Louisiana Personal Injury Lawyer Blog

February 1, 2017

Louisiana Medical Malpractice Case Shows Need for Filing Actions in Timely Manner

hospital-walkway-1223350-777x1024 If you have been affected by medical malpractice in any way, you must always be sure to know your rights and the time limits associated with filing any actions against the doctors or medical facilities involved. Generally, there are statutes that limit how long you have to file a claim in court for medical malpractice and if you miss those deadlines, you will not be able to file your lawsuit. It is of utmost importance to find a good lawyer right away who can help you understand your rights and navigate deadlines before it is too late. In Louisiana, the law requires that if you are filing for medical malpractice, you must do so within one year from the date of discovery of the alleged act, omission, or neglect associated with your case. See La. R.S. 9:5628.

In this case, Ms. Watson, a coach at a high school in Louisiana, had a family history of breast cancer. In March 2009, she visited Glenwood Medical Mall (“Glenwood”) to get a mammogram and the doctor (Dr. Atchison) found a small lesion. Ms. Watson testified that Dr. Atchison told her the lesion was benign and she was cancer-free. Just a few weeks later, she discovered a small knot in her breast and returned to the clinic in May 2009 convinced of a diagnosis of breast cancer. A nurse examined Ms. Watson and told her it was a superficial cyst caused by her soda intake. In May 2010, a different doctor told her she did indeed have breast cancer and Ms. Watson testified that by then she felt certain Dr. Atchison and Glenwood had misdiagnosed her cancer and that she had lived for an entire year with cancer and obtained no treatment because of that misdiagnosis.

Eventually, Ms. Watson had a double mastectomy upon the recommendation of the doctor who had found cancer. Ms. Watson filed her medical malpractice suit on June 14, 2011, claiming that she had reduced chances of survival and had undergone treatment that would not have otherwise been necessary. The doctor and hospital filed exceptions of prescription and argued that since Ms. Watson had received her diagnosis of breast cancer in May 2010 and filed in June 2011, she was outside the one-year period for filing a medical malpractice action. The Trial Court found that the evidence was enough to show Ms. Watson should have known about her misdiagnosis in May 2010 and held that the exception of prescription applied to time-bar her action.

January 31, 2017

Louisiana Lawsuit Moves Forward After Arbitration Provision Deemed Inapplicable

by Berniard Law Firm

to-sign-a-contract-2-1236630-1024x683 How do you know whether an arbitration provision in a contract applies? The easy answer: read the contract. If you are a member of a company that provides services to you, such as financing your small business needs, you must be sure to closely read any and all documentation relating to the services provided and what you can do if you are dissatisfied with the company’s work. Companies will often include an arbitration and mediation clause in their contracts with individual members. This means that instead of suing the company in a court of law, the dispute would first have to be arbitrated by an independent third party and an attempt at mediation would have to be made. In Louisiana, companies frequently create operating agreements that function as contracts between owners and members. These operating agreements use a lot of boiler plate language that is ultimately enforced. In fact, Louisiana law favors arbitration. See La. R.S. 9:4201; see also v. Auction Mgmt. Corp., 908 So.2d 1, 18 (La. 2005).

In May 2014, eleven members of a small business financing company, North Louisiana Bidco, LLC (NLB), filed a lawsuit to enforce their rights to examine NLB’s financial and other records. The eleven members became concerned when NLB was sued by various clients and incurred a bad debt expense of $6 million, which showed on the company’s 2013 financial statements. In response, NLB raised the exception of prematurity. NLB argued that the company’s operating agreement required the members of the company to mediate their disputes amongst themselves and if mediation failed, to submit disputes for arbitration. The members that were suing the company in this instance opposed the prematurity argument and asserted that this dispute was not one “among members” but instead was between the body of the membership itself and the management of the company. The Trial Court upheld the prematurity exception. It held that this was indeed a dispute between members and the mediation and arbitration clause applied.

