Civil Matter

September 5, 2013

Medical Malpractice Cap Reviewed By Louisiana Third Circuit Court of Appeal

Recently, the Louisiana Third Circuit Court of Appeal considered the assertion that the Medical Malpractice Act’s limitation of recovery or the “cap” contained within La.R.S. 40:1299.42(B) is unconstitutional.

At trial, the court determined that the Louisiana statute La.R.S. 40:1299.47(B) was unconstitutional “as violative of the equal protection and adequate remedy guarantees of the Louisiana constitution.” Moreover, the trial court relied upon the opinion of the Louisiana Third Circuit Court of Appeal in a recent case that held that the cap of La.R.S. 40:1299.42(B) was unconstitutional “to the extent it includes nurse practitioners within its ambit, [and] violates the equal protection and adequate remedy guarantees of the Louisiana Constitution …” Subsequently, however, the Louisiana Supreme Court reversed that very aspect of the Court of Appeal’s ruling, finding the medical malpractice cap unconstitutional. Rather, the Louisiana Supreme Court declared “the MMA’s cap described in La.R.S. 40:1299.42(B) is constitutional as it applies to all qualified health care providers, including nurse practitioners.

As such, the subsequent ruling of the Louisiana Supreme Court vacated the prior judgment of the trial court and the trial court was then directed to reconsider its ruling in light of the changes in the recent case law precedent. Ultimately, the trial court found La.R.S. 40:1299.42(B) constitutional and plaintiffs appealed the trial court’s decision.

August 27, 2013

Accident at Hospital Highlights Importance of Causality Proof (But-For Test)

by Berniard Law Firm

In personal injury cases, there are a number of elements that must be met in order to be successful in a lawsuit. First, a plaintiff must show that they were owed a duty of care by the other party. Second, they must show that there was a breach of that duty of care. Third, there must be actual harm resulting from the breach of that duty of care. Fourth, and most importantly, the harm must be caused by the breaching party. Causation may seem easy to understand on its face, but in lawsuits it can become a very complex matter where the entire result can hinge on this very element.

Typically, the plaintiff carries the burden to prove that her injuries are actually caused by the defendant. One usual method of establishing factual causation is the “but-for” test. The test inquires: ‘but for’ defendant’s actions, would the harm to the plaintiff have occurred?” If the answer is “no,” then the plaintiff fails to prove causation, because the defendant’s act is not necessary to cause her injuries.

Let’s consider the following scenario: a lady went to a hospital to visit her grandson. She sat on a sofa bed while waiting in the emergency room. Unfortunately, because the springs that hold the supporting tarp for the sofa bed were missing, the lady fell through the sofa bed onto the floor. As a result, she suffered severe back injuries that ultimately required surgeries.

August 26, 2013

Litigation for Workplace Injury Requires Proper Naming of Defendants

by Berniard Law Firm

In Louisiana, the Third Circuit Court of Appeal upheld a summary judgment against plaintiff Louis Fox in a tort claim ensuing from a work-related injury at the Rodemacher Power Station. On August 12, 2008, Louis Fox, while working inside a cyclone tower at the Rodemacher Power Station, sustained an injury when an object fell from above, striking him in the head and neck area. At the time of the accident, CLECO Power L.L.C. is the owner of the Rodemacher Power Station. Shaw had a contract with CLECO Power L.L.C.in furtherance of the project known as Rodemacher Unit 3. Shaw subcontracted a portion of the work to Foster Wheeler CLECO Power while Mr. Fox was employed by Foster Wheeler Constructors, Inc. as a refractory gunner. Mr. Fox and his wife filed a petition for personal injuries against several defendants: Shaw, CLECO Power, L.L.C., CLECO Corporation, Rodemacher Power Station, etc. CLECO Power and Shaw filed a motion for summary judgment requesting the court find that CLECO Power and Shaw are the statutory employers of Mr. Fox and thus immune from any tort claim brought by him.

If CLECO Power and Shaw were statutory employers of Mr. Fox, it would render the issue of liability moot as workers’ compensation was Mr. Fox’s exclusive remedy against those two defendants. Therefore, the main question is, whether CLECO Power and Shaw were statutory employers of Mr. Fox? There are two instances in which a statutory relationship will be found, thus holding the statutory employer only liable for workers’ compensation benefits: (1) being a principal in the middle of two contracts, referred to as the “two-contract” theory, and (2) the existence of a written contract recognizing the principal as the statutory employer. In addition, the “two-contract” theory “applies when: (1) the principal enters into a contract with a third party; (2) pursuant to that contract, work must be performed; and (3) in order for the principal to fulfill its contractual obligation to perform the work, the principal enters into a subcontract for all or part of the work performed.

