Miscellaneous

March 19, 2011

Court Throws Out Medical Malpractice Case Because the Case Was Not Timely Filed

In Louisiana, a general tort claim has a prescriptive period of one year. This means that the plaintiff must file a claim within one year of the injury bringing about the claim. The prescriptive period has been implemented by the Louisiana legislature in LSA-C.C. art 3492 and a brief summary gives us the following guidelines:

These actions must be filed within one year. The year mark starts on the day that the injury or damage occurs on however, there are some exceptions to this rule of one year. The exceptions would be in the individual is a minor or actions involving individuals with permanent disability, brought under the Louisiana Products Liability Act or the law of the state which governs actions of product liability at the time the injury or damage has occurred.

Thus, no one except a child or interdict can complain of the prescriptive period because it is clearly established by law. All attorneys are aware of this period and any action, in order to be timely, must be filed within the one year period. However, Louisiana law also states that this period can be altered by legislation. This means that article 3492 is a fall back provision for cases where the legislature has not created another sort of prescriptive period. Different prescriptive periods are implemented due to the nature of the injury or damage. For example, medical malpractice claims also have a general one year prescriptive period, but the legislation creates leeway to bring a claim past the one year prescriptive period. The prescriptive period for a survival claim based on medical malpractice is implemented by LSA-R.S.9:5828 as follows:

March 17, 2011

Fatal Vehicle Crash in Hammond Illustrates Potential Liability of Surviving Driver

by Berniard Law Firm

On June 23rd in Hammond, Louisiana, there was a fatal vehicle crash in the southbound lanes of Interstate 55. A Mercedes SUV, driven by Gwendolyn Jackson, was heading the wrong way and collided with a Hyundai driven by 18 year-old Caleb Perricone. The vehicles collided head on and both Jackson and Perricone were transported to Northoaks Hospital, where Jackson was treated for moderate injuries but Perricone was pronounced dead.

Jackson is suspected of drug impairment and the results of her toxicology test should be soon forthcoming. After she was released from the hospital, she was charged with Vehicular Homicide, Traveling the Wrong Way on a One Way Roadway, and 1st offense Driving While Intoxicated. She was booked at the Tangipahoa Parish Jail in Amite. Though Jackson will have to answer to the State of Louisiana for her allegedly criminal conduct, the result of those proceedings will hardly address the harm and grief inflicted on Perricone and his family.

In order to compensate the people in Perricone’s life for the loss of his love, affection, companionship, support, and funeral expenses, the Perricone family might want to consider filing a lawsuit against Jackson and her insurance policy under the theories of Wrongful Death and Survival.

March 15, 2011

Medical Malpractice Claims Against Public Sector Health Providers Must Be Submitted to a Medical Review Panel

by Berniard Law Firm

Medical Malpractice Claims Against Public Sector Health Providers Must Be Submitted to a Medical Review Panel

The State of Louisiana Division of Administration, headquartered in Baton Rouge, requires that that medical malpractice claims against public sector health care providers must be processed through its administrative procedure, starting with the submission of the claim to the Commissioner of Administration.

A request for a Medical Review Panel must be in writing and contain:

March 14, 2011

Louisiana Court of Appeal Clarifies Application of Punitive Damage Award

by Berniard Law Firm

In the Parish of Acadia, the Third Circuit Court of Appeal decided a case that clarifies how punitive damage awards are to be applied to vicarious liability cases. In Bonnie Romero v. Clarendon America, Bonnie Romero (plaintiff) was hit by an 18 wheeler truck. The truck was driven by an employee of Stanford Trucking (Stanford). In their filing, the plaintiff argues that the truck was being driven within the scope of the truck driver’s employment. Plaintiff also alleges that the driver was intoxicated at the time of the accident. Stanford asked the driver to submit to a drug and alcohol test following the accident. The driver refused to submit to the test and was subsequently fired. Plaintiff filed for summary judgment asking the court to award punitive damages against Stanford because it was vicariously liable for the driver’s actions. Plaintiff also filed a motion to compel Stanford to submit to requests for discovery. Stanford cross-filed for summary judgment stating that it was not vicariously liable for punitive damages as a matter of law. The trial court granted Stanford’s summary judgment and denied both of plaintiff’s motions.

