Pain And Suffering Claims

January 11, 2017

Louisiana Court of Appeal Finds In Favor of a Drug Company In Products Liability Lawsuit

We live in an age in which modern medicine can do wonders for people suffering from various illnesses and conditions. These drugs are designed to provide patients with the ability to live healthy and fulfilling lives. However, there are always side effects to consider when taking any drug. Each patient should discuss these possibilities with their doctor and make an educated decision whether to take the drugs or not. Even after this “due diligence” there can still be unintended consequences from certain drugs. Through no fault of their own, after having weighed the decision and exploring all of their options, patients may find themselves in much worse condition than what they were in before taking the drug. In cases such as these, a good products liability attorney is essential to securing the relief you’re entitled to.

This particular case is set in Shreveport, Louisiana. GlaxoSmithKline (GSK), the defendant, is a drug company who manufactures and markets Paxil, a selective serotonin reuptake inhibitor, or SSRI, used to treat depression. The plaintiff, Cinda McLaughlin, began taking Paxil in 2003 for depression. In June of 2010, Cinda had two valves replaced in her heart. Her doctor alleged that her heart valves showed damage that was caused by exposure to increased levels of serotonin. Cinda took Paxil and its generic equivalent, Paroxetine, for years prior to her heart surgery. These were the only drugs that she took that could account for the higher serotonin levels.

Shortly after Cinda’s surgery, she met with an attorney to discuss her options. Her attorney then met with her doctor regarding product liability issues. The doctor said he had no knowledge that Paxil caused abnormalities of the valve, but he did not dismiss altogether that it was a possibility. Their meeting concluded with the doctor promising to document any evidence that could have shown Cinda’s drug induced valve failure.

January 4, 2017

New Orleans Traffic Accident Shows Proof Needed to Win a Personal Injury Case

by Berniard Law Firm

x-ray-head-1435100 Often, when a person gets into an accident, they may not immediately feel the injury. In fact, after a slip and fall, car accident, or other personal injury, it may take a long time for a person to begin feeling the effects of the injury. As such, when an injured person brings a lawsuit alleging that another party caused the accident and the injury, it can be difficult to to prove those allegations, especially if a significant amount of time has passed since the incident. The longer the time between the accident and the onset of related symptoms, the harder this connection be to prove, even for a great lawyer. Moreover, it may even seem like the injured plaintiff is falsely blaming the accident for a completely unrelated pain, and a jury isn’t likely to be sympathetic.

In February of 2008, Suzaune and Helen McKamey (“the McKameys”) were involved in a car accident. The McKameys had stopped their vehicle at a red light in New Orleans, Lousiana, when it was rear ended by Greg Carona, who was driving his friend’s truck. After the accident with Carona, Helen’s attorney referred her to Dr. Norman Ott for her injuries. At the accident scene and at her first two visits to the doctor, Helen denied having any pain radiating from her neck or back. However, at her third visit to Dr. Ott in August of 2008 she began to describe symptoms of pain in those areas. After a visit in September 2008, while Helen’s neck pain had improved, Dr. Ott recommended that Helen get an MRI and that she see an orthopedist. However, she did not do so, and she made no further visits to Dr. Ott.

Helen visited a series of different doctors over the next four years. Some of these doctors believed it was likely that the injuries were either created by, or made worse by the 2008 accident, while other doctors thought the two things were unlikely to be related. Doctors of both opinions presented evidence at the trial. The fact that Helen was a dancer and entertainer — even appearing on “Dancing with the Stars” on one occasion after the accident — made it difficult for the doctors to determine the cause of Helen’s injuries and pain.

December 30, 2016

Inconsistent Testimony Leads to Lost Lawsuit in New Orleans Case

by Berniard Law Firm

pentothal-1531760 Credibility is an important factor that the court requires in a witness to determine truthfulness in their testimony. If the court does not believe a plaintiff or a defendant he could lose his case. In this case, the plaintiff, lacked credibility due to inconsistencies in his testimony about his pre-existing medical condition.

