA was driving a road grader traveling west of Cedar Street when he attempted to cross the train tracks. Unfortunately, DA was not able to drive across the train tracks and was subsequently struck by the train, causing his death. TG was allegedly injured and filed suit for damages against the Department of Transportation and Development (“DOTD”), Mr. DA and the Union Pacific Railroad Company, alleging the defendants were at fault for the injuries sustained when the train struck the road grader. DOTD claimed that it was not at fault, but instead that the Village of Grosse Tete was at fault for a number of reasons, including failure to maintain the roadway surface and warning devices.

As a result of DOTD’s claims, Goodmond filed an amended petition adding the Village of Grosse Tete as a defendant, for which it denied liability. The Village of Grosse Tete claimed that the plaintiff lacked sufficient support to establish the required elements to find it liable for the injuries Goodmond sustained. 

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blue-and-silver-stetoscope-40568-1024x683The biggest obstacle to any plaintiff in a medical malpractice case is prescription, but what is that? In the state of Louisiana, prescription is a peremptory exception that can be claimed by defendants. Prescription can be thought of as a privilege for medical professionals which exempts them from malpractice cases so long as they are working within the scope of their employment. It is typically difficult to overcome a prescription exception unless a plaintiff has solid proof of negligence. The following case is no exception. 

Caddo Parrish resident Karla Breland’s tragic story began on June 19, 2014. Her husband, Ray Breland, had a medical condition that caused his body’s ammonia levels to rise, and thus he was prescribed Lactulose. Mr. Breland developed liver complications and a recurring hernia, for which surgery was performed by Dr. Zabari. Mr. Breland was discharged eight days later, on June 27th, only to return one month later for severe abdominal pain.

 The Brelands went to the emergency room. Mrs. Breland informed several staff members throughout their visit of Mr. Breland’s need for Lactulose, yet he was only given medication for nausea and pain. The next day, Dr. Zibari  fixed the hernia without surgery and said Mr. Breland should be discharged the following day. Again, Mrs. Breland informed the nurse on duty and one of the named defendants, Nurse Vierra, that Mr. Breland needed Lactulose, but he still did not receive it. Another doctor, Dr. Jones, another named defendant, checked on Mr. Breland and advised the nurse to administer Lactulose, but when Mrs. Breland reminded Nurse Vierra of this, the nurse said that she did not have a written order for the Lactulose. The next on-duty nurse, Nurse Hayes, was informed of the same situation but again told Mrs. Breland that there was no written order for it. 

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68-Email-05-22-19-picture-1024x683Often workers’ compensation claims focus on the nature of the injury that one argues makes them eligible to receive workers’ compensation benefits. However, in situations where there is more ambiguity surrounding one’s employment status, there can be an additional difficulty in determining if one’s employment classification makes one eligible to receive workers’ compensation benefits.

Filiberto Serna, Jr. (“Decedent”) died in a construction accident in September 2013 while attempting to move multiple trailers located at a United States Navy facility in Belle Chasse, Louisiana. When the accident occurred, the Decedent was being paid by Filser Construction, a subcontractor of Aries Building Services, Inc. The Decedent’s wife and minor child brought a workers’ compensation case against Aries, but the Office of Workers’ Compensation (“OWC”) found in favor of Aries. Specifically, the OWC found that there was insufficient proof of an employee-employer relationship with Filser such that Aries was the Decedent’s employer. OWC also found that the Decedent was a partner of Filser. The wife and child appealed.

On appeal to the Fourth Circuit Court of Appeal, the first issue was whether the Decedent was a business partner of Filser or an employee under the Louisiana Workers’ Compensation Act. In the context of workers’ compensation, an injured worker is considered a business partner when he or she shares in the profit or loss of the partnership. However, a partner can still be considered an employee of a partnership to which he belongs.

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black-and-white-blood-pressure-blood-pressure-monitor-208556-1024x768When a loved one dies or suffers severe injuries from negligent medical care, the first thing a family wants is justice for that mistreatment. When a mother knows her son’s medical history is not conducive to a certain treatment, she may believe that malpractice is apparent. These lawsuits have a number of procedures meant to protect the profession, however. A lawsuit can be dismissed by summary judgment when there is no genuine issue as to a material fact. La. C.C.P. art. 966(B)(2). When the defendant requests summary judgment, she may win the summary judgment if the adverse party’s claim lacks factual support for the elements essential to the claim.

