Negligence

September 25, 2011

Louisiana Woman’s Knee Replacement Leads to ‘He Said, She Said’ Confrontation (Part I)

Most people’s fear of hospitals is usually justified in that one does not usually go to a hospital unless there is something wrong, or something negative has occurred. Everyone who seeks medical treatment, whether in a hospital or private doctor’s office, is seeking an expert’s diagnosis and treatment to prevent future, or cure current, ailments, or to have one’s body ‘fixed’ in some way, as in a broken bone. Unfortunately, problems arise and the treatment one seeks does not always fully help, or even makes the issue worse. But sometimes, whose fault it is, that the problem does not subside, or that the problem only gets worse, is up for debate. That is where a medical malpractice issue arises, and the topic that shall be explored here.

The factual and legal basis of this discussion comes from the Louisiana Supreme Court case McGlothlin v. Christus St. Patrick Hospital, decided July 1, 2011. The issue in this case is, “whether [the Louisiana statute in question] mandates the admission of a medical review panel opinion when the panel exceeds its statutory authority and renders an opinion based on its determination of plaintiffs’ credibility, not on the medical standard.” The following questions must be asked first to clarify the terms and substance of this discussion: What is ‘medical malpractice’? And what is a ‘medical review panel?’

The term ‘medical malpractice’ gets thrown around more than it should. It is a specific legal negligence term devised to describe a cause of action that may be brought by a patient of a doctor and/or hospital claiming that the doctors, nurses, and anyone involved with the care and safety of the patient was negligent, and through this negligence, that a harm came to the patient that otherwise would not have occurred. More specifically, 1) a duty of care exists in which those that are employed to care for a patient must maintain the proper diligence in their medical and professional duties, 2) a doctor or nurse, or other individual employed in a professional and medical sense has breached this duty of care through his or her actions, or in the case of a hospital’s negligence, through that actions of its employees (doctors, nurses, etc.), 3) that this breach of duty is the cause of the resulting harm to the patient, a harm that otherwise would not have happened and can be linked to the action(s) or inaction(s), of those who owe a duty of care to the patient, and 4) that a harm is the result of that breach that would otherwise not have occurred, and is something not reasonably foreseen so that there is no other cause than the breach of the proper duty of care owed to the patient.

September 21, 2011

St. Landry Parish Accident Results in Reversal and DOTD Responsibility

by Berniard Law Firm

Car accidents are never pleasant, but when an accident is worsened by construction debris left on the side of the road, the outcome can be disastrous. Once the pain and suffering has subsided, the question needs to be asked, who’s responsible? Do we look to the construction company, or do we simply chock it up to the terrible luck of the drivers? More importantly, how does the state play into this accident, and when is it the responsibility of the state department to compensate for injuries resulting from construction debris? The 3rd Circuit Court of Appeals addressed those issues in the case of Thibodeaux v. Comeaux.

Jennifer Thibodeaux, the plaintiff in this case, was injured in a car accident off of Highway 190 in St. Landry parish. As Ms. Thibodeaux began to cross to the next lane, her car collided with another vehicle driven by Mr. Bill Comeaux. The collision caused Ms. Thibodeaux to lose control of her vehicle and travel off the highway, where her vehicle slammed into a large cement block and other debris on the shoulder of the highway. The cement and debris had been placed there during on-site construction by a contracted construction company, Gilchrist Constriction, hired by the defendant, Louisiana’s Department of Transportation and Development (DOTD). Ms. Thibodeaux was ejected from her car and sustained multiple injuries, including spinal fractures, lower jaw fractures, and a lacerated spleen. Among the others involved, Ms. Thibodeaux filed a claim against the DOTD for their responsibility in the accident. At the conclusion of the trial, the jury found that the debris and cement left at the site were the sole responsibility of Gilchrist Constriction, and not the responsibility of the DOTD. Therefore, the court found that the debris and cement created an unreasonable risk of harm and Gilchrist was 40% responsible (with the other 60% of liability ordered to Ms. Thibodeaux herself).

