Articles Posted in Negligence

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abandoned-hospital-1-1227909-1024x683The average person experiences a great deal of emotion after a serious injury. The injured person is rushed to the hospital and places a great deal of faith in doctors to treat and diagnose injuries. Sometimes a medical professional fails to accurately diagnose a patient’s injuries, which can lead to a potential lawsuit against the doctor, hospital, or usually both.

In a civil trial against a medical professional, the party bringing the lawsuit must inform the court of their legal complaint within a specific period of time. For medical malpractice claims in Louisiana, that time period is one year. La. R.S. 9:5628. If the claim against the medical professional is not brought within one year, the injured party is foreclosed from recovering on that claim and ever bringing it in court again. In these situations, a related issue arises: when does that one year period begin? A recent Louisiana case answered this question.

Donna Hickman brought a lawsuit against Christus St. Frances Cabrini Hospital (Cabrini) and various doctors after she sustained injuries in a car accident. On the night of the car accident, January 21, 2012, Ms. Hickman was rushed to the hospital and given a CT scan. The doctors found the results of the scan concerning and recommended that Ms. Hickman visits her regular physician for additional attention.

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rock-climbing-1-1357430-683x1024Lest anyone think college is all about classrooms and books, many universities today offer a panoply of extra curricular amenities for students to enjoy. One of the main attractions is student recreation centers. At Louisiana State University (LSU), the University Student Recreation Center (UREC) is a place where students can go with friends and guests to exercise and participate in recreational activities such as indoor rock wall climbing.

On the evening of December 3, 2008, LSU Senior Brandy Fecke and a fellow classmate visited the indoor rock climbing facility at the UREC to complete a required assignment for an Outdoor Living Skills Activity course. Ms. Fecke signed a Rock Climbing Wall Participation Agreement and stated that she had previous rock wall climbing experience. Ms. Fecke indicated that she wanted to climb the easiest wall, which was a wall that did not require her to wear a harness or ropes. Ms. Fecke’s classmate was required to stand behind her and act as a spotter in case Ms. Fecke needed assistance.

After Ms. Fecke and her classmate received instructions and a climbing demonstration, Ms. Fecke began climbing up the wall. Upon reaching the top of the wall, Ms. Fecke fell thirteen feet to the ground where she sustained multiple fractures to her left ankle. Ms. Fecke’s injury was so severe that she underwent three major surgeries and required additional surgeries at the time of the lawsuit, including either a permanent ankle fusion or an ankle replacement. Ms. Fecke and her parents, Stephen and Karen Fecke, sued the LSU Board of Supervisors (Board) for damages Ms. Fecke sustained as a result of the accident. A jury returned a verdict in favor of Ms. Fecke and her parents and the Trial Court adjusted the award amount to $1.4 million. The Board appealed the Trial Court’s judgment and award to the Fecke family.

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graves-1-1504523-1024x686Facts are one of the foundations of a successful lawsuit. In an effort to thwart a plaintiff’s chance at relief, a defendant may file an exception of no cause of action in response to a plaintiff’s complaint. An exception of no cause of action alleges that the plaintiff’s lawsuit has no legal validity, and therefore, the plaintiff has no claim. The following case out of Orleans Parish illustrates such an objection and the importance of facts, especially when those facts validate a claim that could be barred by immunity.

In 2013, Patrick and Crystal Simmons’ children were placed in foster care. In April of that same year, the State of Louisiana notified Mr. and Mrs. Simmons (Plaintiffs) that their son Eli had been transported to a Hospital in New Orleans. Eli died shortly after being admitted, prompting Plaintiffs to file a lawsuit asserting gross and/or intentional negligence by the coroner’s office and intentional infliction of emotional distress. See Hanks v. Entergy Corp., 944 So.2d 564 (La. 2006). Plaintiffs alleged that the coroner’s office received Eli’s body, but failed to perform an autopsy to determine the child’s cause of death. Furthermore, in an amendment to their initial complaint, Plaintiffs averred that their son’s body was misplaced by the coroner’s office because the coroner’s office could not find the body of the child until many months after the child passed. When the child’s body was finally recovered, the coroner’s office, without notifying the family, disposed of the body by cremation and buried the remains in an undisclosed burial location.

