Pain And Suffering Claims

November 25, 2016

Why are Experts Needed in Medical Malpractice Lawsuits in Louisiana?

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The possibility of a error during surgery is frightening for any medical patient. But unexpected occurrences during surgery don’t always rise to the level of medical malpractice. The best medical malpractice attorneys know that to pursue claims of negligence expert testimony is mandated. The following case involving a gynecologist based in Alexandria, Louisiana, demonstrates why experts are required in most cases involving claims of medical malpractice.

The Alexandria doctor was being sued by a former patient, Kacey Ryder, for damages she claimed to have suffered during a surgical procedure. She had become his patient due to chronic pelvic pain. The doctor recommended a “diagnostic laparoscopy,” a procedure that determines whether someone has endometriosis, a disease he suspected was the source of her pelvic pain.

Ryder filled out the informed consent form and underwent the surgery. During the surgery, one or more of her blood vessels was punctured. The Doctor sutured the blood vessels and switched to another surgical method known as a “laparotomy,” which is similar but requires larger incisions. After being sent to the recovery room, her condition worsened and, upon another laparotomy, the doctor discovered a large amount of blood in her peritoneal cavity.

November 23, 2016

How Can I Prove My Injury Was a Result of Employment to Qualify for Workers Compensation?

by Berniard Law Firm

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When you have developed a medical condition or are injured during the course of your employment, you could be entitled to relief under Louisiana’s worker’s compensation laws. However, you must be able to show that the injury was caused while you were performing your job. Louisiana law requires the injured party to show, more likely than not, that the injury was caused as a result of the employment. If you’re unable to satisfy this burden of proof, you will fail to qualify for benefits. So how do you go about proving that your injury was work related and therefore qualifies you for workers compensation benefits? The following case out of Jefferson Parish Louisiana helps answer that question.

Take, for example, Virginia Mulder: Ms. Mulder was a registered nurse employed at East Jefferson Hospital’s rehabilitation wing in Metairie, Louisiana. Her daily duties included lifting patients to help them complete various tasks. In December of 2013, Ms. Mulder filed a claim for worker’s compensation claiming that she had developed chronic pain in her back and biceps as a result of repetitive lifting. She alleged that the injury began to develop on April 30, 2013. She sought to recover worker’s compensation benefits in the form of medical expenses, indemnity, penalties, and other costs.

At trial both parties stipulated that Ms. Mulder was an employee of the hospital at the time the injuries occurred. Ms. Mulder presented several witnesses who aided the Worker’s Compensation Judge (WCJ) to determine that Ms. Mulder’s injuries were caused by her work as a nurse. In particular, the testimony of Ms. Mulder’s doctor, Dr. John Nitche, carried great weight in the eyes of the WCJ. While Dr. Nitche admitted he had never seen any other nurse with the same or similar condition, he asserted that there was a causal connection between her work and the condition affecting her back.

November 22, 2016

Black Friday Shopper Who Slipped on Fallen Sign Has Case Dismissed on Appeal

by Berniard Law Firm

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Sometimes going shopping on Black Friday can be dangerous, as Sylvia Scott learned when she went shopping at the Dillard’s Department Store at Esplanade Mall in Kenner, Louisiana and slipped on a plastic sign that had fallen to the floor. A business might be liable for such a misfortune if they are aware of a hazard and have not taken the proper steps to remedy the hazard before a customer gets injured. However, sometimes an accident is just an unfortunate accident, and that is why it is important for all parties, whether they are an injured customer or a business worried about facing a lawsuit, to seek out excellent lawyers to represent their interests when someone gets hurt. The following case out of Jefferson Parish discusses the burdens Louisiana Courts place upon plaintiffs to show that their accident was no accident at all.

On the morning of the incident, Ms. Scott went to Dillard’s to take advantage of the store’s Black Friday deals. She entered the store at 8:30 a.m., just a half hour after the store had opened, and slipped and fell on a “cling sign” that had fallen off the door. Ms. Scott did not accept medical attention on the scene, but eventually needed pain management, physical therapy, and surgery for the injuries she suffered due to the fall. It was at that point that Ms. Scott sued Dillard’s for her injuries, alleging that Dillard’s did not exercise reasonable care in inspecting the premises and was therefore liable for her injuries.

