Negligence

June 26, 2013

Informed Consent Target of Lawsuit Involving Medical Malpractice Claim

Medical malpractice occurs when a doctor or medical professional fails to competently perform a medical treatment and the patient is harmed as a result. One type of medical malpractice is lack of informed consent by the patient – doctors are required by law to inform their patients about the known risks involved for a proposed medical procedure or a course of treatment. When fulfilling this requirement is in question, litigation can become essential to analyze what happened.

While informed consent is not required in some situations, such as in an emergency, under most circumstances, doctors must give their patients detailed information about the particular procedure to be performed and explain the risks. Typically doctors ask the patients to sign an informed consent form to satisfy this requirement. After a patient gives his or her informed consent, the doctor cannot do what the patient has not consented to by doing a different surgery or performing additional medical treatment.

To better illustrate these points, a recent medical malpractice case examines the doctrine of informed consent: Ms. Boudreaux underwent a shoulder replacement surgery performed by Dr. Parnell to cure rheumatoid arthritis that severely affected her right shoulder joint. Following the surgery, however, Ms. Boudreaux developed radical nerve palsy that ultimately became permanent and disabling.

June 25, 2013

Tragic Workplace Accident Provides Insight Into Duty of Care

by Berniard Law Firm

A former employee of the Mansfield, LA, branch of the International Paper Company, met with a fatal accident while on the job. While repairing a valve on the platform surrounding the top of a whitewater tank, he fell through the access opening and into the tank.

Access opening covers are not rooted firmly to the tank and are known to become dislocated if the tank contains overpressurized liquid, or if the liquid and debris overflow. Evidence in the form of photographs show that debris had accumulated around the access opening that the deceased had fallen into, indicating that the opening may have been dislodged before he had fallen into the tank. As a result of the incident, the widow of the deceased filed suit against the manager of the Mansfield paper mill and the engineering company that designed and constructed parts of the whitewater tank that the employee fell into.

The engineering company, Stebbins, had a contract with International Paper Company to inspect the durability of its whitewater tanks at many of its locations worldwide. The inspections conducted by Stebbins brought knowledge that some whitewater tanks were over-pressurized and were overflowing. The victims’ family contended that Stebbins’ knowledge of this hazard created a duty on the part of Stebbins to inform the International Paper company of the unsafe practice. The issue, however, was that Stebbins had no such inspection contract with the Mansfield paper mill where the deceased met with his accident.

June 24, 2013

Liability When an Escaped Prisoner Injures an Innocent Community Member

by Berniard Law Firm

What sort of liability arises when an escaped prisoner causes personal injury to someone? It’s certainly not a typical question with which tort law deals. The matter arose in Acadia Parish, where prisoner Jack Stansberry escaped from a hospital, stole a vehicle, and injured plaintiff Nelwin Rider in the process. The trial court granted partial summary judgment in favor of the plaintiff, but the Louisiana Third Circuit Court of Appeal reversed.

The trial court considered summary judgment motions by both the law enforcement defendants and the plaintiff. Summary judgment motions are designed to ensure more efficient use of court resources by granting judgments when there are no genuine issues of material fact. The trial court found the law enforcement defendants solely at fault for plaintiff’s injuries and granted plaintiff’s motion. In reversing this judgment, the appellate court held that there were genuine issues of material fact as to whether the prisoner was in the process of escape when the plaintiff was injured. For this reason, the court of appeals said, summary judgment was not proper.

The matter before the trial court was one of negligence. Generally, courts are careful in such cases to lay down specific tests that must be met before assigning liability for injury. While recognizing the duty of prison custodians to act with care in managing prisoners, the appellate court affirmed that this is not an absolute duty intended to forego all potential harm. This duty “is not intended to protect persons from harm inflicted by inmates who have already escaped and who subsequently commit tortious acts in the furtherance of their own pursuits.” This important line, dividing a prisoner’s escape from subsequent activity, was drawn by previous court decisions and was critical to assessing the propriety of the trial court’s summary judgment ruling.