In response to Plaintiffs’ cause of action, the coroner filed motions with the court seeking to dismiss the case. The Trial Court granted Defendant’s motions, reasoning that statutory duties imposed on Defendant are for the benefit of the public, not for the private individual. As such, the Trial Court held that Plaintiffs did not have a private cause of action and that the coroner’s office was entitled to statutorily limited immunity from Plaintiffs’ claims.

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chairs-2-1489343-1024x768In Louisiana, the law allows a person to seek financial compensation against another person who has caused his or her injuries or failed to prevent the injuries if such a duty existed. A person has a responsibility not to harm others by their actions or with things in their possession. A Louisiana landlord has a special duty to his or her tenants to provide a safe building and will be held responsible if a tenant is injured as a result of the Landlord’s failure to repair a defect in the building that he or she knew about or should have known about. The following case illustrates some of these issues.

Jennifer Hooper was injured on the porch of her rented apartment when her crutches got stuck in a small, preexisting hole. As it turns out, the floorboards were rotten and Ms. Hooper fell right through the porch, fracturing her right femoral neck. Ms. Hooper sued her landlords, Val and Mary Brown, and their insurance company, Encompass Property and Casualty Company. The Browns attempted to terminate the case before it started by filing what is called a Motion for Summary Judgment. By filing this motion, the Browns asked the Trial Court to decide the case in their favor, without going through the formal development of the case. This would have ended the case before a jury had the opportunity to hear it. The Trial Court denied the motion, however, because there was a dispute as to whether the hole that Ms. Hooper stepped in was “open and obvious to all.” The Browns appealed the denial of the motion to the Louisiana Fourth Circuit Court of Appeal.

Ms. Hooper signed an apartment lease with the Browns in January 2011 and renewed the lease in 2012. Upon moving into the apartment, the Browns alerted Ms. Hooper to the hole in one of the porch floor boards. Several times over the course of her tenancy, the Browns promised to fix the hole but never did. Ms. Hooper argued that the Browns were responsible for her injuries by failing to adequately inspect and maintain the premises and warn her of the unreasonably dangerous condition. The Browns averred that the hole in the porch floor was open and obvious to all and thus, they had no duty to warn Ms. Hooper of the hole. Effectively, the Browns argued that Ms. Hooper should have seen the hole and avoided it all on her own.

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sidewalk-cross-1177206-1024x681Each year, thousands of people suffer from slip and fall accidents. From a legal perspective, it can be difficult to determine who, if anyone, is at fault. For example, in some slip and fall cases, a property owner can be held liable for the other party’s injuries. Property owners owe a duty of care to persons who use their premises. Owners are expected to keep the grounds in a reasonably safe condition.

The following case provides a good illustration of some of the issues that can arise when litigating a slip and fall accident. Reba Campbell suffered injuries after she slipped and fell on a mildewed area of sidewalk adjacent to the Evangeline Parish Medicaid Office. Mrs. Campbell and her husband (Plaintiffs) filed suit against the Evangeline Parish Police Jury, as owners of the Medicaid Office building, and the State of Louisiana, Department of Health and Hospitals, as lessee of the building. The State interjected a cross-claim against the Police Jury that called into question their liability as leaseholders. The State believed that the Police Jury should be held liable because it owned the property on which the hospital was located. The Police Jury countered that the State had the responsibility for maintaining the sidewalks in front of the building.

Plaintiffs sought a declaratory judgment from the Trial Court and the Trial Court held that the State was liable because it failed to put the Police Jury on notice of the problems with the sidewalk. The Trial Court granted the Police Jury’s oral motion for judgment and dismissed the Police Jury from the lawsuit.

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power-2-1315569-683x1024When a person is injured, a countdown begins. If you think you have a lawsuit, you need to file that lawsuit within a certain amount of time or else you will lose the right to that claim. Similar to what some states would call a statute of limitations, Louisiana uses something called “liberative prescription” or just “prescription.”  Under this legal doctrine, after a certain amount of time has passed, a plaintiff can no longer bring their claim.  The claim is treated as if it never came into being. In some cases, this period is one year. See La. C.C. art. 3492.  A defendant can avoid a claim that has passed this period under the defense of peremptory exception, which dismisses a claim for being untimely filed. For some plaintiffs, there is relief in the form of the legal doctrine contra non valentum.  Under this idea, the time period to bring a claim does not begin on the day the injury occurred but rather when the person realizes what has happened with enough certainty to file a lawsuit. See Bailey v. Khoury, 891 So.2d 1268 (La. 2005). Prescription exists to keep parties from being surprised by claims from events that have happened years in the past.  Contra non valentum likely exists to help people who have been prevented in some way from discovering exactly who or what has caused their injury.