In Louisiana, the plaintiff bears the initial burden of proving each element of a slip-and-fall claim. See La. R.S. 9:2800.6(B). A merchant owes a duty of care to keep the premises in a reasonably safe condition, including the aisles, passageways, and floors. In order for the merchant to be liable for an injury caused by a slip-and-fall, several elements must be established. First, the condition must have presented an unreasonable risk of harm and the risk must have been reasonably foreseeable. Second, the merchant must have created the condition or had actual or constructive notice of it, prior to the accident occurring. Finally, the merchant must have failed to take reasonable steps to remedy the condition. Essentially, the plaintiff must show that the condition was dangerous and it was foreseeable that it could cause an injury. The merchant must have either caused the condition, known of its existence, or should have been aware of its existence if properly monitoring the store. Finally, the merchant must have neglected to take action to fix the condition or cordon off the area where it existed so that customers are reasonably protected from injury. The plaintiff must establish all of these elements, and failing to establish a single element will be fatal to the claim.

November 20, 2016

Court Reviews Evidentiary Requirements for Damages Claims in Review of Baton Rouge Rear-End

by Berniard Law Firm

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Damages are the award of monetary compensation that the law imposes on a defendant for a violation of law or a breach of a legal duty. Generally, damages seek to remedy the harm done to the plaintiff by the defendant. The law recognizes several categories of damages including general damages, specific damages, punitive damages, and damages for loss of consortium. A recent case out of the Louisiana First Circuit Court of Appeal reviews the evidentiary requirements of damages claims.

On August 10, 2009, Ms. Tekisha Greenup’s vehicle rear-ended a Ms. Rachel Howard’s vehicle in Baton Rouge, Louisiana. There was no dispute that Ms. Greenup was 100% at fault in causing the accident. Ms. Greenup was insured by United Services Automobile Insurance Association (“USAA”) with policy limits of $25,000.00. Ms. Howard had uninsured motorist coverage through a State Farm policy with limits of $10,000.00. Ms. Howard received her policy limit of $10,000.00 and medical benefits of $5,000.00 from State Farm. She received no payment from USAA.

Ms. Howard and her husband then filed a petition for damages (i.e. lawsuit) in the 19th Judicial District Court of the Parish of East Baton Rouge. In her petition, Ms. Howard alleged that she sustained serious injuries to her neck, back, and head as a result of the injury that necessitated medical treatment. Before trial, the defendants filed a motion to adjudicate credit, arguing that any judgment against them in excess of its policy limits should be reduced by $15,000.00, the amount the Howards recovered from State Farm. The Trial Court agreed and granted the defendants’ motion. At the end of the trial, the jury awarded Ms. Howard a total of $42,000.00 in past medical expenses, lost wages, and general damages. The jury denied Ms. Howard’s claim for loss of consortium damages. The $42,000.00 was reduced by the credit of $15,000.00 resulting in a total award of $27,000.00. The Howards appealed, challenging primarily the award of damages.

November 14, 2016

Injured by Revolving Door at a New Orleans Hotel, Who is At Fault?

by Berniard Law Firm

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We have all had that moment in a revolving door when the door seems to be moving just a bit too fast. You do your best to keep up but the back of the door knocks into your foot. No harm, no foul when you get a little bump on your foot. But what if an entire glass pane fell off the door and pinned you into the other side of the door. I would expect you would be pretty upset and you would want to figure out who is responsible for your injuries. Is it the hotel, the door manufacturer, the installer of the door? The following case out of New Orleans sheds some light on who might be responsible when a revolving door almost turned into a death trap for one unfortunate man.

In 2004 while working as a courier Huey Madison had deliveries to make at the Inter-Continental hotel in New Orleans, Louisiana. Huey alleged while exiting the revolving door of the Hotel the door panels collapsed and pinned him between the glass causing him injuries. Huey filed a lawsuit claiming damages resulting from the hotel’s failure to properly install, monitor, and repair the revolving door. Intercontinental answered Huey’s lawsuit, denying all claims while also asserting a third-party demand against Carolina Door, claiming Carolina Door had total control over the inspection and repairing of the door in question. Huey subsequently filed an amended petition with Carolina Door listed as a direct defendant.

Both the Intercontinental Hotel and Carolina Doors sought to escape liability by filing motions stating each were solely responsible for Huey’s injuries. These motions are called summary judgments and are standardly filed in cases such as this. If the party who files a summary judgment motion can demonstrate that there are no facts in dispute and according to the law they are not responsible they can evade responsibility. In response to those motions, Huey filed a memo in opposition and attached the affidavit of an expert witness in the field of construction. Huey argued the expert affidavit provided facts in dispute that would defeat defendants’ motion for summary judgment. Carolina Door subsequently filed a motion to strike Huey’s expert affidavit, arguing the introduction of an expert witness was too late and violated court orders. At the hearing on the motions for summary judgment and motion to strike, the trial court held Huey failed to produce factual support concerning negligence by Carolina Door, and thus granted Carolina Door’s motion for summary judgment. The trial court also denied Carolina Door’s motion to strike without much explanation.