Ms. Thibodeaux’s appeal contends that the trial court erred in finding the cement and debris was not an unreasonable risk of harm caused by DOTD. The assignment of DOTD as responsible for the debris and cement questions the distinction between a factual and legal determination. For legal determinations, as stated in Becker v. Dean, the appellate court must review, de novo, the proper legal analysis to render a judgment on the merits. The appellate court looked to determine whether the factual determination by the trial was actually a legal determination that required a different form of review.

September 19, 2011

Statute of Limitations on Medical Malpractice Claims in Louisiana: Information Every Patient Should Know

by Berniard Law Firm

One of the first things that must be determined in a potential medical malpractice claim is whether the statute of limitations bars the claim. An otherwise legitimate malpractice lawsuit may be invalid simply because the injured party waited too long to file the claim. In the State of Louisiana, the statutory period in which a claim must be filed is referred to as the “prescriptive period.” If a case is “prescribed”, it is beyond the statutory period. Louisiana statutory law (La. R.S. 9:5628(A)) states that malpractice suits must be filed “within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission or neglect.”

In a recent Louisiana Court of Appeals Case, Amos v. Crouch, the court addressed the issue of what constitutes “discovery” of the alleged negligent act or omission. In the Amos case, Dr. Crouch, a Jackson Parish general surgeon, diagnosed a patient with severe hemorrhoids when in fact the patient had colorectal cancer. After receiving the hemorrhoids diagnosis from Dr. Crouch, the patient decided to see another doctor for a second opinion. After a brief examination, the second doctor ordered tests that ultimately revealed the colorectal cancer. The Court of Appeals concluded that it was at the time of his cancer diagnosis that the statutory period began to run. The Court declared, “Prescription begins when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort.” It is important to note that knowledge only refers to “such information that ought to put the alleged victim on inquiry.” Therefore, in certain circumstances, a correct diagnosis from a second physician can equate to “discovery” of the doctor’s negligent act, triggering the prescriptive period.

However, the court refused to treat a correct secondary diagnosis as a per se reasonable belief that the original doctor committed malpractice. Instead, the court declared, “it depends on the particular circumstances of each case.” But, the Amos case does infer that a correct secondary diagnosis, although not conclusive, acts as strong evidence toward proving that a reasonable person would have discovered the possibility of malpractice at that time.

September 17, 2011

2nd Circuit Reverses in Part Caddo Parish Med Mal Case Over Causation Issue

by Berniard Law Firm

With the vast criticisms that surround medical malpractice cases, it is no wonder why many keep a close eye on these types of cases. While it is very rare for an appellate court to do so, once in a blue moon an appellate decision will overturn a jury verdict of a medical malpractice judgment. Patten v. Gayle is one of those cases in which the plaintiff appeals the court’s verdict that malpractice occurred, but resulted in no injury and thus awarded no damages.

The plaintiff, Ms. Charlotte Patten, was the patient of her OB-GYN, Dr. Christopher Gayle, the defendant. Dr. Gayle had scheduled Ms. Patten for a laparoscopic evaluation after Ms. Patten complained of severe pain that was believed to be related to an abdominal hysterectomy she received from Dr. Gayle in 1997. In performing the procedure, Dr. Gayle placed multiple operative trocars (a medical instrument used to gain access into the abdominal cavity) throughout the abdominal area in order to insert a laparoscope, which enabled Dr. Gayle to see within Ms. Patten’s abdominal cavity. While performing the procedure, Dr. Gayle moved the trocars to gain better visibility of Ms. Patten’s abdominal cavity, and inadvertently punctured Ms. Patten’s abdomen. Initially, Dr. Gayle did not believe that the abdomen cavity had been compromised, but after further investigation later in the procedure, Dr. Gayle discovered that the trocars had penetrated through Ms. Patten’s small bowel. The result of the injury required Dr. Gayle to have the hospital’s general surgeon perform an emergency surgery on Ms. Patten to correct the error. In addition, feculent material was found to have leaked into Ms. Patten’s abdominal cavity a few days after the surgery had been completed, resulting in an abdominal infection known as peritonitis and pneumonia. After her recovery, Ms. Patten filed a medical malpractice suit against, among other individuals, Dr. Gayle. The jury determined that Dr. Gayle had in fact deviated from the required standard of care and had committed malpractice, but found that his actions did not result in the injuries sustained to Ms. Patten and awarded no damages. Ms. Patten appealed stating that the jury manifestly erred in finding a lack of causation between Ms. Patten’s injuries and Dr. Gayle’s malpractice.