The Court started its discussion by stating that in Louisiana there is a strong public policy against punitive damages. Thus, in order for an award for punitive damages, the right must be clearly signified in a statute. Even if a statute created a right for punitive damages, it would be strictly construed by a court. As such, it is a matter of how Louisiana statutes are worded in order to determine whether a right for punitive damages exists in a vicarious liability case. Louisiana Civil Code Article 2315.4 states in pertinent part,

exemplary damages may be awarded upon proof that injuries on which the action is based were caused by wanton or reckless disregard for the rights and safety of others by a defendant whose intoxication while operating a motor vehicle was a cause in fact of the resulting injuries.

March 11, 2011

1st Circuit Court of Appeal Panel Affirms Additur and Assessment of Fault in Rear-End Collision Case

by Berniard Law Firm

In a recent unpublished opinion, a panel of the Louisiana 1st Circuit Court of Appeal affirmed a trial court’s award of additur in a personal injury lawsuit stemming from a low-speed rear-end automobile accident occurring in Terrebonne Parish in October 2005. The plaintiff sued for damages for personal injuries, medical expenses, and loss of wages, as well as loss of consortium for his wife and their two minor children. The jury returned a unanimous verdict allocating 70% of the fault to defendants, a towing company, its driver, and the truck’s insurer. They awarded damages to plaintiff and his family for the following: past physical pain and suffering, physical disability, impairment, and inconvenience, the effect of plaintiff’s injuries and inconvenience on the normal pursuits and pleasures of life, loss of past income, impairment of future earning capacity, past medical expenses, and loss of consortium.

In this matter, plaintiffs filed a motion for judgment notwithstanding the verdict (JNOV) or Alternatively for a New Trial and/or Additur as to both the allocation of fault and the amount of damages. After a hearing, the trial court granted plaintiffs’ motion for additur and increased the general damages award (which includes past physical pain and suffering, physical disability and impairment, the effect of the injuries and inconvenience, mental anguish, and future pain and suffering) from $28,000 to $100,000 and otherwise denied the motion. The defendants in the case appealed the decision, asserting that the jury did not abuse its discretion in awarding $28,000 (which was determined to be the case when the award was increased) in general damages and that the trial court abused its discretion by increasing the general damages award to $100,000. Plaintiffs, on the other hand, asserted that the additur was improperly low, the jury erred in its allocation of fault and damages, the trial court should have granted JNOV, and that the jury’s decision was a “compromise” or “quotient jury” verdict. Other procedural deficiencies were noted and eventually corrected.

The main issues upon appeal were: 1) whether the jury was unreasonable in allocating fault 70%-30% between the defendants and plaintiff, 2) whether a general damages award of $28,000 was unreasonably low and whether the trial court’s resulting additur to $100,000 was improper, 3) whether the trial court erred in refusing to grant JNOV, and 4) whether the jury compromised its damage awards and did not fully deliberate on all of the issues.

March 10, 2011

Complexity of Legal Procedure Shows Why Right Attorney Must Be Picked

by Berniard Law Firm

During litigation, competent legal counsel must make efforts to concentrate on two things. First, legal counsel must make sure that all of the most recent cases, statutes, and regulations are being used for litigation. It is embarrassing for legal counsel and risky for a client to proceed before court with expired or outdated law. The impact of such a scenario could mean the prolonging of litigation and a negative overall perception towards the case from the judge. Second, competent legal counsel must pay very close attention to procedural steps needed for successful litigation. This means that all motions and requests for evidence must be made in a timely manner. The art of litigation requires a very structural approach with one step occurring before the next. If one step within the process is missed, misconstrued, or untimely, the result could spell the end of litigation and the client’s claim.

The reason for such strict adherence to procedural steps is due to an effort to expedite an already heavily time-burdened legal system. The procedural steps facilitate quick and systematic approaches to litigation. In a recent case, Percival Franklin v. Allstate Insurance Co., the plaintiff was dealt a blow by the implications of untimely filing.