November 13, 2016

Does Signing a Settlement Release Extinguish All Claims in Louisiana, Including Cancer?

by Berniard Law Firm

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Accidents happen, and sometimes it takes years before the effects of those accidents show up. So what happens in Louisiana if you are exposed to a toxic chemical and go through the traditional lawsuit process including resolving all of your claims but later develop cancer? Can you come back and file another lawsuit seeking recourse for your newly acquired damages? It depends on the language of the release that was signed when you settled the first lawsuit. The following case highlights the importance of receiving thorough legal consultation before signing a settlement agreement to ensure you know exactly what rights are being extinguished.

In 1996, Leonard Bracken was exposed to mustard gas while working for the Payne & Keller Company. A tort suit was subsequently filed against the company, but in 1999 before the case reached trial, Leonard agreed to settle his tort suit for $275,531. In addition to settling his tort claim, Leonard signed a compromise agreement where he released Payne & Keller and any other potential tortfeasors from any other claims arising under the Louisiana Workers’ Compensation Act. Under the compromise, Leonard was forever barred from seeking compensation for any medical expenses or any other benefits from the company stemming from the 1996 chemical exposure.

Unfortunately, around six years after settling his lawsuit Leonard developed cancer. Believing that the cancer was related to his exposure to mustard gas Leonard filed a workers compensation claim against his employer, the Payne & Keller company seeking compensation relating to the 1996 incident. Leonard declared no wage benefits had ever been paid, his medical treatment had been discontinued, and his previous attorneys had filed and settled the workers’ compensation claim without his knowledge. Payne & Keller responded by filing exceptions raising the objection of prescription and additionally sought sanctions against Leonard. The Office of Workers Compensation (OWC) sustained Payne and Keller’s exceptions and order Leonard to pay sanctions as the OWC determined Leonard’s pleading violated Civil Louisiana Code of Civil Procedure Article 863 by being frivolous and without merit. Leonard appealed the OWC’s decision. Additionally, Leonard turned to Louisiana Code of Civil Procedure Article 2002(A)(1) in filing a motion with the OWC declaring the 1999 judgment should be nullified, as 2002(A)(1) states a final judgment shall be annulled if it is rendered against an incompetent person. The OWC did not hold a hearing on Leonard’s motion, rather it dismissed Leonard’s motion with no explanation.

November 9, 2016

CVS’s Wet Floor Not The Cause of Metairie Man’s Death

by Berniard Law Firm

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A slippery floor can be a real hazard but even the slickest surface, for all its danger, doesn’t cause every problem. The Louisiana Court of Appeal for the First Circuit made that clear in a recent decision involving a CVS Pharmacy in Metairie, Louisiana.

Georgia Clesi and her husband, John Ellis, were visiting the CVS store when John slipped on an unknown liquid while he was walking to the store’s bathroom. Not long after falling at CVS John and his wife filed a lawsuit against the store seeking a reward of damages for his injuries. John sustained only minor personal injuries at the time of his slip and fall. However, while the lawsuit was still pending he unfortunately died after succumbing to cirrhosis. Georgia, beset by the tragic loss of her husband, amended the couple’s lawsuit for damages against CVS on the theory that John’s fall triggered significant injury and illness and the store was therefore responsible for John’s wrongful death.

The case proceeded to trial wherein John’s doctor, Dr. Parnell, testified that John suffered from MRSA – a chronic bacterial infection – as the result of an earlier hip surgery. The injuries from the fall, according to Dr. Parnell, could have caused the infection to become active again. To further bolster the case John’s widow Georgia also tried to submit various articles from medical journals that she believe supported their position. However, those medical journals were found to be inadmissible hearsay by the trial court and therefore the court would not consider the veracity of the claims contained within. See LA Code Ev 802 .

November 7, 2016

Burger King Employee Loses Out On Workers’ Compensation After Misrepresenting Injuries

by Berniard Law Firm

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When someone brings a workers’ compensation claim against an employer or former employer, they must not falsely represent any material fact, or the entire workers’ compensation claim will be forfeited. When the court finds that a plaintiff has misrepresented a material fact, they dismiss that claim in favor of the employer.