In medical malpractice cases, the appellate courts apply the manifest error standard of review when ruling on issues of causation. The manifest error standard, as stated in Johnson v. Morehouse General Hospital, mandates that an appellate court may not overturn a trial court’s ruling, unless it is determined that the court’s factual determination is clearly wrong or manifestly erroneous. The court in Johnson states that it is not enough that the appellate court disagree with the trial court’s decision, it must find that there is no reasonable factual basis for the trial court’s conclusion. The court in Lovelace v. Giddens requires the appellate courts to pay close attention to medical malpractice cases when it comes to conclusions of causation, as great deference must be given when medical experts make differing conclusions as to medical causation.

September 15, 2011

The Complexities of the Involuntary Dismissal of a Claim

by Berniard Law Firm

A lawsuit can be resolved in many ways. Prior to formal court proceedings, the suit may be dropped voluntarily for one reason or another, or the parties might come to an agreement in mediation. If the case goes to trial, it may be resolved with the judge or jury entering a verdict after a full trial. It may also be resolved before the close of proceedings by way of dismissal. If a case is dismissed it can have serious repercussions for a suit, and often destroys the likelihood of recovery if a dismissal is entered against a plaintiff. There are many types of possible dismissals that can end a proceeding including the involuntary dismissal of a claim.

Louisiana Code of Civil Procedure Article 1627 governs involuntary dismissal. The plaintiff presents their case first, and upon the completion of the presentation of the plaintiff’s case, the defendant may make a motion for involuntary dismissal. The judge then reviews the evidence presented. If he finds the plaintiff has shown no right to relief, he may grant the motion for involuntary dismissal. On a motion for involuntary dismissal, the plaintiff’s testimony should generally be accepted as true. So long as the plaintiff has presented enough evidence to establish his argument by a preponderance of the evidence, a fairly low burden of proof, the case should be allowed to proceed and the motion denied. If the motion is granted, the plaintiff can appeal the decision. A decision granting involuntary dismissal is difficult to overcome on appeal but it is not impossible. The 2011 case of Settle v. Paul illustrates what can happen where a plaintiff successfully appeals an involuntary dismissal.

In 2009, James Settle sued Brenda Michelle Paul, his ex-girlfriend, in a dispute over the existence of a partnership agreement between the parties. Mr. Settle and Ms. Paul formed a construction company and took on several small projects in the company’s infancy. In 2003, Ms. Paul filed the necessary paperwork to have the company incorporated in Louisiana, forming the limited liability corporation Landmark Construction Company of Coushatta (Landmark). She was listed as the sole member of Landmark. Mr. Settle agreed that the parties decided Ms. Paul would be the sole member of the corporation because they wanted the company protected from seizure against Mr. Settle’s child support obligations. The company was profitable throughout the duration of its operation.

September 13, 2011

Jones Act Lawsuit Fails Under Seaman Claim

by Berniard Law Firm

“Plaintiff Lost at Seaman Claim”

Robert Teaver may have fancied himself a man of the sea but the United States Court of Appeals for the Fifth Circuit agreed with the District Court for the Eastern District of Louisiana that there was no way he could establish his status as a “seaman” for purposes of the Jones Act.

