Litigation

January 31, 2023

Louisiana Court Finds Medical Malpractice Allegations Broad Enough to Proceed

Louisiana medical malpratice Medical procedures are never an enjoyable process. However, the process becomes even more miserable when recuperation is delayed because of infections. Darrin Coulon found himself in this situation after receiving shoulder surgery in 2011 from Dr. Mark Juneau at the West Bank Surgery Center. His recovery became even more difficult as he navigated the complex procedural requirements of filing a medical malpractice claim.

After receiving shoulder surgery, an infection required Coulon to undergo numerous additional surgeries and treatments. As a result, Coulon and his wife filed a Request for Medical Review Panel, alleging medical malpractice. Specifically, Coulon alleged that (1) the Surgery Center failed to develop, maintain, and enforce appropriate policies to prevent infections and (2) the Surgery Center was liable under a theory of respondeat superior for its employees’ actions. The Medical Review Panel found no evidence that the Surgery Center or doctor failed to meet the required standard of care or did not maintain appropriate policies and procedures to prevent infections.

Coulon and his wife subsequently filed a lawsuit for damages against the Surgery Center. In addition to the claims previously raised for the Medical Review Panel, they added that the Surgery Center failed to supervise and train the nurses who treated Coulon. The Surgery Center responded by filing a partial exception of prematurity, claiming that the claims that they failed to train and supervise the nurses were premature because Coulon and his wife did not previously raise those claims in the Medical Review Panel complaint. Coulon and his wife argued that the language in the prior complaint was sufficiently broad to include the additional claims in their subsequent lawsuit for damages.

January 30, 2023

If You Give a Horse a Carrot – When are Visitors Covered by the Equine Immunity Statute?

by Berniard Law Firm

Horse bite lawsuit Feeding a horse a treat can seem all fun and games until the horse bites you. This is a lesson Danielle Larson, a visitor to Equest Farm in City Park in New Orleans, learned the hard way in 2013 when a horse bit her while she was feeding it a carrot.

Larson was from Illinois but came to New Orleans often to visit her boyfriend. She had ridden horses since childhood and had been previously shown the correct way to feed a horse. Larson had been visiting Equest Farm for a few years before the horse bit her in September 2013. Larson went to see the school horses on the day of the incident. On her way there, two riders told her to be careful because, at the school, ponies had purportedly bitten a child. While Larson was feeding a horse a carrot, the horse knocked the carrot from her hand, and then the horse bit off her thumb as she reached for the dropped carrot. As a result, Larson required extensive medical care and will likely have to use a prosthetic thumb or transfer a toe to her hand.

There was some dispute about whether there was a sign posted warning people not to feed the horses. The horse at issue overall had a good reputation but had previously bitten a child who had held the horse’s ears while riding him.

January 29, 2023

What Court has Jurisdiction over Louisiana Police Disciplinary Action Tort Claims?

by Berniard Law Firm

who has Jurisdiction over Louisiana Police Disciplinary Action Tort Claims Even if your lawsuit has good facts, to prevail, the court must have subject matter jurisdiction to hear your case. Subject matter jurisdiction is the “legal power and authority of a court” to listen to a given proceeding. See La. C.C.P. art. 2. Understanding these complex jurisdictional requirements is imperative to ensure you get your day in court.

In 2007, Plaintiffs T.H. and C.B. were terminated from the Louisiana State Troopers after an investigation suggested that they had provided a third party with confidential information violating employment policies and the law. The plaintiffs appealed this termination to the State Police Commission. The Commission overturned their terminations and instead ordered that they only be suspended.

The plaintiffs then filed a lawsuit in district court to recover damages for a litany of reasons. The Defendants subsequently filed an exception for lack of subject matter jurisdiction. They claimed that La. Const. art. X, § 50 gives the State Police Commission exclusive jurisdiction over cases where the State Police terminates employees. Therefore, the district court would lack subject matter jurisdiction over the claim.

January 26, 2023

Medical Malpractice Claim Sent Back to the Trial Court due to Doctor’s Affidavit

by Berniard Law Firm

medical malpractice louisiana vaccine Lawsuits are filed every day. However, not all of these lawsuits are worth the attention of the courts. Courts are already swamped with dozens and dozens of cases on their dockets and they cannot afford–both monetarily and temporally–to hear every case that comes to their courtrooms. As a result, courts allow parties to file a motion for summary judgment, which allows courts to drop a lawsuit if there is no issue of material fact among the parties.

Petrie and Bertha Thompson’s one-year-old daughter Jessica Thompson passed away three days after being taken to The Center for Pediatric and Adolescent Medicine, L.L.C. (The Center) in Thibodaux. Jessica was examined by The Center’s nurse practitioner Gaudin. The Thompsons accused Gaudin of providing substandard care to Jessica. More specifically, the Thompsons alleged that Gaudin administered immunizations that should not have been administered. The Thompsons argued that Jessica passed away because of these immunizations and sued Gaudin, the Center, and HP, who was Gaudin’s alleged supervisor.

