Civil Matter

November 9, 2013

Nursing Home Injury Leads to Medical Malpractice Claim

Recently, an individual from the Parish of St. Tammany was injured as she was transported from a nursing home to another health-care facility. She fell from her wheelchair when the driver had to slam on his brakes. The wheelchair had neither a seatbelt, nor was the wheelchair strapped down in the van. The individual sued her nursing home based on the failure to adequately secure her for her journey. Questions regarding the Louisiana Medical Malpractice Act arose that considered whether the nursing home was a healthcare provider and whether her injury constituted medical malpractice.

The Louisiana Medical Malpractice Act (“Act”) requires that individuals take their medical malpractice complaints against qualified health care providers to a medical review board before taking the claim to a court. The State of Louisiana employs this administrative process because the state is self-insured, and it covers some health-care providers. They want to be sure that a medical malpractice claim exists before it gets into the courtroom. The medical review board generally consists of two healthcare professionals and one attorney. Generally, the healthcare professionals are in the same field as the doctor accused of malpractice. For more information on the medical review panel, see http://www.doa.louisiana.gov/MedReview/index.htm.

If a claimant does not use the medical review panel and tries to take their claim directly to court, then it will be dismissed because it is premature. Dismissing for prematurity is a dilatory exception, which means that it only delays the progress of a lawsuit, but does not defeat the action. In medical malpractice suits, the defendant has the burden of proving that he is entitled to a medical review panel, which only applies to only malpractice, not other tort actions, and that he or she is a qualified medical provider.

November 4, 2013

The Limited Nature of Appeals Court Highlighted in New Orleans Case

by Berniard Law Firm

Appeals courts are unique in two major respects: evidentiary requirements and standards of review. When cases are appealed, the evidentiary requirements are different at the appeals level than they were at the trial court level. For example, often the appeals court’s factual inquiry is limited to “the record,” or the facts as explained by the trial court. The appeals court cannot look beyond what is in the record or what is argued in front of them, even if they would like additional facts. Occasionally, the appeals court can look to evidence that is introduced by the parties, but many times the standard of review requires that the appeals court cannot look at evidence at all.

In addition, the standard of review depends on the type of legal question presented. The two major standards of review in Louisiana are manifest error and de novo review. In manifest error review, the appeals court simply determines whether the lower court’s outcome is probable, or lacks manifest error. They consider the facts in the record and determine if the outcome was probable given the facts. The trial court has a great deal of deference because they access the credibility of the witnesses and deal with complex evidentiary rules. The second type of review, de novo review, does not rely on the lower court. Instead, the appeals court can consider the evidence in the record as if it were a new trial. There is no need to consider what the lower court did with the information because the appeals court makes its own independent decisions. Often, however, the appeals court is still limited to the evidence in their record.

A recent case arising from the First City Court of New Orleans to the Court of Appeals for the Fourth Circuit for the State of Louisiana outlines these concepts. In that case, an individual contracted with a building contractor to make improvements on his house. The individual argued that the contractor performed poorly, and therefore did not fulfill his half of the contract, even though the contractor had already been paid. The lower court granted an exception of prematurity, which, in this case, meant that the party brought the case too early because there was a stipulation in the contract that required mediation before the parties could bring the case to court. Under the exception of prematurity, the appeals court reviews the lower court under manifest error. However, when the parties argued their case at the court of appeals, neither party put the actual contract into evidence at the appeals hearing. Since appeals courts have strict evidentiary requirements, the court could not consider what the contract actually stated. Therefore, it struck down the exception of prematurity.

October 27, 2013

5th Circuit Rules Wal-Mart Not Liable for Slip-and-Fall Caused by Leaky Roof

by Berniard Law Firm

When a hazardous condition on a merchant’s property causes a slip-and-fall accident, the victim can file suit for his or her injuries. But in Louisiana, the merchant can only be held liable for those injuries if the merchant created the danger or had actual or constructive notice of it before the accident. This law saved Wal-Mart from liability in Gray v. Wal-Mart, a recent case from the Fifth Circuit Court of Appeals.

