Negligence

July 13, 2023

What Happens When You File a Claim For Workers’ Compensation in the Wrong Court?

court_justice_interior_architecture-1024x768 Getting workers’ compensation from an employer is already difficult, but it is even more so when the claim is filed in the wrong court. Although employees are entitled to workers’ compensation, the claim has to be filed in the correct jurisdiction. The following case shows what happens when you are injured while working and attempt to file a claim for workers’ compensation in a state where you were not employed.

Louisiana resident Lemcy Cortez was hired by Triple F Oil Field Service, LLC, to drive trucks in Oklahoma. The day after he arrived in Oklahoma, Cortez was involved in an automobile accident that allegedly led to elbow and back injuries. He filed a Disputed Claim for Compensation in the Louisiana Office of Workers’ Compensation (OWC) against Triple F and its insurer for workers’ compensation benefits which he alleged his employer refused to pay. Triple F and its insurer claimed Cortez lacked subject matter jurisdiction. Triple F believed Cortez was hired in Oklahoma, and Cortez believed he was hired in Louisiana.

Cortez claimed he was hired over the phone in Louisiana, but in his recorded statement to the insurance company’s interviewee, he stated he was hired by Triple F in Oklahoma. Cortez offered two affidavits to support his position that he was hired in Louisiana. In the first, he claimed he contacted Triple F about the job while he was in Louisiana. He claimed he was contacted by Triple F in Louisiana when he was offered the job and accepted it over the phone. In the second, he claimed the company’s Vice President called him to offer him the job, and he knew Cortez lived in Louisiana. In addition, he claimed he understood he had been officially hired by Triple F at that point, and the company had made living arrangements for his move to Oklahoma.

July 12, 2023

Final Judgment Lacking Decretal Language: What Happens to Your Case?

by Berniard Law Firm

school_bus_canada_highway-1024x1024 It is well known that every court order contains a physical copy declaring what the verdict of the case is, otherwise known as a final judgment. However, the order must contain what we call “decretal language.” But what in the world does that mean? The Louisiana Third Circuit Court of Appeal discusses this question and when a final judgment can be amended to contain all the necessary language crucial for the order.

Upon appeal, in the Third Circuit Court of Appeal in the State of Louisiana, Cedrick Laundry alleged that his son, Sengal, was injured when the school bus he was riding hit a curb and ran into a pothole. Defendants (the School Board and others) filed for summary judgment as they believed they were not responsible for Sengal’s injuries.

Summary judgment is when there is no genuine issue of material fact as it pertains to the case. Under Rule 56(a) of the Federal Rules of Civil Procedure, if the School Board cannot prove its case, the court will dismiss it. The trial court granted their motion for summary judgment but did not state the dismissal of any or all of the claims against the School. The judgment simply stated:

July 10, 2023

Lafayette Court Denied Retaliatory Discharge Claim, Instead Found Employer to be “Very Accommodating”

by Berniard Law Firm

washington_dc_fire_ems-1024x683 In the face of a potentially unlawful termination from your job, navigating the legal landscape can be daunting. If you suspect that you have been fired unjustly, it is essential to understand the critical elements required to bring a lawsuit against your employer for wrongful or retaliatory discharge. A recent Lafayette Parish case highlights the essential evidence to support a retaliatory discharge claim. It highlights the importance of seeking legal guidance when faced with such a situation. By delving into the details of this case, we can uncover the necessary proof required to establish a compelling retaliatory discharge case and empower individuals to protect their rights in the workplace.

Pashine Broussard suffered a workplace accident while employed at Our Lady of Lourdes Regional Medical Center (“Lourdes”). Since the accident in 2006, Lourdes paid Broussard’s medical bills and accommodated her various restrictions, including allowing other employees to perform the tasks she could no longer accomplish until 2010. At that time, Broussard’s surgeon took her off work completely.

Broussard then met with Lourdes to discuss workers’ compensation indemnity benefits. Lourdes, however, informed Broussard that her time to seek these benefits had expired, as her injury occurred over four years ago; however, Broussard was approved to take a leave of absence, expiring in January of 2011. Broussard signed the acknowledgment of the leave time and then subsequently filed a workers’ compensation claim, the latter of which was ultimately denied.

July 9, 2023

Endymion Parade-Goer’s Claim Dismissed as Untimely

by Berniard Law Firm

mardi_gras_parade_new_1-1024x683 New Orleans is well-known for extravagant and entertaining Mardi Gras parades. What happens when an unknown tortfeasor injures someone during a parade? As the following case demonstrates, the claimant only has a certain amount of time to bring a lawsuit against the wrongful party, or they risk dismissal of the claim.

