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heart-attack-1306407Don’t get burned by worker’s compensation failing to pay for your injury. Make sure that you understand what your rights are whenever you file a worker’s compensation claim. Clinton Miley, a firefighter with the Bogalusa Fire Department, suffered from paroxysmal supraventricular tachycardia (PSVT) after 19 years on the job. He looked to a Louisiana law known as the Firefighters Heart and Lung Statute to prove that his injuries were caused by his job as a firefighter.

The Firefighters Heart and Lung Statute creates the assumption that any heart or lung problem developed by a firefighter after 5 years of service was caused by being employed as a firefighter. La. R.S. 33:2581. Miley had worked at the Bogalusa Fire Department in Louisiana from July of 1993 until January of 2012. On May 12, 2010 Miley sought treatment for chest pain and was diagnosed by his doctor with PVST. PVST is traditionally viewed as a congenital hereditary condition, leading the Fire Department claim that it should not qualify under the statute.

The trial court found that Miley’s disease qualified under the statute, and that if Miley could prove the condition prevented him from working he should be entitled to compensation. This finding lead to an appeal made by the fire department which claimed that because PVST had not been traditionally classified as a disease falling under the Firefighter Heart and Lung Statute. They stated that the amount of time it took for Miley’s pain to occur to coupled with the fact that he had a family history of heart disease kept him from qualifying for benefits under worker’s compensation.

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car-accident-4-1546893Car accidents are scary. When individuals make the choice to take on a personal injury lawsuit there is a lot of time that goes into those cases. After expending all that time and emotional energy, people want to feel like the verdict they received was fair, or at the very least compensates them for the injuries they incurred. The jury’s job is to listen to all the facts, be instructed on the law and make a decision. Many people think that once a jury renders a decision, that it is final. However, in some cases an individual can appeal to a higher court if they felt as though the jury award of damages was abusively low. That is exactly what a woman in the Parish of Lafayette, Louisiana did and it worked, partly.

Nicole Barras was involved in a car accident where she sustained multiple bodily injuries. She sued the driver of the other automobile and pursuant to the jury decree, received a payment from his insurance in the total amount of $55,491.96.

Children and spouses of persons injured by the negligence of another may raise loss of consortium claims. These claims compensate the family members of the injured person for spousal or parental affection and guidance that was lost because of the injury. See Ferrell v. Fireman’s Fund Ins. Co., 696 So. 2d 569 (La. 1997). Barras’ husband and five minor children received $6000 total in damages for their loss of consortium claims because Ms. Berrar could not guide her children or help her husband with family matters.

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office-4-1484175Following proper procedure is critical when it comes to preserving your legal rights. While some rules might seem a bit harsh the best lawyers know the rules and will make sure you do not lose your case simply because you did not dot your I’s and cross your T’s. The following case out of Rapides Parish demonstrates what can happen when a fax filed lawsuit is not followed up with the mailed petition in the proper time.

The Plaintiff in this case, Brenda Quire, was a patient suing her former physician for alleged battery and was asking for alleged damages she incurred under a physician’s medical care. The original lawsuit and filing fee were not received by the clerk of court within the required period of time.  In short, she missed the deadline and consequently her case was dismissed.

The Defendant, the physician, filed an exception of prescription requesting the court to dismiss the case, which the court granted.  An exception of prescription is a motion filed asking the court to  dismiss a lawsuit without probing into the underlying claims, and to demonstrate that the plaintiff has no right to bring such action because the time period elapsed.  This is a legalese way of saying the court dismissed Ms. Quire’s claims because she filed her lawsuit past the deadline to file.  

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yellow-building-1561908In  executing the terms of a construction contract, a builder and its subcontractors may not perform their duties as mandated under the terms of the contract. If a builder fails to perform its duties, then a property owner may file a claim for breach of contract and damages against the builder for defects in performance. However, the property owner’s ability to bring a claim against the builder is limited to a specific period of time prescribed by state law. The state legislature has the ability to pass laws that change the period of time in which a property owner can bring a claim against the builder for defects in performance; and in 2003, the Louisiana Legislature exercised this power to make changes in the law barring this type of claim, reducing the period from seven to five years.

When changes to the law have occurred, parties to a lawsuit may dispute which law is controlling in their claim. A recent example of litigation concerning changes in law occurred in Lafayette, Louisiana. In 2002, a property owner, Crescent City Property Partners, LLC (hereinafter “Crescent”), and a builder, Greystar Development and Construction, LP (hereinafter “Greystar”), entered into a contract for the construction of a mixed-use development in Lafayette, Louisiana. This development was completed in phases with construction of the multiple buildings being completed a year after the parties entered into the contract. Five years later, Crescent filed an arbitration claim under the terms of the construction contract, alleging defects in the builder’s performance, against Greystar and its insurer. In response, Greystar filed a third party demand against various subcontractors.