The Louisiana Fifth Circuit Court of Appeal recently applied these legal theories on a work-related illness. Natividad Tenorio worked from 1981 to 1988 in his employer’s (Alpha Technical Service) yard removing radioactive substances (oilfield-generated radiation or OGR) from oil and gas pipes.  In November  2009, Mr. Tenorio was diagnosed with throat cancer.  In 2013, a former co-worker informed Mr. Tenorio about the dangerous airborne radiation to which the workers had been exposed during that period of years. One year later, Mr. Tenorio brought a lawsuit against numerous gas and oil companies that had used the radiation-generating pipes. The Defendants asserted their affirmative defense of peremptory exception under the notion that the time period for prescription had passed.  The Trial Court sided with the Defendants and dismissed the lawsuit; Mr. Tenorio appealed.

On appeal, Mr. Tenorio argued that the Trial Court should not have deemed his lawsuit “prescribed” after only one year.  He claimed that the grace period should have been extended under the theory of contra non valentum since he did not discover that his work put him at risk of cancer until four years after his diagnosis.  Defendants argued that Mr. Tenorio should have known the cause within the year following his diagnosis and that he did not show any evidence of anything that may have prevented him from discovering that the radiation from his former job led to his cancer.  The Court of Appeal noted that under these circumstances, the burden of proving that his claim was not prescribed rested with Mr. Tenorio.  As such, he offered evidence that showed he only found out about the radiation in 2013.   However, the Court of Appeal found for the Defendants, reasoning that when a person fails to realize that he or she has a potential claim through only his or her own neglect or ignorance, that person should not be granted a grace period.  Moreover, a year-long prescription period in a personal injury case such as this one is deemed to begin when a plaintiff knows or should know the relevant facts.  The Court of Appeal believed that Mr. Tenorio should have researched possible causes of his cancer immediately after the diagnosis in order to be able to begin his lawsuit within that first year. But because he did not, the Court of Appeal found that Mr. Tenorio was unreasonably late in filing his lawsuit and the Trial Court’s dismissal of his claim was upheld.

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nz-police-car-1313773-1024x450Driving is a dangerous and daily task for many people and becomes even riskier when roads aren’t conducive to safety. Adding modern distractions like cell phones and a splash of alcohol to the equation creates the perfect storm for a terrible collision. An incident in Lafayette, Louisiana demonstrates how the culmination of these factors can create difficulties when a court is trying to determine liability and damages.

Taylor Burtner (Mr. Burtner) sustained a complex tibia and fibula fracture of his right leg when he was injured in a car accident with Lafayette City Police Officer Michael Milazzo (Officer Milazzo). As a result of the accident, Mr. Burtner underwent three separate surgeries which cost over $67,000.

Mr. Burtner was turning onto West Pinhook Road at its intersection with Jomela Drive when a speeding Officer Milazzo struck his vehicle. At trial, it was determined that Mr. Burtner had been drinking earlier in the night, but, although his exact blood alcohol concentration was at dispute, it was not disputed that he was under the legal limit at the time of the crash. Mr. Burtner was turning left onto West Pinhook after stopping at the stop sign on Jomela Drive, but this intersection contains a curve right before Jomela Drive for drivers on West Pinhook. Officer Milazzo was driving on this curve, speeding at a contested level between 10 and 15 miles over the speed limit. In addition to this bad combination, additional factors impaired the motor skills of both drivers. The trial jury found that Mr. Burtner was distracted by a passenger texting at the time he was turning and Officer Milazzo’s vision was obstructed by trees along the curve of West Pinhook. With everything taken into account, the jury found Mr. Butner to be 90 percent at fault in the wreck and Officer Milazzo to be 10 percent at fault. In addition, the jury awarded Mr. Butner $67,072.12 in medical damages and $40,000 in general damages.

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sign-no-left-turn-1473790-633x1024If you are involved in a motor vehicle accident while making a left turn, you are presumed to be negligent because of the dangerous nature of the turn. You will have to overcome this presumption of negligence even if you think the accident is not your fault. See Baker v. State Farm Mut. Auto. Ins. Co., 162 So.3d 405 (La. Ct. App. 2015).

