Negligence

March 7, 2011

Plaintiff Takes Too Long in Civil Case, Suffers Consequences

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.

March 5, 2011

Baton Rouge General Medical Center Slip-and-Fall Case Confirms Hospital’s Premises Liability Standard

by Berniard Law Firm

Previously on this blog, we have looked at a variety of cases involving premises liability. Most have centered on an injury that occurs when the plaintiff visits a store or other commercial enterprise; in those cases, the defendant faces a heightened “merchant” standard of care under state statute, namely La. R.S. 9:2800.6. This post will add to the discussion by reviewing a recent case in which the First Circuit Court of Appeal considered the premises liability standard applicable to a hospital in a trip-and-fall case.

On August 14, 2007, Marion Terrance visited the cafeteria at the Baton Rouge General Medical Center. Terrance allegedly slipped on the mat in front of the ice machine that had become soaked with water. She injured her groin and lower back in the resulting fall. Terrance filed suit against the hospital alleging negligence due to the “unreasonably dangerous foreign substance” on the floor (water) and that the hospital had failed to clean it up. The hospital denied that the fall occurred at all and argued that it had no knowledge of any foreign substance on the floor. Conflicting testimony was presented during the bench trial. The cafeteria supervisor, upon being informed of Terrance’s fall by another employee, immediately inspected the floor around the ice machine and found a dry mat and no spilled water. She also reported that the fall would have occurred just shortly after her most recent routine floor inspection, during which no water was noted. In fact, hospital employees had never noticed any water dripping from the ice machine. Nevertheless, the trial judge entered judgment in favor of Terrance and awarded her $26,910 in damages. The trial court’s decision rested on the “unreasonable condition” that existed around the ice machine that caused Terrance to slip and fall. The hospital appealed, arguing that there was no evidence that an unreasonably dangerous condition existed at the time of Terrance’s injury.

The First Circuit Court of Appeal began its analysis by establishing that hospitals are not covered by the merchant standard for premises liability contained in La. R.S. 9:2800.6. Instead, general negligence theory would apply. Under this standard, a hospital owes a duty to its visitors to “exercise reasonable care for their safety,” but the duty owed is less than that required of a defendant engaged in a commercial enterprise. The court explained that once Terrance made her allegation that she slipped, fell, and injured herself because of a foreign substance on the hospital’s premises, the burden then shifted to the hospital to show that it “acted reasonably to discover and correct the dangerous condition reasonably anticipated.” The court noted the dispute at trial over the existence of a wet floor at all, but did not find any error in the trial court’s factual finding that the water did, in fact, exist and that it caused Terrance to fall. However, the court did take issue with the trial court’s immediate award of damages to Terrance without permitting the hospital to attempt to rebut the presumption of negligence:

March 4, 2011

Duty of Care Doctors Owe their Patients and Medical Malpractice

by Berniard Law Firm

The level of care required of medical practitioners is very high. This is because people put their trust, and sometimes their lives and well being in the hands of a doctor or surgeon. The level of care is high because we must attain the very best from the people who perform the most delicate and important tasks the affect our lives. This is true of doctors, lawyers, and anyone else who has the position of a fiduciary. When the level of care falls below the bare minimum, the result can be disastrous. In a recent case, Ronald and Peggy Bianchi v. Dr. Ernesto Kufoy, the Third Circuit Louisiana Court of Appeal had to decide whether damages done to a patient were a result of the doctor’s negligence or were an acceptable outcome of the procedure.

On October 30, 2002, Mr. Bianchi went to Dr. Kufoy for a cataract surgery and the implantation of an artificial lens in the right eye. The lining of the old lens was to remain intact so as to allow the placement of the new artificial lens on that lining. However, during the surgery, the old lining was torn out. It was found that this could occur without any negligence. Another artificial lens was used due to this complication, and it was not argued that anything had occurred during this setback that amounted to medical negligence. When Mr. Bianchi returned for his post surgery check-up, he complained of pain in his right eye. Dr. Kufoy checked the eye, but did not investigate the cause of the pain and the resulting loss of eye sight. Over the course of the next few days, Mr. Bianchi’s eye pain increased. When he came to see Dr. Kufoy next, Dr. Kufoy diagnosed him with a form of glaucoma and referred him to a specialist. By the time he went to the first specialist, Dr. Jeff Lanier, Biachi had only light perception in his right eye. This was one step above total blindness. Dr. Lanier disagreed with Dr. Kufoy’s glaucoma diagnosis, and found that there was a hemorrhage in the choroid, which likely began during the initial surgery. The second specialist drained the hemorrhage.