On September 1, 2008, Hurricane Gustav made landfall near Cocodrie, Louisiana as a Category 2 storm, causing considerable casualties and damages along its track. That day, Louisiana resident Jean Gray was shopping at a Wal-Mart in Pineville. As she was pushing her cart down an aisle, she slipped in a puddle of clear liquid and fell, injuring her right knee. In an internal incident report, a Wal-Mart supervisor identified a hole in the store’s roof as the source of the puddle, an assumption he made based on his knowledge of other leaks in the roof and the heavy rain pouring down outside.

Gray and her husband sued Wal-Mart for her injuries, claiming that she slipped in a puddle of rainwater that had leaked from a hole in the store’s roof. The district court granted summary judgment in favor of Wal-Mart. The Grays appealed, and the case went to the Fifth Circuit.

October 22, 2013

Standing in Wrongful Death Cases: Who May Initiate a Lawsuit?

by Berniard Law Firm

The term wrongful death refers to cases in which the decedent’s death was the fault of another. The other “person” could be one individual, such as someone driving under the influence of drugs or alcohol; it could also be a group of people or a business, such as the decedent’s employers or the manufacturers of a product whose defect or malfunctioning resulted in the user’s death. Wrongful death lawsuits may be initiated by family members of the decedent in order to obtain monetary benefits, such as for wages the decedent would have earned if he were still alive. Before filing a lawsuit, it is important to establish whether the person bringing the case has standing to do so. Standing indicates that the moving party has a sufficient connection to or is substantially affected by the harm being alleged, in this case the wrongful death of the victim.

In order to bring a wrongful death lawsuit, the plaintiff must have standing as a close relative of the deceased. The first family members who would be favored to have standing would be the decedent’s spouse and children. Louisiana Civil Code states that the surviving mother or father of the deceased may only have standing if there is no spouse or child surviving the decedent. If the deceased had no surviving parents, spouse or child, then his or her brothers or sisters would have standing to bring a lawsuit. Finally, if the decedent had no surviving siblings, spouse, parents or children, then his or her grandparents would have standing to file a wrongful death claim. Note that a mother or father who abandoned the decedent while he or she was still a minor would not have standing.

Though children are the first to have standing in a wrongful death case, standing may be challenged when the parentage is called into question. A Louisiana court stated that “a filiation action inherently accompanies an illegitimate child’s wrongful death and survival action.” Thus, children born out of wedlock, that is, to parents who were not married at the time of birth, must be able to prove paternity in order to have standing. According to Louisiana law, a husband will be presumed to be the parent of a child when the child is born within 300 days of the termination of a marriage (300 being considered the maximum possible time of gestation). Outside of this exception, proceedings must be conducted to establish standing.

October 15, 2013

Landlord Out of Pocket $14k Due to the Negligence of His Repairman

by Berniard Law Firm

Under Louisiana law, if the owner of a defective ‘thing’ knew, or in the exercise of reasonable care, should have known of the ruin, vice, or defect of the ‘thing,’ if the damage could have been prevented by exercising reasonable care, and if the owner failed to exercise such reasonable care, he is liable for the unintentional harm caused by his negligence. Negligence is a failure to exercise the care that a reasonably prudent person would exercise in similar circumstances.

In a recent case, sheetrock from the kitchen ceiling of a rental house owned by John F. Luck in Shreveport, LA, struck two visitors, knocking them to the floor. The injured pair brought the suit alleging that the negligent home owner, Luck, should have been aware of the condition of the ceiling in the rental home. The victims argued that since Luck should have been aware of the decrepit ceiling, he could have fixed the ceiling, thereby preventing the injuries now sustained by the pair. The court of appeals ultimately affirmed the decision of the district court, holding Luck liable for the personal injuries through a negligence theory of vicarious liability known as respondeat superior.

