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In a previous post, we explored the elements of a negligence action that arose after a customer slipped and fell on a pool of vomit left by another customer while visiting a store in Farmerville. One of those elements is “notice,” or whether the merchant created or was aware of the unsafe condition that caused the plaintiff’s injury. In the Farmerville case, the plaintiff was unable to show that the store owner had notice of the vomit on the floor that caused her fall, and so her suit was not successful.

The recent case of Peoples v. Fred’s Stores of Tennessee, Inc., No. 09-1270 (Ct. App. of La., 3d Cir. 2010), illustrates how the plaintiff’s ability to prove notice can result in a different outcome. On August 10, 2004, Virginia Peoples and her husband, Wyndell, entered the Fred’s Store in Tioga. Upon passing through the entranceway, Peoples tripped over some boxes laying on the floor just inside the door which extended into the walkway. The boxes contained gazebos that were part of a clearance sale. Peoples fell forward into a display of stacked coolers, where she hit her chin before landing on the concrete floor. Pain in her neck and right wrist, shoulder, and arm prompted her to go to the emergency room at LaSalle General Hospital, where she was diagnosed with a pinched nerve and a radicular neck injury.

Peoples sued Fred’s Store for negligence, a bench trial was held, and Peoples was awarded nearly $200,000 in damages. Fred’s Store appealed, arguing, among other things, that the trial judge improperly concluded that Fred’s Store had notice of the improperly placed boxes that caused Peoples’s fall.

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A recent decision from the Louisiana Court of Appeals provides insight into precisely what a medical provider must get from a patient in order to create the presumption that they consented to medical treatment under Louisiana law.

This litigation arose from a procedure performed at St. Patrick Hospital in Lake Charles. Dr. Charles Humphries, a family practitioner, performed a colonoscopy on James J. Price, IV. Dr. Humphries detected several polyps in Mr. Price’s colon during the procedure and immediately aborted the procedure and had a gastroenterologist, Dr. Francis Bride, surgically excise the polyps–removing three of four of them without incident. During the removal of the fourth, the electrocautery snare being used malfunctioned causing a deeper burn of the colon that was desired. Dr. Bride visually inspected the area to rule out the possibility of an acute perforation of the colon. Dr. Bride did not see a perforation but ordered abdominal x-rays to confirm his lack of suspicion, with x-rays negative for any danger signs. Mr. Price’s stay was extended to rule out a perforation, and he was released to go home.

The next day, Mr. Price began to experience symptoms of a perforation and was directed by Dr. Humphries to go the ER at St. Patrick’s hospital. Mr. Price was prescribed antibiotics in hopes that the perforation would seal on its own. When this didn’t work, surgery was required.

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For any medical procedure, a doctor or other practitioner is required to obtain “informed consent” from the patient. Essentially, this means that, except in certain emergency situations, a doctor is not permitted to perform any medical procedures that the patient has not authorized him to perform. Louisiana law outlines three ways for a doctor to get proper consent from a patient. First, the patient can acknowledge in a handwritten document that he or she had been informed of “The nature and purpose of the procedure” and of its “known risks,” and that he or she had the opportunity to have any questions “answered in a satisfactory manner.” La. R.S. 40:1299.40(A). Such consent is presumed under the law to be valid unless there is proof that the consent was given because the doctor misrepresented material facts.

The second option for obtaining consent requires the same elements as the first, with the exception that it does not have to be in writing. However, verbal consent is not given a presumption of valididty, but instead must be proved “according to the rules of evidence in ordinary cases.” La. R.S. 40:1299.40(C). The third and final option requires a doctor to disclose to the patient the list of risks for the proposed treatment that is maintained by the Louisiana Medical Disclosure Panel (LMDP). “Consent to medical care that appears on the [LMDP’s] list requiring disclosure shall be considered effective under [Louisiana law] if it is given in writing, [and] signed by the patient… and a competent witness. La. R.S. 40:1299.40(E). The LMDP offers a form for this purpose, the execution of which creates a “rebuttable presumption” that the consent is valid, provided that the doctor who will actually perform the treatment is the one who gives the required disclosure.

The issue of informed consent was at the center of the case Price v. ERBE USA, Inc., No. CA 09-1076 (La. Ct. App. 3d Cir, 2010). The plaintiff, James J. Price, visited the St. Patrick Hospital in Lake Charles on January 17, 2002, where he was scheduled for a colonoscopy procedure with Dr. Charles Humphries. During the procedure, Dr. Humphries found several polyps in Price’s colon, at which point he brought in Dr. Francis Bride, a gastroenterologist, to remove them. Dr. Bride’s surgical tool malfunctioned during the removal of one of the polyps, which resulted in an inadvertent burn to the wall of Price’s colon. Dr. Bride conducted extensive tests to detect a colon perforation and concluded none had occurred. Still, Dr. Bride ordered Price to remain in the hospital for an extended period that day for more monitoring, after which he released Price to go home. The next day, Price began to experience symptoms of a perforation. He returned to the emergency room at St. Patrick’s, and two days later underwent surgery to repair the perforation. Price later filed suit against Dr. Humphries and Dr. Bride, alleging a lack of consent for the polypectomy. At trial, a jury found for the doctors, and Price appealed.