An example that illustrates this point occurred in Baton Rouge, Louisiana, where an employee at the Burger King on Coursey Boulevard said she was injured when she stepped on a bread tray a co-worker had left on a walkway. Mrs. Watson, the employee who was injured, filed a workers’ compensation claim against Strategic Restaurants Acquisition Company and Broadspire, Strategic’s third party administrator. Strategic argued that Mrs. Watson’s claim was invalid under La. R.S. 23:1208 due to false statements willfully made by Mrs. Watson while attempting to recover benefits. The Workers’ Compensation Judge dismissed Mrs. Watson’s claim, finding that she forfeited it due to her false statements. The Louisiana First Circuit Court of Appeal agreed, and affirmed the Workers’ Compensation Judge’s ruling.

According to Mrs. Watson, the injury she suffered while working at Burger King had a dramatic effect on her daily life, severely limiting the activities she was capable of performing. She claimed she could not bend at the waste, drive a car, walk without help, and had lost the regular use of her left hand, arm, and knees. In a deposition given seven months after she sustained the injury, Mrs. Watson insisted that she suffered significant pain and suffered from the fall, which continued to affect her on a day-to-day basis. During the deposition, she testified that the pain in her arm was at an “8 or 9” out of ten, and claimed she couldn’t carry anything heavier than a cup.

November 5, 2016

Father of Color Guard Member Unable to Prove Negligence after MLK Parade Injury

by Berniard Law Firm

When bringing a negligence lawsuit to recover damages for injuries sustained as a result of another person’s failure to act with due care, it is important to ensure that that sufficient evidence has been gathered in advance of the trial. A good lawyer knows that in order to properly safeguard against the tactic employed by the opposing party, one must be prepared to back up one’s claim. A case from the Louisiana First Circuit Court of Appeal highlights exactly this point.

In this case, Robert Lee Iles brought a lawsuit on behalf of his minor daughter, Jannah, who was a member of the color guard at Northshore High School (“NHS”) until she sustained an injury. As a member of the NHS color guard, Jannah attended a two-week band camp during the summer. At band camp, she practiced for two hours, two to three times a week after school, and worked alongside her color guard teammates in a daily one-hour class. She and her teammates received between nine to ten hours of instruction each week. Additionally, she received special training sessions to prepare for the Martin Luther King, Jr. (“MLK”) parade. According to Mr. Iles’ petition, Jannah sustained an injury while marching as a member of the NHS color guard while performing alongside the band at a MLK parade in Slidell, Louisiana.

Iles petition claimed that his daughter’s injury entitled the family to damages. The petition named a number of defendants, including: St. Tammany Parish School Board, NHS Band Boosters, Inc. and its insurer, the band director, the color guard director, the school principal, and the parents of her fellow NHS color guard member, Gabrielle Haley. Iles claimed the School Board was liable for the actions of its employees, thus justifying the inclusion of the band director, and that the Boosters paid the color guard director, so his inclusion was justified as well. Iles’ lawsuit further posited that the School Board and Boosters had failed to properly supervise or train the color guard students, giving rise to this action. Iles also sought additional damages from the defendants for failing to properly administer medical attention.

November 4, 2016

Court of Appeal Contemplates City of Baton Rouge’s Vicarious Liability for Police Misconduct

by Berniard Law Firm

on-patrol-1565455-1024x683 In Louisiana, employers are considered to be vicariously liable for the wrongdoings of their employees. La. C.C. art. 2320. This means that an employer is held liable for damages that their employee may cause while performing designated job duties. In a recent case, the Louisiana First Circuit Court of Appeal discussed whether vicarious liability could apply to hold the City of Baton Rouge responsible for injuries caused by the wrongful conduct of one of its police officers.

On March 4, 2007 Officers Nicholas Batiste and Nathan Davis were dispatched to the home of Brian Townsend in Baton Rouge, Louisiana due to a noise complaint. Mr. Townsend, who was hosting a house party at his Highland Road residence, was instructed by Officer Davis and Officer Batiste to shut the party down. Though the parties disputed what transpired after the officers asked that the party be shut down, it was undisputed that Officer Davis tackled Mr. Townsend from behind. Officer Davis landed on Mr. Townsend with such force that Mr. Townsend involuntarily defecated on himself.

Once Mr. Townsend was brought to the police station, he was made to sit on the floor due to his condition. As he was sitting on the floor, he continually asked to use the restroom. His requests were denied. He was then pepper sprayed multiple times and kicked in the groin by Officer Davis. Additionally, Mr. Townsend was dragged across concrete and gravel as he was being moved for processing. Mr. Townsend was brought to the hospital for his cuts from being dragged. There, it was discovered that Mr. Townsend’s bladder was ruptured. Mr. Townsend underwent surgery to repair his bladder. Following Mr. Townsend’s release from the hospital, he returned due to a urinary tract infection, deep vein thrombosis, a non-functioning bowel, and pneumonia.