However, in Mr. Fox’s case, the existence of a written contract is lacking. In other words, CLECO Power and Shaw’s summary judgment motion was based on “two-contract” theory. Firstly, there is no question the first two requirements for application of the “two-contract” theory were met. Shaw entered into a contract with CLECO Power and, pursuant to that general contract, work was performed. There is no question the first two requirements for application of the “two-contract” theory were met. Regarding the last element, Shaw did not subcontract directly with Foster Wheele and it was Stone who signed directly with Foster Wheele. The court agreed with the defendants that Stone was acting on behalf and for the benefit of Shaw, as the principal of Stone, thus entitling Shaw to classification as the statutory employer of Foster Wheeler’s direct employee, Louis Fox. The trial court did not err in granting Shaw and CLECO Power’s motion for summary judgment.

August 25, 2013

Man Representing Himself Fails to File Case Against Sheriff’s Office Properly

by Berniard Law Firm

The following is a case in which the plaintiff, Nolan J. Benson, Sr., is representing himself. In legalese, he would be referred to as a plaintiff ‘in proper person’, or more commonly, as a pro se plaintiff.

Sometimes, plaintiffs cannot obtain attorneys to represent them, either because the plaintiff cannot afford an attorney, chooses not to hire an attorney, or the attorney chooses not to take on the plaintiff’s case. If the plaintiff still wishes to continue litigating his case, he may do so without the aid of an attorney. Usually, plaintiffs do not win these cases either because they do not follow proper protocol/ procedure or they do not conduct themselves ethically.

In this case, Nolan J. Benson was allegedly involved in some sort of quarrel with the deputies of the Avoyelles Parish Sheriff’s Office who had just arrested, or were in the process of arresting, Mr. Benson’s son. Exactly one year after that alleged incident, Mr. Benson, Sr., filed a petition in proper person, complaining that he had been wrongfully arrested, detained, and tased during the quarrel with the deputies of the Sheriff’s Office.

August 23, 2013

Injury Case Shows the Ultimate Impact Summary Judgment Can Make

by Berniard Law Firm

In a typical case, either party can move for summary judgment. The defendant can move for summary judgment after the plaintiff files the complaint. The plaintiff can move for summary judgment after the defendant has answered the plaintiff’s complaint.

Summary judgment is a common procedural occurrence within civil and criminal trials. The purpose of summary judgment is “to secure the just, speedy, and inexpensive determination” of actions. A party is granted summary judgment when there is no genuine issue of material fact. In other words, a party is granted summary judgment if the court finds that no reasonable jury would ever find in favor of the non-movant (the party that is not moving for summary judgment) based upon the facts in the record. When it is beyond a reasonable doubt that the movant is entitled to summary judgment, summary judgment is granted and the case never reaches a jury. However, if there is even the slightest chance that a jury could find for the non-movant, summary judgment is not granted and litigation continues until a jury determines who should win the case.

In this particular case, Ricky Whittington Jr., was rear-ended by an eighteen-wheel tractor trailer rig in the Parish of Rapides on June 2, 2009. He sustained extensive injuries from this accident and had to go through back surgery as a result. Mr. Whittington filed suit against the operator of the eighteen-wheel tractor, the operator’s employer, and the employer’s insurer, QBE Specialty Insurance Company (“QBE”). In addition, he also named General Insurance Company of America (“GICA”) as the fourth defendant. The issue on appeal is whether the trial court erred in granting summary judgment to the fourth defendant, GICA.

August 22, 2013

No Relief for Post-Op Plaintiff Who Could Not Prove Standard of Care

by Berniard Law Firm

When a healthcare provider is involved in an accident that harms a patient, the injured party can seek relief in court. But a medical malpractice plaintiff must be able to show the standard of care that applies to the particular provider in question. In Blood v. Southwest Medical Center, a recent case arising out of Lafayette, Louisiana, one unfortunate plaintiff learned this lesson the hard way.

Hershel Blood was a patient in the post-operative care of Regional Medical Center of Acadiana (“RMCA”) when two nurses moved him from his hospital bed to a reclining surgical chair. Just after they placed the plaintiff in the chair, Nurse Rachelle Sorlie attempted to recline it to the first position. But instead of reclining just slightly, the chair suddenly snapped backwards, abruptly extending much farther than the nurse intended.

The plaintiff claimed that this sudden motion caused him to suffer permanent back injuries. He complained to the Louisiana Patient’s Compensation Fund, and a Medical Review Panel ruled in RMCA’s favor, finding that no evidence indicated that the hospital improperly inspected or operated the surgical chair.

August 21, 2013

Exposure to Toxic Chemicals Leads to Louisiana Resident’s Appeal

by Berniard Law Firm

The United States of America was founded on a Constitution that still serves as the supreme law of the land in our country today. Each state created its own constitution to be the supreme law throughout the state and second only to the Constitution of the United States. Many claims are made throughout the United States are based on the constitutionality of particular laws or statutes enacted by different states. However, very few of these challenges will ever make it to the Supreme Court of the United States where a final decision can be made on the the constitutionality of a challenged law. For an appellate court to rule on a constitutional challenge, it must have been “properly raised and pleaded in the trial court below.” This means that the sole issue of the case at bar must be a determination on the constitutionality of a particular state action.