June 22, 2013

Prescription Exceptions Exist for Multitude of Cases

by Berniard Law Firm

Diving into complex legal issues is difficult but necessary. One particular example is the idea of prescription, or timing involved in filing a case. The exception of prescription is a limit on actions that may be brought, and has proven to be a successful defense. Peremptory exceptions may be asserted when the time for filing the type of claim involved has expired prior to the filing of the petition. The rules of prescription and peremption are set forth in the Louisiana Civil Code. This defense may be pleaded at any stage in the trial court proceeding prior to a submission, the burden is generally on the asserting party, and fact findings are reviewed under the error-clearly wrong standard.

An application of this defense can be seen in a recent case. Five inmates at the Louisiana Department of Public Safety and Corrections (DPSC) filed suit against the DPSC following an automobile accident, claiming negligence and failure to ensure medical treatment for injuries sustained. The defendants filed exceptions of lack of subject matter jurisdiction, improper venue, and prescription. The plaintiffs subsequently filed an amended petition asserting that the Corrections Administrative Remedy Procedure was unconstitutional.

The trial court found that the plaintiff’s claims had prescribed, with the exception of one plaintiff (whose prescriptive period was suspended from the time he filed his grievance until an agency decision was delivered). “Delictual actions are subject to a liberative prescription of one year [which] . . . commences to run from the day injury . . . is sustained.” “Prescription is interrupted when . . . the obligee commences action against the obligor in a court of competent jurisdiction and venue. If the court or venue is improper, then prescription is interrupted only as to a defendant served within the prescriptive period.

June 21, 2013

Dog Injury in Lafayette Leads to Examination of Liability

by Berniard Law Firm

The Court of Appeal of Louisiana, Third Circuit, recently ruled in the summer of 2012 on an issue coming out of the Parish of Lafayette involving a variety of legal questions. In the case of Theresa St. Julien v. Julie Walters Landry, Julien was allegedly injured by her neighbor’s dog when it came free from her neighbor’s yard and knocked her down while on her own property. Immediately there are negligence and strict liability issues when it comes to this event: Who owned the animal? Who secured the animal? Who was in charge of the animal at the time of the accident?

The St. Julien case is a perfect example of how a mishap in filing documents, leading to admitted facts, can result in the downfall of a defendant who assumes responsibility by not denying it. After failing to answer the plaintiff’s complaint on time, Landry admitted to being the owner of the dog and that it was being kept on her property under her control. The court found that there were genuine issues on multiple material facts and for that reason reversed the decision of the lower court in favor of St. Julien, which will result in a trial. The larger issue for the public is whether it even mattered if Landry was determined to be the dog’s owner.

Dogs are one of the most commonly owned domestic animals and also result in a large number of injuries throughout the state of Louisiana but also across the country. Many times these injuries occur to complete strangers but, nevertheless, owners of inherently dangerous animals need to be responsible for injuries resulting from the actions of those animals. The harder question is what is to be done when the animal injures another while in the care of someone who is not the owner. This is why the courts of this nation have adopted the theory of strict liability.

June 20, 2013

Third Circuit Reverses Lafayette Court Ruling on an Exception of No Right of Action Claim

by Berniard Law Firm

On October 3, 2010, Darnall and Michelle Carter suffered the loss of their son Kyris in a drowning incident at a party. On April 25, 2011, the Carters filed wrongful death and survival actions against Steak House Steaks, Inc., James Nations Jr., the alleged owner of the property where the party was held, and XYZ Insurance Co. Wrongful death and survival actions are civil lawsuits initiated by the family members of a deceased victim to obtain a monetary settlement from the person or people responsible for the death of their loved one. Under Louisiana law, there is an established order concerning who has first priority to take these civil actions, with the children of the victim having the first right to file against the wrongdoing party. If the victim had no children then his or her siblings may bring the matter to court, and if the victim had no siblings, then the right falls to the victim’s parents.

