by

historical-medical-devices-3-1566087-1024x678Upon entering a facility for medical treatment, we all hope that we will be treated properly. However, what happens when a medical or health care professional deviates from the profession’s standards? What happens if there is a mistake in the diagnosis or treatment? Such victims certainly have an opportunity to seek redress however sometimes a jury verdict can prove disappointing.  This case out of Jefferson Parish demonstrates what happens when a trial court jury does not get the proper instructions necessary for deciding a complex medical malpractice claim in Louisiana.

Doris Greathouse was admitted to East Jefferson General Hospital on June 2, 2008 for elective heart surgery. Shortly after Dr. Cougle and CRNA Wilkinson intubated Mrs. Greathouse, she suffered cardiac arrest and her brain was deprived of oxygen. Mrs. Greathouse was transferred to the Intensive Care Unit with fatal brain damage until her family removed her life support. Mrs. Greathouse’s children then filed a wrongful death and survival action against Dr. Cougle and Ms. Wilkinson alleging that they committed medical malpractice resulting in their mother’s injuries and death.   

Pursuant to La. R.S. 40:1299.47(B)(1)(a)(i), health care providers in Louisiana cannot be sued for medical malpractice under the the Medical Malpractice Act (“MMA”) unless the plaintiff submits a complaint to a Medical Review Panel (“Panel”), composed of three healthcare providers and an attorney. The Panel’s sole duty is to express its expert opinion as to whether the evidence supports the conclusion that the defendants complied with the standards of care. See La. R.S. 40:1299.47(G). The Panel may not render an opinion on any disputed issue of material fact that does not require its medical expertise. See La. R.S. 40:1299.47(H).

Continue reading

by

concert-1436178-1024x768What starts out as an entertaining night out for a concert with friends, ends with painful injuries.  Instead of enjoying your favorite music with companions, you must go to the hospital to treat injuries sustained due to negligent maintenance of the concert venue.  You are now recovering from your injuries and are faced with medical expenses.  You know that you shouldn’t be responsible for the medical bills; after all, you are hurt because someone failed to do their job.  But who exactly is responsible?  Determining the party responsible for personal injuries was a recent issue in a case out of Baton Rouge.

In March of 2006, Ms. Shannon Rodrigue went to a concert with her friends at the Riverside Performing Centroplex in Baton Rouge, Louisiana.  As Ms. Rodrigue and her friends waited in line to enter the Centroplex, a Spectator Management Group (“SMG”) employee instructed the group to go around the side of the building and go down a flight of stairs in order to get their seats.  As the group proceeded to head down the stairs, Ms. Rodrigue missed a step and fell down the flight of stairs.  The fall was the result of a poorly lit stairwell.  Ms. Rodrigue sustained several injuries to her head, back, neck, knees, and wrists.

Ms. Rodrigue filed a lawsuit against several parties whom she believed were responsible for the poorly lit stairwell that ultimately led to her injuries.  The parties included the Centroplex, the Centroplex’s insurer, and the City of Baton Rouge-Parish of East Baton Rouge; SMG and its insurer.  In response to Ms. Rodrigue’s filing of the lawsuit, SMG and its insurer filed a motion to have Ms. Rodrigue’s lawsuit against them dismissed.  SMG asserted that Ms. Rodrigue had no claim against them and their insurance company because they did not have custody of the stairwell where Ms. Rodrigue fell.  SMG further claimed that even though Ms. Rodrigue and her friends were directed to the stairwell by one of its employees, SMG was not aware of the lighting situation of the stairwell before her fall. The  District Court for the Parish of East Baton Rouge granted SMG’s motion and Ms. Rodrigue’s claims against it were dismissed.  Ms. Rodrigue appealed to the Louisiana First Circuit Court of Appeal.  

Continue reading

by

management-school-3-1524193-1024x348School bullying is a commonly discussed problem in our generation.  Parents are often faced with dilemmas on how to protect their children and instruct them in dealing with bullies at school.  In earlier eras perhaps this was considered a problem for the individual family to bear alone.  In a recent case out of Plain Dealing, Louisiana however, the Louisiana Second Circuit Court of Appeal affirmed that school teachers and the school board can now be held liable for such bullying and its effects.  

