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In June 2010, the First Circuit of the State of Louisiana Court of Appeal reversed and remanded the case of Lena Hebert et al. v. Plaquemine Caring, L.L.C. due to a legal error committed by the Eighteenth Judicial District Court for Iberville Parish. This legal error proved to be a compelling element to the case and demonstrates why a competent attorney is highly important, especially in the case of a loss of a family member or other personal injury element.

The plaintiffs in this case are the survivors of the deceased, Mr. Morgan Hebert. He suffered a fractured hip from falling, but had a heart attack before he was able to undergo surgery. Upon leaving the hospital, Mr. Hebert was discharged to a long-term skilled nursing facility owned by the defendants, Plaquemine Caring, L.L.C. At the time Mr. Hebert was admitted to the nursing facility, he had been diagnosed with several serious conditions, which required him to be dependent upon a ventilator. On October 19, 2001, his family members found him cold and nonresponsive. They notified the staff at once and Mr. Hebert was pronounced dead from respiratory failure, cerebrovascular accident, and cervical neuropathy.

Mr. Hebert’s surviving spouse and children alleged that the defendants’ fault and negligence caused Mr. Hebert’s loss of a chance of survival. After a bench trial, the judge granted the defendant’s oral motion for involuntary dismissal, finding that plaintiffs had not established that a breach of the standard of care was a cause of Mr. Hebert’s death. The First Circuit Court of Appeal reversed and remanded because the trial court used the incorrect legal standard in granting defendant’s motion.

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Audrey Thompson was injured in an automobile accident that occurred when a vehicle driven by Chad Harp rear-ended a vehicle driven by Susan Young. This triggered a chain of events where three other vehicles, including the Thompson vehicle, were rear-ended as a result of Harp’s conduct. The Thompsons filed a lawsuit and named Harp, the driver allegedly at fault, and his insurer, State Farm, as defendants.

Because of the number of potential personal injury claimants and the belief the $300,000 per accident coverage limit of State Farm’s policy was “inadequate to cover the amount of damages suffered,” the Thompsons also named her uninsured/underinsured motorist (UM) insurance carrier, Government Employees Insurance Company (GEICO), as a defendant. The plaintiffs also sought recovery for loss of consortium, damages for medical expenses and “loss of the wife’s income” on behalf of the marital community. Moreover, they explicitly focused their damages to the “jurisdictional maximum” of the Alexandria City Court in addition to legal interest thereon from date of judicial demand, until paid in full as well as court costs.

In compliance with its jurisdictional limit, the Alexandria City Court entered judgment, awarding Audrey $50,000 in general damages and awarding Charles,on his own behalf, $20,000 for loss of consortium, and $30,000 for past and future medical expenses on behalf of the couple’s community. State Farm filed an exception claiming that the amount in dispute exceeded $50,000. Examination of the State Farm policy revealed a $100,000 limit per person and a $300,000 limit per accident, which exceeded the city court’s jurisdictional limits. According to the court of appeal, the trial court was required to transfer the action to a court with the appropriate subject matter jurisdiction, upon finding that the claims exceeded the jurisdictional limit. However, the court of appeal erred in its reading of plaintiffs’ petitions and our Code of Civil Procedure provisions governing the subject matter jurisdiction of city courts.

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In Louisiana, there are certain steps that need to be taken in order to file a case for medical malpractice. In order to get a case to trial, a plaintiff must first submit a malpractice petition to a medical review board. The board reviews the facts surrounding a case and compares health care providers with a basic standard of care required for those practitioners in the locale in which they practice. If the board decides in favor of the defendants, the plaintiff can take the case to a judicial proceeding. A civil case in Louisiana must be filed or settled within a year.

This is the basic fall-back provision of how long a case can remain in effect. The legislature has the authority to add to this period for certain causes of action, in certain circumstances. For example, a medical malpractice claim must usually be filed within one year from the negligent treatment. However, if the plaintiff did not know that the medical malpractice occurred, the plaintiff can file within one year of discovering the malpractice. In any case, no claim can be filed more than three years after the alleged negligent treatment. Thus, even if the negligent treatment is not discoverable until four years have gone by, the plaintiff will be out of luck and the time for filing the suit will have expired.