Since Kyris Carter did not have any children or siblings, his parents Darnall and Michelle were within their rights to bring wrongful death and survival actions on his behalf. However, the trial court in Lafayette ruled in favor of a motion filed by the defendants in June 2011 for an “exception of no right of action” and dismissed the defendant parties from the lawsuit. According to the defendants, the plaintiffs had no right of action, that is, they did not have a right to bring the wrongful death and survival action claims because the defendants were not the owners of the property where the accident occurred, nor were they the hosts of the party where Kyris Carter died.

The details of the party in question are not laid out by the Court of Appeal or the lower court, but the particular facts concerning who hosted the party or who may have been responsible for the drowning accident should not have been taken into account when the trial court was deciding the motion. In 2012, the Court of Appeal held that the trial court had erred in its assessment of the legal procedural issues involved in the defendant’s motion. The purpose of the “exception of no right of action”, it said, is “to challenge whether a plaintiff is the proper party to file an action, not whether a defendant is the proper party against whom an action can be filed.” In other words, even if Darnall and Michelle Carter had mistakenly initiated a lawsuit against the wrong defendants, the motion used by the defendants should not have been the one used to challenge such an error. The “exception of no right of action” can only be used to challenge whether a plaintiff is the right person to be filing the lawsuit in the first place. Since Darnall and Michelle were proper plaintiffs in this lawsuit, there was no ground for this exception.

June 19, 2013

Jones Act Negligence and Unseaworthiness Explored in Louisiana Maritime Case

by Berniard Law Firm

The Jones Act is officially titled the Merchant Marine Act of 1920 and was passed by Congress in response to concerns about the health of the Merchant Marine and to establish protections for sailors. Before the Jones Act, seamen who were injured had few options for recovering damages for their injuries, but now the Jones Act allows you, as an injured seaman, to obtain damages from your employer for the negligence of the ship owner, the captain, or fellow members of the crew.

A federal statute (46 U.S.C. § 688) extends the Federal Employer’s Liability Act (FELA), which originally only applied to railway workers to seamen and it reads, in part, “[a]ny sailor who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right to trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply…”

According to the Fifth Circuit Court of Appeals for the State of Louisiana, “an employer is held to the standard of care of ‘ordinary prudence under the circumstances.’” Admiralty and maritime law can become increasingly complicated and it is important that you sufficiently prove to the court that your employer has breached the standard of care that is owed to you. In Lett v. Omega Protein, Inc., a recent case decided by the Fifth Circuit, the importance of having quality representation with experience in admiralty and maritime law is evident.

June 18, 2013

When is a Hotel Responsible for the Injury of a Guest?

by Berniard Law Firm

We hear about injuries to customers resulting in large settlements in the news frequently. In any industry, there is some risk that clients or customers will be injured during the time they are patronizing the establishment. When these injuries occur it often results in a lawsuit. Who is at fault (and as a result, liable for the damage) generally comes down to a determination of the “duty” that is owed by the establishment owner to his patrons.

So when can someone be injured and lose? One scenario presented itself in Darlene Johnson v. Super 8 Lodge-Shreveport in 2008. Mrs. Johnson and her father were guests staying in a Shreveport, Louisiana, Super 8 Lodge hotel “Jacuzzi Suite” after evacuating their home as a result of a hurricane. Like most hotel rooms, this one had a television for guest use. Unlike many, this suite’s TV was positioned at a 90 degree angle to the bed, making it awkward to view while laying in bed but designed to be comfortably viewed from the provided couch. The hotel was aware that not all guests preferred to have the television facing the bed and offered a service moving the entire entertainment center around for them. While the majority of guests didn’t request it, it wasn’t an unusual request. In fact, Mrs. Johnson was aware of this service and had requested it multiple times during her stay. However, during this incident, Mrs. Johnson did not request the entertainment center be moved. Instead, she attempted to do it herself and was injured as a result of the television falling on her. She subsequently sued suggesting the television should have been secured to the entertainment center with a pivoting platform, as they should have anticipated a guest trying to move the TV themselves.