When dealing with litigation, especially when making a claim under a premise, words mean everything. To clarify, words mean specific things and those specific definitions are everything. Robert Teaver attempted to sue his employer under the Jones Act. The Jones Act was crafted to protect seamen who are injured in the course of their employment. This statute lays out the elements that must be met in order for a potential plaintiff to file a successful suit under it. Robert Teaver was a crane operator and installer for Seatrax of Louisiana, Inc. This company makes and installs cranes for offshore drilling platforms. Mr. Teaver’s work took him over water but he was not employed on a maritime vessel.

September 11, 2011

Third Circuit Court of Appeals Shoots Down Lafayette Woman’s Claim Damages Were Too Low

by Berniard Law Firm

Plaintiff Sherrie Lafleur was injured in an April 2007 rear-end collision on Ambassador Caffery Parkway in Lafayette. Mrs. Lafleur was waiting for a traffic signal when Brenda Nabours drove her vehicle into the rear of Mrs. Lafleur’s vehicle. The low-impact collision caused no damage to Mrs. Nabours’ vehicle and no structural damage to Mrs. Lafleur’s car.

Mrs. Lafleur filed suit against Mrs. Nabours (and Mrs. Nabours’ insurer Shelter Mutual Insurance Company) claiming that she suffered a severe neck injury as a result of the accident. Shelter admitted liability for the collision and the case proceeded to trial without a jury on the issues of causation and damage. The trial court found the debilitaing injuries claimed by Mrs.Lafleur were not a result of the collision and actually predated the accident by many years. The trial court awarded the medical damages incurred by Mrs. Lafleur from the date of the accident through August 2007 in the amount of $5,457.97. The court found Mrs. Lafleur failed to prove by a preponderance of the evidence that her remaining medical treatment was necessitated by the Collision. The trial court also awarded general damages of $10,000. Mrs. Lafleur appealed the award claiming both the calculations for special and general damages were abusively low and contrary to the evidence.

Special damages are awarded to repay you for financial losses you have suffered. In Lousiana, the amount of special damages awarded is a finding of fact subject to the manifest error standard of review. Under this standard, the appellate court looks to whether the factfinder’s conclusion was a reasonable one not whether the trier of fact was right or wrong. If the conclusion was reasonable, a reviewing court may not reverse even though convinced it would have weighed the evidence differently. Where the factfinder’s determination is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous.

September 9, 2011

3rd Circuit Ruling Regarding Workplace Injury – Part 3 of Series

by Berniard Law Firm

Though Mr. Herbert’s primary argument was that he was outside the scope of his employment, he argued in the alternative that, even if the injury occurred within the scope of employment, the Defendants committed an intentional tort. Such a tort is the only recourse available to defeat a workers’ compensation defense when the injury occurs within the scope of employment. When making an intentional tort claim one must prove that the act that resulted in the injury was intentional. An intentional act requires the actor to either consciously desire the physical result of the act or know that the result is substantially certain to occur from his conduct. “Substantially” in this context requires more than a probability that an injury will occur and “certain” alludes to inevitability. Negligent, reckless, or wanton action is not enough to satisfy an intentional tort. These high standards make it difficult to succeed in a suit for intentional tort within the workplace.

Mr. Herbert was unable to succeed in his alternative argument because no proof was provided that either Industrial or GMI desired to harm Mr. Herbert or that the companies were substantially certain that the injury would occur from the companies’ acts. The court concluded that there was no evidence to prove that safety modifications made to the helicopter were an intentional cause of the injury. Neither the Plaintiff nor the Defendants felt that the safety harness used was unsafe, which defeated any claim that the Defendants knowingly acted to cause harm to Mr. Herbert.

In addition to the intentional tort, Mr. Herbert also claimed that the Defendants were responsible for spoliation of evidence. Spoliation of evidence is an intentional tort that impairs a party’s ability to prove a claim due to negligent or intentional destruction of evidence. In essence, the ability to make a claim for spoliation of evidence protects not only the claimant’s rights to suit, but also the court’s ability to provide justice. The key question in these claims is whether or not the defendant had a duty to preserve the evidence for the plaintiff. A duty of preservation may arise through contract, statute, special relationship, agreement, or an already acted upon undertaking to preserve the evidence. Because spoliation of evidence can be satisfied by an act under a negligence standard, this claim is easier to succeed on than one for any other intentional tort.