At trial, the jury found that Dr. Kufoy’s actions were lower than the level of care required by his profession. The jury also found that there were clear damages to Mr. and Mrs. Bianchi. In a medical malpractice case, the plaintiff has two levels of burden. First, plaintiff must prove by preponderance of the evidence that the doctor’s treatment fell below the standard of care required for the profession. Second, the plaintiff must prove that the sub-par standard of care resulted in the injury. The jury based its determination that there was no causation shown on the fact that there was contradicting evidence. The Appellate Court cited to the standards it was using to judge the jury’s determination:

March 3, 2011

Springfield Injury Reminds Homeowners to Use Caution Around Power Lines

by Berniard Law Firm

In several previous posts on this blog, we have explored cases involving premises liability where the plaintiff is injured while visiting a

“restaurant”, “store”, or other “business”. But what about a plaintiff who is injured on his own property by a device that is owned by another party but which is on his property for his own benefit? This situation can arise in the case of utilities, where the dangerous conditions are created by electric power lines, natural gas lines, propane tanks, and the like. The case of Flowers v. Entergy Corp. offers an example.

On January 5, 2001, just outside of Springfield, Louisiana, Randall Flowers parked his truck and trailer in the driveway of his home. He parked the vehicle near a small pump house that served as a water source for washing the truck. When Flowers climbed on top of the trailer to wash it, he came into contact with a power line that provided electricity to his house and was severely injured. Flowers sued Entergy Corp., the local utility that owned and maintained the power line. At trial, both parties produced experts who testified about the National Electric Safety Code (the “Code”), which, though not officially adopted by the state of Louisiana, was relied upon by utilities for minimum safety standards. The Code set minimum heights for power lines in various applications so as to provide clearance for people and equipment passing below. Flowers’ expert testified that the power line over the driveway failed to meet the Code requirements for the location where it was installed in that it sagged one and one-half feet too low at its midpoint. He also offered the opinion that Entergy should have performed more frequent inspections, which would have allowed the company to discover the problem sooner. Entergy’s witness, who was certified as an expert in electrical engineering, Code interpretations, and accident reconstruction, read the Code differently and established that the height of the power line did not violate the Code. Ultimately, the jury found no fault on the part of Entergy and assigned 100 percent fault to Flowers.

March 2, 2011

Court Upholds Lower Level of Standard of Duty for Louisiana Governments

by Berniard Law Firm

In many circumstances, state and federal governments are protected by governmental immunity. In some circumstances, e.g. where government acts as a market participant, these immunities are set aside due to the nature of the actions taken by the government. In Louisiana, the Lafayette Consolidated Government (LCG) runs a bus service for its citizens. On one bus drive, a customer of a LCG run bus was injured due to the malfunction of a pull cord that came loose striking the customer in the eye. In Willie Mae Scott (plaintiff) v. LCG, the Appellate Court upheld a trial court decision that granted summary judgment to LCG.

In August of 2006, plaintiff was riding a bus run by LCG. Another customer of the bus pulled on the cord to inform the bus driver that he should stop. Upon pulling the cord, a clamp holding the cord in place came loose striking plaintiff in the eye causing damage needing medical care. Plaintiff sued LCG as a common carrier and argued that, due to LCG’s common carrier status, it was under a stronger duty of care than most.

The issues in the case were summarized by the Appellate Court as follows: (1) whether LCG had actual or constructive notice of the pull cord (2) whether LCG was a common carrier, subjecting it to a higher duty of care and (3) whether the existence of other pull cord defects created a genuine issue of material fact. The trial court granted summary judgment in favor of LCG stating that there was no genuine issue of material fact. At the appellate level, the Court views the case de novo under the same summary judgment standards used at the trial court level.