The crux of the debate is a matter of what level of duty was owed to their guests by the hotel operators. Duty is a technical term in negligence law that sets the lowest obligation that someone owes to someone else in a situation. A hotel is required to exercise “reasonable and ordinary care including maintaining the premises in a reasonably safe and suitable condition.” While they are not required to absolutely guarantee the safety of guests, hotels must be careful to keep them from anticipated injury. To succeed in a suit such as this, a guest needs to demonstrate that the television was in the hotel’s custody, that it created an unreasonable risk of harm to others, and that something about the defective condition caused the damage. The court ruled in favor of the hotel.

June 17, 2013

Appeal Necessary in Car Accident Case Where District Court’s Finding of Fact Strays

by Berniard Law Firm

On a June night in 2006, Jeryd Zito was driving on a highway going through Plaquemines Parish when an ambulance appeared seemingly out of nowhere. Zito swerved to avoid it, but was not fast enough, hitting the left back corner and the left side of the ambulance. After the accident, Zito sued the owner of the Ambulance, Advanced Emergency Medical Services, Inc., and its insurer, to recover for the damage caused by the accident. While this may seem backwards, the person causing an accident suing, but the issue is much more complicated.

Zito claimed the accident was Advanced’s fault because the drivers were negligent in not taking the proper precautions to warn oncoming traffic that the ambulance was broken down on the side of the road. During the trial, the big issues were how far into the right lane, if at all, the ambulance was, and if there were any warnings on it, such as reflective tape, to signal to oncoming drivers there was something in the way. The rationale is that, while the vehicle was off to the side of the road, people are not expected to see in the dark or sense a blockage up ahead versus a general expectation of reasonable efforts being made to avoid accidents.

The trooper who investigated the accident testified that based on skid marks, the ambulance was parked five feet from the right lane, it was covered in reflective tape when he got there, Zito told him that he (Zito) was on his cell phone at the time of the accident and that there was no evidence that Zito tried to break before he hit the ambulance. The trooper issued Zito a citation for careless operation of a vehicle, which Zito paid without dispute.

June 14, 2013

LMMA’s Medical Review Board and How “Medical Malpractice” is Defined

by Berniard Law Firm

A person may file a medical malpractice claim when a health care provider unintentionally breaches a contract for service rendered. Medical malpractice claims may be filed when there is a failure to render timely services in the handling of a patient, including loading and unloading of a patient. In Matherne v. Jefferson Parish Hosp. Distr. No. 1 (2012), the Plaintiff, Mrs. Matherne, sought damages for an injury she received when she fell while a hospital employee was transporting her to a hospital bed; and in response to her complaint, the hospital argued the petition was premature because she did not first present the claim to the medical review panel.

Under the Louisiana Medical Malpractice Act (“LMMA”), if a claim is not first presented to a medical review board, a medical malpractice claim against a private health care provider is subject to dismissal on an exception of prematurity. According to La. Civ. L. Treatise, Tort Law § 15:5, the purpose of statutes requiring board review is to: separate frivolous claims from those with merit, alert claimants to the weaknesses of their position, reduce litigation costs, expedite the disposition of cases, and encourage settlement with meritorious cases.

The medical board review panel is composed of four members: three licensed health care providers and an attorney, whose role is purely advisory and cannot vote. The claimant and defendant each choose one health care provider panelist, and the third provider is chosen by the first two. Additionally, if only the defendant is a specialist, then all health care providers on the panel must be from that specialty. The panelists sign an oath of impartiality, review only written evidence, must request additional information from each party if necessary, and deliberate in private. Within thirty days of reviewing the claim or within 180 days of selection of the final panelist, a decision must be reached on whether the health care provider acted negligently by determining whether the standard of care was met and whether failure to follow the standard of care caused the injuries. The panel must give a written opinion delineating the reasons for its decision; this opinion is admissible at trial, but is not conclusive. At trial, the parties may also call the panelists as witnesses.