Civil Matter

February 28, 2011

Court Outlines Responsibilities of Dockowner in Employee Injury

A gangway is a pathway that connects the ship to the dock at which it has stopped. It is the means by which the crew and cargo of a ship are moved onto and off of the ship. Usually ships have detachable gangways that the ship crew put on the side of the ship when the ship is docked. Other times, docks have policies that require the ships to use gangways that are provided by the dock owner. As in any other legal field, the use of gangways are subject to rules of negligence and duties of care. The question in a recent case, Landers v. Bollinger Amelia Repair, was whether a dock owner was liable for a gangway provided to a ship under the stated policy of the dock owner that all ships must use gangways provided by the dock.

On June 12, 2006, the M/V Roseanna docked on the Bollinger Amelia Repair (BAR) dock. The reason for docking there was that the Roseanna’s hull had been breached, and it needed repair. The Roseanna had a gangway on its ship, but it was full of cargo and could not be used to access the dock. In any case, BAR had a policy of requiring all docked ships to use a BAR provided gangway. Thus, Landers, an employee of the Roseanna, and another Roseanna employee got a gangway from BAR and installed it.

The gangway was inspected by a Roseanna employee and was found to be in good condition. The gangway was used many times that day. The crew of the Roseanna discovered that the hull of the ship could be fixed without the aid of BAR and proceeded to do so. At the end of its use, the gangway was removed by Landers and another member of the Roseanna crew. Upon removal, the gangway sprung up hitting Landers in the back and causing injury. Subsequently, Landers brought suit against BAR arguing that due to BAR’s stated policy of requiring the use of BAR gangways, BAR was liable for the injury caused to him under general Maritime negligence law.

February 27, 2011

Court Discusses Prescriptive Period in Medical Malpractice Case

by Berniard Law Firm

Regular readers of this blog are no doubt aware that the Louisiana Medical Malpractice Act requires that all “claims against healthcare providers be reviewed or ‘filtered’ through a medical review panel before proceeding to any other court.” Also, medical malpractice suits are subject to a period of prescription — that is, the action must be filed within a certain period of time following the incident. La. R.S. 9:5628 establishes that this time period is one year from the negligent act or the date of its discovery, with the added limitation that the discovery extension is inapplicable after three years. State statute also specifically addresses how the medical review panel’s review of the case affects the prescriptive period. According to La. R.S. 40:1299.47(B), the running of the prescriptive period is suspended by the medical review panel’s proceedings until the panel’s decision is communicated to the plaintiff. In effect, the time required by the panel to review the case and issue a finding does not “count against” the plaintiff when determining the latest point at which the law permits him or her to file suit.

The plaintiff in the recent case of Blake v. Maley saw the dismissal of her suit due to her failure to file the action before the prescription period expired. Beverly Blake filed a request for a medical review panel on June 2, 2004. The request alleged medical malpractice against Dr. Warren Maley and the Willis Knighton Medical Center in Dr. Maley’s misdiagnosis of a fatal drug reaction suffered by her husband, Barry, who died on January 31, 2004. The medical review panel rendered a unanimous decision in favor of the defendants on May 15, 2007 and mailed the decision letter to Blake on May 25, 2007. Blake filed suit on November 3, 2009. In response to Dr. Maley’s subsequently filing an exception of prescription due to the delay, Blake responded that she was mentally incapable of filing the claim in a timely manner because she was severely depressed during the month of July, 2009. The trial court granted Dr. Maley’s exception and dismissed Blake’s suit. On appeal, the Second Circuit noted that Blake “concede[d] that the date of the alleged malpractice occurred on June 22, 2003, when Barry Blake received the drug” that caused the fatal reaction. Thus, Blake’s request for medical review by the panel was timely, and her “cause of action was suspended by the medical review panel proceedings until the mailing of the opinion on May 27, 2007.” After that date, the court calculated, Blake had 90 days plus the additional 20 days left on her original one-year period to file her suit. Yet, Blake filed her suit on November 3, 2009, “nearly two years after the prescriptive period for filing suit had tolled and more than six years after Blake’s stated date of the act of malpractice.” Blake’s argument for additional tolling due to her mental condition did not move the court. Observing that Civil Code Article 3468 provides that “[p]rescription runs against absent persons and incompetents, including minors and interdicts, unless exception is established by legislation,” the court determined that no statutory exception was available and that, accordingly, Blake’s “claims have clearly prescribed.”