On October 26th, 2012, at 8:00 p.m., Latoya Leonard was driving west in Caddo Parish, Louisiana. She stopped at a traffic light at an intersection and other vehicles stopped behind her. James Lee was approaching the same intersection from the opposite direction. Leonard saw Lee’s truck from several car lengths away as it began to approach her. When the light first changed, Leonard delayed her turn as drivers behind her honked their horns. She turned left and the left portion of Lee’s front bumper collided with the back passenger side door of Leonard’s car.

The police officer who took the report of the accident gave his testimony via deposition. In his deposition, he said that his report was based solely on what he was told by the parties because he did not witness the accident and did not talk to any impartial witnesses. Lee told the officer that Leonard turned left and crossed into the westernmost southbound lane as both were beginning to turn south. Based upon what the drivers reported, the officer placed the point of impact at the westernmost, outside lane. The officer concluded that Lee was not at fault in the accident but also said that both parties should have yielded.

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where-there-s-smoke-there-s-fire-1313884-743x1024Sometimes a police report isn’t everything in a lawsuit as demonstrated by a recent incident in Bossier City, Louisiana involving a peculiar car accident. Physical evidence and eyewitness testimony in a lawsuit can trump a contradictory police report. Therefore, it is important that a person involved in such an incident immediately contacts an excellent attorney who is capable of sifting through mountains of information and presenting it in a way that exposes a potentially faulty police report.

This was the situation with regard to the car accident between Amanda Moreland and Dr. Abdullah Gungor.  Ms. Moreland and Dr. Gungor were driving on Benton Road in Bossier City when they crashed. Fortunately, no one was injured, but both cars were damaged.  The accounts of how the accident occurred differed significantly. The police report supported Ms. Moreland’s story, but the physical evidence and eyewitness testimony supported Dr. Gungor’s.  Based on the police report and an expert that she hired, Ms. Moreland brought a lawsuit against Dr. Gungor for the damages to her car.  However, the District Court was persuaded by the physical evidence and eyewitness testimony and ruled that Dr. Gungor was not at fault. The case was dismissed. Ms. Moreland appealed and argued that there was manifest error in the District Court’s ruling because it disregarded the police report and the interpretation of the accident by her expert.  The Second Circuit Court of Appeal found no manifest error and affirmed the District Court’s judgment as reasonable in light of the evidence.

The incident at issue in this case began when both Dr. Gungor and Ms. Moreland were driving on Benton Road. Dr. Gungor was ahead of Ms. Moreland as they both drove toward Benton Spur.  At Benton Spur, the cars collided just before a traffic light.  Both parties agreed to these facts, but who caused the crash was the matter of dispute and at the heart of the lawsuit.  Dr. Gungor’s BMW was damaged on the driver’s side rear while Ms. Moreland’s Cobalt was damaged on the passenger’s side front. This infers that Ms. Moreland crashed into Dr. Gungor from behind.  Despite the location of the damage, the police officer took statements from both parties and wrote in his accident report that Dr. Gungor crashed into Ms. Moreland.  He based his report on Ms. Moreland’s statement that Dr. Gungor “suddenly came into her lane and they crashed” and a statement allegedly attributed to Dr. Gungor that he “swerved into the left lane” because he had to avoid another car.  This police accident report was the basis of Ms. Moreland’s lawsuit against Dr. Gungor.  She also hired an accident reconstruction expert who, relying largely on the accident report, supported her argument that Dr. Gungor was at fault.

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stethoscope-2-1420449-1024x605The issue of whether a doctor’s treatment was the cause of a plaintiff’s injury can ultimately be left to a court to decide. If you have been injured after receiving treatment by a physician, it is important to contact a good lawyer to make sure you maximize your odds of winning the compensation you’re entitled to.

A good illustration of such an issue occurred on April 11, 2007. The plaintiff, in this case, Jerome Smith, was admitted to a hospital for various mental issues. Mr. Smith had a significant medical history of past mental lapses. He reported suffering from auditory and visual hallucinations and tested positive for cocaine upon admission.

Jay Piland, M.D., the defendant in the case and Medical Director of the hospital performed a medical history and physical consultation on Mr. Smith when he arrived at the hospital.  During the consultation, Dr. Piland discovered a foreign object in Mr. Smith’s ear and removed it. Mr. Smith asserted that Dr. Piland punctured his tympanic membrane during the removal of the object.

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