Respondeat superior is a legal doctrine which holds the employer liable for the actions of his employees, when performed within the course of their employment. In this case, Luck’s maintenance supervisor, Rodney Fleckenstein, worked for Luck as a repairman for almost five years and eight months. Fleckenstein had gone into the rental home on three separate occasions prior to the collapsing sheetrock incident, to repair and replace various utilities within the home. Both the district court and court of appeals found that Luck should have known of the disrepair of the kitchen ceiling through Fleckenstein’s casual observation of the home when he went in to do his repairs.

October 11, 2013

Procedure Needs to Be Followed in Personal Injury Cases

by Berniard Law Firm

When a legal issue goes to trial attorneys on both sides must abide by the rules of evidence. These rules pertain to how witnesses may be questioned and which evidence may be admitted. An error in any of these areas may lead to an objection which may be upheld by the judge. However, sometimes the judge allows evidence that the Court of Appeal finds inappropriate. When this happens, the entire case may have to start over again. This is the situation for one case arising out of an accident in Lafayette.

In Cawthorne v. Fogelman, an accident occurred when the defendant turned right out of a drive and into the road’s outer lane, but struck the plaintiff’s vehicle. The plaintiff suffered severe neck and back injuries as a result of the collision. This lawsuit was subsequently filed. According to court documents, the defendant checked the road before turning out of the drive, saw no oncoming cars in the lane he was turning into, and saw no vehicles in the inside lane with their blinker on. After hearing testimony from expert witnesses the jury found for the defendant.

On appeal to the Court of Appeal for the Third Circuit, the plaintiff asserted the trial court erred in allowing the defendant’s deposition to be admitted into evidence in place of the defendant’s live testimony. In other words, a written transcription of the defendant’s statements was made available to the jury, but the defendant was not physically present to be questioned by the plaintiff and to be seen and heard by the jury.

October 10, 2013

Medical Malpractice Cases Require Timely Legal Action

by Berniard Law Firm

Unfortunately, medical malpractice happens all too often. Doctors misdiagnose conditions, prescribe wrong medications, and make surgical errors. Victims of this negligence can face serious injuries including permanent disability requiring long-term care. In the worst cases, the victim dies. While these harms are physically painful, they can also be emotionally trying, throwing a victim into a tailspin of depression. Making matters worse, financial consequences bear down on these victims in the form of costly medical bills. Fortunately, a medical malpractice lawsuit can help these victims obtain compensation for their damages, but only if filed in a timely matter. However, strict rules exist as to how quickly such a suit must be brought. A recent decision by the Court of Appeal for the Second Circuit in Louisiana addressed this issue.

In Davidson v. Glenwood Resolution Authority, Inc., a metal piece of a retractor was accidentally left inside a patient after a 2006 abdominal surgery. However, at the time, neither the doctor nor the patient was aware of the foreign object being left inside the patient. Three months after the surgery, the patient began to feel something sharp in his abdomen that he knew should not have been there. A month after that, the patient had a CT scan after an auto accident which showed the presence of metal within the patient. The doctor who conducted the original surgery was contacted and he, in turn, contacted the patient, but the patient said he felt fine and he did not want to mess with whatever was problematic. It was not until two years later, in 2008, after an MRI was conducted that the patient actually discovered the presence of the metal object. Within a year of that test, in 2009, the patient filed a medical malpractice lawsuit.

In Louisiana, a medical malpractice lawsuit must be brought within one year of the alleged act or within one year from the date of discovery of the act, omission, or neglect. (La. R.S. 9:5628(A)) This means that once the victim obtains actual or constructive notice of the harmful act, the one year clock starts running. Constructive knowledge exists when facts indicate to a reasonable person that he is a victim of a tort. As interpreted by the Supreme Court in Campo, constructive knowledge is whatever is enough to excite attention and puts the plaintiff on guard and calls for inquiry.

October 9, 2013

Louisiana Wrongful Death Summary Judgment Overturned on Appeal

by Berniard Law Firm

If you have ever been selected to serve as a juror, you know that the jury’s job in a trial is to hear the facts and arguments presented by both parties to a case and to make an informed judgment based on the evidence. In criminal cases, the jury is asked to assess the state or federal government’s case against the defendant and determine his guilt or innocence. In civil cases, the jury evaluates a dispute between two parties, and determines whether one party must compensate the other for damages caused.