The Blake case demonstrates the courts’ strict adherence to the timing requirements contained in Louisiana’s prescription statutes. While a widow’s state of depression following the death of her spouse is entirely understandable, it is critical to remember that the law demands swift action on the part of plaintiffs to initiate a lawsuit in medical malpractice cases.

February 26, 2011

Court Dissects Nursing Home Wrongful Death Case

by Berniard Law Firm

Many families in America have had to move their loved ones into a nursing home. Whether the reason is that they don’t have the room to care for the elder, they don’t have the time or money to provide adequate care, or their elder wishes to be in the nursing home, the decision to send them to a nursing home is a difficult one. Families may be concerned about the level and amount of care their elders receive at the nursing home. Continuous stories of abuse at nursing homes may also be a cause of concern for families. Nursing homes are given a high level of trust in the care of their patrons. When this level of trust is broken, the results can be horrific and unacceptable. The law provides for levels of care that nursing homes and medical practitioners have to live by. Once these levels of care are ignored, the law steps in to provide relief for families.

In Braud v. Woodland Village, LLC, the issue was whether the trial court instructed the jury to view the case under the right legal standard. Mr. Braud was diagnosed with Alzheimer’s disease and Pick’s dementia. This combination of diseases left Mr. Braud with many issues including an eating disorder and a higher chance of heart attack. Mr. Braud was moved to Woodland Village nursing home (Woodland). After his arrival at Woodland, Mr. Braud began showing signs of aggression towards staff. He was prescribed anti-psychotic medication as part of his treatment. After some time, Mrs. Braud reported to her husband’s physician that Mr. Braud seemed very zombie-like. The physician instructed the Woodland staff that they were to check on Mr. Braud every 15 minutes for signs of distress. This was carried on for some time. The method used to check on Mr. Braud was to look through the window into his room to observe whether he was under any distress. The Woodland staff were never instructed to enter the room to check close-up. On September 2, 2004, after a 45 minute period of no Woodland staff checking on Mr. Braud, he was found to be unresponsive. Woodland staff called paramedics who arrived to the scene to find that Mr. Braud was likely dead for at least an hour before their arrival from a heart attack. At no point did any member of the Woodland staff attempt CPR on Mr. Braud. Mr. Braud’s family (collectively “plaintiff”) filed suit against Woodland for wrongful death and were awarded an amount of $1,650,000. After trial, defendants argued that (1) there was no harm from alleged medication errors (2) there was no evidence that Mr. Braud could be resuscitated (3) the award of $1,650,000 was far above the $500,000 statutory amount (4) there was no evidence that Woodland caused the heart attack and (5) evidence presented proved, at most, that there was a loss of chance of life, not that there was wrongful death. Woodland lost on all of these claims except that the amount of damages was reduced to $500,000. Woodland appealed the decision stating that the trial court’s refusal to include jury instructions for the “loss of a chance of survival” claim was a grounds to reverse the jury decision. The plaintiff appealed the decision to reduce the damages to $500,000.

In Louisiana, pursuant to LA.Rev. Stat. Section 9:2794(A), to find medical malpractice, the plaintiff must establish the standard of care applicable to the charged physician, a violation by the physician of that standard of care, and a causal connection between the physician’s alleged negligence and the plaintiff’s injuries resulting therefrom. The standard attributed to the physician is the standard used in Louisiana, based on the type of field, locale, and community in which the physician or medical practitioner practices. Further, in order for an appellate court to overturn a fact-finder’s decision, a two-prong test is used to analyze the result. First, the appellate court must find from the record that a reasonable factual basis does not exist for the finding in the trial court. Second, the court must further determine that the record established that the finding is manifestly erroneous.

February 25, 2011

First Circuit of Louisiana Allows Lost Chance of Survival Tort Case to Go Forward and Specifies Burden of Proof

by Berniard Law Firm

In June 2010, the First Circuit of the State of Louisiana Court of Appeal reversed and remanded the case of Lena Hebert et al. v. Plaquemine Caring, L.L.C. due to a legal error committed by the Eighteenth Judicial District Court for Iberville Parish. This legal error proved to be a compelling element to the case and demonstrates why a competent attorney is highly important, especially in the case of a loss of a family member or other personal injury element.

The plaintiffs in this case are the survivors of the deceased, Mr. Morgan Hebert. He suffered a fractured hip from falling, but had a heart attack before he was able to undergo surgery. Upon leaving the hospital, Mr. Hebert was discharged to a long-term skilled nursing facility owned by the defendants, Plaquemine Caring, L.L.C. At the time Mr. Hebert was admitted to the nursing facility, he had been diagnosed with several serious conditions, which required him to be dependent upon a ventilator. On October 19, 2001, his family members found him cold and nonresponsive. They notified the staff at once and Mr. Hebert was pronounced dead from respiratory failure, cerebrovascular accident, and cervical neuropathy.