Breton Trotter, a 21-year-old, was transported to Baton Rouge General Medical Center (“BRGMC”) emergency room on November 5, 2011. On November 7, 2011, Dr. Zuckerman found that Mr. Trotter had no pulse and expired. In October 2012, Breton Trotter’s mother, Terrain Trotter, filed a medical malpractice claim with the Louisiana Patient’s Compensation Fund Oversight Board and requested a review by a medical review panel. On April 30, 2014, the panel issued an unanimous opinion that no medical malpractice exists. On August 28, 2014, Ms. Trotter filed a medical malpractice lawsuit in the 19th Judicial District Court against Dr. Zuckerman. After he timely filed an answer, Dr. Zuckerman filed a motion for summary judgment on the ground that Ms. Trotter had failed to obtain a medical expert to support her claims. The trial court granted summary judgment in favor of Dr. Zuckerman. Ms. Trotter appealed to the Louisiana First Circuit Court of Appeal (“the Court“) arguing that her familiarity with her son’s medical requirements made her fully capable of meeting the burden of proof.

All plaintiffs must establish three elements to file a medical malpractice lawsuit: (1) the standard of care applicable to the doctor; (2) a violation by the doctor of that standard of care; and (3) a causal connection between the doctor’s alleged negligence and the plaintiff’s injuries. La. R.S. 9:2794(A). Generally, expert testimony is required to establish the applicable standard of care and whether the standard was breached, unless the negligence is so obvious that an average person can infer a breach without the guidance of an expert. Samara v. Rau, 977 So.2d 880 (La. 2008)

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hospital-bc-laboratory-form-with-syringe-1-1315580-1024x768Trial courts can make mistakes. Some mistakes are permanent, so a redo is impossible. In other cases, the mistakes can be reversed on appeal by an appellate court. When an appellate court reverses a trial court’s decision, the trial court could have to revisit the entire case and put things in correct legal standing between the parties.

Gordon Serou, Sr. resided at the Specialty Hospital of New Orleans, Inc. (“SHONO”), which is a long-term care facility located in the Touro Infirmary (“Touro”). He suffered from Parkinson’s disease and a number of other illnesses. Unfortunately, he was also a patient at SHONO when Hurricane Katrina struck New Orleans in 2005. Two days after Hurricane Katrina struck New Orleans, Mr. Serou passed away due to a generator failure. Upon his death, Mr. Serou’s family members sued Touro, SHONO, and the manufacturer of the faulty generator, Aggreko. Touro then sued Aggreko to recover any damages that the court found Touro liable for in relation to the faulty generator. Aggreko filed a motion for summary judgment, claiming the company was not at fault for the generator failure. Though the Trial Court granted this motion, the Appellate Court reversed and sent the case back to the Trial Court. Aggreko filed another motion for summary judgment, again claiming that the company was not at fault for the generator failure. The Trial Court again granted Aggreko’s motion. Touro argued that this was inappropriate because Aggreko had submitted the motion without any alterations and the Appellate Court had already overturned the granting of this same motion.

A party whose summary judgment motion gets denied at the appellate level may be able to file the motion again. Zeno v. Colonial Mortgage & Loan Corp., 4 So.3d 93, 100 (La. Ct. App. 2008). In fact, a trial court may grant the motion even if the party does not submit new evidence. Paragon Lofts Condo. Owners Ass’n, Inc. v. Paragon Lofts, L.L.C., 32 So.3d 303, 306 (La. Ct. App. 2010). This is because a party files an initial summary judgment motion before the actual trial. Therefore, if an appellate court decides to reject an initial summary judgment motion, it is not making a final judgment on the case. Because the appellate court does not make a final judgment, the party can file a second motion for summary judgment. Hargett v. Progressive Ins. Co., 996 So.2d 1199, 1202 (La. Ct. App. 2008).

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advertisement-architecture-big-2380891-683x1024Around 9am on Saturday, October 12 the Hard Rock Hotel partially collapsed over Canal Street in New Orleans after the top six to eight floors buckled onto the structure. According to New Orleans Fire Department Superintendent Tim McConnel, the remaining structure of the building remains unstable and could possibly collapse entirely. In response, nearby buildings have been evacuated as the two construction cranes are also unstable. Currently, one person has been reported dead, eighteen have been taking to the hospital in unspecified conditions, and two workers are still reported missing. In terms of the next steps to be taken, it is unknown just how long it will take crews to clean up the piles of debris and get the project back on schedule. This is particularly stressful for the city of New Orleans considering the site of the collapse is a major transportation hub for the city – consisting of bus and streetcar lines in addition to the major traffic arteries of the city. An accident such as the Hard Rock Hotel accident will impact much more upon closer inspection spanning to issues such a personal injury, workers compensation, wrongful death, and much more. Considering the complex litigation that can arise out of an incident such as this one it is important to have a good attorney at the ready.