On December 10, 2012, a fourth-grade boy, J.B., at Carrier Martin Elementary School in Plain Dealing, Louisiana broke his arm during playground recess when three boys knocked him to the ground to keep him from tattling. J.B.’s parents filed a lawsuit on behalf of their son against the Bossier Parish School Board (“Board”), and teacher Tricia Huckaby seeking damages. After a trial before the Judicial District Court for the Parish of Bossier, Louisiana, the jury found in favor of the parents and awarded $125,000 in general damages, $12,674.14 in special damages, and $25,000 to the mother for the loss of consortium for a grand total of $166,784.63 with legal interest. The Board appealed the finding of liability and argued that the award was excessive.

A school board, through its agents and teachers, owes a duty of reasonable supervision over students pursuant to La. C.C. art. 2320.  For liability to be imposed on a school board for inadequate supervision of students, there must be (1) proof of negligence and (2) proof of a causal connection between the negligent supervision and the resulting damage to a student. See  Creekbaum v. Livingston Parish School Board, 80 So. 3d 771 (La. Ct. App. 2011).   The standard of care required by the school supervisors over the students is only what would be expected of a reasonably prudent person in same or similar circumstances. The risk of injury had to be both foreseeable and preventable if a requisite degree of supervision had been exercised.  In awarding damages, a jury is empowered with great discretion and the award will only rarely be disturbed on appeal if an abuse of discretion is found.  

Continue reading

by

closed-window-1218252-1024x683It is no secret that lawsuits are expensive creatures. It is perhaps baffling then that a party would retain an attorney, file a lawsuit, and maintain that lawsuit for over thirteen years without sufficiently actively pursuing that lawsuit.  Yet, that is exactly what happened in a recent case out of Livingston Parish.  And as the case explains, such inactivity within a case subjects the lawsuit to dismissal for abandonment.  Money and time wasted for all parties involved.  

In 2001, R.L. Hall and Associates, Inc. (“R.L. Hall”) filed a lawsuit against Brunt Construction, Inc. (“Brunt”) and Fidelity Deposit Company of Maryland (“Fidelity”) over a lien arising out of a construction contract.  The next action on record does not occur until 2005 when R.L. Hall filed a motion to compel discovery.  Then, in 2007,  R.L. Hall filed the first motion to set a scheduling conference. After the 2007 telephone conference between the parties, nothing else appeared in the record until the plaintiff filed a second motion to set a conference in December of 2010. After the court established discovery deadlines following the 2010 conference, nothing appeared in the record again until the plaintiff filed a third motion to set a conference on June 4, 2014. During 2011 however, counsel for R.L. Hall did send letters to lawyers for the defendants in an attempt to schedule depositions.  The informal correspondence, however, was not filed and does not appear in the court record.  The defendants then filed a motion to dismiss R.L. Hall’s claim because there were no steps taken to further the action in over three years.   The Judicial District Court for the Parish of Livingston dismissed the matter as abandoned.  

R.L. Hall appealed the dismissal to the Louisiana First Circuit Court of Appeal.  Pursuant to La. C.C.P. art. 561 an action “is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years[.]”  Upon the passage of three years without any steps taken in the case, the case is automatically dismissed without the need for a court order.  To maintain a case, a party needs only to take some step within three years of the last action toward the prosecution or defense of the action and the step must be in the proceeding and on the record. See Clark v. State Farm Mutual Automobile Insurance Corporation, 785 So.2d 779 (La. 2001).   Attempting to schedule a deposition through informal correspondence without a filed formal notice of deposition does not constitute a “step” which would interrupt the abandonment clock.   

Continue reading

by

semi-truck-4-1518489-1024x651During litigation, a party may attempt to claim some form of privilege as an avenue not to produce certain evidence.  There are various types of privileges that may be asserted.  One that is familiar to many is attorney-client privilege.  One that is not as familiar is work-product privilege.  Work-product privilege is claimed in civil cases and is used to keep materials that are created in anticipation of litigation from being discovered by opposing counsel.  However, to assert work-product privilege the party claiming it must be an adverse party in the lawsuit.  A non-party is not entitled to work-product privilege, as Louisiana State recently learned when the Louisiana Second Circuit Court of Appeal affirmed that work-product privilege can only be claimed by an adverse party.