A medical review panel reviewed the Thompsons’ claims against HP and The Center and found that there was no breach of the applicable standard of care and that the administered immunizations were appropriate for Jessica. After the release of the panel’s findings, Gaudin filed a motion for summary judgment. The Thompsons responded with an affidavit of Dr. Robert S. Chabon who opined that, contrary to the panel’s findings, that Gaudin’s administration of the vaccinations did indeed cause Jessica’s death. Gaudin argued that Dr. Chabon’s affidavit was untimely, not in proper form, and conclusory and thus the Trial Court should not accept the affidavit into evidence. Though the Trial Court accepted the affidavit, it found the affidavit to be insufficient to create a genuine issue of material fact and thus granted Gaudin’s motion for summary judgment.

January 25, 2023

Can Independent Contractors Performing Manual Labor Receive Workers’ Compensation Benefits in Louisiana?

by Berniard Law Firm

workers compensation lawyer louisiana There are many ways that someone can be denied workers’ compensation benefits. Sometimes it is determined that the accident giving rise to the injury never occurred, other times the claim is filed too late, and in other cases the capacity in which the worker was hired determines eligibility for benefits. The last scenario is illustrated in a case brought to the New Orleans Office of Workers’ Compensation (“OWC”) in 2016.

Federico Martinez was among several workers hired by Jarislov Rames to lower a washer/dryer unit from Rames’ second floor apartment to street level. During the operation, one of the cords used to lower the unit broke loose and lacerated Martinez’s hand.

After the job was finished, Rames drove Martinez to the emergency room and paid the up-front $500 fee for Martinez to receive stitches. When Martinez demanded payment for the washer/dryer job, Rames withheld the $500 from Martinez’s pay and told Martinez that the rest of the emergency room fee would be deducted from future payments.

January 23, 2023

When is It Too Late to File a Products Liability Claim in Louisiana?

by Berniard Law Firm

louisiana brain injury lawyer It can be puzzling — if not outright humorous — to observe the warnings in many pharmaceutical advertisements about how a drug’s side effects can be so severe that the potential harms outweigh the possible benefits. What’s not at all funny is when one of those side effects causes a patient actual harm.

Cory Jenkins began taking the FDA-approved drug Abilify in October, 2010 as part of ongoing treatment of his condition. One known side effect of Abilify is tardive dyskinesia, a serious neurological disorder that causes muscle twitching. Jenkins began showing symptoms of dyskinesia in late 2012 and early 2013. He visited the Ochsner Medical Center in New Orleans and was instructed to stop taking Abilify. Shortly thereafter the twitching ceased. By August of 2013, the symptoms returned, even though Jenkins was no longer taking Abilify. In October, 2013 Jenkins sought care from several neurologists, including one who officially diagnosed him with dyskinesia. In October, 2014 Jenkins filed a lawsuit for damages against Bristol-Myers Squibb Company and Otsuka American Pharmaceutical Inc., the makers of Abilify.

In the U.S. District Court for the Eastern District of Louisiana (“District Court”), Jenkins asserted two claims under the Louisiana Products Liability Act (LPLA). The District Court held that both claims had prescribed — meaning Jenkins did not file within the time required to commence an action — and granted the defendants’ motions for summary judgment. Claims brought under LPLA have a one-year prescriptive period; the period begins from the day the injury occurs or when damage is sustained. La. C.C. art. 3492. Damages are said to be “sustained” when they have revealed themselves with enough certainty to support the existence of a cause of action. In Louisiana, the start of the prescriptive period does not depend on a physician’s diagnosis. Instead, what controls is the date the injury occurred. Jenkins argued that there was a factual dispute over whether he had developed dyskinesia in April, and that it was not certain until his diagnosis in August. But because Jenkins admitted in his pleadings that his symptoms began in April, 2013, the District Court held that the prescriptive period for his claims against the defendants began running in April, 2013.

January 22, 2023

Baton Rouge Parent Denied Compensation Resulting from Son Abandoned on School Bus

by Berniard Law Firm

abandoned school bus lawsuit How much of an award or compensation could a parent expect when a school board is found liable for inflicting trauma on a child? A trauma to a child would have a profound effect on the parent as well as the child. Is it not reasonable to expect the school board to pay for the emotional damages the parent suffered? Unfortunately for a Baton Rouge mother, her failure to include in her written pleadings a claim for general damages resulted in a finding of no damages despite trial testimony supporting her emotional distress. A superior lawyer always includes all possible claims in written pleadings to avoid this unfortunate outcome.

Demondre Morgan was a kindergartener at Westminster Elementary School in Baton Rouge, Louisiana when he fell asleep on his school bus one September afternoon. After the route was complete, the school bus driver parked and locked her bus without noticing little Demondre. Demondre’s mother, Shunquita Morgan, was waiting for her son at the school bus stop when the bus never arrived. Meanwhile, Demondre awoke to find himself on the bus alone, started to cry, and was heard by two passers-by who rescued him from the bus. Morgan had reported Demondre missing to the police during this interval, and Demondre was returned to his mother about two hours after his normal drop-off time.