September 7, 2011

Discussion Regarding Employment Injuries – Part 2

by Berniard Law Firm

The issue of injuries within the scope of employment is not always black and white. Two concepts have somewhat complicated the matter: the borrowed employee and joint employment. Under the borrowed employee doctrine, a permanent employer may loan an employee to another, temporary employer. While under the temporary’s employ, the employee’s actions are that of the temporary employer. This doctrine means that if an employee is injured while working for the temporary employee, the questions regarding scope of employment apply only to the temporary employer. If the injury falls within the scope of the temporary employment, then the temporary employer may invoke workers’ compensation as an affirmative defense to tortious liability.

Figuring out whether an employee is borrowed or not is not always easy. Several questions can be asked to help classify the employment: Who has control over the employee? Who is paying the employee’s wages? Who has the right to terminate the employment? Who furnished the necessary tools and location for the employee’s work? How long was the temporary employment? Whose work was being done at the time of the injury? Was there an agreement between the permanent and temporary employers? Did the employee agree to the new temporary employment? Did the permanent employer relinquish control over the employee? The answers to these questions should paint a clear picture of whether or not the employee was in fact a borrowed employee. As in the Herbert case, if an employee agrees to do work for a temporary employer only because he is afraid of being fired by his permanent employer for refusal and is paid by the regular employer, then the employee has not fully acquiesed to the new job and the permanent employer has not relinquished control over the employee; it is still responsible for paying the employee’s wages. If this were the case, an injury that occurred while conducting the temporary employer’s work would fall outside the scope of employment because the employee is not a borrowed employee and the work would not be consistent with typical work conducted by the employee for the permanent employer. However, remember that the answer to each question proposed above is not determinative but rather should be analyzed within the totality of the circumstances.

In Herbert v. Richards, the court found that because GMI had no payroll, no equipment, and no contracts for leased land where the deer netting took place, the company was not an entity separate from Industrial. Since GMI was not a separate entity, it was not possible for GMI to have borrowed Mr. Herbert from Industrial. Thus, the court of appeals reversed the trial court’s grant of summary judgment in favor of Defendants with regards to the issue of borrowed employee status.

September 5, 2011

Three Part Series Regarding Workplace Injuries

by Berniard Law Firm

3rd Circuit Uses Helicopter Injury Case to Clarify “Injury Within the Scope of Employment”

Injuries in the workplace occur frequently and thus many states have forced employers to purchase workers’ compensation insurance. Under workers’ compensation, the employer’s insurance agrees to pay for any lost wages and medical bills as a result of the employee’s injury. In exchange for this security the employer may use workers’ compensation as an affirmative defense with the burden of proof on the employer to insulate the employer from tort liability. This essentially minimizes an injured’s claim. However, as Herbert v. Richard illustrates, it is vital that one consider whether or not the injury occurred while within the scope of employment. Depending on the answer to this question, an employer may be barred from using workers’ compensation as an affirmative defense to protect itself from tort liability, resulting in a potentially greater claim by the injured.

In Herbert v. Richard, an employee fell from a helicopter while netting deer in Mexico on behalf of a game management company, Game Management Inc (GMI). Though the deer netting enterprise was GMI’s, the employee worked for Industrial Helicopters, Inc., a company owned by the same family that owned GMI. Mr. Herbert, the employee, had been a fuel truck driver for twenty nine years and had only been on GMI’s netting excursions once before the injury. Industrial sought to invoke a workers’ compensation affirmative defense arguing that Mr. Herbert was either within the scope of his employment, was a borrowed employee from Industrial, or, alternatively, that Industrial and GMI were joint employers.