Negligence

June 8, 2013

American Legion Hospital Decision Highlights Importance of “Getting it Right” the First Time

Many people wonder what can be done from a legal standpoint to get a better verdict. In situations involving accidents where the damages awarded don’t fully cover the perceived damage, it would be prudent to appeal your verdict. However, before any action be taken, it is crucial to note the role of the Appellate court and its scope of power in reviewing a damage award. This is important for two reasons: (1) to keep expectations realistic and (2) to highlight the pertinent actions to be taken after an injury.

Trying to get a damage award amended on appeal can be an uphill battle, but it is possible. To better understand this amendment process, a recent attempt to amend a general damage award provides a solid example.

In December of 2007, Shirley Langley was the victim of a bee sting, resulting in a severe allergic reaction. She was admitted to American Legion Hospital in Crowley, LA, where the hospital medical staff improperly administered epinephrine to Mrs. Langley, resulting in, amongst other ailments, permanent damage to her heart.

June 6, 2013

Injury at Hospital Examines Liability and Duty

by Berniard Law Firm

The duty owed by hospitals to patients is a rather cut and dry area of law. However, a case arising out of West Monroe, Louisiana, illustrates how questions of liability become more difficult when the patients’ visitors are involved. Although a hospital does owe a duty of reasonable care to its visitors, the key is whether there is an “ease of association” between that duty and the risk of harm. Liability will therefore often turn, not on the factual issues of a case, but whether the risk of harm to the visitor is within the scope of that duty.

This was the matter before the Louisiana Second Circuit Court of Appeal in Vanderpool v. Louisiana Extended Care Hospital. The case involved a visitor who was injured after her mother fell off a commode chair. The patient’s daughter was helping her mother onto the chair when the arm gave way. Unable to support her mother’s weight, the daughter fell to the floor and sustained injury. The trial court granted summary judgment to the defendant hospital, meaning there was no issue of material fact and a decision could properly be made without the need for further deliberation.

Reviewing summary judgment for a hospital’s liability usually begins with consideration of the hospital’s legal duty. This was the primary determination in Vanderpool, where the appellate court first addressed the hospital’s duty to the plaintiff visitor. While the hospital had a duty to maintain the commode chair in safe working order and to take other steps to protect the patient, the patient’s visitor was not similarly protected. As the court reasoned, “The hospital’s duty to exercise reasonable care for the safety of visitors would not encompass the unlikely risk that a visitor would sustain an injury in connection with a patient using a commode chair.” The point of a duty of care is not to protect against all possible instances of harm that could arise.

June 5, 2013

Understanding Duty Important in Worker’s Compensation Claims, Civil Suits

by Berniard Law Firm

To bring a case to court, it seems obvious that you must have some kind of legal basis for your claim. For a personal injury case, that could mean that someone else caused you to slip and fall; you slipped because the floor was wet. In that type of case, someone else had a duty to keep the floor clear from slippery things, and they did not follow through on that duty. Because of their lack of follow-through, you can likely bring a case to court so that the person that failed to keep the floor clear of slippery things will be responsible for their actions. However, if you slipped in your own house because your son spilled on the kitchen floor, you are very unlikely to have a case against your ten-year-old son.

While the explanation seems simple, it is not in many cases. The law is filled with qualifications and loop holes. In the previous example, you cannot bring a case if no one had a duty to keep the floor clear from slippery things. In personal injury cases, there needs to be a duty to create liability.

There are also time, place, and manner restrictions in bringing lawsuits as well. The classic example is restricting work injuries to worker’s compensation claims. Generally, if you are injured while at work, then you do not file a separate lawsuit, you file a worker’s compensation claim. It is similar to an in-house procedure for taking care of injury claims. Worker’s compensation is an insurance that the employer uses so that they cannot be sued in the regular courts. It provides damages in the form of wage replacement and medical expenses. Therefore, if you tried to bring a case for being injured while you are at work to a normal courtroom, you would likely be dismissed because the worker’s compensation program should be handling your claim, not the court.