Morgan filed a lawsuit against the East Baton Rouge Parish School Board (“School Board”). Her pleadings included damages for her son as well as for economic loss for herself due to Demondre’s fears about riding the bus. She did not include a request for any other damages such as emotional distress for herself. The School Board admitted liability. The trial court awarded a total of $4,184.00 in medical and general damages for Demondre. Morgan was not awarded any damages because she did not present any evidence of economic loss and her attorney only sought emotional distress damages at the very end of the trial. The trial court ruled that the pleadings had not been expanded to include emotional distress damages for Morgan.

January 20, 2023

Insufficient Medical Evidence Leads to Louisiana Court Throwing Out Default Judgment in Bar Fight Lawsuit

by Berniard Law Firm

bar fight lawsuit louisiana We all try our best to avoid trouble, but sometimes fights happen. It may be best to avoid a brawl if you see one occurring. However, when you see your friend in a bind, human nature kicks in, and before you know it, you’re in an altercation that you never signed up for. If you are injured in a fight, proceed carefully when suing the party that caused your injuries. Ryan Martinez learned this lesson the hard way following the Louisiana First Circuit Court of Appeal ruling in the following case.

Martinez intervened in an altercation between his friend and the defendant, Trevor Wilson, at Chevy’s nightclub in Hammond. (“Chevy’s). During the fight, Wilson allegedly attacked Martinez, and Martinez stated that the strike resulted in a mandible fracture. Martinez, after that, sued to recover damages, listing Wilson, Chevy, and their insurers as defendants and asserting Wilson’s liability for battery. The trial court entered a preliminary default against Wilson, as he was absent from court and had not filed a response to the petition.

Two years later, the trial court conducted a hearing to confirm the default judgment. Although Wilson did not appear at the hearing, Martinez submitted various items as evidence, such as a smoothie receipt and various uncertified medical records. As a result, the trial court signed the judgment finding Martinez entitled to collect $110,128.66 in personal injury damages and medical expenses from Wilson. Wilson promptly appealed the trial court’s decision awarding Martinez the previously noted damages.

January 19, 2023

New Roads Man Denied Coverage Under Uninsured Motorist Provision of Employer’s Insurance Policy

by Berniard Law Firm

Car Accident uninsured motorist coverage louisiana What happens when a motorist is injured in an automobile accident while operating a vehicle owned by an employer? While Louisiana law often permits named insured employees to receive reciprocal coverage under an employer’s insurer, insurance law is a complex and, at times, unclear field, especially in relation to uninsured/underinsured motorist coverage. In the case of Chris Loudermilk of New Roads, Louisiana, the Louisiana First Circuit Court of Appeal felt that Loudermilk was not permitted to recover under the language of his employer’s insurance policy.

Loudermilk was injured in an automobile accident while operating a vehicle owned by his employer, Environmental Safety and Health Consulting Services Inc. (ES&H). Loudermilk filed suit against the drivers at fault and their insurers, as well as XL Specialty Insurance Company, ES&H’s insurer.

In acquiring insurance for ES&H, the company’s CFO executed a valid Uninsured Motorist Bodily Injury Coverage Form to reject uninsured motorist coverage completely on June 23, 2010. The policy was renewed in June 2011 through June 2012, and it was in effect at the time of Loudermilk’s accident. At the time of the renewal, ES&H added two entities to the “named insured” section of the policy.

January 18, 2023

Prior Bankruptcy Nearly Prevents Shreveport Man from Filing Personal Injury Case

by Berniard Law Firm

Bankruptcy personal injury louisiana When there’s no other option, bankruptcy is an effective tool to shield you from your creditors. But often, those filing bankruptcy do not consider how intrusive a bankruptcy can be. After filing bankruptcy, your remaining assets are put under a microscope by the bankruptcy trustee. Every transaction you make while in bankruptcy, and 90 or more days beforehand, are scrutinized, questioned, and may even be reversed.

Any windfall you acquire while in bankruptcy must immediately be reported to the bankruptcy trustee to be distributed to your creditors, or added to your payment plan. Winning lottery tickets, inheritances, bonuses, and, surprisingly enough, pending lawsuits, may all be considered assets which must be reported to the trustee. It sounds odd, but if you are a plaintiff in a lawsuit and stand to be awarded some money, the lawsuit needs to be disclosed to the bankruptcy court so that the proceeds can be distributed to the creditors.

Delivery driver Willie Thomas suffered devastating injuries when his delivery truck was struck from behind by Defendant Wanda Harris. Thomas was pinned between the two vehicles, later needing multiple surgeries to repair the extensive damage the collision caused. Thomas filed a lawsuit against Harris and her insurer. During the deposition, it came out that Thomas had filed a Chapter 13 bankruptcy about 15 months before the accident. The defendants filed a motion for summary judgment on the grounds of judicial estoppel.