         Personal injury lawsuits can arise out of many different circumstances – car accidents, slip and falls, and even injuries on the job. When filing a personal injury case it is incredibly important to have a knowledgeable attorney because filing a personal injury claim too late or even waiting too long to collect damages can result in having your personal injury claim denied.  It is important to be persistent in personal injury cases and staying on top of filing deadlines and dates and having a diligent advocate can makes a difference in your case.

         Workers compensation is intended to pay for the medical expenses of injured workers and provide a remedy for lost wages. However, workers compensation claims are often complex from start to finish. There are cases in which it can be difficult to determine if someone is considered an ‘employee’ despite being injured while working on a project. This is especially prevalent if a contractor hires subcontractors in order to complete a project. Moreover, it can also be difficult to receive your workers compensation payments with companies often being uncooperative in the workers compensation process.

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bed-empty-floor-236380-1024x678After a long and emotional lawsuit following the death of a loved one, the last thing you may want to do is to return to the courtroom. However, if you fail to appeal an award of inadequate damages, you could be leaving money on the table. 

Mr. Roark and his wife had two children, Justin and Shelby Roark. Although there was no evidence of animosity, Mr. Roark and his wife divorced in 2000. In September 2001, the mother and children moved to Connecticut. The children agreed that Mr. Roark would enjoy full summer visitation. Instead of paying monthly child support, he would cover the children’s travel expenses. Mr. Roark also called his children on the telephone and sent gifts for holidays and other special occasions. One child, Dean, spent the summer of 2001 with his father, although the other child, Shelby, did not because she was too young to fly unattended. Both Dean and Shelby spent the summers of 2002, 2003, and 2004 with their father. 

In 2004, Mr. Roark injured his neck and head. He had to be hospitalized and was then treated outpatient. Following the accident, Mr. Roark’s contact with his children decreased. He also developed both bipolar disorder as well as adult schizophrenia. However, Mr. Roark did not tell his ex-wife or children about his diagnosis. 

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2-picture-5-30-2019When you go to the hospital, you expect to be taken care of by a qualified physician who properly diagnoses you. If that doesn’t happen, tragedy can strike. And if tragedy strikes, you want the responsible partie(s) to be held responsible by being liable for damages. But does the Louisiana Medical Malpractice Act (MMA) limit liability in these cases?

Tragedy struck for the Billeaudaus, whose daughter Brandi suffered a stroke and ultimately died.  When Brandi Billeaudau collapsed, her parents transported her to Opelousas General Hospital in Opelousas. There, the emergency room doctor, who lacked the required experience and training required by the hospital, improperly diagnosed Brandi with a focal motor seizure instead of a stroke. Her parents knew better and requested a transfer to Our Lady of Lourdes Hospital (OLOL) in Lafayette, where she got the necessary treatment, but that was too little too late.

The Billeaudau’s brought a lawsuit against Opelousas General to hold them liable for giving credentials to the doctor. They contended that since granting credentials is an administrative rather than a medical decision, it should not be subject to the limits set in the MMA. In order to determine whether the wrong in this case was medical (and subject to limits in the MMA) or administrative (and not subject to the MMA), the court analyzed:

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23-Email-04-02-19-pictureA wrongful death action lawsuit can be difficult for an individual to have to deal with. But what happens when a clerk that stamps the lawsuit stamps a date that does not exist? What do you do when the Clerk makes this error? The Third Circuit Court of Appeal for Louisiana recently addressed the issue.

