Articles Posted in Criminal Matter

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According to state police, and reports in LaPlace’s L’Observateur, two men died and two others were injured in a car accident a little over a month ago on Louisiana Highway 3127 in Wallace.

At about 5:14 p.m. on Friday, September 24th, James Davis and Kerry Rodrigue of Plaquemine were killed when the Chevy Silverado they were riding in collided with an unoccupied, parked vehicle. Neither of the men were wearing a seat belt. Colby Landry, the driver of the truck, and front passenger Reggie Daigle sustained moderate injuries, and consequently, were wearing seat belts. According to investigators, Landry was trying to pass another vehicle when he lost control of the truck and crashed into the other vehicle, which was parked on the shoulder of the highway. Speed appears to be a factor in the crash.

This tragic accident brings questions to mind as to what liability attaches to a driver who acts negligently to bring about the death of his passengers? Also, in Louisiana, is liability reduced at all if the two passengers who were negligent themselves in not wearing their seat belts?

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In Louisiana, a study shows that crash rates continue to rise for drivers under the age of 25 despite outlawing text messaging while driving. In three other states, crash rates were shown to have actually increased after the enactment of anti-texting laws, and, in all four states researched, there were no reductions in crashes after the enactment of these laws.

The study, conducted by the Highway Loss Data Institute (HLDI), was carried out in Louisiana, California, Minnesota, and Washington. Researchers compared statistics of crashes before and after the texting bans were enacted in these states. The four states’ data was then compared to the states that do not have texting bans. The results were obviously not the expectation of lawmakers and has left many troubled by what can be done to counter the dangers technology is creating.

HLDI says that one possible explanation for the increasing negligence and rise in crash levels could be that people are continuing to text in spite of these laws.

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After having faced a significant heart-related scare and receiving a stent implant, many patients are now facing a rather unbelievable reality: it has been discovered that doctors across the nation have been performing unnecessary surgical procedures in order to financially benefit. Doctors, implanting the device intended to unblock clogged heart vessels, are now accused of recommending the procedure in order to bill private and government health insurers for unnecessary medical procedures. A stent is essentially a mesh tube that is inserted most commonly inside the heart and then expanded, using a small balloon to open blocked arteries that prevent blood flow to heart muscle. Despite the fact that stents are a medical breakthrough, it seems as though many individuals are having these devices implanted without having any need for them. While some might believe this does not have any significant drawbacks, the reality is that the procedure implanting them, and the devices themselves, expose patients to a risk of future medical complications due to the fact they have an unnecessary foreign device inserted into their body.

As a result of these discoveries, numerous doctors all over the United States are currently being investigated or indicted, even sentenced to prison for performing unnecessary procedures on individuals. The main criminal charge these medical professionals face is health care fraud. Many times, this situation would go unnoticed if it were not for the hundreds of patient complaints pouring into the hospital boards, motivating investigations into why the doctors have performed so many of these specific procedures on individuals. One investigation of Dr. Mark Midei, of Maryland, led the Maryland Medical Board to hold that Medei was involved in “gross overutilization of health care services… and willfully making a false report or record in the practice of medicine.” One statistic in particular leads some to believe that Dr. Midei is not alone in this practice: the number of stent procedures has almost tripled within the past ten years. What’s more, the number of patients receiving this type of implant has increased steadily every year since 1993, and continues to rise.

Additionally, in Lafayette, Louisiana, in 2009, Dr. Mehmood Petel, formerly of Our Lady of Lourdes Hospital and Lafayette General Hospital in Louisiana, was convicted of 51 counts of fraudulent medical procedures and received the maximum sentence of ten years in a federal state penitentiary. Over 75 patients charged Dr. Patel with fraud and of performing unnecessary heart stent procedures on them. Testifying experts, as well as the Department of Justice, revealed that the majority of the patients who received such implant had little or no disease. Patel was also found to have falsified patient symptoms in medical records, including specific symptoms such as heart pain. The amount of money that Patel billed insurers was astronomical; between 1999-2003, Patel billed Medicare and provate insurance companies more than $3 million, pocketing more than $500,000.

