Litigation

August 22, 2013

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

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.”

August 17, 2013

Court Re-Allocates Liability for U-Haul Accident in New Orleans

by Berniard Law Firm

Appealing turned out to be a beneficial move for U-Haul International, Inc., and U-Haul Company of Georgia, who were sued when Mr. Omar Erazo’s truck came off his rented U-Haul van while he was moving back to Louisiana from Georgia. Unfortunately, when the truck detached from the van on I-10 in eastern New Orleans, it collided with Mr. James Gaunt’s vehicle, resulting in serious injuries to Mr. Gaunt.

On appeal of the trial court’s findings against them, U-Haul raised a number of issues. The first issue was whether the trial court erred by conducting improper research, considering outside evidence that should not have been admitted. The appellate court sided against U-Haul on this issue, stating that a judge may conduct legal research on a site such as Westlaw and see the number of hits that “U-Haul” and “auto transport” returns.

Another issue was whether the trial court erred by assessing 90% of the fault to U-Haul and only 10% to the driver, Mr. Erazo. Here the appellate court agreed with U-Haul that 90% was too much liability considering that U-Haul employees largely followed protocol based upon the information Mr. Erazo provided them. When Mr. Erazo noticed that his truck was coming unhinged and called U-Haul, he did not convey that he felt it was unsafe to continue towing the truck. However, his subsequent conduct – driving slowly with lights blinking while making sure his wife kept a safe distance away – showed he did believe continuing to tow the truck was unsafe. If he had informed U-Haul of this belief, they would have sent someone out to help him.

August 16, 2013

Extensive Case Involving International Visitors and Travel-Insurance Policy Gives Rise to Hospital’s Jurisdiction Claims

by Berniard Law Firm

Hospital’s Claims Dismissed for Lack of Personal Jurisdiction

The plaintiff hospital in Northshore Regional Medical Center, L.L.C., d/b/a Northshore Regional Medical Center v. Edith and Brian Dill, et al. recently appealed a judgment from the Parish of St. Tammany, dismissing their claims against one of the defendants in the case, White Horse Insurance Ireland, LTD, for lack of personal jurisdiction. Of all the choices facing someone that decides to resort to a court to settle a claim, choosing where to seek relief can prove to be the most important. Because a court will not hear a claim when it does not have jurisdiction, the wrong choice will lead to wasted time and money.In anticipation of upcoming travel, an English couple acquired a travel insurance policy that was underwritten by an Irish corporation, White Horse Insurance Ireland, LTD, (White Horse) and purchased through an English corporation, Atlas Travel Insurance Services Limited, d/b/a/ Atlas Direct (Atlas). The policy included coverage for travel in the United States, and as part of their travel, the couple, Mr. and Mrs. Dill were visiting Louisiana in November 2006. While in Louisiana, Mrs. Dill was stricken with a serious illness and was admitted to NorthShore Regional Medical Center, L.L.C., in Slidell, Louisiana. An extensive stay in the facility, coupled with emergency surgery brought NorthShore’s charges for her care to a final total of $1,256,229.08.

NorthShore’s payment requests to White Horse were handled administratively through Global Excel Management, Inc., (Global Excel) a Canadian corporation. Global Excel facilitated one $309,498.31 payment from White Horse to NorthShore in February, 2007. After requesting and failing to receive further payments, NorthShore resorted to filing claims against Mr. and Mrs. Dill, Atlas, and Global Excel in 2009, and adding its claims against White Horse in 2010.

August 15, 2013

Judge’s Ruling for Medical Malpractice Patient in Lafourche Parish Overturned on Appeal

by Berniard Law Firm

In a recent medical malpractice case, the jury found that the plaintiffs did not prove, by a preponderance of the evidence, the standard of care applicable to the emergency room doctor they had sued for a medical malpractice allegation. Because the plaintiffs had not proved their case the suit was dismissed. However, on a motion by the plaintiffs, the trial judge issued a judgment notwithstanding the verdict, reversing the jury’s decision and awarding the plainiffs over five million dollars in damages. The doctor and hospital board appealed this decision.