The medical review board takes a great deal of time to make a decision. Thus, while the review board is making a determination, the one year prescription period is stopped to allow the board to make its decision without taking away the plaintiff’s time to bring a case. However, once the review board has made a decision, the plaintiff only has 90 days plus any additional time left over from the one year prescription period to file a claim.

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The Court of Appeals of Louisiana, Third Circuit, recently held the Medical Malpractice Act’s (MMA) award limitation unconstitutional when applied in violation of the Equal Protection clause of the 1974 Louisiana State Constitution. In Oliver v. Magnolia Clinic, a minor child was treated by a nurse practitioner who failed to identify tell-tale signs of neuroblastoma, a form of childhood cancer originating in the nerve tissue, and failed to refer the child for more specialized care in a timely manner. The matter was originally tried before a jury, which returned a verdict against the nurse practitioner in favor of the child’s family, for $6,000,000.00 in general damages. The MMA’s $500,000.00 award cap would have severely limited this verdict, to one-twelfth of the jury’s award. Plaintiffs filed a Petition for Declaratory Relief asserting the MMA is unconstitutional. The plaintiffs made a number of claims that the MMA cap violates the Louisiana State Constitution, including an argument based on the equal protection guarantee of La.Const. art. I, § 3. Because the court found the “equal protection” argument had merit, it did not address the other constitutional challenges raised by the plaintiffs.

The Louisiana Supreme Court made clear in Everett v. Goldman that unless a fundamental right is impacted or a separate or suspect classification is created, the legislature is constitutionally free to limit damage recoveries or to grant immunities from suit so long as it articulates a rational basis for the discriminatory treatment reasonably related to the governmental interest sought to be advanced. The Supreme Court has also held that the right of malpractice victims to sue for damages caused them by medical professionals does not involve a fundamental constitutional right, and requires only rational basis review. However, because the MMA, on its face, discriminates between classes of people based on physical attributes, the Louisiana Supreme Court held in Sibley II that the State must articulate more than a “rational basis” for the cap in cases involving severely or catastrophically injured victims of malpractice to avoid Article 1, §3’s constitutional bar to its enforcement.

In this case, the minor child is a severely injured victim of malpractice. She was injured as a baby and she will endure a lifetime of devastating and debilitating effects on her capacity to perform even basic human functions. The State failed to present evidence to the contrary. Thus, on appeal, the Court decided that “there simply is no rational reason why the most severely injured malpractice victims should be singled out to pay for special relief for a nurse practitioner who operated in derogation of her statutorily mandated duties.” The Court also concluded that “the cap, to the extent it includes nurse practitioners within its ambit, violates the equal protection guarantees of the Louisiana Constitution and La.R.S. 40:1299.41(A)(1), and, thus, is unconstitutional.” The Court reinstated the jury’s award of damages to the plaintiffs.

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Certain legal rights are transferable. If you owe a debt to some entity, upon your death, there is a chance that the entity will have some rights to your estate in order to satisfy your debt. Another example of a transferable right is a right of survival. If the victim in any circumstance has this right, upon the victim’s death, the right would be transferable to the victim’s family. The concept is relatively easy to understand but the situation gets complicated when the potential rights belong to an unborn fetus.

Throughout the country, different states have different interpretations of when a fetus becomes a person, and this has a big impact on what rights attach to protect the fetus. In Louisiana, the legislature has decided that an unborn fetus can in fact have rights against other persons or entities. However, Louisiana Civil Code article 26, which discusses a fetus’ rights, has some important limitations:

An unborn child shall be considered as a natural person for whatever relates to its interests from the moment of conception. If the child is born dead, it shall be considered never to have existed as a person, except for actions resulting from its wrongful death.