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Jeanine Pryor of Lake Charles was injured when she fell exiting bleachers at a football came and filed a claim for damages due to injuries she sustained. Her claim was denied at the trial court level and in a recent decision, the Louisiana Third Circuit Court of Appeals reversed the trial court and awarded Ms. Pryor a significant damage award (over $500,000), even after reducing her damages by 30% due to a finding that she was partially at fault for the accident.

Ms. Pryor, of Lake Charles, went to New Iberia to watch her grandson’s team play a playoff football game at Lloyd G. Porter Stadium. The facility is owned by the Iberia Parish School Board. Spectators at the field sit on either west or east side spectator seating. According to reports the west side, where home team fans sit, is a much nicer facility made of concrete that sits well off the ground and has ramps leading to the seats. The east side of the field, where visiting teams traditionally sit, contains metal frame bleachers with wood seat boards and foot boards and rails around the rear and upper portions. The bleachers have no aisles for walking up into the stands or rails to help someone walking up rows.

When she arrived at the stadium, the 69 year old Ms. Pryor walked to the visitor side of the stadium, balancing on the uneven ground with her daughter’s help. Because the players and cheerleaders standing on the sidelines blocked the view of the game from the bottom rows, Ms. Pryor needed to climb up into the stands. Because she could not step up the eighteen inches from the first board to the second she had to grab the second board and lay on her side to swing up her legs one at a time. During halftime, Ms. Pryor needed to use the restroom so, again, with her daughter’s help, she walked down the bleachers. When she came to the second seat board, she stepped down slowly the extended distance to reach the first board and fell back. She dropped her daughters hand and suffered a broken leg and other injuries.

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Sometimes one plus one does not equal two. This was a lesson learned by the Living Epistle Church after a suit against the City of Shreveport. The church sued the city for damages to its sanctuary building, which was allegedly caused by a leaking sewer main. The trial judge heard testimony from the pastor and several experts and awarded $150,000 in damages to the church. However, the city appealed, arguing that the church had failed to prove that the sewer main leaked and was the cause of the damage to the sanctuary. The appellate court agreed with the city and reversed the decision and dismissed the claims.

In a civil suit like this one brought by the church, the plaintiff has the burden of proving the negligence of the defendant by a preponderance of the evidence. Most negligence cases require proving the following separate elements

  1. whether the defendant had a duty to conform his or her conduct to a specific standard
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In a recent Court of Appeals decision, plaintiff Ryan George appealed a jury verdict that rejected his damage claim following his 2007 car accident in Lafayette. The Court of Appeals affirmed the jury’s decision and found that defendants did not improperly challenge jurors during the selection process while one of Mr. George’s challenges was deemed to be discriminatory.

Trials can be made or broken if the jury is sympathetic to one side or the other. This case shows how important it is for plaintiffs to have an experienced attorney involved in jury selection process. A good attorney will not only make the right decision about who should be struck from a jury via peremptory challenges, but will also be prepared to object to the other sides’ challenges if they are a pretext for discrimination while being able to provide a articulable non-race reason for excluding should one of their own challenges are questioned.

The accident occurred at the intersection of Simcoe Street and Evangeline Thurway in Lafaeyette when a vehicle driven by Horace McBride rear ended a vehicle driven by Richard Benoit, Jr. as Benoit was turning left. McBride was working for Helix Energy Solutions Group, Inc. and driving his employer’s vehicle. George was a passenger in Benoit’s vehicle and was injured, requiring extensive treatment.

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According to a recent article in Baton Rouge’s Times Picayune, drivers who fall asleep at the wheel and cause an accident could be in more trouble than ever before. Earlier this month a Committee of the Louisiana State Legislature approved a bill that would create the new crime of involuntary vehicular homicide.

A Galiano couple who lost their son in an accident caused by a driver who fell asleep at the wheel provided tearful testimony leading up to the unanimous vote in favor of House Bill 628 in the Committee on the Administration of Criminal Justice. The next step for the bill will be debate on the House floor.

Tina and Anthony “T-Boy” Charpentier lost their 33 year old son when a truck driver fell asleep at the wheel. Anthony doesn’t think the bill is tough enough but hopes it will at least make guilty drivers think about what they have done.

