Louisiana Personal Injury Lawyer Blog

August 27, 2019

What Happens When DNA Exonerates You From a Crime?

45-Photo-4_2_19 This case drives home the important reality that sometimes the justice system punishes innocent people, but also shows that in the end true justice can prevail.

Plaintiff-Appellee Darrin Hill was accused of being a rapist and kidnapper, but turned out to be a victim of the criminal justice system rather than a criminal needing justice, as DNA exonerated him nearly 20 years later. So, what can happen next after DNA exonerates you from a crime?

In the 1990s, a couple (names redacted for privacy) was assaulted. The boyfriend was forced off at gunpoint and the girlfriend brutally raped. With little evidence at the time, the police relied solely on an unknown notebook left in her car that included the name “Darrin Hill” and an address. While the address itself was unoccupied, police now know that the adjoining apartment was being rented out by the sister of who is now known to be the real rapist. The Detective had canvas the area around the apartment which included a car that matched the getaway car from the day of the crime, but did nothing with this information.

August 26, 2019

Can You Claim Medical Malpractice if the Hospital Doesn’t Clean Tools?

by Berniard Law Firm

40-Email-4_2_19-photo-1024x576 When you are injured or ill and need treatment, you turn to a hospital and put your trust in the doctors and healthcare providers at that hospital. Normally, healthcare providers are diligent and provide top-notch care, however, occasionally a hospital fails to live up to the trust given to them by the patient. When this occurs, the Louisiana Medical Malpractice Act (“MMA”) protects the patient. Nonetheless, there are cases in which it is disputed whether or not the incident falls under the MMA – for example is the failure to clean surgical instruments an incident of malpractice? The Supreme Court of Louisiana recently decided such a case from the Parish of East Baton Rouge and upheld that the MMA is a wide umbrella that covers various types of claims.

On April 14, 2014, Richard Dupuy went to the Spine Hospital of Louisiana for a spine surgery. Following the operation, Dupuy developed a post-operative infection called osteomyelitis caused by mycobacterium fortuitum. Dupuy and his wife allege that he received this infection because the hospital failed to sterilize or clean surgical instruments properly and thoroughly. As a result, Dupuy and his wife sued the hospital for Richard Dupuy’s medical expenses, pain and suffering, mental anguish, loss of earnings capacity, disability, and loss of enjoyment of life. They also sued the hospital seeking damages for Mrs. Dupuy for she maintains a loss of society, support, and companionship.

The Hospital responded by filing an exception of prematurity (meaning the case had not evolved enough to need the court to step in) and asserting that the Dupuy’s have incorrectly gone about the situation. In support of this defense the hospital cites La. R.S. 40:1231.8 that states how Dupuy’s claims must first be presented to a medical review panel. Moreover, the hospital had the infectious disease specialist that treated Mr. Dupuy testify that she was unable to pinpoint specifically what caused the infection and she maintains there could have been many causes for the infection.

August 25, 2019

Can You Sue the Emergency Room for Acting Too Slowly?

by Berniard Law Firm

hospital-photo-1024x768 The emergency room is supposed to provide lifesaving care, quickly, to those who need it the most. No one wants to wait around in the emergency room, especially when their life is in danger. Nonetheless, sometimes emergency rooms simply cannot operate as quickly as they should. In a lawsuit against Savoy Medical Center in Mamou, Mitch Benson challenged delays in critical care in emergency rooms answering the question: can you sue an emergency room for acting too slowly?

Mr. Benson was doing yardwork with his neighbor on October 21, 2017 when he began to suffer from chest pain. In response to his pain, Mr. Benson was then taken to the ER at Savoy Medical Center in Mamou. After arriving at 4:05pm, Mr. Benson was examined by Dr. Clifford Godfrey who confirmed that Mr. Benson had suffered a heart attack and as a result his right coronary artery was 100% blocked. At 5pm, Dr. Godfrey consulted the hospital’s interventional cardiologist, Dr. Charles Monier, who instructed Dr. Godfrey to go ahead and implement a thrombolytic agent that could possibly dissolve the clot. Dr. Monier was not an employee of Savoy Medical Center, but he was the director of Savoy’s catheterization laboratory. Dr. Monier also informed Dr. Godfrey that he would know within 20-25 minutes if the thrombolytic therapy was successful, however, if the therapy was not successful Dr. Godfrey would have to transfer Mr. Benson to a different hospital that had a cath lab open because Savoy’s was closed on the day of Mr. Benson’s procedure. Unfortunately, the thrombolytic therapy failed and at 7:02pm Savoy called Arcadian Ambulance to take Mr. Benson to the Heart Hospital of Louisiana where a cath procedure was successfully completed at 10:31pm that evening. Thankfully, Mr. Benson survived the heart attack.