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Taylor Oliver was born on September 5, 2000. Shortly after birth, Taylor began experiencing health problems and was brought to the Magnolia Clinic, where she was treated exclusively by Susan Duhon on thirty-two occasions. Since Nurse Practitioners are required to collaborate with a physician, Duhon agreed to collaborate with Dr. Jennette Bergstedt, M.D., when providing primary care from the Magnolia Clinic. Taylor was in the clinic several times per month with various complaints, including repeat infections, persistent abdominal pain, nausea, vomiting, diarrhea and anemia. Despite her statutory duty to consult with a physician when needed, Ms. Duhon did not collaborate with Dr. Bergstedt concerning Taylor’s condition. Instead, she verbally reassured Taylor’s mother and prescribed over thirty medications to treat the child’s multiple complaints and observable symptoms. Additionally, Duhon stated that Taylor only needed to see Dr. Bergstedt in connection with admission to a hospital.

After no progress in her condition, Taylor’s mother eventually brought her to Women & Children’s Hospital in Lake Charles, where she was treated for the first time by Dr. Bergstedt. Taylor was diagnosed with neuroblastoma, a form of childhood cancer originating in the nerve tissue. The records maintained by the Magnolia Clinic revealed at approximately six months, Taylor developed severe bruising around the eyes – one of the signs of childhood neuroblastoma. If neuroblastoma is diagnosed within the first year of life, a child has a ninety percent chance of an event-free survival. Fortunately, Taylor survived the cancer, but the quality of her life has been severely diminished. The tumor advanced into her long bone, face, eyes, ears, skull and spine leading to a variety of physical defects and vision difficulties. What’s more, her bones have become weakened and brittle and she struggles each day to overcome learning disabilities.

As a result, the Olivers pursued medical malpractice claims and a jury returned a verdict against Duhon in favor of the Olivers, on Taylor’s behalf, for $6,000,000.00 in general damages, $629,728.24 in past medical expenses, and $3,358,828.00 in future medical expenses. The jury awarded Mr. Oliver $33,000.00 for loss of consortium and Ms. Oliver $200,000.00. Unfortunately, the MMA malpractice insurance coverage limited recoverable damages to $500,000.00 and the Olivers petitioned the court to have the MMA declared unconstitutional. A trial court found that the MMA was constitutional and subsequently reduced the jury’s award to conform to the limitation on general damage recovery and other restrictions of the Louisiana Medical Malpractice Act. The Olivers appealed the trial court’s decision and the appellate court found that the cap on general damage awards unconstitutionally disadvantages and discriminates against Taylor and her parents because of the severity of Taylor’s physical condition when compared to other malpractice victims who receive full recovery for their injuries.

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Medical malpractice cases often turn on whether the plaintiff can establish that the health care provider breached the standard of care. Louisiana’s Medical Malpractice Act governs the conduct of health care professionals and mandates that the standard of care owed is that of the average member of the profession under similar circumstances. For the Act to apply, the defendant must be a qualified health care provider. Determining if this is a provider, and if the plaintiff has rights, are two of the most important factors that hiring a competent attorney can help guarantee when filing a case.

At issue in Ruby “Nell” Coleman vs. La Terre Physical Therapy, Inc., D/B/A Terrebonne Physical Therapy Clinic and Donald P. Kinnard, P.T., was the standard of care owed to patients of physical therapists. The plaintiff, Ruby Coleman, attended physical therapy with the defendants following a total knee replacement. Mrs. Coleman sustained injuries to her left knee during physical therapy exercises on a Continuous Passive Range of Motion machine. After it was discovered that Mrs. Coleman sustained a fracture to her knee, she underwent surgery. Afterwards, Coleman filed suit against the defendants, alleging that her injuries were caused by physical therapist Mr. Kinnard’s failure to obtain a complete medical history, which would have revealed she suffered from severe osteoporosis. In her suit, Coleman claimed that if Kinnard had done so, he would have administered a safer method of physical therapy. The defendants filed a motion for summary judgment, arguing that Coleman did not show the treatment fell below the applicable standard of care.