The Fifth Circuit Court of Appeal in Louisiana heard a case where this exact issue and rule was raised. It arose from a claim made by Mr. Vincent E. Johnson against Motiva Enterprises, LLC (“Motiva”) for damages arising out of his exposure to toxic chemicals while working at a Motiva refinery in Norco, LA. The constitutional issue arose because Motiva had protected themselves from being sued by the plaintiff because of a contract with its direct employers. Therefore, this case turned more onto the issue of the validity of this contractual agreement between and employer (Motiva) and employee (Mr. Johsnon).

The trial court found that the contract was valid and refused to deliver an opinion on the constitutionality issue of the Louisiana statute allowing for this particular contract. It is a known fact that courts shy away from determining the constitutionality of legislation unless the resolution of the constitutional issue is absolutely essential to the decision of the case.

August 20, 2013

Court of Appeals Increases Damages for Lost Wages

by Berniard Law Firm

The jury is the ultimate trier of fact. In our democratic society, we place high value on the idea of being judged by a panel of your peers. In addition, it allows the accused to be judged by the prevailing community standards. The jury is supposed to be more in touch with the average person than the average judge would be. Generally, since the jury is held is such high regard, the court of appeals is hesitant to overturn any of their decisions. The court explained this notion in a case arising from Cameron Parish, Louisiana.

In that case, a truck driver swerved to avoid a sign placed there by the Department of Transportation and Development. The sign was too far on to the road, the truck driver did not notice the misplacement fast enough, and had to swerve to avoid hitting the sign. When he swerved, he lost control and ended up in a ditch that Hurricane Ike damaged. The truck flipped and, although the truck driver was not harmed upon the collision, he was stuck in the vehicle upside-down. After forty-five minutes of being pinned upside-down, the truck driver died of asphyxiation. His wife and three children sued the DOTD based on general damages, lost past and future wages, survival damages, and funeral expenses.

The lower court found that the DOTD was fifty percent at fault and the truck driver was also fifty percent at fault. As such, the lower court awarded damages that amounted to $700,000 in total. Fault determinations are extremely fact intensive, so the lower court, as the trier of fact has broad abilities to make these determinations. As such, they are difficult to overturn in the court of appeals.

August 19, 2013

Appeal Dismissed Because of Late Payment, Abandonment

by Berniard Law Firm

In a recent case, Johnson v. University Medical Center in Lafayette, the Louisiana Court of Appeal for the Third Circuit reversed a trial court decision to dismiss a plaintiff’s case for abandonment due to her failure to timely pay the costs of appeal. The plaintiff in the case, Lela Johnson, originally filed a medical malpractice action against both the University Medical Center in Lafayette and the Medical Center of Louisiana in New Orleans. The case has proceeded through courts since the original petition for damages was filed on March 15, 2006.

Both defendants, whose principal places of business correspond with the last word of their names, are operated by the State of Louisiana. After a dismissal of her original suit by the Supreme Court of Louisiana due to her failure to properly notify the defendants of the action because she had requested service of process on individuals who had not been individuals who were authorized to accept such information on behalf of the defendants, Ms. Johnson’s decided to re-file the original suit in trial court. Once again, Ms. Johnson’s service of process was held insufficient by the trial court and she moved to appeal that judgment.

Service of process is a legal term of art which essentially describes the process in which plaintiffs notify defendants of a pending suit. When the plaintiff files a complaint with a court, any defendant in the case must be given notice of the pending case and an opportunity to be heard and defend themselves against the complaint. This requirement is a basic constitutional right conferred upon everyone who has been accused of some wrongdoing and it is the accuser’s responsibility to ensure that the constitutional right of the accused is protected. The importance of service of process to our legal system and the rights of defendants makes it necessary for trial courts to dismiss actions, without regard to the merits of the plaintiff’s claims, if service of process is deficient in some way or another.

August 18, 2013

Injury at Store Leads to Case Involving Past, Present, Future Injuries

by Berniard Law Firm

While Ms. Jo Anna Savant shopped at Hobby Lobby in Lafayette, two large, seventeen-pound clocks fell from a wall display and struck her on the head. She filed a suit against Hobby Lobby, alleging negligence.

Negligence is a common law tort that requires the victim to prove that the defendant had a duty to the victim, that the defendant breached that duty, that the defendant’s negligent conduct was the cause of the harm to the victim, and that the victim was, in fact, harmed. In this case, Ms. Jo Anna Savant was able to prove that Hobby Lobby was negligent. Even Hobby Lobby’s store manager testified that the manner in which the clocks were suspended on the display was unsafe.

The jury awarded Ms. Savant damages for past, present, and future physical pain and suffering, past lost wages and past medical expenses. The jury also awarded Ms. Savant’s children damages for loss of consortium because Ms. Savant was unable to spend quality time with them after she sustained her injuries. Loss of consortium is the deprivation of the benefits of a family relationship due to injuries caused by the defendant. Awards to children for loss of consortium compensate them for “loss of love and affection, society and companionship, aid and assistance, comfort and felicity.”