When the members of NLB appealed the Trial Court’s decision they argued that this dispute was a demand by the members of the company against the company itself. The members were attempting to enforce their own rights to view the company’s records rather than trying to enforce any rights against the other members. The Second Circuit Court of Appeal agreed with the eleven members stating that this was not a dispute between members. Therefore, in the absence of such a dispute between members, the arbitration clause could not be enforced. In addition, the Court of Appeal pointed out that for the arbitration clause to be triggered, the action must have been a dispute arising among members relating to the operating agreement. The operating agreement at issue here made it clear that members had the right to inspect the company’s books and records and no party disputed this fact. Because there was no dispute relating to the agreement and because the dispute was ultimately not between members, the Court of Appeal held that the arbitration clause did not apply and the members would be allowed to bring a lawsuit against the company.

January 30, 2017

Attorney Not Liable For Overturned Award of Attorney’s Fees in a Monroe City Court Employment Lawsuit

by Berniard Law Firm

yellow-pay-here-signboard-1631764-1024x774 When reviewing a lower court’s decision that an exception of no cause of action should be sustained, an appeals court will determine whether, in the light most favorable to the plaintiff, there exists a valid cause of action for relief. When there is no valid cause of action for relief stated, the case will be properly dismissed.

In this case, the facts arose out of a prior lawsuit. In that prior lawsuit, Jeffrey Stegall obtained wage judgment in his favor against a former employer, Orr Motors. His award included penalties and attorney fees. Orr filed for a suspensive appeal, hoping to reduce the amount of money they were required to pay. The Trial Court dismissed Orr’s suspensive appeal and converted it to a devolutive appeal. A devolutive appeal does not suspend the effect or execution of the judgment being appealed.

Orr had secured his attempted suspensive appeal by posting a bond for the full judgment sum with the Clerk of the Monroe City Court. In the meantime, Stegall had obtained an order from the Court directing the Clerk to pay Stegall the funds that were on deposit with the Registry. The Clerk paid the sum.

January 28, 2017

This Louisiana Case Might Make You Think Twice About Your Insurance Policy When It Comes To Uninsured Motorist Coverage

by Berniard Law Firm

focus-me-1158253-1024x1024 Uninsured and underinsured motorist coverage is an insurance add-on that protects you against another person’s failure to maintain adequate insurance. This coverage can pay for injuries and property damage caused by another motorist who is not carrying adequate insurance. However, the policy will only cover those things set out in the agreement with the insurer. All insurance agreements are considered contracts under Louisiana law. Therefore, the rules governing contracts generally apply to insurance agreements.

One case illustrates how a court might interpret an uninsured motorist coverage policy. In June 2013, an accident occurred in Natchitoches Parish, Louisiana that involved an uninsured motorist. The plaintiffs, Mr. and Mrs. Horton, were struck by another vehicle, the driver of which did not have insurance. The Horton’s Volvo was physically damaged in the accident and as a result, the car’s market value was significantly reduced. The Hortons filed a lawsuit against their insurer, ANPAC, in order to recover the loss of market value.

The uninsured motorist clause of the contract stated that the insurance company would cover property damages caused by an accident with an uninsured motor vehicle and as such, the Horton’s and ANPAC agreed that the policy should cover the physical damage to the Volvo based on the terms of the agreement. However, the parties disputed whether the contract applied to a loss in market value.

January 27, 2017

Louisiana Man’s Medical Malpractice Claim Falls On Deaf Ears For Lack of Causation

by Berniard Law Firm

stethoscope-2-1420449-1024x605 The issue of whether a doctor’s treatment was the cause of a plaintiff’s injury can ultimately be left to a court to decide. If you have been injured after receiving treatment by a physician, it is important to contact a good lawyer to make sure you maximize your odds of winning the compensation you’re entitled to.

A good illustration of such an issue occurred on April 11, 2007. The plaintiff, in this case, Jerome Smith, was admitted to a hospital for various mental issues. Mr. Smith had a significant medical history of past mental lapses. He reported suffering from auditory and visual hallucinations and tested positive for cocaine upon admission.