June 4, 2013

Legal Concepts: Louisiana Code of Civil Procedure and Hearsay

by Berniard Law Firm

The law has a wide variety of rules in place to force a clean route to evidence, especially from authorities on the topic, like people present or involved with the case’s topic. Hearsay is a statement, other than one made by the person themself while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted. Article 802 of the Louisiana Code of Evidence states “Hearsay is not admissible except as otherwise provided by this Code or other legislation.”

Understanding Legal Terms

Assertive Conduct:

June 3, 2013

Physical Rehabilitation Damage Leads to Difficult Ruling, Appeal of Facts

by Berniard Law Firm

Scott Ramocitti lost three fingers on his left hand in a work-related accident that occurred while he was using a saw blade in May of 2008. During his treatment Mr. Ramocitti was referred by his work insurance company to the defendant in this case, Helping Hand Physical, for physical therapy in order to learn how to adjust to his new situation. His physical therapy regiment included almost daily exercises with a Thera-Band exercise band to strengthen his hand and help Mr. Ramociotti learn to adjust to living with two fingers on his left hand.

A Thera-Band is a yellow latex band, used to help increase strength by providing resistance to muscles during rehabilitation. He was given his band by Chere Johnson, a Helping Hand physical therapist and instructed to do the exercises at home. After a month of using the Thera-Band, it broke during one of his exercises and re-injured Mr. Ramocitti’s left index finger.

This incident led to Mr. Ramocitti filing suit against Helping Hands claiming negligence for failure to properly instruct and warn him on how to use the Thera-Band. Helping Hands filed a motion for summary judgment, which was granted by the trial court judge in the initial proceeding. Upon receiving this judgment Mr. Ramocitti appealed.

May 31, 2013

Tractor Accident Leads to Question of Responsibility for Dead Tree Causing Incident

by Berniard Law Firm

In 2009, a Louisiana man was driving a tractor/trailer in Caddo Parish when he suddenly hit a large pine tree that had fallen across the road. Despite having already made this same trip on the same road several times that day, since the last time he had made the pass, the tree had fallen in the road. Unfortunately, the man did not have enough time to see the tree and stop his vehicle before driving into it. As a result of the accident, the man suffered serious neck injuries.

In light of this injury, who was to blame and what action could be taken? The man sued the owners of the property from which the tree fell, State Farm and the Parish. The claims against the owners and State Farm were settled, but the claim against the Parish went to court. Ultimately the trial court ruled against the man in favor of the Parish.

Taking the case further, the man appealed, arguing that the trial court had erred in three main regards. These errors had to do with admissibility of evidence, knowledge of the hazardous condition, and corrective action.

May 30, 2013

Asbestos Case Involves Rules for Testimony and Exclusion

by Berniard Law Firm

Joseph Trascher of Slidell, LA, was born in April 15, 1940 and died April 11, 2007. Shortly before his death in March of 2007, he filed a petition in the district court seeking an ex parte order to perpetuate his testimony. He alleged that in August 2006, he was diagnosed with asbestosis, and that it was unlikely that he would survive longer than six more months. In the petition, Trascher also alleged that he sustained occupational exposures to asbestos while working as a tack welder at the Avondale Shipyard from 1960 to 1964, and at the Equitable Shipyard from 1965-1974. He requested service on these parties and a number of other parties he identified as expected defendants in his anticipated suit for damages. The district court granted the order.

The video deposition began on April 3, 2007, but was halted due to Trascher’s failing health and fatigue. He tragically died before his deposition could be continued and before he could be cross-examined by opposing counsel. The district court admitted the deposition as trial evidence, and the admissibility of the deposition reached the Supreme Court of Louisiana. The LA Supreme found that “while most of the video deposition is inadmissible, parts of the deposition are admissible under an exception to the hearsay rule.”

Typically, witnesses are to testify in court during a trial in order for the testimony to be admissible. However, there are exceptions to this general rule, and one such exception is to allow a party to perpetuate testimony. Perpetuating testimony is when testimony is prepared so that it can be used as evidence during a trial, even though the person who made the testimony will not be present at the trial. Article 1430 of the Louisiana Code of Civil Procedure grants perpetuation orders when

May 29, 2013

Pothole Blamed for One-Car Accident in East Carroll Parish

by Berniard Law Firm

After being involved in a one-car accident in 2008, a Louisiana woman sued East Carroll Parish Police Jury, claiming that a pothole on Perry Road resulted in her accident. She later amended her claim to state that other factors had further contributed to her injury and that the road was defective. In response, the Police Jury filed a motion for summary judgment, and the hearing on the matter was set for August 1, 2011.