Mr. Jones was injured in New Orleans on December 31, 2009, when Mr. Brevaldo, the defendant, sideswiped his SUV when he tried to merge his recreational vehicle into the far right lane. Mr. Jones’s SUV sustained damage and Mr. Brevaldo received a citation from the New Orleans police. Two days after the accident, Mr. Jones went to the emergency room at Ochsner Baptist Hospital and was treated for injuries to his neck, shoulder and upper back. Mr. Jones received a $700 dollar settlement from Mr. Brevaldo’s insurer, American Reliable Insurance Company (“American”), for damage to his side-view mirror. Later, Mr. Jones sued for his personal injuries and damages. On April 3, 2014, a bench trial was held. A bench trial is a non-jury trial where the judge determines the verdict. During the trial, Mr. Jones was the only witness who testified. The district court ruled in favor of Mr. Brevaldo and American and dismissed Mr. Jones’ lawsuit with prejudice.

The appellate court reviewed the Mr. Jones argument to determine whether the district court findings in the case were reasonable. Mr. Jones believed that the district court should have awarded him damages and not relied heavily on his testimony because the evidence submitted proved Mr. Brevaldo was liable. However, when a plaintiff gives testimony in court, they must be consistent because the court relies on their testimony to make a judgment. The court gave great deference to the Mr. John’s testimony because he was the only witness that testified. Other evidence was presented, however, inconsistencies in Mr. Jones’s testimony gave the court a reason to give greater weight to his testimony.

December 28, 2016

Beauregard Parish Medical Malpractice Lawsuit Fails for Lack of Expert Testimony

by Berniard Law Firm

medical-school-frontispice-1214363 Medical malpractice generally involves subpar medical treatment that causes injury or death. The plaintiff, either the injured person or that person’s family, would need to show the court that the healthcare provider was negligent while administering the medical treatment. On the other hand, the healthcare provider as the defendant may argue that there was no negligence. The provider may also argue that the court should dismiss the case all together because the plaintiff does not have the evidence to show any wrong-doing. In the face of such opposition from defendants, there is a need for a good lawyer to build the strategy and prepare the case.

Two Louisiana brothers unfortunately lost their mother a few years ago after two operations. The two brothers decided to file a claim for wrongful death against several defendants, including two of the doctors involved, as well as Beauregard Memorial Hospital in DeRidder, Louisiana. The plaintiffs, David Durham and Robert Durham, alleged that the defendants provided deficient medical treatment to their mother leading to her death.

In general, a plaintiff complaining of medical malpractice needs to show three connected facts. First they have to show that there is an expected and defined quality of practice that the healthcare provider must meet, second, that the defendant, as a healthcare professional, provided care that fell below that expected level of quality, and third, that the failure to meet the required level of quality caused the injury or death. La.R.S. 9:2794.

December 27, 2016

Pineville, Louisiana, Car Accident Leaves Insurance Company Battle in its Wake

by Berniard Law Firm

Anytime you get in a car can be a life and death situation. While no one ever wants to think about the worst, what will your insurance cover if the worst does happen. Your policy may not only need to cover you and those injured, it could need to cover your employer if you were driving in the scope of your employment.

On February 9^th, 2009, a fatal automobile accident occurred between Croom and Rhonda, Edward, and Barbara Hickey. Croom, died after he crossed the centerline of a street in Pineville, Louisiana, and colliding with the Hickey’s vehicle. Croom was insured by Allstate insurance company, who provided his estate with a defense.

The Hickeys claimed in there suit against Croom’s estate, (represented by Allstate) that he was operating a vehicle in the “Course and Scope” of his employment with the Express Company. Express was insured by two separate policies, one from Federal Insurance Group, and an excess policy by Scottsdale Insurance Company.