Before a civil lawsuit reaches the trial stage, either party to the case may file a motion for summary judgment. Summary judgment is when the court dismisses the case and rules in favor of the moving party (the party making the motion), on the grounds that there were no triable issues of material fact presented. “No triable issues” means that all reasonable-minded persons would come to the same conclusion after weighing the evidence presented.

A verdict for summary judgment can be hard to overcome on an appeal, as the court will be reviewing the facts in the light most favorable to the party opposing the appeal. Additionally, Louisiana legislature expressly favors the summary judgment procedure, as it saves the time and cost of a jury trial. Nonetheless, there are certain types of cases that by their nature should not be settled by summary judgment. An example of such a case would be Bryan and Madison Manis’ wrongful death lawsuit, in which the Louisiana Fifth Circuit of Appeal overruled a verdict for summary judgment in favor of the defendants.

October 8, 2013

Prescription: Survival Actions, Interruptions and Statutory Interpretations

by Berniard Law Firm

The word prescription normally conjures up images of medicine and the slips of paper sometimes given to patients as they leave the doctor’s office. One thing people may be unaware of is that prescription carries an additional legal meaning in the state of Louisiana. In the legal field, prescription refers to the amount time within which a person may file a lawsuit. The beginning of this time period usually begins when the event associated with the claim occurred. In many states this limit is referred to as the ‘statute of limitations,’ but here in Louisiana that rule is called ‘prescription.’ One of the more confusing areas of prescription deals with whether or not the time limitation can be interrupted or extended.

La. C.C. art. 3462 sheds some light on this, and provides that “prescription is interrupted when . . . the obligee commences action against the obligor, in a court of competent jurisdiction.” This means that if someone brings a claim against a party, then the prescription period of any subsequent action against that same party is considered to have been interrupted. Further, La. C.C. art. 3463 provides that “[a]n interruption of prescription…continues as long as the (first) suit is pending.” This means that the interruption will continue until the prior suit is resolved. This seems clear enough, but another part of the Louisiana statute comes into play and places constraints on when an action is considered to have been interrupted. La. C.C. art. 3463 provides that “interruption is considered never to have occurred if the plaintiff abandons, voluntarily dismisses the action at any time either before the defendant has made any appearance of record or thereafter, or fails to prosecute the suit at the trial.”

Read altogether the Louisiana statutes seem to be saying that the filing of a lawsuit against a defendant will interrupt the prescription period of any subsequent actions against the same defendant, unless the first suit is voluntarily dismissed. If the first suit is voluntarily dismissed, then the second action’s prescription period will be considered to have never been interrupted, and will therefore prescribe within the normal allotted prescription period.

October 7, 2013

City of Shreveport’s Actions Inspected by Judge in Fire Department Tragedy

by Berniard Law Firm

On February 21, 2009, Shreveport Fire Department Chief Tommy Adams fell from the top of a ladder while preparing a fire truck for service for the Gemini Mardi Gras parade. As a result, Tommy Adams sustained severe trauma to his spinal column and died ten months after the date of the incident. Chief Adams’ wife, Traci Lee Adams, filed suit on behalf of herself and her two minor children seeking compensation for her husband’s accident-related damages and contending that the City’s response to her husband’s injuries fell below the reasonable standard of care that should have been provided.

In response to Mrs. Adams’ petition, the City of Shreveport filed an exception of no cause of action and argued that the Louisiana Worker’s Compensation Act provided the exclusive remedy. The trial court granted the City’s exception, but allowed Mrs. Adams thirty days to amend her original petition. As a result Mrs. Adams submitted an amended petition stating that the City knew or should have known that Chief Adams’ injuries were substantially certain to occur as a result of the City’s actions. Ultimately, the City filed a motion for summary judgment and the trial court judge granted the City’s motion finding that neither the pleadings, depositions, nor briefs supported an exception to the exclusive remedies provided by the Louisiana Worker’s Compensation Act.

The case went up on appeal.