Following this incident, Mr. Benson filed suit against Savoy, Dr. Godfrey (as an employee of Savoy), and Dr. Monier. Once litigation began, Dr. Godfrey was shown to not have been employed by Savoy at the time. Moreover, Mr. Benson settled his claim against Savoy for less than $100,000 dismissing Savoy from the litigation. However, under the Louisiana Medical Malpractice Act Mr. Benson has the right to proceed litigation against the Louisiana Patient’s Fund Oversight Board (PCF) for damages. In this litigation, Mr. Benson asserted a claim against PCF damages in excess of $100,000 caused by Savoy’s negligence.

August 24, 2019

What happens when a Workers’ Compensation Judge orders your claim to be paid and your employer appeals?

by Berniard Law Firm

When you are injured on the job, you expect for your medical expenses to be covered through worker’s compensation. However, when your employer denies your recommended medical treatment to recover from your injury, what do you do? First, you file a disputed claim for medical treatment form (Form 1009) with the Medical Director of the Office of Workers’ Compensation Administration. If that claim is denied administratively, then you are entitled to a hearing before a Workers’ Compensation Judge (WCJ). However, sometimes the process does not go as planned. For example, in this instance a Workers Compensation Judge ordered the defendants claim be paid but the employer appealed the WCJ’s decision.

Robert Friedman was an employee of Ecolab, Inc. when he injured his back on the job in October 2007. At first, his course of treatment was mild and done by a primary care physician, then a pain specialist. However, his symptoms persisted into 2011, when he was referred to an orthopedic surgeon. That surgeon first did a lumbar interbody fusion, which is a surgical procedure where a damaged disc is removed and replaced with bone graft material. Symptoms persisted into 2013 when the orthopedic surgeon referred Friedman to a neurosurgeon, who ran additional tests. The neurosurgeon’s tests revealed loosened screws/hardware from the initial lumbar interbody fusion. Eventually, the neurosurgeon suggested a new lumbar interbody fusion that would both fix the initial procedure as well as provide additional support. EcoLab approved the portion that would fix the initial procedure but denied the portion that would provide additional support as they did not feel it was medically necessary. Friedman then filed a Form 1009 with the Office of Workers’ Compensation Administration, which was denied due to insufficient clinical information. Friedman then re-filed his Form 1009 to get a hearing before a WCJ in Ouachita Parish, who granted Friedman to get his entire prescribed procedure, as well as legal fees covered once evidence was submitted. Ecolab appealed to the Second Circuit Court of Appeal.

Workers’ Compensation Claims are determined under guidelines in Title 40 of the Louisiana Administrative Code. At issue is whether the evidence supports that extended lumbar interbody fusion is medically necessary. Workers’ Compensation is supposed to cover the costs of medical treatment that is reasonably necessary for treating medical conditions caused by a workplace injury. See La. R.S. 23:1203. Medically necessary treatment is supposed to be that which is consistent with the diagnosis and treatment of a specific condition rather than solely based upon a patient’s preference. A claimant’s appeal of the Medical Director’s decision to a WCJ is based upon clear and convincing evidence, which means evidence has to be substantially more likely to be true than not true. 40 LA ADC Pt. I, §2715 sets the criteria about what evidence is necessary. As this procedure was a follow-up to his 2011 surgery, Friedman did not need to send inasmuch documentation. For that reason, the Appeals Court determined that the Medical Director erred in their judgment and thus upheld the WCJ’s ruling in favor of Friedman, as well as awarded attorney fees.

August 23, 2019

How Can You Get Workers Compensation When Your Employer Won’t Pay It?

by Berniard Law Firm

46-Email-03-13-19-Image-1024x682 Workers’ compensation exists to aid employees who suffer injuries while on the job. However, companies can sometimes be uncooperative after their employees become injured by dodging responsibility and avoiding making payments. Despite these difficulties, a case backed by strong evidence can help injured employees receive the compensation they deserve. How can you get the workers compensation you deserve when your employer is avoiding payment?