In 2011, Ramanand Naik was in a car accident on highway 84 in De Soto Parish, Louisiana.  Mr. Naik was driving a Ryder box truck when a semi-truck, driven by Nathaniel Anthony, hauling a flatbed trailer carrying a boom lift veered across the center line, jackknifed, and crashed into Mr. Naik’s truck.  The impact of the crash caused the boom lift to fall off the trailer and onto the cab of the Ryder truck essentially crushing Mr. Naik and his passenger, Norman Latcha.  Following the accident, Naik filed a lawsuit against various parties and their insurance company.  Mr. Naik did not name Louisiana State as a defendant and the named defendants did not bring Louisiana State in as a third-party defendant.

Despite being a non-party to the lawsuit, ORM was brought into the case during discovery when Mr. Naik filed a notice to have ORM produce all the documents that they had pertaining to the accident. The named defendants in the case did not oppose Mr.Naik’s request.  ORM did not produce the documents leading Mr. Naik to file a motion to compel: a request to have the court force ORM to produce the documents.  ORM filed a motion to quash: a request to invalidate the motion to compel and avoid producing the documents asserting the documents were protected by the work-product privilege. The First Judicial District Court for the Parish of Caddo, Louisiana denied ORM’s motion, requiring the production of the documents based on ORM’s non-party status thus the lack of available work-product privilege.  

Continue reading

by

eastern-state-penitentiary-1215643-1024x685Unfair treatment at work can, unfortunately, be a common occurrence. While always annoying, the treatment can sometimes rise to such an egregious level that an employee feels justified in filing a lawsuit against the employer; especially if the aggrieved employee feels that there are racially motivated variances in treatment. As with all cases, however, the evidence is the key that unlocks the door to a successful lawsuit.  For Rosie Washington, a former employee of the Louisiana State Penitentiary, an employment discrimination case devoid of evidence kept her victory behind locked doors.  

Mrs. Washington was a licensed practical nurse for the Louisiana State Penitentiary from 2001 to 2011.  Mrs. Washington claimed that she began to suffer racial discrimination in 2008 after she refused to switch from the night shift to the day shift to accommodate a white couple who wanted to work together.  After Mrs. Washington refused to switch shifts, she was disciplined three times and three Employee Violation Reports were created to document the disciplinary action.  Mrs. Washington cited the disciplinary action and reports as evidence of racial discrimination along with instances where her leave requests were denied while others leave request was granted and where her absences from work were over counted.  She also claimed that she was disciplined more harshly than white employees for the same conduct and that she was fired because of her race. In 2011, Mrs. Washington sued multiple defendants including the state of Louisiana, the Department of Public Safety and Corrections, the Louisiana State Penitentiary, and several other state actors for employment discrimination pursuant to Title VII of the Civil Rights Act. Mrs. Washington also sought an injunction to prohibit the penitentiary from firing her.

Following the dismissal of the non-Title VII claims by the United States District Court for the Middle District of Louisiana, the case proceeded for almost two years.  During that two-year period, no pre-trial preparations or discovery occurred. Subsequently, the employment relationship between Mrs. Washington and the penitentiary ended in a manner that was unclear on the record. There being no evidence in support of Mrs. Washington’s claims, the defendants filed a motion for summary judgment.  A human resources manager for the Louisiana Department of Corrections submitted an affidavit with the motion for summary judgment supporting that no discrimination occurred.  As the record was devoid of any other evidence, the District Court granted the summary judgment motion and Mrs. Washington appealed.  

Continue reading

by

big-toys-4-big-boys-1435926-1024x744Workers’ compensation pays for an employee’s medical expenses and lost wages when an employee is injured on the job. But what happens when an employee is injured while performing his or her job in a manner not approved of by the employer? Recently, a Court of Appeal for the State of Louisiana addressed this issue in a case involving a man from St. Landry Parish.