December 25, 2016

Louisiana Man’s Injury Claims Fail to Pay Because of Failure to Act in Time

by Berniard Law Firm

Failing to seek timely legal advice could not only keep you out of the back of a police car, but could also help ensure you are able to get the compensation you deserve for your injuries. When one man from Lake Charles, Louisiana was injured during an arrest he made some critical mistakes that lead to his personal injury case being dismissed.

Stanley Savoie filed a lawsuit to recover injuries he sustained when he was arrested by the Lake Charles Police Department (“LPCD”) on September 13, 2008. In Savoie’s first attempt to file his lawsuit he incorrectly named as the defendant the Calcasieu Parish Sheriff Office rather than the LCPD. He further mistakenly listed the date of the incident as one year after it happened on September 13, 2009. Soon after learning of this mistake, Savoie filed an amendment to his original complaint naming the LCPD as the defendant.

However, this mistake prevented the LCPD from being served notice of the lawsuit within the period of prescription. Prescription is essentially the period of time you have in which to file your claim of a lawsuit before your right to bring that suit ends. Because the police department was not served within the mandated time of one year the LCPD moved to have the case dismissed. The Trial Court allowed Mr. Savoie 15 days to amend his petition and after he failed to do so dismissed his case.

December 23, 2016

Louisiana Court of Appeal Highlights Procedure for Workers’ Compensation Claims

by Berniard Law Firm

worker-from-luxor-1241068 In Louisiana, the Workers’ Compensation Act allows injured employees to recover workers’ compensation benefits from their employer. This act establishes a medical treatment schedule and procedure under which an injured employee can request authorization for medical treatment from his or her employer. A recent decision of the Louisiana Third Circuit Court of Appeal discusses these specific procedures, and how injured employees may appeal denials of requests for medical procedures.

Jacquenette Guidry, a registered nurse, injured herself on her job at American Legion Hospital. Her orthopedic surgeon, Dr. Mark McDonnell, submitted a Form 1009 Disputed Claim for Medical Treatment seeking approval from the Office of Workers’ Compensation Medical Director to perform a lumbar surgical procedure Guidry. The Medical Director, denied the requested procedure in a Medical Guidelines Dispute Decision (“MGD”). The MGD stated that the documents presented by Dr. McDonnell did not support approval of the requested services. Specifically, the clinical findings, natural history of the disease, and diagnostic tests did not support the requested services.

Mr. Guidry appealed the Medical Director’s decision to the Office of Workers’ Compensation, putting forward a Form 1008 with an addendum outlining the reasons why the denial was erroneous. After a hearing, the Workers’ Compensation Judge (“WCJ”) held that there was clear and convincing evidence that the Medical Director erroneously denied Mr. Guidry’s request by failing to consider the guidelines under which the request was made. The WCJ overturned the Medical Director’s decision and approved the requested procedure.

December 20, 2016

Compromise in Louisiana Worker’s Compensation Claim Leads to Moot Issues on Appeal

by Berniard Law Firm

rusty-ladder-1478523 Many workers in Louisiana are exposed to dangers on the job. An injury that occurs during the scope of employment often leads to more problems than just the physical turmoil following the injury. An employee might be denied payment for medical expenses, may face mental and emotional anguish, or could be rendered permanently unable to work. In order to have a successful worker’s compensation claim, an employee must be able to prove that the accident occurred within the scope of employment.

In Louisiana, case law holds that the employee was acting within the scope of employment if the employee was present at the site of the occurrence of the accident as a requirement of the employment. See La. Rev. Stat. Ann. §23:1031. In case that serves as a good example of some of the issues that can pop up in a worker’s compensation claim, Gwendolyn Grady was able to prove that her presence on a ladder at work, which resulted in a wrist injury when she fell, was within the scope of her employment.