March 1, 2011

Odd, Sudden Emergency Collision Leads to Discussion of Responsibility in Highway Car Accident

by Berniard Law Firm

In a very recent Louisiana Court of Appeals Case, the Court took a rare action to uphold summary judgment when considering whether the lead vehicle in multi car pileup was negligent. The Court found the lead driver, Martin Lopez, was not negligent because he acted with ordinary care. This idea of ordinary care is extremely important

The accident in question occurred in Shreveport, Louisiana. Adam Parisy was driving north on I-49 with 3 passengers. He exited on a high rise ramp that curved over I-49 to Highway 3132, behind a freightliner driven by Lopez. The turbocharger on the 18 wheeler exploded, engulfing the area in smoke. Lopez pulled the liner over, unaware of any collission. Parisy stopped at the top of the ramp because he couldn’t see and was rear ended by another drive, who was also rear ended.

Parisy and two of his passengers were seriously injured. Several separate lawsuits were filed, including against Lopez, his insurer, and his employer, which were dismissed via summary judgment.

February 28, 2011

Court Outlines Responsibilities of Dockowner in Employee Injury

by Berniard Law Firm

A gangway is a pathway that connects the ship to the dock at which it has stopped. It is the means by which the crew and cargo of a ship are moved onto and off of the ship. Usually ships have detachable gangways that the ship crew put on the side of the ship when the ship is docked. Other times, docks have policies that require the ships to use gangways that are provided by the dock owner. As in any other legal field, the use of gangways are subject to rules of negligence and duties of care. The question in a recent case, Landers v. Bollinger Amelia Repair, was whether a dock owner was liable for a gangway provided to a ship under the stated policy of the dock owner that all ships must use gangways provided by the dock.

On June 12, 2006, the M/V Roseanna docked on the Bollinger Amelia Repair (BAR) dock. The reason for docking there was that the Roseanna’s hull had been breached, and it needed repair. The Roseanna had a gangway on its ship, but it was full of cargo and could not be used to access the dock. In any case, BAR had a policy of requiring all docked ships to use a BAR provided gangway. Thus, Landers, an employee of the Roseanna, and another Roseanna employee got a gangway from BAR and installed it.

The gangway was inspected by a Roseanna employee and was found to be in good condition. The gangway was used many times that day. The crew of the Roseanna discovered that the hull of the ship could be fixed without the aid of BAR and proceeded to do so. At the end of its use, the gangway was removed by Landers and another member of the Roseanna crew. Upon removal, the gangway sprung up hitting Landers in the back and causing injury. Subsequently, Landers brought suit against BAR arguing that due to BAR’s stated policy of requiring the use of BAR gangways, BAR was liable for the injury caused to him under general Maritime negligence law.

February 27, 2011

Court Discusses Prescriptive Period in Medical Malpractice Case

by Berniard Law Firm

Regular readers of this blog are no doubt aware that the Louisiana Medical Malpractice Act requires that all “claims against healthcare providers be reviewed or ‘filtered’ through a medical review panel before proceeding to any other court.” Also, medical malpractice suits are subject to a period of prescription — that is, the action must be filed within a certain period of time following the incident. La. R.S. 9:5628 establishes that this time period is one year from the negligent act or the date of its discovery, with the added limitation that the discovery extension is inapplicable after three years. State statute also specifically addresses how the medical review panel’s review of the case affects the prescriptive period. According to La. R.S. 40:1299.47(B), the running of the prescriptive period is suspended by the medical review panel’s proceedings until the panel’s decision is communicated to the plaintiff. In effect, the time required by the panel to review the case and issue a finding does not “count against” the plaintiff when determining the latest point at which the law permits him or her to file suit.

The plaintiff in the recent case of Blake v. Maley saw the dismissal of her suit due to her failure to file the action before the prescription period expired. Beverly Blake filed a request for a medical review panel on June 2, 2004. The request alleged medical malpractice against Dr. Warren Maley and the Willis Knighton Medical Center in Dr. Maley’s misdiagnosis of a fatal drug reaction suffered by her husband, Barry, who died on January 31, 2004. The medical review panel rendered a unanimous decision in favor of the defendants on May 15, 2007 and mailed the decision letter to Blake on May 25, 2007. Blake filed suit on November 3, 2009. In response to Dr. Maley’s subsequently filing an exception of prescription due to the delay, Blake responded that she was mentally incapable of filing the claim in a timely manner because she was severely depressed during the month of July, 2009. The trial court granted Dr. Maley’s exception and dismissed Blake’s suit. On appeal, the Second Circuit noted that Blake “concede[d] that the date of the alleged malpractice occurred on June 22, 2003, when Barry Blake received the drug” that caused the fatal reaction. Thus, Blake’s request for medical review by the panel was timely, and her “cause of action was suspended by the medical review panel proceedings until the mailing of the opinion on May 27, 2007.” After that date, the court calculated, Blake had 90 days plus the additional 20 days left on her original one-year period to file her suit. Yet, Blake filed her suit on November 3, 2009, “nearly two years after the prescriptive period for filing suit had tolled and more than six years after Blake’s stated date of the act of malpractice.” Blake’s argument for additional tolling due to her mental condition did not move the court. Observing that Civil Code Article 3468 provides that “[p]rescription runs against absent persons and incompetents, including minors and interdicts, unless exception is established by legislation,” the court determined that no statutory exception was available and that, accordingly, Blake’s “claims have clearly prescribed.”