The case began as many other vehicle-based legal issues do. There was an accident, which was followed by an injury to one of the passengers. The plaintiff in the case sued the driver of the other vehicle and that driver’s auto insurance. During the litigation process, the defendants filed certain exceptions with the trial court. After review, the trial court agreed to the exceptions and the trial was deemed over at that point. The exceptions were sustained on March 29, 2010. The notice of judgment was mailed on April 7, 2010. On May 24, 2010, plaintiff filed for a new trial which was denied on June 2, 2010. The notice of judgment of this decision was mailed on June 7, 2010. On August 13, 2010, plaintiff filed a motion for appeal. The trial court granted this motion on August 17, 2010. The Appellate court asked the plaintiff why it should not dismiss the appeal as being untimely. Plaintiff stated that under LA.CodeCiv.P.art 2087, the appeal was timely because it was filed within 58 days of the trial court’s denial of a new trial. Before reaching its judgment, the Appellate Court described errors in the way the plaintiff viewed the applicable dates. Plaintiff cites that the new trial was denied on June 7, 2010 and that the motion for appeal was filed on August 5. The Court stated that, based on the record, the new trial was denied on June 7 and the appeal was filed on August 13.

March 9, 2011

EPA Awards Sizeable Grant to Help Stop Asbestos Exposure: The Governments Role in Asbestos Issues

by Berniard Law Firm

The U.S. Environmental Protection Agency (EPA) recently gave the state of Louisiana a grant of $150,000 to help reduce the public’s exposure to asbestos in schools and other state buildings. The money will help building owners comply with statutory requirements, monitor their compliance, and be spent on public outreach efforts.

Under the Asbestos Hazard Emergency Response Act, or AHERA, grants like this one are authorized to protect people who enter public buildings where asbestos may be found. The law requires local education agencies to inspect schools for asbestos and make plans to reduce it where found. The AHERA also created a program to train and accredit individuals who perform asbestos related work. Projects like those authorized and funded through AHERA are so important due to the human risk of asbestos depends on exposure. Contrary to popular belief, removal is not always the best way to reduce exposure. That is where education comes in. Improper removal of asbestos may create danger where none existed before. The EPA only requires removal when it is needed to prevent significant public exposure to asbestos material (example: during building renovation or demolition). If asbestos is discovered, the EPA actually often recommends in-place management, not removal. Management plans can be used to control the release of asbestos fibers when materials are not significantly damaged and not likely to be disturbed.

Beyond providing grants like this one to states to combat asbestos, the EPA plays a broad role in protecting the public from exposure to the toxic fibers. Several EPA Offices deal with asbestos. For example, the Office of Air and Radiation/Office of Air Quality Planning Standards, which has the mission of preserving and improving air quality in the U.S., is responsible for implementing another asbestos law, the Asbestos National Emission Standards for Hazardous Air Pollutants, which sets guidelines for demolition practices and reporting and record keeping requirements for waste disposal. In addition, the Office of Prevention, Pesticides, and Toxic Substances regulates asbestos in school buildings and certain asbestos products and maintains the Asbestos Model Accreditation Plan which is used by states to train and accredit asbestos professionals. This Office also protects workers in states without Occupational Safety and Health Administration (OSHA) Safety and Health Plans.

March 8, 2011

Second Circuit Court of Appeals Explores the Allocation of Fault

by Berniard Law Firm

Car accidents occur every day, and the first question that is usually asked is who was at fault for the accident. This determination is not easy, however, a Louisiana second circuit court of appeal’s case explored fault in order to allocate liability to the parties respectively. In Gentry v. State Farm, the Court held that both parties were at fault, the defendants were found to be 75% at fault, while the plaintiff, Gentry, was 25% at fault. The court came to this conclusion after looking at both drivers duties while driving, analyzing whether the drivers breached their duties, looking into the rules of the road, determining whether the duties of the road were breached, and looking at the duties that were found to be breached by each driver in order to find the ultimate percentages of fault in order to allocate damages. Thus, it is not always an either/or situation (one party may not be wholly responsible for the car accident) but, rather, partially responsible, so the analysis takes on a more in depth review of the circumstances that existed at the time of the accident.

An appellate court must give great deference to the allocation of fault determined by the trier of fact. Consequently, the allocation of fault may be determined within an acceptable range and any allocation by the fact finder, or trial court within that range, cannot be clearly wrong. The only way an appellate court may disturb the trial court’s fault determination is if the apportionment of fault is clearly wrong, allowing the appellate court, only then, to disturb the trial court’s award. Here, both parties were seeking a finding of 100% fault for the opposing party, asking the appellate court to reverse the apportionment determination found by the trial court in order to dismiss the percentages of fault that were initially determined. If the trial court’s determination of fault is found to be clearly wrong, the appellate court is then permitted to adjust the award, but only to the extent of lowering or raising it to the highest or lowest point respectively which is reasonably within the trial court’s discretion.