Jay Piland, M.D., the defendant in the case and Medical Director of the hospital performed a medical history and physical consultation on Mr. Smith when he arrived at the hospital. During the consultation, Dr. Piland discovered a foreign object in Mr. Smith’s ear and removed it. Mr. Smith asserted that Dr. Piland punctured his tympanic membrane during the removal of the object.

January 26, 2017

Police Officers found not Negligent in Shooting of Man after Police Escort in Louisiana

by Berniard Law Firm

policewoman-1191043-673x1024 Police officers play an integral role in the health, safety, and welfare of the communities they serve and protect. There are many situations where these officers put their lives on the line. There are also some situations where these officers must aid in the day to day needs of civilians. Such needs may include a police escort in order to retrieve belongings from a residence. Are police officers liable for the harm to a civilian that results after the police leave during a police escort? The Louisiana Third Circuit Court of Appeal affirmed a lower court finding that police officers were not liable in such a situation.

After being shot in the back by his estranged wife, Reginald Phillips sued the City of Crowley Police Department (“Crowley Police”) and other defendants. Mr. Phillip’s main claim against the Crowley Police was that they were negligent in leaving him alone with his wife. Mr. and Mrs. Phillips had a history of domestic violence with one another. After one of their fights, the district court issued a temporary restraining order against Mr. Phillips which required him to leave the couple’s home. At a hearing regarding the protective order, the hearing officer denied the protective order finding that Ms. Phillips had actually been the aggressor. Instead, the hearing officer recommended mutual restraining orders and issued a consent order which mandated the couple avoid contact with one another unless accompanied by police.

After the hearing, Mr. Phillips then went to the Crowley Police to request an escort to his shared home in order to collect his belongings. Three Crowley Police officers accompanied him to his home. After a short while, the officers left the residence. Soon after, Ms. Phillips shot Mr. Phillips in the back, and he was subsequently paralyzed from the waist done.

January 25, 2017

What is the Standard to Overturn a Jury’s Decision About Compensation in Personal Injury Cases

by Berniard Law Firm

car-crash-1316724-1024x768 If you ever suffer from a slip and fall, car accident, or other personal injuries you may be awarded compensation for your injuries by the court. The legal system relies on juries, as triers of fact, to determine damages suffered by parties, and the amount of compensation the injured person is entitled to. The jury’s obligation is to evaluate the facts in a reasonable manner and assign compensation. When the jury in a personal injury case renders a verdict and announces an award, that amount should not be amended unless there is an obvious error in the award. See La.Civ.Code art. 2324.1

A recent Louisiana case shows this legal principle. Gene Bordelon, was involved in a rear end car accident with Leona Hayes in April of 2012. Bordelon suffered back injuries as the result of the accident. Leona Hayes was an employee working Cutting Edge, CMHC, Inc. at the time of the accident. Bordelon hired a great attorney, and at trial a jury awarded him $2,325,000 is his lawsuit for damages against Cutting Edge.

Cutting Edge appealed this decision made by the trial court. The company argued that the award amounts where abusively high. The appeals court noted upon review “we must find that no reasonable factual basis exists for the jury’s finding and that the finding is clearly wrong in order to reverse the jury’s award.” Stobart v. State, through Dep’t of Transp. and Dev., 617 So.2d 880 (La.1993). In basic terms, The Appeals court should only overturn or change a jury’s verdict if it is clearly wrong, not merely if the court might have come to a different result.

January 24, 2017

When it Comes to Adverse Possession in Louisiana, Dot I’s, Cross T’s

by Berniard Law Firm

Many Americans do not know that it is actually possible to legally acquire another person’s land without possessing fair title or good faith. Of course, specific guidelines must be followed, but with some will, knowledge, and close attention to detail, this process known as “adverse possession” can be surprisingly simple to accomplish.