At the time the construction on the mixed-use development was completed there was a seven-year period of peremption for construction claims; however, only a month after completing the project, the legislature amended the law to provide for a five-year period of peremption. On July 11, 2011, shortly before the parties were scheduled to arbitrate the matter, the Supreme Court of Louisiana decided Ebinger v. Venus Construction Corp., discussing the retroactivity of the 2003 amendment.

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If you are affected by what you believe is medical malpractice, a clock starts ticking the minute you discover or are put on reasonable notice of your injury. You only have a very limited amount of time to actually file a medical malpractice lawsuit, so it is extremely important to consult an attorney as early as possible in the process so that you do not miss your available window for a malpractice claim. These deadlines are strict and missing yours will leave you with very few options for how to move forward, so if you suspect any medical malpractice, you should visit an attorney right away.

In Louisiana, the law regarding medical malpractice states that you have one year to file a claim from the date of discovery of the alleged act, omission, or neglect associated with your injury.  See LA Rev Stat 9:5628. If you do not file within that year, your opponent can seek an exception of prescription, meaning that the court will deny your case because you waited too long to file.

In this case, Mr. Hume was suffering from many independent health problems when he entered a nursing home for care. Prior to the nursing home, his wife had been his primary caretaker. Mrs. Hume found Mr. Hume just one month after his admittance lying on the floor of the facility after having been denied the diabetic treatment that he needed. The nurse refused to give Mr. Hume his prescribed medication, on the mistaken belief that it was not the correct prescription. That same day, Mrs. Hume removed Mr. Hume from the nursing facility and after a visit to the emergency room, a serious unrelated medical issue caused Mr. Hume to be placed in home hospice care. After Mr. Hume’s death, Mrs. Hume and her children requested a medical review of the doctor and facility Mr. Hume had stayed in; the medical review panel found that the nursing home didn’t meet the necessary standard of care, because they failed to inform a physician of a change in Mr. Hume’s urinary output.

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KONICA MINOLTA DIGITAL CAMERAWhen you are injured by the actions of another person, seeking monetary damages from them in court is one way to ensure that your costs can be met. However, sometimes judges and juries can make factual or legal mistakes that result in damages that are too high or too low, and in these instances it is often up to an appellate court to set the correct monetary amount. If you have received a monetary damage judgment, but you believe it does not represent the true cost of the injuries you suffered as a result of the other person’s actions, you have the option of seeking an appeal from a higher court to modify your damages.

Mr. Becnel did just that in an automobile accident case arising out of a Louisiana trial court. After he was rear-ended in a car accident, Mr. Becnel went to court to recover his past and future medical expenses and general damages, which covers pain and suffering other than the cost of medical treatment itself. Because medical costs are very concrete and measurable, on appeal Mr. Becnel argued only that his general damages award was too low, because he claimed the jury did not take into account any future pain and suffering, only past.

In an earlier Louisiana case, the court had held that any evaluation of the amount a jury awards by an appellate court must be done by first giving a lot of deference to the determination of facts that has already occurred. (Wainwright v. Fontenot (La. 2000) 774 So.2d 70, 74.) The idea behind this is that the jury was able to hear all of the evidence and testimony first hand, and it would be improper for an appellate court that did not get to hear everything first hand to overturn a decision the jury has already made, unless the jury’s amount awarded was clearly wrong.

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In 2009, the Louisiana Legislature enacted a statute establishing a medical treatment schedule for workers’ compensation claims. This statute took into account the combined concerns of the labor force, insurance companies, and medical providers to establish harmonized guidelines for the treatment of injured employees. The need for this statute stemmed from the formerly burdensome and expensive process of obtaining medical treatment. Since the statute’s enactment, questions have arisen as to whether the medical treatment guidelines should apply retroactively to claims arising before the enactment of the statute and entry into force of the guidelines. The Louisiana Fourth Circuit Court of Appeal resolves these questions in a case arising out of a shooting at Whole Foods.

In 2001, Malord Gales was shot while on the job at Whole Foods Company, Inc. Since the shooting, Mr. Gales has been in a permanent vegetative state. Mr. Gales’ mother has since taking care of him and acting as his representative or “curatrix.” Because of his paralyzed state, Mr. Gales was required to be bowel fed with Isosource 1.5 calorie food which contains the appropriate amount of biofiber for normal bowel function. For many years, Whole Foods paid for this special food. Eventually, it refused to pay. Claiming that the food was too expensive, Whole Foods approved a different food which caused Mr. Gales significant bowel problems.

Finding his symptoms intolerable, Mr. Gales filed a disputed compensation form with the Office of Workers’ Compensation. Mr. Gales sought an order requiring Whole Foods to pay for the formerly authorized Isosource food, and to pay attorney fees for arbitrarily stopping his prescribed food. Whole Foods countered with the dilatory exception of prematurity. In its exception, Whole Foods argued that Mr. Gales claim was premature because he failed to comply with the administrative procedures for filing a claim for medical treatment. The Workers’ Compensation Judge (“WCJ”) granted Whole Foods’ exception and dismissed Mr. Gales’ claim. Mr. Gales’ appealed.