Lillie Love claimed she was injured during a parade of the Gentilly Carnival Club, Inc., d/b/a Krewe of Endymion (“Endymion”), when a float driver hit a metal barricade in front of her. Love then filed a lawsuit against Endymion, its insurer, Certain Underwriters at Lloyd’s, London (“Underwriters”), and the unknown driver of the float. Later, Love amended her claim to include Barry Daigle, the driver, and Daigle’s employer, Blaine Kern Artists, Inc. (“BKA”).

Endymion then filed a motion for summary judgment, claiming that Love could not meet her burden of proof under La. R.S.9:2796(A), which requires, in part, for the claimant to prove a deliberate and wanton act or gross negligence on the part of the parade krewe or organization. The Civil District Court for the Parish of Orleans granted Endymion’s motion and dismissed Love’s claims against it.

July 8, 2023

Dermatologist Not Liable For Patient’s Fall After Procedure In Louisiana Lawsuit

by Berniard Law Firm

examining_patients_dvids112692-1024x680 Medical malpractice claims typically involve allegations of negligence during a medical procedure. However, the following case presents a unique scenario where the alleged injury occurred after the procedure was completed. It examines the legal considerations and challenges in such situations, emphasizing the importance of evidence and expert testimony in establishing a breach of the applicable standard of care.

Kay Hanagriff received two punch biopsies at Dr. Shondra Smith’s dermatology office. While receiving the biopsies, Hanagriff told Smith she felt queasy. Smith told the nurse to put an ice pack on Hanagriff’s neck. After the nurse placed the ice pack on her neck, Hanagriff said she was feeling better. After the procedure, Smith told Hanagriff to lie flat on the exam table and had her staff monitor Hanagriff. Hanagriff ignored the staff’s instructions not to try to get off the exam table without assistance and claimed she fell and hurt her neck.

Hanagriff filed a complaint with the Louisiana Patient’s Compensation Fund. The medical review panel found neither Smith nor her staff breached the appropriate standard of care in their treatment of Hanagriff. Hanagriff then filed a lawsuit against Smith and her professional liability insurance carrier. At trial, the jury found against Hanagriff. Hanagriff appealed. She claimed the jury erred in finding Smith and her staff did not violate the applicable standard of care, and the evidence did not support the jury’s findings.

July 7, 2023

City’s Liability for a Child’s Fall on a Defective Sidewalk

by Berniard Law Firm

man_person_street_sidewalk-1024x683 Parents can imagine all sorts of dangerous situations their children could find themselves in walking to school – kidnappings, getting hit by a car, bullying. But what happens if the cause of the injury was a defective sidewalk the city was supposed to maintain? Can the city be held liable? The following case examines the liability of a city when a teenager is injured due to a defective sidewalk in front of her high school.

While fifteen-year-old Cora Minix was walking to her high school in Rayne, Louisiana, she fell on a sidewalk in front of the school and was injured. Her parents filed a lawsuit against the City of Rayne, claiming the sidewalk’s concrete was cracked and shifted as Minix walked on it, causing her to fall.

The city claimed the sidewalk’s condition was open and obvious and not unreasonably dangerous. At a trial, the court ruled in favor of the City of Rayne, finding the sidewalk’s defect was open and obvious and did not present an unreasonable risk of harm. Further, the city did not have actual or constructive knowledge of the sidewalk’s defect. The Minixes appealed.

July 5, 2023

Doctors Not Required To Act Perfectly: Determining The Applicable Standard of Care In Medical Malpractice Lawsuits

by Berniard Law Firm

ship_s_doctor_doctor-1024x672 If your doctor makes an obvious mistake in a surgery, you might think you can succeed in a medical malpractice lawsuit against the doctor. However, Louisiana law does not require a doctor to act perfectly. Therefore, if you are considering bringing a medical malpractice lawsuit against a medical professional, you must understand the applicable standard of care you are required to prove they did not satisfy. This case illustrates how the standard of care a doctor is required to follow depends on the existing circumstances.

Martin Van Buren suffered from kidney disease and underwent a kidney transplant as a young adult. Approximately 12 years later, he suffered additional health problems. While at a hospital in Monroe, Louisiana, he suffered a large gastrointestinal bleed.