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A two-car collision on Highway 117 in Natchitoches Parish led to a lawsuit and an appeal regarding the amount of damages awarded, among other things. On the morning of October 25, 2002, Edward Raymond was travelling north on Highway 117, returning from work. He was a firefighter at Fort Polk. That same morning Stephen Taylor was traveling south on the same highway. Taylor was on his way to New Orleans to get a sea card to work on tugboats. He was detouring to his girlfriend’s mother’s house in Leesville to pick up his birth certificate. It was raining that morning and during Taylor’s maneuver to pass a loaded log truck, he saw the headlights of Raymond’s vehicle. Taylor attempted to drive onto the shoulder to avoid a collision, but Raymond also tried to avoid a wreck by driving onto the shoulder; the cars crashed head-on and Raymond died as a result of the accident. The site of the crash was in a no-passing zone. The jury determined that Taylor was 75% at fault and the Louisiana Department of Transportation and Development (DOTD) was 25% at fault (mostly for failing to place a no-passing pennant sign at the start of the no-passing zone where the accident occurred).

The jury awarded the following damages

(1) $5,421.20 for funeral expenses; (2) $1,904.00 for medical expenses; (3) $1,514,747.79 for loss of past earnings, future earnings, and earning capacity; (4) $50,000.00 for the conscious pain and suffering and anguish of Mr. Raymond; (5) $1,500,000.00 for the damages suffered by Barbara Raymond for the loss of her husband; and (6) $750,000.00 to each of [Raymond’s] four children for the loss of their father.

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Victim John Deshotels learned the hard way what happens when you donÕt have a an attorney represent you in an accident injury claim. He took his case to trial unrepresented and lost. Even after getting an attorney the damage was done and he lost again in a recent Court of Appeals decision. Plaintiff John Deshotels appealed the trial courtÕs granting of involuntary dismissal of his case against Nicholas J. Fontenot and his insurance company. Deshotels alleged he was rear ended by a car driven by Fontenot and injured. The case went to trial and following Deshotels’ presentation of his evidence, the insurance company moved for involuntary dismissal pursuant to La. Code Civ.P. art. 1672 (B).

Louisiana Code of Civil Procedure Article 1672 (B) states: that when there is no jury, a party When there is no jury, an action tried before the court may be over rather quickly. After a plaintiff has finished presenting their evidence, either party may then ask for a dismissal of the case based on the ground that the plaintiff has not shown any right to relief. The judge must rely on both law and the facts of the case that have been presented at that time. Then, the court is permitted to examine the facts currently presented and make a judgment against the plaintiff and in favor of the moving party. Or the court may decline to make any judgment on the matter until the close of all of the evidence.

Trial courts have discretion to grant an involuntary dismissal if, after weighing the evidence, they determine the plaintiff has not proved their claim by a preponderance of the evidence, or the more likely than not standard.

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According to a report from talkofthetown.com, a low-speed traffic circle, or “roundabout,” is slated to be installed at the end of Jackson Street Extension in Alexandria. The intersection links Jackson Street Extension with Twin Bridges Road, Lodi Road, and Horseshoe Drive. The initial plan called for a four-way stop sign, but Nick Verret, District 8 engineer-administrator with the Louisiana Department of Transportation and Development (DOTD), said a roundabout would offer better safety and efficiency than a four-way stop or a traffic light signal.

The debate over the most effective traffic control devices for intersections has been ongoing throughout the last century. As far back as 1934, a study published in the Journal of Social Psychology reported that approximately 25 percent of drivers who approached an intersection with visible cross traffic failed to come to a full stop at the stop sign. Another study revealed that when there was no approaching traffic, only 14 percent of drivers fully stopped their cars. This frightening figure comes from research conducted in 1968 in Berkeley, California, which was published in the Law & Society Review. For a recent discussion of these studies and the efficacy of stop signs generally, see this article from Slate.

Roundabouts on the other hand enjoy a significantly better reputation for safety. A study published in the American Journal of Public Health in 2001 looked at crash statistics for 24 intersections across the U.S. that were converted from stop sign or traffic light signal controls to roundabouts. Traffic accident rates at the intersections dropped dramatically following the conversion, including a 90 percent reduction in the number of crashes involving fatal or incapacitating injuries. Roundabouts also offer improvements to traffic flow. The DOTD’s Verret estimates that the Jackson Street Extension roundabout will result in a “50 percent increase in capacity” for the intersection,” which will help to reduce the long queues that occur during peak times. The trade-off is that roundabouts are typically more expensive to install and maintain than signs or signals. The Jackson Street Extension roundabout will cost $2.34 million, with $1.6 million funded with federal dollars and $740,000 funded by the city of Alexandria.

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