The trial court granted the defendants’ motion for summary judgment on the grounds that expert witness testimony supported the conclusion that the applicable standard of care was not breached. The plaintiff appealed, but the Louisiana Court of Appeal, First Circuit, affirmed the decision of the lower court. The Court cited Boudreaux v. Panger, in which the Louisiana Supreme Court held that a chiropractor, although not subject to the Medical Malpractice Act, is judged by the standard of his or her profession and, therefore, general negligence is not available as a basis of recovery. Therefore, Mrs. Coleman could not prove the elements of general negligence (i.e., duty, breach, causation, and damages) but was required to show that Mr. Kinnard failed to act in accordance with the standard of care practiced by his peers in the same locality under similar circumstances.

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It is well settled in Louisiana law that “a tortfeasor takes his victim as he finds him and when a defendant’s tortious conduct aggravates a pre-existing condition, the defendant must compensate the victim for the full extent of the aggravation.” Lasha v. Olin Corp. In other words, when a person injures another, that person is responsible for all damages he caused the victim, even if the victim’s own unusual susceptibility contributed to the extent of the damages. This does not mean, however, that the injured plaintiff is relieved from the standard requirement of tying the damages he suffered to the defendant’s negligent action.

The Third Circuit Court of Appeal recently explored this concept in the case of Downing v. Miller. On October 15, 2007, Carolann Downing was involved in a car accident with John Miller in Lafayette. The incident occurred when Miller pulled out of a restaurant parking lot onto Congress Street and crashed into Downing’s vehicle. Downing did not suffer any physical injuries, but the experience aggravated her pre-existing bi-polar anxiety and obsessive-compulsive mental disorders. At trial, the parties stipulated Miller’s liability for the accident; the only issue in dispute was the amount of damages. Downing testified that she experienced mania followed by depression after the accident. Her symptoms included loss of sleep, loss of appetite, racing thoughts, nervousness, agitation, and anger. Thereafter, she became depressed and was unable to care for herself: she did not leave the house but instead stayed in bed and slept most of the time. However, on cross examination, Downing acknowledged that during her life she commonly experienced “periods of ups and downs” and that the episode following the accident with Miller was consistent with other “down” periods she had suffered in the past. Downing offered the testimony of Dr. Bob Winston, her treating physician, who confirmed that the accident exacerbated her mental issues. Dr. Winston further offered a summary of the behaviors Downing exhibited in the five-month period following the wreck, which he attributed to the stress she experienced in the event. Essentially, however, Dr. Winston’s summary showed that Downing steadily improved over time. The trial court awarded Downing $7,500 in damages. Dowling appealed, arguing that the trial court’s award was so low as to be “clearly wrong.”

As we have covered previously on this blog, the trial court enjoys “great discretion” in setting damages awards, and an appellate court may disturb a trial court’s award only on the showing of a clear abuse of discretion. Wainwright v. Fontenot. Although Dowling argued that the trial court abused its discretion in not fully taking into account the accident’s role in exacerbating her mental disorders, the Third Circuit found sufficient evidence that the trial court’s decision was well-grounded on the evidence presented at trial. For example, the court noted that Dr. Winston observed an increase in symptoms when Dowling’s aunt passed away and also on an occasion when she was nervous about an upcoming visit with her son. The trial court determined that Dowling’s response to the accident was similar to other aggravations triggered by ordinary events in her life; therefore, the accident did not cause an unusual result for Dowling for which she was entitled to a higher amount of compensation. The Third Circuit agreed with this reasoning in light of the evidence of Dowling’s mental health history and affirmed the award.

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The tort of intentional infliction of emotional distress, as we have previously explored, occurs when the defendant purposefully engages in extreme or outrageous conduct with the goal of seriously upsetting the plaintiff. A different case is the scenario involving the plaintiff’s mental distress that results from the defendant’s negligent conduct. Commonly, a plaintiff can successfully recover for a claim of negligent infliction of mental distress when the distress arises out of a physical injury that is related to the defendant’s negligence. Without physical injury, however, a plaintiff is far less likely to recover. The case of Taylor v. Novartis Crop Protection, Inc. provides an example.