Linda Roberts (“Linda”) was diagnosed with bronchiolitis obliterans organizing pneumonia and passed away on July 28th, 2009. Linda’s son, Jeffrey Buelow, (“Jeffrey”) filed a wrongful death lawsuit on August 2nd, 2010, against his stepfather, Donald Roberts (“Donald”). The stamp on the lawsuit showed “10 JUL 33 A:40” and the Clerk wrote “Aug 2” above the stamp. Jeffrey alleged in his lawsuit that Donald wrongfully signed a consent form to withdraw Linda’s life support while under the influence of alcohol because BOOP could have still been cured. In response to the wrongful death suit, Donald filed a peremptory exception of prescription and a document that provided when Linda passed away. A peremptory exception of prescription is a defense by the defendant that the plaintiff’s lawsuit is barred by not being filed within the prescribed period of time. The provided that Linda passed away on July 28th, 2009, and not July 28th, 2010, as Jeffrey stated in his lawsuit. Jeffrey confirmed in his testimony that Linda did in fact pass away on July 28th, 2009, and evidence in form of a certificate of death verified such. Jeffrey then opted to represent himself at trial and argued that the wrongful death lawsuit should have been carried out because tort lawsuits are subject to a prescription of one year from the day that injury or damage occurs. La. C.C. art. 3492. Jeffrey alleged that the wrongful death lawsuit was faxed by his former attorney before July 28th, 2010 but failed to provide any evidence that demonstrated such. The Ninth Judicial District Court granted Donald’s peremptory exception of prescription because Jeffrey failed to file his lawsuit within one year from when Linda passed away. Jeffrey appealed the decision of the District Court.

On appeal, Jeffrey argued that the District Court erred in dismissing his claim his claim based on the evidence that was presented. For prescriptive periods that are one year or more, expiration of the prescription accrues on the day of the last year in which the date of the alleged wrongful death occurred. La. C.C. art. 3456. The Court of Appeal determined that the prescriptive date was July 29th, 2010, pursuant to La. C.C. art. 3456. The Court of Appeal noted that an employee from the clerk’s office obviously had failed to change the date on the stamp, as the non-existing date of July 33rd would have correctly been August 2nd. The Court of Appeal affirmed the District Court’s decision to dismiss Jeffrey’s claim due to the basis of prescription. The Court of Appeal came to this decision because the record from the District Court showed that the date of the filing was August 2nd, 2010 and Jeffrey failed to produce any letter from his previous counsel or a check paid for the filing fee that would have shown that the wrongful death lawsuit was filed within one year from the date that Linda passed away. This case demonstrates the importance of filing lawsuits in a timely manner.

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39-Email-04-02-19-picture-1024x683The death of a loved one is always a traumatic experience for family and friends, especially if the death could have been prevented or is at the fault of the hospital. When someone feels as if medical malpractice has occurred, Louisiana has strict guidelines regarding filing a medical malpractice lawsuit and someone unfamiliar with the legal process can easily be confused or frustrated by this complex process. For example, in Louisiana you have one year following a death to file a medical malpractice suit, however, is that filing due at by the close of business at the one year or is the filing due by midnight? The Louisiana Supreme Court recently consolidated two cases that answered such questions on when you have to file a medical malpractice lawsuit. 

The facts of these two cases are similar, which is exactly why the Louisiana Supreme Court decided to consolidate these cases. In the case of Rose Tillman, who sadly passed away on May 22, 2012, her surviving children’s request for a medical malpractice claim was sent to the Louisiana Division of Administration (DOA) on May 22, 2013 after 5 pm, after the DOA office had closed. As a result, the  DOA’s filing system received the request on the following business day, May 23. In the case of Peighton Miller she received a shoulder injury on April 4, 2012 while in the care of a hospital. Again, a malpractice claim was sent to the DOA on April 4, 2013 after the DOA’s 5pm closure. The facts in these cases are undisputed, and at trial, the 24th Judicial District Court for the Parish of Jefferson court ruled in favor of Tillman, and the Fifth Circuit Court of Appeals ruled in favor of Peighton Miller.

In response, Tulane Lakeside Hospital and Durga Ram Sure (the plaintiffs) appealed the decision. Per  La. C.C. art. 3492, defendants have one year to file a malpractice claim and that is one-year prescription begins the day the injury was received. In addition, La. R.S. 9:5628 describes how actions against healthcare providers must commence within 1 year of the sustainment or the discovery of the injury. Moreover, Section 1231.8(a)(2)(b) of the Medical Malpractice Act states how the request for a malpractice review “shall be deemed filed on the date of receipt of the request stamped and certified by the division of administration.” On appeal, the plaintiffs insisted the statute was too vague because it was the DOA’s understanding that a malpractice claim has not been received until it had been “stamped and certified,” which happens during the business day meaning any documents received after 5pm have technically not been received by the DOA until the following business day. However, according to La. C.C. art. 12 when the words of a law are ambiguous or confusing, the words should be evaluated to fit the purpose of the law.

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