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arriving-with-the-refraction-4-1573537-1024x768In  certain kinds of car accidents there is a rebuttable presumption of negligence afforded to a party involved. In a collision that happened in Lafayette Parish, The Louisiana Third Circuit Court of Appeals decided that the presumption of negligence remained intact and the other involved parties could not be assigned fault.

The case arises out of a three-car collision which happened in Lafayette, Louisiana, on March 16, 2012. For this decision, the plaintiff Linda Leblanc was appealing a summary judgment ordered in favor of the defendants, Abbie Norris and Louisiana Farm Bureau Casualty Insurance Company. The Three drivers involved where plaintiff Leblanc, defendant Norris, and Brody Bouzon. Leblanc stopped at a red light with Norris stopping behind her. Bouzon who was behind Norris failed to stopped and rear-ended Norris’ car pushing her into the rear of Leblanc’s vehicle. Bouzon was given a ticket for careless operation of his vehicle at the scene of the accident. Leblanc claims that she sustained physical pain and mental anguish from the accident stemming from Norris and Bouzon’s negligence and she filed her lawsuit against the defendants along with Bouzon and his insurer seeking medical damages and lost wages. Norris and her insurer Farm Bureau filed a motion for summary judgment on her liability based on several allegations coming down to Bouzon having the presumption of negligence. The District Court granted the motion for summary judgment and the Court of Appeals affirms.

To successfully motion for summary judgment the party asking for the motion must show that there is no genuine issue of material fact and that the party is entitled to the judgment as a matter of law. The motion is granted if facts and records of the case show these two things. With a summary judgment a court can decide certain issues of a case in advance of the trial to efficiently dispense with those matters.

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police-5-1572837-1024x768It’s common sense that self defense class instructors should teach the students how to defend themselves and not inflict pain or broken bones while instructing. However some instructors can go overboard while trying to “teach” these skills. The following case out of Lafourche Parish highlights what can go wrong when simulations in a self defense course get a bit too real for one participant causing her a broken arm and other damages.

In 2010, plaintiff participated in a 3-day Rape Aggression Defense (RAD) self-defense course being taught by the Lafourche Parish Sheriff’s Office. During the course, plaintiff and other participants received instructions for two days and on the third day, participants engaged in a series of exercises simulating attacks upon them by “aggressors”, at this time they were instructed to deploy the defensive techniques they had learned. During one of these simulated attacks, in which a Lafourche Parish Sheriff’s Deputy played an “assailant”, plaintiff’s arm was broken. Plaintiff had to undergo surgery to repair the comminuted fracture, requiring two plates and 21 screws to be inserted into plaintiff’s arm.

At the initial bench trial, the recorded RAD simulations were played on video, showing the RAD instructor was close to plaintiff during the exercise and was constantly giving instructions to the plaintiff on how to properly perform defensive techniques. In the video, the Sheriff Deputy playing the “aggressor” pushes and hugs the plaintiff while the instructor tells the plaintiff how to defend herself. The trial court concluded after watching the video, it did not find the Sheriff’s Office or the Sheriff’s Deputy negligent, as the only way they could have prevented the plaintiff’s injury would have been to not engage physically with the participants, which would have defeated the purpose of the exercising teaching them to defend themselves against aggressive criminals. The trial court subsequently dismissed the defendants with prejudice, and plaintiff appealed.

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hospital-s-corridor-1631146-1-1024x765Class action lawsuit certification is one of the most complex areas of the law to explain. The question of whether a lawsuit would be best as a class action or as individual lawsuits often comes down to a determination of what is the best method for fair and efficient adjudication for both the plaintiffs and the defendant.

Across the state of Louisiana, people are filing lawsuits against health care providers under the Health Care Consumer Billing and Disclosure Protection Act, hereafter referred to as the Balance Billing Act.  See La. Rev. Stat. § 22:1871 et seq. As a result of these lawsuits,  the Louisiana Second Circuit had denied class certification for a group of plaintiffs while the Louisiana Third Circuit had approved a class certification in their jurisdiction. Thus a split of the circuits existed and therefore it was time for the Louisiana Supreme Court to weigh in.

Certain Plaintiffs filed a class action lawsuit in 2011 claiming the Defendant, Minden Medical Center, “engaged in unlawful billing practices by billing them in an amount in excess of the agreed upon rate negotiated between the hospital and plaintiffs’ respective insurers.”  As a result of that lawsuit a question was presented for review to the Supreme Court of the State of Louisiana whether these types of lawsuits (balance bill violations) would be better handled as class action or on an individual basis.

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