On the evening of July 18, 1999, Novartis Crop Protection Corporation’s facility in St. Gabriel released industrial ammonia into the air for approximately 15 minutes. Following the release, several hundred individuals who were present in or owned property around the St. Gabriel area filed a suit for damages against Novartis. The complaint alleged that as a result of the chemical release, the plaintiffs suffered “burning eyes, itching, burning skin, breathing difficulties, dizziness, nausea, diarrhea, headaches, anxiety, and fear for their physical well being.” The complaint also stated that the incident caused considerable fear, anguish, discomfort, and inconvenience to the people in the communities” surrounding the Novartis facility. Novartis filed a motion for dismissal for those plaintiffs who were located outside of the “zone of danger” agreed upon by experts from both sides and who therefore could not have been exposed to the ammonia. The affected plaintiffs responded that their claim was not for physical exposure but for “mental anguish, emotional distress, inconvenience, and fear and fright.” The trial court entered a judgment dismissing all plaintiffs who were outside of the “zone of danger,” and those plainitiffs appealed.

In its analysis, the First Circuit Court of Appeal reaffirmed that under Louisiana law “a defendant will not be held liable for [damages] where its conduct was merely negligent and caused only mental or emotional disturbance unaccompanied by physical injury.” The narrow exception to this rule is where the plaintiff can demonstrate “special circumstances,” which must be “more than minimal inconvenience worry.” The court noted that the only special circumstances cited by the plaintiffs was a prior release of ammonia that occurred in 1999 and which required the evacuation of a school. But the court concluded that the prior incident did not rise to the level of “special circumstances” as required by Louisiana jurisprudence. (Examples of sufficient circumstances from case law include the negligent transmission of an erroneous message about a loved one’s death; the mishandling of corpses; and damaging property while being observed by the plaintiff. See Moresi v. State for further discussion.) Further, the court noted that the plaintiffs failed to offer any evidence to show they had “suffered from genuine and serious mental distress.” Accordingly, the court affirmed the trial court’s judgment dismissing the plaintiffs whose claims included only mental distress.

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Asbestos-related illnesses have impacted many families throughout the nation. The impact of asbestos exposure can lead to serious terminal illnesses. Partly as a response to such illnesses, the federal government created the Longshore and Harbor Worker’s Compensation Act (LHWCA). The act provides injury and occupational-disease protection for those who work on the navigable waters of the United States.

In the past, the Louisana shoreline was home to many companies that were involved with the direct use of asbestos. Those individuals who were impacted by the use of asbestos in such areas are potentially protected by the LHWCA. The act provides for a set of procedures that must be fulfilled prior to any case reaching a court of law. At first, an Administrative Law Judge (ALJ) reviews the facts of the case and decides whether the LHWCA provides relief for any party. If this decision is appealed, it will go to the Benefits Review Board (BRB), which will have to conclude whether the ALJ’s order was supported by substantial evidence on the record as a whole and is in accordance with the law. After this stage, if the decision of the BRB is challenged, the case will find its way into court.

In a recent decision by the United States Court of Appeals, Fifth Circuit, in Louisana Insurance Guaranty Association Baton Rouge Marine Contractors Inc. vs. Director Office of Worker Compensation, the process through which claims under the LHWCA proceed is clearly outlined. Plaintiff in the case worked on the Lousiana shoreline from 1965 to 1977. During the 60’s he worked directly with asbestos by unloading bags of asbestos. From 1970 to 1977 plaintiff worked on cranes for the same company. This position did not require direct contact with asbestos. However, he worked in and had to continuously walk through warehouses where asbestos was dealt with and stored. During the plaintiff’s employment, the company that he worked for was insured by Employers’ National. It provided insurance coverage from 1972 until 1982. However, it was declared insolvent and placed in receivership in 1994. Louisiana Insurance Guarantee Association (LIGA) appeared in its place as a substitute party in this proceeding.

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