Pain And Suffering Claims

February 5, 2017

Left-Turning Motorists Involved In Accidents Must Overcome Presumption of Negligence

sign-no-left-turn-1473790-633x1024 If you are involved in a motor vehicle accident while making a left turn, you are presumed to be negligent because of the dangerous nature of the turn. You will have to overcome this presumption of negligence even if you think the accident is not your fault. See Baker v. State Farm Mut. Auto. Ins. Co., 162 So.3d 405 (La. Ct. App. 2015).

On October 26th, 2012, at 8:00 p.m., Latoya Leonard was driving west in Caddo Parish, Louisiana. She stopped at a traffic light at an intersection and other vehicles stopped behind her. James Lee was approaching the same intersection from the opposite direction. Leonard saw Lee’s truck from several car lengths away as it began to approach her. When the light first changed, Leonard delayed her turn as drivers behind her honked their horns. She turned left and the left portion of Lee’s front bumper collided with the back passenger side door of Leonard’s car.

The police officer who took the report of the accident gave his testimony via deposition. In his deposition, he said that his report was based solely on what he was told by the parties because he did not witness the accident and did not talk to any impartial witnesses. Lee told the officer that Leonard turned left and crossed into the westernmost southbound lane as both were beginning to turn south. Based upon what the drivers reported, the officer placed the point of impact at the westernmost, outside lane. The officer concluded that Lee was not at fault in the accident but also said that both parties should have yielded.

February 4, 2017

Why Was A Richwood High School Resource Officer Denied Permanent Total Disability Benefits?

by Berniard Law Firm

accessibility-1538227-1024x768 An employee is entitled to worker’s compensation benefits if he or she suffers an injury by accident during the course of his or her employment. Although worker’s compensation law has been liberally construed in favor of the injured employee, it is not an unlimited source of benefits for individuals unable to work. For example, in Royals v. Richwood, a Richwood, Louisiana resident named Donna Sue Royals attempted to appeal a judgment made by a Workers’ Compensation Judge (WCJ) who rejected her claim for permanent total disability (PTD) benefits. However, the Court of Appeal determined that the judgment was proper and denied Royals’ appeal.

During the 2002-2003 school year, Royals was hired by the Town of Richwood to work as a resource officer at Richwood High School. In September 2002, Royals twisted her knee while getting out of her patrol car during a routine perimeter check of the school. The next day, she exacerbated the injury when she “misstepped” in the police station restroom. As a result of this injury, Royals was advised by her family physician to seek treatment and in November 2002, she began seeing an orthopedic surgeon, Dr. Douglas Brown. In December 2002, Dr. Brown performed arthroscopic surgery that allowed Royals to return to work as a dispatcher in January 2003. However, she continued to experience pain from the injury and in January 2005 she received a complete knee replacement, which was also performed by Dr. Brown. In May 2005, Dr. Brown released Royals to return to modified work and within three months she was issued a medical release allowing her to return to her original job position. Despite receiving a release, Royals never returned to her previous position.

In her claim, Royals alleged that the WCJ had made a mistake by refusing to award her permanent and total disability benefits. Royals further argued that her lengthy list of medical issues all flowed from this single work-related accident. In response, the Town of Richwood argued that Royals’s medical problems were not the result of her knee injury. Further, the Town of Richwood argued that Royals’s history demonstrated that although she had the ability to return to work and effectively perform her job, she choose not to. As evidence, they offered the fact that Royals cared for her sick mother and continued to drive through 2011. While the Town of Richwood argued that Royals’s sedentary lifestyle contributed to her medical issues, Royals argued that her lifestyle was a result of the injury she received on the job.

January 26, 2017

Police Officers found not Negligent in Shooting of Man after Police Escort in Louisiana

by Berniard Law Firm

policewoman-1191043-673x1024 Police officers play an integral role in the health, safety, and welfare of the communities they serve and protect. There are many situations where these officers put their lives on the line. There are also some situations where these officers must aid in the day to day needs of civilians. Such needs may include a police escort in order to retrieve belongings from a residence. Are police officers liable for the harm to a civilian that results after the police leave during a police escort? The Louisiana Third Circuit Court of Appeal affirmed a lower court finding that police officers were not liable in such a situation.

After being shot in the back by his estranged wife, Reginald Phillips sued the City of Crowley Police Department (“Crowley Police”) and other defendants. Mr. Phillip’s main claim against the Crowley Police was that they were negligent in leaving him alone with his wife. Mr. and Mrs. Phillips had a history of domestic violence with one another. After one of their fights, the district court issued a temporary restraining order against Mr. Phillips which required him to leave the couple’s home. At a hearing regarding the protective order, the hearing officer denied the protective order finding that Ms. Phillips had actually been the aggressor. Instead, the hearing officer recommended mutual restraining orders and issued a consent order which mandated the couple avoid contact with one another unless accompanied by police.

After the hearing, Mr. Phillips then went to the Crowley Police to request an escort to his shared home in order to collect his belongings. Three Crowley Police officers accompanied him to his home. After a short while, the officers left the residence. Soon after, Ms. Phillips shot Mr. Phillips in the back, and he was subsequently paralyzed from the waist done.

January 23, 2017

Plaintiff Wins Big and Can Sue State Employer for Intentional Tort in Louisiana

by Berniard Law Firm

worker-1542657-1024x768 Imagine what it’s like to be a dedicated employee. You love your job, you’re never absent from work due, and you never have any problems with your employer. Until one day, you are having an unexplained health problem. Turns out you have been exposed to a toxic substance and you believe your employer intentionally harmed you, causing significant injury. It may be necessary to get more information to determine if an employer committed an intentional tort.

This scenario describes the case of James Owens, a welding instructor and an employee of the State of Louisiana. He worked at the Alexandria campus of the Louisiana Community and Technical College. Mr. Owens filed a lawsuit alleging that he suffered injuries after he worked in a building with inadequate ventilation, where he was exposed to high levels of a particular matter and chromium for almost four years.

The State filed an exception of no right of action defense and the trial court heard oral arguments on the matter. During oral arguments, the trial court concluded that Mr. Owens had a right of action. However, when the trial court issued a final written judgment it ruled in favor of the State and determined that Mr. Owens’ exclusive remedy was worker compensation. The trial court also dismissed Mr. Owens lawsuit with prejudice. Mr. Owens filed an appeal alleging that the trial court made a legal error when it dismissed his intentional tort claim and failed to allow Mr. Owens to amend his petition stating a right of action.

January 11, 2017

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

by Berniard Law Firm

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.