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In 2009, over 800 people were killed in motor vehicle crashes in Louisiana. An additional 73,000 persons were injured in car crashes. The applicability of these statistics are obvious: you and too many other drivers and passengers are at risk every time you get on the road in Louisiana. However, there are steps you can take to protect yourself each time you get in a vehicle that can increase your safety and limit the effects of a crash on your health and the health of others in the car.

Sadly, almost 50% of fatal car crashes involve alcohol. A conviction for driving under the influence of drugs and/or alcohol results in a mandatory ignition interlock hardship license and additional penalties including, but not limited to, a permanent criminal record, 6 months in jail, $1,000 fine plus court costs, and losing your driver’s license for 90 days. Furthermore, after three misdemeanor DUI convictions, these charges become felonies. Felonies are even more serious than misdemeanors and involve harsher penalties. These very real criminal penalties pale in comparison to the financial and emotional hardships those who cause a serious accident while impaired will suffer.

While hazards like a drunk driver are, at times, nearly impossible to avoid, there are some things you can do to protect yourself and your passengers while you are driving. Efforts that will minimize your exposure to serious harm include, but are not limited to, driving the speed limit, wearing your seat belt, and, when appropriate, wearing a safety helmet. Safety helmets reduce the risk of death by 29% and the risk of fatal head injury by 40%. It is important that you make sure that you and all of your passengers are wearing your seat belts before you start driving because more than 65% of drivers who are killed in crashes were not wearing their safety belts. Young drivers and passengers are especially resistant to wearing seat belts. A Louisiana study shows that 14% of all high school students report that they rarely or never wear seat belts when riding with someone else. By making sure you and your teen wear your seat belts, you will be saving money not only through perks like those offered by car insurers but overall as a taxpayer. Louisiana residents spend almost $6 billion annually paying for car crashes, which comes out to about $2,000 per licensed driver. If all residents of this state were to make sure to secure their seatbelt before driving, a lot of money could be saved solely through practicing safe driving techniques.

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The Berniard Law Firm is proud to announce the release of an innovative new iPhone application that can be considered a must-have for individuals in the Gulf Coast. With extensive versatility and options including multiple contact points for our attorneys, as well as consistent site updates that will keep you informed of legal developments as they become available. Released October 26, we recommend everyone download the application in order to stay abreast of a variety of issues that relate to them.

In the works for some time, and with an update already planned, the Berniard Law Firm iPhone app puts law matters that are important to Louisiana residents in the palm of their hands. Constantly refreshing, with updates relating to our website, this application is an effort by our firm to allow our friends and clients quick access and up-to-date information for their daily lives. Whether using the application to send our firm a legal question or to call our offices, we strongly encourage anyone that wants an attorney and a wealth of legal information at your fingertips.

Specifically, the Berniard Law Firm Injury Attorney iPhone App provides users

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On Saturday, July 24, 2010, tragedy struck in East Feliciana Parish as a 9-year-old girl died in a car accident. Reports state that the young girl, Tobiya Kato, was killed when the car driven by her mother, Jamet Kato, veered off the road and flipped before coming to a rest on its roof in a wooded area. This tragic event serves as a reminder of the importance of all passengers wearing seatbelts, especially young children seated in the back of a vehicle.

According to reports, the young girl, whom was seated in the back seat, was thrown from the vehicle during the accident due to not wearing her seatbelt. Police noted that in addition to the 9-year old girl, three other children, ages 6, 5, and 2, were also in the back of the vehicle, not wearing seatbelts, when the accident occurred. However, Jamet Kato, along with a 12-year-old sitting in the front seat, were both wearing their seatbelts at the time and only suffered minor to moderate injuries in the crash.

The sheer number of deaths that could be prevented by properly buckling up in a vehicle are staggering. According to NHTSA’s study, in 2008 there were 25,351 accidents involving the death of passengers in the United States. Of those, 12,865, or 50.7%, passengers were not utilizing safety restraint devices, such as a seat belt or car seat for younger children. The statistics for Louisiana residents are similarly shocking. Of the 669 passenger deaths in 2008, 59.2%, or roughly 400 passengers, died in accidents in which they were not buckled.