While Van Buren was in the ICU, Dr. Claude B. Minor, Jr. was asked to do an emergency surgical consult. When Minor entered the hospital room, Van Buren vomited blood and went into cardiac arrest. Minor stabilized Van Buren and took him to surgery to remove the ulcer. Minor told Van Buren’s mother it was unlikely Van Buren would survive the procedure. After Minor removed the part of the stomach with the ulcer, Van Buren started to bleed in his intestines. While dealing with that complication, Minor reconnected the stomach to the incorrect part of the bowel, which made it so Van Buren could not absorb food. This resulted in diarrhea, malnutrition, and excessive weight loss. The error was later identified and corrected by a different doctor.

July 1, 2023

Worker Entitled To Workers’ Compensation From Injuries From Passing Out At Work

by Berniard Law Firm

computed_tomography_human_brain-1024x730 You might be eligible for workers’ compensation if you are injured on the job. However, you must be honest in your communications with your employer and medical providers because, under Louisiana law, you forfeit your rights to any such benefits if you make misrepresentations or false statements concerning your workers’ compensation scheme. What happens if these misrepresentations appear to result from memory impairments related to your on-the-job injury? The following lawsuit helps answer this question.

While working as a security guard at the Golden Nugget Casino, Katina Hodges fainted and fell to the floor. Her legs and knee hit the floor. She hit her head on the floor and appeared to have seizures. At Christus St. Patrick Hospital in Lake Charles, Louisiana, a CT scan showed she suffered a hemorrhage in her brain. Hodges subsequently received treatment for her injuries, which included aggravations of preexisting conditions.

Golden Nugget filed a Notice of Controversion, claiming it did not owe Hodges anything because ha fainting spell caused her injuries. Hodges claimed she had passed out, fell, and was injured while working. In response, Golden Nugget claimed Hodges had forfeited any benefits under La. R.S. 23:1208 because she had made misrepresentations associated with her claim. The matter went to trial before the Workers’ Compensation Judge, who ruled that Hodges’ fall was an accident and she had suffered injuries caused by the accident. Golden Nugget was ordered to pay temporary disability benefits, supplemental earnings benefits, medical benefits, a penalty of $2,000 for failing to pay Hodges’ indemnity benefits, a penalty of $2,000 for failing to pay Hodges’ medical expenses and $25,000 in attorney fees. Golden Nugget appealed.

June 26, 2023

Medical Malpractice Claim Dismissed For Lack of Expert Testimony

by Berniard Law Firm

medical_inject_blood_patch-1024x642 In a medical malpractice lawsuit, there are numerous procedural and evidential requirements with which a plaintiff must comply to support their claim. This case illustrates what can happen if a plaintiff does not comply with these requirements, specifically providing expert testimony supporting the malpractice claim.

Tanya Madere filed a lawsuit against Dr. Louise Gautreaux Collins. Madere claimed she suffered complications from a gynecological surgery due to Collins’ negligence, including kidney complications and the need for additional surgeries and treatment. A medical review panel was found in favor of Collins. Madere then filed a lawsuit against Collins.

Collins filed a summary judgment motion, arguing Madere’s claims should be dismissed because she had not provided expert testimony to support her claim that Collins had not followed the applicable standard of care or to support that the breach had resulted in Madere’s injuries, as required under Louisiana law. See Samaha v. Rau. Madere opposed Collins’ summary judgment motion, arguing she had retained Dr. Lawrence Kim as an expert and needed time to complete discovery. The court continued the hearing related to Collins’ summary judgment motion for a few months.

June 25, 2023

Navigating Conflicting Testimonies in Car Accident Cases

by Berniard Law Firm

car_burning_wreck_fire-1024x683 Assigning fault in a vehicle accident can be challenging, especially when witnesses present conflicting accounts of what transpired. The struggle to ascertain the truth becomes even more pronounced when there are discrepancies in testimony regarding the events leading up to the accident. But what happens when conflicting narratives emerge in court? The following lawsuit out of New Orleans helps answer that question.

Brenda Gaines and Laura Wilson were involved in a car accident on the ramp onto the Chef Menteur Highway in New Orleans, Louisiana. Gaines filed a lawsuit against Wilson and her insurers, claiming she had been injured and her rental car had been damaged. Both Gaines and Wilson testified at trial.

Gaines claimed Wilson made a U-turn without warning and crossed into the far-right lane, where she collided with Gaines. Wilson did not deny making a U-turn but testified she had never changed lanes during the relevant period preceding the accident. Gaines claimed she had fully cleared the exit ramp when the accident occurred. She did not recall whether there had been a yield sign. She believed she did not have a duty to yield to traffic in the right eastbound lane but testified she had looked and did not see any traffic before proceeding.