Mr. Hebert’s surviving spouse and children alleged that the defendants’ fault and negligence caused Mr. Hebert’s loss of a chance of survival. After a bench trial, the judge granted the defendant’s oral motion for involuntary dismissal, finding that plaintiffs had not established that a breach of the standard of care was a cause of Mr. Hebert’s death. The First Circuit Court of Appeal reversed and remanded because the trial court used the incorrect legal standard in granting defendant’s motion.

February 23, 2011

Disastrous Results for Plaintiffs that Wait Too Long to File Suit

by Berniard Law Firm

In Louisiana, there are certain steps that need to be taken in order to file a case for medical malpractice. In order to get a case to trial, a plaintiff must first submit a malpractice petition to a medical review board. The board reviews the facts surrounding a case and compares health care providers with a basic standard of care required for those practitioners in the locale in which they practice. If the board decides in favor of the defendants, the plaintiff can take the case to a judicial proceeding. A civil case in Louisiana must be filed or settled within a year.

This is the basic fall-back provision of how long a case can remain in effect. The legislature has the authority to add to this period for certain causes of action, in certain circumstances. For example, a medical malpractice claim must usually be filed within one year from the negligent treatment. However, if the plaintiff did not know that the medical malpractice occurred, the plaintiff can file within one year of discovering the malpractice. In any case, no claim can be filed more than three years after the alleged negligent treatment. Thus, even if the negligent treatment is not discoverable until four years have gone by, the plaintiff will be out of luck and the time for filing the suit will have expired.

The medical review board takes a great deal of time to make a decision. Thus, while the review board is making a determination, the one year prescription period is stopped to allow the board to make its decision without taking away the plaintiff’s time to bring a case. However, once the review board has made a decision, the plaintiff only has 90 days plus any additional time left over from the one year prescription period to file a claim.

February 22, 2011

Understanding Medical Malpractice and Legal Caps to Awards

by Berniard Law Firm

The Court of Appeals of Louisiana, Third Circuit, recently held the Medical Malpractice Act’s (MMA) award limitation unconstitutional when applied in violation of the Equal Protection clause of the 1974 Louisiana State Constitution. In Oliver v. Magnolia Clinic, a minor child was treated by a nurse practitioner who failed to identify tell-tale signs of neuroblastoma, a form of childhood cancer originating in the nerve tissue, and failed to refer the child for more specialized care in a timely manner. The matter was originally tried before a jury, which returned a verdict against the nurse practitioner in favor of the child’s family, for $6,000,000.00 in general damages. The MMA’s $500,000.00 award cap would have severely limited this verdict, to one-twelfth of the jury’s award. Plaintiffs filed a Petition for Declaratory Relief asserting the MMA is unconstitutional. The plaintiffs made a number of claims that the MMA cap violates the Louisiana State Constitution, including an argument based on the equal protection guarantee of La.Const. art. I, § 3. Because the court found the “equal protection” argument had merit, it did not address the other constitutional challenges raised by the plaintiffs.

The Louisiana Supreme Court made clear in Everett v. Goldman that unless a fundamental right is impacted or a separate or suspect classification is created, the legislature is constitutionally free to limit damage recoveries or to grant immunities from suit so long as it articulates a rational basis for the discriminatory treatment reasonably related to the governmental interest sought to be advanced. The Supreme Court has also held that the right of malpractice victims to sue for damages caused them by medical professionals does not involve a fundamental constitutional right, and requires only rational basis review. However, because the MMA, on its face, discriminates between classes of people based on physical attributes, the Louisiana Supreme Court held in Sibley II that the State must articulate more than a “rational basis” for the cap in cases involving severely or catastrophically injured victims of malpractice to avoid Article 1, §3’s constitutional bar to its enforcement.

In this case, the minor child is a severely injured victim of malpractice. She was injured as a baby and she will endure a lifetime of devastating and debilitating effects on her capacity to perform even basic human functions. The State failed to present evidence to the contrary. Thus, on appeal, the Court decided that “there simply is no rational reason why the most severely injured malpractice victims should be singled out to pay for special relief for a nurse practitioner who operated in derogation of her statutorily mandated duties.” The Court also concluded that “the cap, to the extent it includes nurse practitioners within its ambit, violates the equal protection guarantees of the Louisiana Constitution and La.R.S. 40:1299.41(A)(1), and, thus, is unconstitutional.” The Court reinstated the jury’s award of damages to the plaintiffs.