The Blake case demonstrates the courts’ strict adherence to the timing requirements contained in Louisiana’s prescription statutes. While a widow’s state of depression following the death of her spouse is entirely understandable, it is critical to remember that the law demands swift action on the part of plaintiffs to initiate a lawsuit in medical malpractice cases.

February 26, 2011

Court Dissects Nursing Home Wrongful Death Case

by Berniard Law Firm

Many families in America have had to move their loved ones into a nursing home. Whether the reason is that they don’t have the room to care for the elder, they don’t have the time or money to provide adequate care, or their elder wishes to be in the nursing home, the decision to send them to a nursing home is a difficult one. Families may be concerned about the level and amount of care their elders receive at the nursing home. Continuous stories of abuse at nursing homes may also be a cause of concern for families. Nursing homes are given a high level of trust in the care of their patrons. When this level of trust is broken, the results can be horrific and unacceptable. The law provides for levels of care that nursing homes and medical practitioners have to live by. Once these levels of care are ignored, the law steps in to provide relief for families.

In Braud v. Woodland Village, LLC, the issue was whether the trial court instructed the jury to view the case under the right legal standard. Mr. Braud was diagnosed with Alzheimer’s disease and Pick’s dementia. This combination of diseases left Mr. Braud with many issues including an eating disorder and a higher chance of heart attack. Mr. Braud was moved to Woodland Village nursing home (Woodland). After his arrival at Woodland, Mr. Braud began showing signs of aggression towards staff. He was prescribed anti-psychotic medication as part of his treatment. After some time, Mrs. Braud reported to her husband’s physician that Mr. Braud seemed very zombie-like. The physician instructed the Woodland staff that they were to check on Mr. Braud every 15 minutes for signs of distress. This was carried on for some time. The method used to check on Mr. Braud was to look through the window into his room to observe whether he was under any distress. The Woodland staff were never instructed to enter the room to check close-up. On September 2, 2004, after a 45 minute period of no Woodland staff checking on Mr. Braud, he was found to be unresponsive. Woodland staff called paramedics who arrived to the scene to find that Mr. Braud was likely dead for at least an hour before their arrival from a heart attack. At no point did any member of the Woodland staff attempt CPR on Mr. Braud. Mr. Braud’s family (collectively “plaintiff”) filed suit against Woodland for wrongful death and were awarded an amount of $1,650,000. After trial, defendants argued that (1) there was no harm from alleged medication errors (2) there was no evidence that Mr. Braud could be resuscitated (3) the award of $1,650,000 was far above the $500,000 statutory amount (4) there was no evidence that Woodland caused the heart attack and (5) evidence presented proved, at most, that there was a loss of chance of life, not that there was wrongful death. Woodland lost on all of these claims except that the amount of damages was reduced to $500,000. Woodland appealed the decision stating that the trial court’s refusal to include jury instructions for the “loss of a chance of survival” claim was a grounds to reverse the jury decision. The plaintiff appealed the decision to reduce the damages to $500,000.

In Louisiana, pursuant to LA.Rev. Stat. Section 9:2794(A), to find medical malpractice, the plaintiff must establish the standard of care applicable to the charged physician, a violation by the physician of that standard of care, and a causal connection between the physician’s alleged negligence and the plaintiff’s injuries resulting therefrom. The standard attributed to the physician is the standard used in Louisiana, based on the type of field, locale, and community in which the physician or medical practitioner practices. Further, in order for an appellate court to overturn a fact-finder’s decision, a two-prong test is used to analyze the result. First, the appellate court must find from the record that a reasonable factual basis does not exist for the finding in the trial court. Second, the court must further determine that the record established that the finding is manifestly erroneous.