Patricia Wilson, a Glazer employee, had a physical job involving reaching, bending, pushing, lifting, and pulling while packaging bottles of liquor on a conveyor belt. Ms. Wilson was working on the assembly line on May 15, 2012, when she tripped on a floor mat and took a hard fall. She stopped working and sought medical care right away, where she was diagnosed with contusions to her right shoulder, gluteal back, and hip, as well as a neck strain. She was given medications and instructed to ice the area. After some intermittent time off of work and a handful of doctors visits, in late July she was discharged from her doctor’s care despite experiencing lingering pain. For the following year, Ms. Wilson experienced pain at work, specifically on her right shoulder and neck.

On Monday, July 8, 2013, Ms. Wilson was working on a shorthanded line and experienced more of a physical demand than she usually would on a Monday. Ms. Wilson experienced pain in her right shoulder and neck throughout her shift that night. The next morning Ms. Wilson’s pain was so great that she called in sick for work. The pain did not subside over a series of days, and after many fruitless attempts to speak with management to receive direction on how to proceed, Ms. Wilson was finally authorized to see her doctor three weeks later on July 31, 2013.

August 22, 2019

When Should You Ask For Summary Judgement in a Personal Injury Case?

by Berniard Law Firm

47-Email-03-13-19-Image-1024x795 When most people think of filing a lawsuit, they expect to attend a trial in a court where a judge and jury decide the outcome of the case. However, most of the time cases are decided long before a trial is reached. One of the legal mechanisms for ending a lawsuit before it reaches trial is called a Motion for Summary Judgment. A summary judgment motion allows a party to ask the court to rule in their favor on a particular issue as a matter of law. The court may grant the motion if the parties are in agreement as to the important facts of the case and if the party that is making the motion is legally entitled to prevail on the claim in question. As this case demonstrates, a summary judgment motion can be an effective tool for ending a lawsuit, so when should you ask for summary judgement in a personal injury case?

Javonna Rayfield was staying at the Millet Motel in LaPlace, Louisiana on August 29, 2012, when Hurricane Isaac made landfall and created wind speeds reaching 100 mph. At around 5:00 a.m. Ms. Rayfield was awakened when the ceiling and walls of her room fell on top of her. Ms. Rayfield was taken to a local hospital, where she was treated for her injuries. Later, Millet found that a fire door down the hallway was buckled and the hasp lock was dangling and that the high winds had caused a concrete block wall on the floor above to collapse. The concrete blocks fell above Ms. Rayfield’s room, causing the ceiling and wall to buckle and fall.

Ms. Rayfield brought a lawsuit against the Millet Motel and its insurer, United Fire & Insurance Company (“Millet”). She alleged that the premises in the motel were defective and that Millet knew or should have been aware of the defective conditions. Ms. Rayfield filed a summary judgment motion, asking the court to conclude that there was a defective condition on the premises and that this condition was what caused her injuries. Millet similarly filed a summary judgment motion, asking the court to find that Ms. Rayfield’s injuries resulted solely from Hurricane Isaac. The trial court decided in Millet’s favor by granting their summary judgment motion and denied Ms. Rayfield’s motion for partial summary judgment, a decision which Ms. Rayfield appealed.

August 21, 2019

Are You Entitled to a Claim If You Fall In A Grocery Store?

by Berniard Law Firm

shopping-cart-1550709-1024x768 Most people believe that if you suffer a slip and fall accident in a store, you will most likely be entitled to some level of compensation. Unfortunately, that is not always the case.

After a slip and fall accident occurring because of what Regina Williams described as a “puddle of water” at a Super 1 Foods located in New Iberia Parish, Williams filed a lawsuit for negligence against the grocery store. Williams’ lawsuit was filed in New Iberia and named the Brookshire Grocery Company (“Brookshire”), Super 1 Foods’ parent company, as the defendant.

In her lawsuit, Williams alleged that Brookshire had knowledge of the water on the floor and did not use reasonable care to prevent a risk of harm. The trial court ruled in favor of Brookshire by granting summary judgment on their behalf. A motion for summary judgment is a quick and timely judgment requested by a party when there is no genuine issue based on the facts of a case.

August 20, 2019

How To Avoid Your Lawsuit Being Dismissed Because Of No Cause of Action

by Berniard Law Firm

mercantile-bank-building-dallas-1228577-771x1024 There is no shortage of frivolous lawsuits. As a result, courts have developed many different ways to nip these sorts of lawsuits in the bud. One way is by allowing defendants to file an exception of no cause action, which is essentially a request that asks the court to drop the plaintiff’s lawsuit because there is no factual support to justify the lawsuit. In the case below, the plaintiff truly believed she was wronged by her employer, but because the facts she provided in her lawsuit did not support a valid claim, her lawsuit was ultimately denied. So, how can you avoid your lawsuit being dismissed by no cause of action in Louisiana?