February 21, 2011

Transferable Rights and How They Pertain to a Lost Pregnancy

by Berniard Law Firm

Certain legal rights are transferable. If you owe a debt to some entity, upon your death, there is a chance that the entity will have some rights to your estate in order to satisfy your debt. Another example of a transferable right is a right of survival. If the victim in any circumstance has this right, upon the victim’s death, the right would be transferable to the victim’s family. The concept is relatively easy to understand but the situation gets complicated when the potential rights belong to an unborn fetus.

Throughout the country, different states have different interpretations of when a fetus becomes a person, and this has a big impact on what rights attach to protect the fetus. In Louisiana, the legislature has decided that an unborn fetus can in fact have rights against other persons or entities. However, Louisiana Civil Code article 26, which discusses a fetus’ rights, has some important limitations:

An unborn child shall be considered as a natural person for whatever relates to its interests from the moment of conception. If the child is born dead, it shall be considered never to have existed as a person, except for actions resulting from its wrongful death.

February 20, 2011

Increased Awards for Victims of Medical Malpractice

by Berniard Law Firm

Taylor Oliver was born on September 5, 2000. Shortly after birth, Taylor began experiencing health problems and was brought to the Magnolia Clinic, where she was treated exclusively by Susan Duhon on thirty-two occasions. Since Nurse Practitioners are required to collaborate with a physician, Duhon agreed to collaborate with Dr. Jennette Bergstedt, M.D., when providing primary care from the Magnolia Clinic. Taylor was in the clinic several times per month with various complaints, including repeat infections, persistent abdominal pain, nausea, vomiting, diarrhea and anemia. Despite her statutory duty to consult with a physician when needed, Ms. Duhon did not collaborate with Dr. Bergstedt concerning Taylor’s condition. Instead, she verbally reassured Taylor’s mother and prescribed over thirty medications to treat the child’s multiple complaints and observable symptoms. Additionally, Duhon stated that Taylor only needed to see Dr. Bergstedt in connection with admission to a hospital.

After no progress in her condition, Taylor’s mother eventually brought her to Women & Children’s Hospital in Lake Charles, where she was treated for the first time by Dr. Bergstedt. Taylor was diagnosed with neuroblastoma, a form of childhood cancer originating in the nerve tissue. The records maintained by the Magnolia Clinic revealed at approximately six months, Taylor developed severe bruising around the eyes – one of the signs of childhood neuroblastoma. If neuroblastoma is diagnosed within the first year of life, a child has a ninety percent chance of an event-free survival. Fortunately, Taylor survived the cancer, but the quality of her life has been severely diminished. The tumor advanced into her long bone, face, eyes, ears, skull and spine leading to a variety of physical defects and vision difficulties. What’s more, her bones have become weakened and brittle and she struggles each day to overcome learning disabilities.

As a result, the Olivers pursued medical malpractice claims and a jury returned a verdict against Duhon in favor of the Olivers, on Taylor’s behalf, for $6,000,000.00 in general damages, $629,728.24 in past medical expenses, and $3,358,828.00 in future medical expenses. The jury awarded Mr. Oliver $33,000.00 for loss of consortium and Ms. Oliver $200,000.00. Unfortunately, the MMA malpractice insurance coverage limited recoverable damages to $500,000.00 and the Olivers petitioned the court to have the MMA declared unconstitutional. A trial court found that the MMA was constitutional and subsequently reduced the jury’s award to conform to the limitation on general damage recovery and other restrictions of the Louisiana Medical Malpractice Act. The Olivers appealed the trial court’s decision and the appellate court found that the cap on general damage awards unconstitutionally disadvantages and discriminates against Taylor and her parents because of the severity of Taylor’s physical condition when compared to other malpractice victims who receive full recovery for their injuries.

February 19, 2011

Medical Malpractice Case Shows Importance of Laws, Standard of Care Governing Civil Suits

by Berniard Law Firm

Medical malpractice cases often turn on whether the plaintiff can establish that the health care provider breached the standard of care. Louisiana’s Medical Malpractice Act governs the conduct of health care professionals and mandates that the standard of care owed is that of the average member of the profession under similar circumstances. For the Act to apply, the defendant must be a qualified health care provider. Determining if this is a provider, and if the plaintiff has rights, are two of the most important factors that hiring a competent attorney can help guarantee when filing a case.