In Louisiana, adverse possession occurs when an individual exercises actual, adverse, physical possession over the property of another. See Crowell Land & Mineral Corp. v. Funderburk, 692 So.2d 535, 537 (La. App. 3 Cir. 1997). Furthermore the possession must be continuous, uninterrupted, peaceable, public, indisputable, and within discernible bounds. See La. Civ. Code art. 3476. While this may sound like a rather simple task, the kicker is that Louisiana law demands that all those requirements be met for a period of 30 years, making the whole process a bit more of a gamble, considering the time commitment and outside forces beyond one’s control. Additionally, once the requirements are met and the case is presented in court, the adverse possessor bears the burden of proving that all requirements were met. Accordingly, while acquiring land in such a way can be quite lucrative, it can also end up being a big waste of time if you are not able to meet all the requirements continuously for the entire 30-year period.

In 1969, Erne Plessala, Sr., used levees to construct a crawfish pond on Wayne Trahan’s and Larry Verret’s shared land in Iberia Parish. Sometime later, Mr. Plessala moved soil from a spoil bank of the canal bordering the pond so that he could build a campsite and then built a bridge over the canal to the campsite.

January 23, 2017

Plaintiff Wins Big and Can Sue State Employer for Intentional Tort in Louisiana

by Berniard Law Firm

worker-1542657-1024x768 Imagine what it’s like to be a dedicated employee. You love your job, you’re never absent from work due, and you never have any problems with your employer. Until one day, you are having an unexplained health problem. Turns out you have been exposed to a toxic substance and you believe your employer intentionally harmed you, causing significant injury. It may be necessary to get more information to determine if an employer committed an intentional tort.

This scenario describes the case of James Owens, a welding instructor and an employee of the State of Louisiana. He worked at the Alexandria campus of the Louisiana Community and Technical College. Mr. Owens filed a lawsuit alleging that he suffered injuries after he worked in a building with inadequate ventilation, where he was exposed to high levels of a particular matter and chromium for almost four years.

The State filed an exception of no right of action defense and the trial court heard oral arguments on the matter. During oral arguments, the trial court concluded that Mr. Owens had a right of action. However, when the trial court issued a final written judgment it ruled in favor of the State and determined that Mr. Owens’ exclusive remedy was worker compensation. The trial court also dismissed Mr. Owens lawsuit with prejudice. Mr. Owens filed an appeal alleging that the trial court made a legal error when it dismissed his intentional tort claim and failed to allow Mr. Owens to amend his petition stating a right of action.

January 22, 2017

Details are the key in Insurance Policy Contracts in Louisiana

by Berniard Law Firm

No one likes to deal with insurance matters. Shopping for insurance and understanding the terms of an insurance policy can be complex. Most people are happy to just pay their monthly premiums and know that they have insurance when they need it – and then hope they never need it at all. One woman learned how complex insurance matters can be when she was injured in July of 2012 when the Pontiac Sunfire that she was driving was involved in an auto accident in Ouachita Parish.

The insurer of the other driver who was involved in the accident tendered payment to the plaintiff, Sonya Rodgers, in an amount equal to the policy limits. At the time of the accident, Rodgers was insured by State Farm. Rodgers sued State Farm alleging that she should be provided uninsured motorist coverage for the injuries she suffered in the accident. State Farm filed a motion for summary judgment arguing that uninsured motorist coverage was not provided because Rodgers rejected such coverage in April of 2010.

Rodgers contended in opposition to the motion that there was a genuine issue of material fact as to whether there was uninsured motorist coverage at the time of the accident. Rodgers argued that after the original vehicle covered under her State Farm policy became inoperable, she turned its license plate into the DMV, alerted her State Farm agent that she would no longer need the coverage because the vehicle was broken down beyond repair, and she stopped paying premiums to State Farm. Rodgers said that she considered the policy to be cancelled after she took those steps. Rodgers further said that after acquiring the Pontiac Sunfire she contacted her State Farm agent and negotiated a new policy and she believed that she had uninsured motorists coverage because State Farm never asked her to execute a new rejection of uninsured motorist coverage form. See La. R.S. 22:1295.