Because the hearing date was set for August 1, 2011, this meant, according to Louisiana law, that if the woman wanted to file an opposition to the motion for summary judgment, she had until eight days before the already set hearing date to do so. This deadline for filing the opposition materials was then set as July 24, 2011. However, July 24th came and went, and no opposition materials were filed on the plaintiff’s behalf. On July 29, 2011, three days before the hearing, the plaintiff tried to move the hearing back, claiming that she needed more time for discovery. When the day of the hearing came about, the court pointed out that the plaintiff did not file her motion for continuance until after the eight-days before the hearing deadline.

At the hearing, the court did finally grant the motion for continuance, despite the fact that it was filed late, and the hearing was rescheduled for September 20, 2011. The plaintiff was told that any opposition had to be filed on or before September 6, 2011 (even though this would be more than eight days before the newly scheduled hearing). Basically, the court had offered the plaintiff a 45-day extension of her deadline, from July 24th to September 6th.

May 28, 2013

Workers’ Compensation Act Protects Louisiana Employees Injured on Job

by Berniard Law Firm

If you ever become injured in a work-related accident in Louisiana, or if you become ill with an occupation-related condition, workers’ compensation can help cover your expenses while you seek the treatment and take the time off that you need.

The Louisiana Workers’ Compensation Act is a piece of legislation that details the rules and regulations of Workers’ Compensation in the state of Louisiana. Specifically, the Act provides for compensation if an employee sustains a personal injury in an accident arising out of and in the course of his employment. Much like any other legal document or piece of legislation, it is best interpreted by trained and qualified legal representation.

In Harvey v. Brown, the Second Circuit Court of the State of Louisiana recently examined the Louisiana Workers’ Compensation Act in the context of whether an employee/employer relationship existed and, if so, whether the injury arose out of and in the course of this employment. On October 8, 2009, McNeil C. Harvey died when a piece of farm equipment he was working under fell and crush him. Subsequently, his daughter, Valerie Harvey filed a suit seeking survivor’s damages and wrongful death damages against Joseph Patten Brown, Jr., Gailliard Farms, Inc., and Gailliard Gin, Inc. According to Valerie Harvey, the accident was caused by the parties’ negligence in: (1) exposing McNeil to ultra hazardous perils; (2) assigning McNeil to work outside the course and scope of his employment; and (3) other fault and negligence to be discovered. Moreover, Valerie Harvey added MAPP, Inc. as an additional defendant and claimed that MAPP was negligent for the same reasons as the original defendants.

May 27, 2013

5th Circuit Throws Out Whistleblower Case Against Premier Rehabilitation Center in Monroe

by Berniard Law Firm

When a company defrauds the government, the taxpayers literally pay the costs for that crime. A whistleblower is someone who brings that fraud to the attention of the government or the public. At times, whistleblowers are fired from their jobs, and some seek to bring suit against the company. The whistleblower has to send the complaint to the government first, and if the government refuses to take over the case, then the whistleblower can bring suit on behalf of the government and seek recovery of the money that was fraudulently obtained. Under federal law, such actions are known as qui tam cases.

In qui tam cases, the whistleblower is known as the relator, as they are the one who relates information about the fraud to the government or the public. Depending on the specifics of the case, a relator is entitled to receive a portion of any award obtained on behalf of the government. While this may sound like easy money, the case of Stennett v. Premier Rehabilitation Center shows that qui tam actions can be very difficult to win in court.

From March 2007 to September 2007, George Stennett served as the Administrator of the Premier Rehabilitation Center in Monroe (Premier). He oversaw the company’s financial practices and business relationships. Mr. Stennett claimed that he discovered some of Premier’s billing practices violated both Medicare and Medicaid requirements; and he also claimed that he informed the company’s owners, Mr. Joubert and Mr. Markstrom.