Herbert Marshall, an employee for Courvelle Toyota, injured his back picking up an automobile transmission during work. Mr. Marshall was directed to take a truck with a liftgate, pick up a transmission from a repair shop, and deliver that transmission back to the dealership. He was instructed to take the lift gate truck because the transmission was over four hundred pounds. Mr. Marshall took a standard van instead, claiming that the liftgate was not working on the truck. When Mr. Marshall arrived at the repair shop, he enlisted the help of a repair shop worker to lift the transmission into the van. It was during this lifting where Mr. Marshall felt a “pop” in his back. When he returned to the dealership, Mr. Marshall was helped by another employee to unload the transmission. Mr. Marshall made no mention of his back pain to anyone that day.

Mr. Marshall reported the accident to his boss days after the injury. After reporting the accident, Mr. Marshall saw several doctors and underwent several different treatments. Mr. Marshall also received multiple drug tests. On two drug tests, he tested positive for cocaine. Mr. Marshall claimed that these tests were a false positive and that the test actually picked up his use of lidocaine for his tooth pain. On subsequent tests, Mr. Marshall tested negative to having cocaine in his system. Mr. Marshall requested workers’ compensation benefits from Courvelle Toyota to pay for his medical bills and lost wages. Courvelle Toyota denied those requests citing the fact that Mr. Marshall did not use the lift gate truck as instructed by Courvell Toyota. Mr. Marshall then filed a disputed claim for benefits with the Office of Workers’ Compensation, where he sought wage benefits, medical treatment, penalties, and attorney fees.

Continue reading

by

thick-metal-welding-mask-for-protecting-the-eyes-1632419-1024x784Under Louisiana law, an employee who is injured while on the job is entitled to “vocational rehabilitation services” (services that help an individual overcome his or her own physical or mental disability in order for that individual to return to work) provided by a vocational rehabilitation counselor. La. R.S. 23:1226 (2016). While an injured employee is entitled to a vocational rehabilitation counselor, is the employee able to dictate his or her own rules and requirements that the vocational rehabilitation counselor must follow? And if an employee is unhappy with the performance of his or her vocational rehabilitation counselor, then what can he or she do to remove that person?

Ellis Hargrave was injured while working for the Louisiana Department of Transportation and Development (“DOTD”). After the injury, DOTD began providing vocational rehabilitation services to Mr. Hargrave. After juggling multiple vocational rehabilitation counselors, DOTD finally settled on assigning Elier Diaz to Mr. Hargrave. Before their first meeting, Mr. Hargrave’s attorney sent a letter containing ten conditions that Mr. Diaz had to agree to before Mr. Hargrave would allow counseling services. The purpose of these conditions was to make Mr. Diaz put Mr. Hargrave’s interests over the interests of DOTD. Mr. Diaz declined to agree with the ten conditions. Mr. Diaz sent a letter to Mr. Hargrave, explaining that he will uphold the standards of the applicable law but declined to agree to any of the extra standards or conditions demanded. Even though the parties disagreed about the ten conditions, an initial evaluation meeting took place with Mr. Diaz, Mr. Hargrave, and Mr. Hargrave’s attorney. The disagreement over the ten conditions eventually led to litigation. This issue eventually ended up at the Supreme Court of Louisiana where it held that nothing in Louisiana law required that a rehabilitation counselor must agree to certain conditions prior to providing vocational rehabilitation services. Hargrave v. State, 100 So.3d 786, 793 (La. 2012).

While the long litigation process over one issue ended, another one soon began. Mr. Hargrave filed another claim with the Workers’ Compensation Judge (“WCJ”) asking the WCJ to remove Mr. Diaz as vocational rehabilitation counselor because Mr. Diaz violated Louisiana law. At trial, Mr. Hargrave asserted that Mr. Diaz violated Louisiana law when he met with DOTD without allowing Mr. Hargrave or his counsel to attend and that Mr. Diaz violated Louisiana law when he stated that Mr. Hargrave and his attorney agreed to the meeting. The WCJ disagreed, holding that Mr. Diaz did not violate Louisiana law. Mr. Hargrave appealed.