Gina K. Lusich worked as the branch manager at Capital One Bank in St. Bernard Parish, Louisiana. Lusich’s employment with Capital One was terminated in June 2013. She then filed a lawsuit against Capital One for wrongful termination. Lusich argued in her petition that she was terminated wrongfully because of a false accusation claiming that she instructed other employees to falsify time cards. She also claimed that her personal property was stolen by Capital One. Capital One responded by filing an exception of no cause action. The trial court granted this exception in favor of Capital One, and Lusich appealed to Louisiana’s Fourth Circuit Court of Appeal.

When an appellate court reviews an appeal of an exception of no cause of action, it must examine the sufficiency of the claims within the lawsuit. In other words, the court must seek to determine whether the law can sufficiently provide a remedy for the plaintiff. Badeaux v. Southwest Computer Bureau, Inc., 929 So.2d 1211, 1217 (La. 2006). In doing so, the court must accept the facts as stated by the plaintiff’s petition to be true, asking whether the plaintiff would be entitled to a remedy based on those facts. Jackson v. State, 785 So.2d 803 (La. 2001). However, the lawsuit should be dismissed if the plaintiff cannot show some theory under which he can prove the facts that would support his claim. Wallace C. Drennan, Inc. v. Sewerage & Water Bd. of New Orleans, 753 So.2d 861 (La. Ct. App. 1999).

August 19, 2019

What Is The Difference Between A Miscommunication and Fraud In A Medical Malpractice Claim?

by Berniard Law Firm

hospital-bc-laboratory-form-with-syringe-1-1315580-1024x768
There is nothing more frightening than going to the emergency room with no sense of what is happening to your body. We believe that the hospital is our safe haven; that the physicians are sincere and will provide us with the care we need to get us back on our feet. However, if something goes wrong, people want someone to blame, and naturally, the hospital or the doctors are the easiest to blame. But sometimes things are misunderstood, and no one is to blame. So, what is the difference between a miscommunication and fraud when it comes to medical malpractice?

On March 16, 2011, Robert Royer received treatment for his heart at Our Lady of the Lake Hospital, Inc. (“OLOL”) at which Royer appeared to be experiencing symptoms of an apparent heart attack. Royer’s doctor encouraged him to drive to OLOL’s emergency room. Within three hours of arriving to OLOL, two EKG tests were performed on Royer to determine his condition, x-rays were taken, and he was admitted to the treatment area where he received medication. Shortly thereafter, OLOL admitted Royer to the critical care unit where he underwent surgery for his heart condition. Two days later, Royer was discharged from the hospital. Royer presented claims of fraud and medical malpractice against the hospital and the doctors.

Royer claimed that the hospital falsely advertised and misrepresented their medical services and stated that the defendant’s intentional misrepresentations convinced him that his complaints about his heart condition would be treated with urgently and seriously at OLOL. He believed that OLOL’s advertisements such as, “completely committed to medical excellence”, and OLOL had earned the “highest level recognition for performance excellence” misled him of the hospital’s service.

August 18, 2019

Is Your Employer Liable If You Fall In The Parking Lot?

by Berniard Law Firm

ice-calves-1543085-1024x770 Ice storms can create hazards for the general public as well as employees. A Mansfield nurse found out that parking lot falls do not qualify for workers’ compensation benefits. A Shreveport Hospital was able to avoid paying workers’ compensation benefits with the help of an excellent attorney after the employee’s fall.

Joyce Lafitte-Nesom is a nurse manager at Christus Schumpert Highland Hospital (the Hospital) in Shreveport. She typically worked an eight-hour shift from 4:00 pm until midnight. She commuted to the Hospital from her home in Mansfield, Louisiana. On February 11, 2014, the area had an ice storm and many nurses were unable to make their shifts due to the storm. The Hospital was put on diversion and stopped accepting patients due to the shortage of employees.

Ms. Nesom worked until 1:40 am instead of midnight because she was told by Hospital security that the Hospital parking lots were icy and the Hospital was low on materials to apply to the parking lot to help alleviate the slippery conditions. The roads to her home in Mansfield were also closed by the police due to the hazardous conditions. After her shift ended, Ms. Nesom made a decision to wait until the roads were better. She tried to rest in an empty room, but at 5:00 am she gave up and started performing her normal duties. She did not count this toward her working hours for the day. Another nursing house supervisor who lived closer, Ahleeka Cummings, allowed Ms. Nesom to stay at her place until conditions improved.