After reviewing both party’s evidence put forward at the trial court level, the appellate court determined that manifest error existed in the record, and allowed for a reframing of liability findings, but only to the minimum extent to achieve reasonableness. So, it is not unheard of for appellate courts to find error of fault determinations held at the trial level, if the trier of fact proves to be clearly wrong, the appellate court may proceed to adjust accordingly.

March 7, 2011

Plaintiff Takes Too Long in Civil Case, Suffers Consequences

by Berniard Law Firm

Court systems are very highly burdened. Currently, there are too many cases compared to the number of judges and judicial staff. This phenomenon of law will not likely change any time soon. Therefore, the judicial system had to come up with ways to counter the overflowing process. One of the most logical methods of ending too much litigation is to limit the amount of time a case can sit in the judicial system without action. This is a process called abandonment. In Louisiana, if a case has not progressed, through prosecution or defense, for three years, the case will be thrown out of the court system and will be banned from further action.

The impact of such a rule is significant on any litigation. However, overcoming this outcome is very easy. Any significant action taken on behalf of any party in the case will re-start the time period. Therefore, the only cases that are hurt are cases where the plaintiff has filed a suit and has forgotten about it or has found better things to occupy time with. These cases remain on the books, and when, a few years down the road, the plaintiff remembers that the case is still pending, the case will be denied access to the courts.

Additionally, lawyers and clients should be aware that not all action intervenes on the three year time period. Some action will not stop the clock from running. LSA-C.C.P. art 561 states in relevant part:

March 6, 2011

Appellate Court Outlines Standard of Review for Damage Awards

by Berniard Law Firm

In civil litigation, the defendant is responsible for the damage caused to the plaintiff(s) when found responsible for causing harm. This damage may be either physical or property damage. If a defendant is found to be at fault, the next question is usually to what extent the defendant is liable for any resulting injuries. In normal circumstances, experts provide testimony concerning physical and property damage, and any intangible damages such as lost wages, mental distress, etc. In some circumstances, the plaintiff may have a preexisting condition. This preexisting condition may make the damages the plaintiff suffers more likely. Further, the injury or accident may exacerbate the preexisting condition. There is a civil law maxim that “the defendant takes the plaintiff as he is at the time of the accident.” This is commonly referred to as the eggshell rule. In a recent case, Miriam Dyess vs. State Farm Insurance Co. ET AL., the Court describes how the eggshell rule relates to an award for damages.

In this case, Dyess was driving in Alexandria, Louisiana, when another car pulled in front of the plaintiff’s car. The result was that Dyess ran into the back of the other vehicle. The driver of the other vehicle was insured by State Farm Insurance. Plaintiff was insured by Farmer’s Insurances (Farmers). As a result of the injury, Dyess suffered injuries to the neck, shoulder, hand, back, right leg, and has headaches, foot pain, and numbness. The plaintiff was also awarded $103,000 in damages. Farmers appeals the decision stating (1) there was only $1,500 worth of damages, (2) plaintiff denied any injuries at the scene of the accident, and (3) plaintiff’s injuries were as a result of a pre-exisiting carpal tunnel syndrome and fibromyalgia. Farmers appealed to set aside or reduce the $103,000 award as manifestly erroneous, and that the court erred in awarding damages and medical expenses for injuries other than those to plaintiff’s neck.

The basis of the award that the trial court gave plaintiff was the eggshell rule. The trial court stated that plaintiff was an eggshell victim who already had some medical problems. But, as such, you must take the victim as you find them. The Appellate Court’s applicable standard of review is that it cannot set aside findings of fact unless it is manifestly erroneous or unless it is clearly wrong. Where the jury’s findings are reasonable, in light of the record viewed in its entirety, the court of appeal may not reverse. Although, there was some inconsistent evidence, plaintiff provided uncontroverted evidence that her preexisiting condition was exacerbated due to the accident. Defendant’s liability is not mitigated by the fact that plaintiff’s preexisting physical infirmity was responsible in part for the consequences of plaintiff’s injury by the defendant. It is clear that the defendant takes his victim as he finds him and is responsible for all natural and probable consequences of his tortous conduct. However, plaintiff fails to carry the requisite burden of proving causation if the pre-accident and post-accident conditions are identical in all meaningful respects. Thus, because the plaintiff provided uncontroverted evidence that the injuries exacerbated any pre-existing condition, she has met her burden.