The Office of Workers’ Compensation awarded Grady supplemental earnings benefits and medical benefits as reasonably associated with her claim. An employee is subject to the award of supplemental earnings benefits if the employee is unable to earn at least 90 percent of the

December 18, 2016

Car Crash on Louisiana Highway Shows Importance of Presenting Accident-Related Medical Records

by Berniard Law Firm

Classical spectacle on eye chart Car accidents happen all the time in Louisiana, but not all accidents cause injuries. Unfortunately, that wasn’t the case in Tangipahoa Parish, Louisiana, when Joseph Lohenis found himself rear-ended on Highway 1249 by a vehicle owned by Tammy Rousse. Lohenis’ son was driving the car and Lohenis’ wife was in the passenger seat. Lohenis himself was sitting in the back seat of the car, wearing a lap seat belt. The rear-end collision caused Lohenis’ body to move forward and hit the console, and then move backward, where the back of his head and neck hit the truck’s back glass window.

Lohenis filed a lawsuit to recover damages for the aggravation of pre-existing neck and back injuries. The aggravation of those injuries allegedly occurred due to the car accident. In a bench trial that was focused solely on the issue of the amount of damages to be awarded, the trial court awarded Lohenis $47, 857.50 in damages. The defendant appealed.

In the appeal, the defendant claimed that the trial court erred in assigning the amount of general damages awarded to the plaintiff. In addition, the defendant claimed that the trial court erred in admitting into evidence third-party medical records as a basis to discredit Lohenis’ neurosurgeon. The second error was that the trial court allegedly erred in finding that Lohenis proved an aggravation of pre-existing injuries beyond two months following the accident. The third error asserted by the defendant was that the trial court used the incorrect mathematical formula to calculate damages awarded to Lohenis. Lasty, the defendant asserted that the trial court was incorrect to find that Lohenis would be entitled to damages for loss of consortium when he did not have a loss of consortium claim in his original petition.

December 15, 2016

Court of Appeal Discusses Fraud and Forfeiture in Hammond Employee’s Workers’ Compensation Claim

by Berniard Law Firm

money-man-3-1190250 When an employee is injured on the job, he or she may be entitled to workers’ compensation benefits. However, if an employer can show that the employee intentionally lied to receive extra reimbursement for a workers’ compensation claim, the employer will not have to pay any benefits that it would otherwise owe to that employee. A recent case out of Hammond, Louisiana, discusses the standard used in determining whether an employee intentionally committed fraud when filing for mileage reimbursements.

In September 2011, an employee of Sanderson Farms (SF) was injured during a work-related accident. SF paid the employee indemnity benefits following the accident. But in December 2011, it terminated those benefits before the employee was scheduled to return to work. After returning to work, the employee continued to work for Sanderson Farms for another month. Then, in May 2012, the employee filed a claim against Sanderson Farms seeking to recover workers’ compensation benefits for the injury he sustained while on the job. Sanderson Farms denied the employee had a present work-related disability and maintained that the employee was not entitled to further indemnity benefits or medical treatment. Sanderson Farms also raised the affirmative defense of fraud, claiming the employee forfeited his right to all benefits when he submitted mileage reimbursement in excess of the actual distance he traveled in visiting various healthcare providers.

The Office of Worker’s Compensation held a three-day trial focusing on SFs’ fraud defense. In support of the fraud allegation, Sanderson Farms sought to prove that the employee lied about the amount of miles he traveled to and from the 15 doctors’ appointments he attended from September 2011 to November 2011. It is unlawful for an employee to willfully make a false statement or representation for the purpose of obtaining any worker’s compensation benefits. An employee violating this law forfeits any right to workers’ compensation benefits. The forfeiture statute must be strictly construed because forfeiture of benefits is a harsh remedy. See Our Lady of the Lake Regional Medical Center v. Mire, 142 So.3d 52 (La. Ct. App. 2014). As such, if an employer fails to prove even one element of the forfeiture statute, it will not be able to avoid liability in a workers’ compensation claim. Here, in order for SF to prove its fraud allegation it had to demonstrate that the employee willfully lied about where he was living and the distance he traveled to and from his medical appointments in an attempt to receive more money for mileage reimbursement than he was due.