At issue in Ruby “Nell” Coleman vs. La Terre Physical Therapy, Inc., D/B/A Terrebonne Physical Therapy Clinic and Donald P. Kinnard, P.T., was the standard of care owed to patients of physical therapists. The plaintiff, Ruby Coleman, attended physical therapy with the defendants following a total knee replacement. Mrs. Coleman sustained injuries to her left knee during physical therapy exercises on a Continuous Passive Range of Motion machine. After it was discovered that Mrs. Coleman sustained a fracture to her knee, she underwent surgery. Afterwards, Coleman filed suit against the defendants, alleging that her injuries were caused by physical therapist Mr. Kinnard’s failure to obtain a complete medical history, which would have revealed she suffered from severe osteoporosis. In her suit, Coleman claimed that if Kinnard had done so, he would have administered a safer method of physical therapy. The defendants filed a motion for summary judgment, arguing that Coleman did not show the treatment fell below the applicable standard of care.

The trial court granted the defendants’ motion for summary judgment on the grounds that expert witness testimony supported the conclusion that the applicable standard of care was not breached. The plaintiff appealed, but the Louisiana Court of Appeal, First Circuit, affirmed the decision of the lower court. The Court cited Boudreaux v. Panger, in which the Louisiana Supreme Court held that a chiropractor, although not subject to the Medical Malpractice Act, is judged by the standard of his or her profession and, therefore, general negligence is not available as a basis of recovery. Therefore, Mrs. Coleman could not prove the elements of general negligence (i.e., duty, breach, causation, and damages) but was required to show that Mr. Kinnard failed to act in accordance with the standard of care practiced by his peers in the same locality under similar circumstances.

February 18, 2011

Lafayette Car Wreck Leads Court to Explore the Role of Plaintiff’s Pre-Existing Condition in Assessing Damages

by Berniard Law Firm

It is well settled in Louisiana law that “a tortfeasor takes his victim as he finds him and when a defendant’s tortious conduct aggravates a pre-existing condition, the defendant must compensate the victim for the full extent of the aggravation.” Lasha v. Olin Corp. In other words, when a person injures another, that person is responsible for all damages he caused the victim, even if the victim’s own unusual susceptibility contributed to the extent of the damages. This does not mean, however, that the injured plaintiff is relieved from the standard requirement of tying the damages he suffered to the defendant’s negligent action.

The Third Circuit Court of Appeal recently explored this concept in the case of Downing v. Miller. On October 15, 2007, Carolann Downing was involved in a car accident with John Miller in Lafayette. The incident occurred when Miller pulled out of a restaurant parking lot onto Congress Street and crashed into Downing’s vehicle. Downing did not suffer any physical injuries, but the experience aggravated her pre-existing bi-polar anxiety and obsessive-compulsive mental disorders. At trial, the parties stipulated Miller’s liability for the accident; the only issue in dispute was the amount of damages. Downing testified that she experienced mania followed by depression after the accident. Her symptoms included loss of sleep, loss of appetite, racing thoughts, nervousness, agitation, and anger. Thereafter, she became depressed and was unable to care for herself: she did not leave the house but instead stayed in bed and slept most of the time. However, on cross examination, Downing acknowledged that during her life she commonly experienced “periods of ups and downs” and that the episode following the accident with Miller was consistent with other “down” periods she had suffered in the past. Downing offered the testimony of Dr. Bob Winston, her treating physician, who confirmed that the accident exacerbated her mental issues. Dr. Winston further offered a summary of the behaviors Downing exhibited in the five-month period following the wreck, which he attributed to the stress she experienced in the event. Essentially, however, Dr. Winston’s summary showed that Downing steadily improved over time. The trial court awarded Downing $7,500 in damages. Dowling appealed, arguing that the trial court’s award was so low as to be “clearly wrong.”

As we have covered previously on this blog, the trial court enjoys “great discretion” in setting damages awards, and an appellate court may disturb a trial court’s award only on the showing of a clear abuse of discretion. Wainwright v. Fontenot. Although Dowling argued that the trial court abused its discretion in not fully taking into account the accident’s role in exacerbating her mental disorders, the Third Circuit found sufficient evidence that the trial court’s decision was well-grounded on the evidence presented at trial. For example, the court noted that Dr. Winston observed an increase in symptoms when Dowling’s aunt passed away and also on an occasion when she was nervous about an upcoming visit with her son. The trial court determined that Dowling’s response to the accident was similar to other aggravations triggered by ordinary events in her life; therefore, the accident did not cause an unusual result for Dowling for which she was entitled to a higher amount of compensation. The Third Circuit agreed with this reasoning in light of the evidence of Dowling’s mental health history and affirmed the award.