A plaintiff in a medical malpractice case alleging that the doctor was negligent must prove 1) the amount of skill or knowledge possessed by a typical doctor or the amount of care ordinarily exercised by licensed doctors in Louisiana practicing in a similar community or under similar circumstances as the doctor being sued. 2) that the doctor either did not have required level of knowledge or skill or did not use ordinary level of care and 3) that the result of this lack of knowledge, skill or care caused the plaintiffs injuries which would not have otherwise occurred. The jury found that the plaintiffs failed to establish the level of care used by Louisiana emergency room physician in similar circumstances therefore they could not have proved either of the other elements.

A judge may issue a judgment notwithstanding the verdict when the evidence is so strongly in favor of one party that reasonable jurors could not give a verdict for the other party. When a party (the party who lost the jury verdict) moves for a judgment notwithstanding the verdict the motion must be denied if there is evidence for the other party (which won the jury verdict) that could lead a reasonable person to side with the other party. The court should resolved all reasonable inferences and factual questions in favor of the party who won the jury verdict. This is a very difficult standart for the moving party to clear. The jury verdict must have been completely illogical and unfounded for a judge to override it. When an appeals court reviews a trial judge’s decision to grant a judgment notwithstanding the verdict the same standard is used. In this case the courts must evaluate the evidence given my both sides medical experts to determine whether reasonable people could have found that the plaintiffs failed to prove the applicable standard of care.

August 14, 2013

Summary Judgment Upheld by 3rd Circuit in Negligence Suit

by Berniard Law Firm

Regardless of the issue at law, parties in a civil suit can halt further litigation by obtaining a motion for summary judgment. The party seeking summary judgment, known as the movant, must show there is no genuine issue of material fact despite the allegations asserted by the non-moving party. The court will consider a fact “material” if “its existence potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the relevant legal dispute.” Furthermore, a fact will be deemed at issue “if there exists any reasonable doubt as to its existence.”

On July 12, 2006, Raymond Alex, Sr. (hereinafter “plaintiff”) was driving his employer’s, BNSF Railway Company (hereinafter “defendant”), truck south on North Eastern Avenue in Crowley when he was rear-ended by a large tractor-trailer rig driven by Edward Zenon, Jr. (hereinafter “Mr. Zenon”) of Creole Fermentation Industries, Inc. The plaintiff alleged the accident injured his neck and caused radiating pain down his right arm into his hand. His recovery consisted of neck injections and surgery.

Interestingly, the plaintiff signed off on the operating condition of the truck before driving it and after the accident signed a report admitting the defendant was not to blame for his injuries.

August 13, 2013

Louisiana Court of Appeals Gives Deference in Chemical Exposure Case

by Berniard Law Firm

In September 2006, Georgia Gulf Lake Charles, LLC’s Westlake facility suffered a fire and explosion. Because of the fire and explosion, hazardous chemicals were released into the air. Several people filed suit because of the medical complications that the exposure caused. Georgia Gulf stipulated that it was the cause of the chemical release, but argued that the release did not cause the Plaintiff’s medical complications and that it should not be charged damages. The trial court disagreed and awarded the Plaintiffs damages. Georgia Gulf appealed.

Georgia Gulf’s major concerns were about two major decisions of the trial court. The first was that the trial court excluded their expert witness. Second, the lower court found a link between the Plaintiff’s symptoms and the chemical exposure, which Georgia Gulf argued did not really exist.

In Louisiana, the Court of Appeals reviews these types of decisions with great deference to the lower court. The lower court gets to see all of the witnesses and hear the testimony whereas the Court of Appeals generally does not. As such, the lower court may be a better judge of character and credibility because they actually see the person making the testimony and can observe their demeanor and evaluate how truthful they seem. The court is set up in this way so that people do not have to come back repeatedly to testify and attorneys do not have to present the same evidence to different people again; it is a matter of convenience and timesaving for everyone involved.