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In Pearl River on July 9, an 18-wheel truck blew out a tire and crossed over into oncoming traffic killing four people. The accident at the Louisiana/Mississippi state line occurred when the driver of the semi was driving northbound on I-59 and lost control of the vehicle after the tire blew out. The semi crossed the center median, and in what state police describe as an almost head on collision, the semi collided into a Dodge Ram pickup and led to both vehicles sliding off the road. While all four individuals in the truck were killed, the driver of the semi suffered minor to moderate injuries. The driver of the semi was from Montgomery, Texas and the four passengers in the Dodge Ram pickup were from Carriere, Mississippi. For his part in the accident, the driver of the semi was charged with careless operation and four counts of negligent homicide.

It is important to know that while negligent homicide is a criminal charge, suit may also be filed under a wrongful death cause of action for the four victims that were killed in the accident. Historically under common law, wrongful death was not available and only criminal law was an option. Under statutory law however, a person can be held responsible in civil court in addition to criminal court for wrongful death. Wrongful death statutes provide a legal remedy for wrongfully causing the death of another human being. The applicable Louisiana Civil Code wrongful death statute is under Book 3, Title 5, Chapter 3, Article 2315.2 and states, “If a person dies due to the fault of another, suit may be brought […] to recover damages which they sustained as a result of the death.”

In civil court, the basis for wrongful death is negligence. In a case of negligence, the plaintiff must prove a duty to conform to a standard of conduct, a breach of that duty, that the breach was the actual and proximate cause of the injury, and damages. If a claim is brought in negligence, the driver is held to a “reasonable person” standard of care. The question to ask is, “Would a reasonable person behave this way under the same or similar circumstances?”

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In the town of Duson, a mother of a child slain in a car accident is frustrated and discouraged by the legal system after years of delay in the prosecution of the responsible driver. What’s more, there now remains the possibility that charges may be lessened against the man charged in her son’s death. This situation is an extremely unfortunate one but does illustrate the differences between civil and criminal litigation, as well as the standards involved.

21-year-old Shawn Lancon was killed when the driver of the vehicle in which he was a passenger drove their vehicle into oncoming traffic while attempting to make a left turn. The driver, the man charged in Lancon’s death, was under the influence of alcohol and drugs at the time of the accident. This accident took place in 2007. Three years later, delays in going to trial are still anticipated and now the defense is trying to lessen the criminal charges from vehicular homocide to a first-offense OWI. The OWI charge comes with considerably less jail-time, leading to the anger being expressed in the community.

The reasons for all of these issues are varying. The defense is attempting to lessen the criminal charges by insisting that the blood alcohol level is not high enough for a vehicular homicide, and also that the positive drug test should be excluded because the drugs detected by the drug test does not prove that the drugs were “active” at the time of the accident. Procedural delay is slowing the calendar for trial, due to courts having to postpone cases in Lafayette, Acadia, and Vermillion parishes due to a legal dispute within the court system regarding the allotment of judges.

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John C. Elliott, 26, of Zavalla, Texas was driving a 1999 GMC pickup east on LA.8 and he lost control while passing another vehicle in a curve. He collided with several trees before the truck stopped on La. 8 facing the other direction. Elliot was injured seriously and taken to Lake Charles Memorial Hospital. There were two passengers in the car.

As reported in the Leesville Daily Leader

His two passengers,19-year-old Susie Dixon and an infant, both of Zavalla, Texas, suffered minor injuries and were transported to Byrd Regional Hospital.

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In certain situations, a person that witnessed another get physically injured has a legal claim against the person that caused the physical injury—even when the witness suffered only mental anguish, without any direct physical injury. The rule allowing this recovery is known as the bystander recovery rule.

Louisiana’s bystander recovery is governed by Louisiana Civil Code Article 2315.6 and the Louisiana Supreme Court case of Trahan v. McManus. As stated in Trahan, the bystander recovery rule does not “compensate for the anguish and distress that normally accompany an injury to a loved one under all circumstances.” Rather, the bystander recovery rule is more limited and has four requirements in order for a bystander to recover damages for his mental anguish from witnessing another’s injuries.

Those four elements are:

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