Continue reading

by

concrete-tiles-1140575-575x1024Be it alleged abuses in the welfare system or lying on their tax return, individuals abusing the system has been a hot button issue for the past couple of years. But what happens when someone gets caught? How does the law handle the people who abuse the system? Recently, a Louisiana Court of Appeal held that concealing previous injuries resulted in a forfeiture of workers’ compensation benefits (insurance that pays wages and medical costs for an injury occurring while at work) and the payment of restitution (compensation ordered by the court for restoration of money to its rightful owner) for a Saint Martinville concrete finishing business owner.

Darrell Wiltz is the sole owner of Wallace Wiltz Concrete, Inc. He worked as both the manager of the business and as one of the laborers for the company. On October 21, 2009, Mr. Wiltz was lifting a tool used in the concrete finishing business when he allegedly injured his lower back. He filed a claim with LUBA, the workers’ compensation insurance provider for Wallace Wiltz Concrete. Initially, LUBA only paid for some of Mr. Wiltz’s medical treatment and did not pay any wage benefits. But after Mr. Wiltz inquired with LUBA why all of his medical treatment and wage benefits were not being paid, LUBA sent an adjuster to record a statement from Mr. Wiltz. In the statement to the adjuster, Mr. Wiltz admitted to previously having one minor back injury. He also denied being in any vehicle accidents. Based on these statements, LUBA began approving all the medical treatment benefits and started paying Mr. Wiltz total temporary disability benefits.

On April 6, 2010, LUBA performed a claim index search on Mr. Wiltz which revealed that Mr. Wiltz had been involved in at least two vehicle accidents. LUBA then obtained Mr. Wiltz medical records which indicated that Mr. Wiltz had undergone at least three MRI’s of his lower back due to complaints of pain. The medical records also indicated that Mr. Wiltz had various disc issues such as bulges or herniations in his lower back and one medical provider diagnosed him with lumbar disc disease.

Continue reading

by

public-train-1439534-768x1024We all know that each U.S. citizen is entitled to certain rights contained within the Constitution.  For example, the right to bear arms, the right to free speech, and the right to practice any form of religion.  But what about rights that were not explicitly stated within the Constitution, like the right to privacy or the right to marry.  Courts have long grappled with these “non-explicit rights” and whether those rights are protected under the Constitution.  Recently, the Fifth Circuit Court of Appeals faced a question over a “non-explicit right.”  Does an individual have the right to enter a public, government owned, building, and, if so, then what procedure is required to deny that right?

This controversy began when Carol Vincent became hostile during a visit to the bank. After threatening to kill a city councilman and the mayor of the City of Sulphur, Louisiana, city officials issued a no-trespass order against Mr. Vincent. The order prohibited Mr. Vincent from entering certain public official buildings, to prevent Mr. Vincent from coming into contact with whom he threatened to kill. Eventually, city officials dropped the order. A disgruntled Mr. Vincent sued, claiming that the city officials violated his constitutional rights.

The city officials asserted that they had qualified immunity.  Qualified immunity protects government officials performing their duties from civil liability when their conduct does not violate a constitutional right, by prohibiting individuals from suing government officials over the performance of their duties.  To disprove qualified immunity, the plaintiff must show whether a constitutional right was violated and whether the allegedly violated right was “clearly established.” McClendon v. City of Columbia, 305 F.3d 314, 322-23 (5th Cir. 2002).  In determining whether a right is “clearly established,” courts look at whether a reasonable government official would be aware of the right.  The plaintiff has the burden of showing that the government official is not entitled to qualified immunity. Wyatt v. Fletcher, 718 F.3d 496, 502 (5th Cir. 2013).

Continue reading
Contact Information
1140 St Charles Ave
New Orleans, LA 70130
Phone: (504) 521-6000
Fax: (504) 617-6300

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Please do not include any confidential or sensitive information in a contact form, text message, or voicemail. The contact form sends information by non-encrypted email, which is not secure. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship.

Copyright © 2016 – 2025, Berniard Law Firm
JUSTIA Law Firm Blog Design