Pain And Suffering Claims

July 5, 2016

New Orleans Freight Truck Causes Devastating Injuries That Leads to Interdiction and Res Judicata Issues

i-haul-1450942-1024x642 When a person is injured and left in a condition where they cannot handle their legal claims, their family may act on the incapacitated person’s behalf. If a family member is handling claims on behalf of the incapacitated, it is very important for them to find a good lawyer to help navigate the legal processes. The following appeal of a lawsuit arising out of New Orleans discusses what can occur when multiple lawsuits are filed as a result of disastrous injuries caused by an eighteen wheeler.

Connie Marable was injured in an accident when her husband’s freight truck allegedly shifted into gear and dragged her underneath the vehicle. Connie was rendered comatose and she was subsequently interdicted. Her husband, Wayne, was appointed as her curator. Wayne filed a lawsuit against Empire Truck Sales and its general manager Curtis Hudspeth in Orleans Parish Civil District Court on behalf of his wife. Wayne alleged that Empire’s faulty work or failure to work on the truck is what caused the accident which injured Connie.

Connie’s adult children from a previous marriage, Bill and Engelique Jones, later filed a lawsuit on their own behalf in Orleans Parish District Court against not only Empire and Hudspeth, but also Wayne; Great West Casualty Company, Wayne’s insurer; and DTNA and KLLM. The petition claimed that DTNA was negligent in the defective design of the truck and that KLLM, as Wayne’s employer and lessor of the truck, was responsible for the defective condition of the truck. The Jones’ lawsuit was consolidated with the Marable’s suit at some later time.

July 3, 2016

IVC Filter Claims: 4 Things You Need to Know

by Berniard Law Firm

Inferior vena cava (IVC) filters were designed and sold as a supposedly secure fallback to help avert pulmonary embolism for patients who for various medical reasons could not take blood thinners. Unfortunately for over the last ten years these filters have continuously been alleged to have been at fault for adverse conditions due to breaking of the filter. The best IVC filter lawyers have been pursuing these claims on behalf of their clients for several years now. While you can get a full run down of this litigation from a Louisiana IVC filter claim lawyer here, IVC Filter Claims , the following are 4 things you need to know if you believe you or a family member have been injured by an one of these products.

Removal of the device is only the first step

Most importantly, if you or a loved one has a IVC filter, you need to seek medical advice. The FDA released a bulletin in 2010 advising that IVC filters should be removed as soon as the danger of embolism has passed. Despite this removal itself can be difficult or impossible. A study conducted at the Boston Medical Centre in March 2013 found that, of the IVC filters studied, only 8.5% were successfully removed.

July 2, 2016

How Much Do Juries Award in Mesothelioma Lawsuits in Louisiana?

by Berniard Law Firm

industry-1577317-1024x768
Mesothelioma has been called “the working man’s disease” as it tends to effect a high percentage of blue collar workers who were exposed to asbestos in various construction trades decades ago. A diagnosis of mesothelioma can be devastating and often leads to many legal questions that the best mesothelioma lawyers in Louisiana can quickly answer. Those questions largely revolve around finding out who the responsible parties are who might owe compensation to the claimant and ultimately what financial award could be paid in mesothelioma cases. The following asbestos case out of Jefferson Parish Louisiana provides some insight into the what a mesothelioma claimant and his family might receive if the case goes to trial.

William Oddo jr. was a handyman of sorts for over 30 years working with automobiles ships, and appliances. He raised a family on the Westbank of Jefferson Parish and lived to be 81, until he passed away from mesothelioma as a result of exposure to asbestos. Asbestos is a fibrous mineral which used to be common in building materials and automobile brake pads due to its properties of heat resistance. Over the course of his lifetime Mr. Oddo worked and lived with and around asbestos which is said to have given rise to his death.

On June 3, 2011, just one month before his death, Mr. Oddo filed a lawsuit against multiple defendants who allegedly contributed to his contraction of mesothelioma due to his exposure to asbestos. After his passing Mr. Oddo’s wife and two sons, hereafter referred to as the “Oddo family,” converted his case to a survival/ wrongful death action focused on two defendants from the defendant pool; Ford and Sud- Chemie Inc., formally known as and hereafter referred to as “Southern Talc.” The Otto family argued that Ford significantly contributed to Mr. Otto’s contact with asbestos by producing asbestos brake pads that Mr. Otto regularly serviced when he worked for the Jefferson Parish Sheriff’s Office. Additionally, the Otto family contended that Southern Talc was also responsible for Mr. Oddo’s death due to mesothelioma because Southern Talc manufactured fill that was used for Mr. Oddo’s driveway that allegedly contained asbestos.

June 25, 2016

Defendant in Mandeville K-Mart Slip and Fall Lawsuit Has Case against it Dismissed

by Berniard Law Firm

kmart-s-giant-clown-balloon-1427236 In 2011 Peggy McCastle-Getwood was an employee at the K-Mart in Mandeville, Louisiana. On May 26, 2011 she arrived to work around 8:00 a.m. and went to the back of the store to place her belongings in the locker room. With a cup of coffee in her hand, Ms. McCastle headed back to the front of the store and slipped and fell.

In March of 2012, Ms. McCastle filed a petition for damages and named Professional Cleaning Control (Professional) as a defendant. Professional Cleaning Control was a company hired by K-Mart to clean the floors in the Mandeville store. She asserted that she sustained injuries caused by the negligence of a Professional Employee leaving a liquid substance where she fell. Subsequently, K-Mart filed a petition to intervene, setting forth that it had paid for medical expenses and workers’ compensation benefits for Ms. McCastle, as a result of her injury at work. See LA C.C.P. Art. 1091

In September of 2013, Professional filed a motion for summary judgment based on Ms. McCastle’s deposition. In her deposition Ms. McCastle testified that she did not how the liquid substance got on the floor, nor did she know how long the liquid substance was on the floor. Based on this testimony, Professional asserted that Ms. McCastle would not be able to meet her burden of proof that Professional owed a duty of care, or if a duty was owed, that the duty had been breached.

June 24, 2016

Are There Deadlines to Appeal a Medical Director’s Decision For Workers Compensation Claims in Louisiana?

by Berniard Law Firm

Deadline
In Louisiana if you are hurt at work there are workers’ compensation laws in place to make sure the injured employee gets the type of relief he or she needs and deserves. Within the Workers Compensation Statutes there are deadlines and time frames to which both sides must adhere and they are in place to streamline the process of efficiently getting relief for the injured employee. With a good workers compensation attorney those time frames can actually help the injured employee. But what about the decisions of a medical director to deny treatment, are there deadlines to appeal those decisions? The following case out of Monroe Louisiana discusses the time limits that apply in those circumstances.

On June 30, 2012 Calvin Arrant was on the job driving around the Parish of Ouachita, Louisiana when an 18-wheeler ran a red light and smashed into his car. Mr. Arrant was a surveyor for Wayne Acree PLS, Inc. His job included carrying heavy equipment oftentimes over rough terrain. He continued to work after the accident, but despite his attempts the pain became too unbearable to perform his job any longer. Two months after the accident, Mr. Arrant had lower back pain that radiated into his shoulder, legs, and feet. Furthermore, he needed the assistance of a cane to help him walk due to the numbness in his left leg.

Mr. Arrant eventually sued his employer and their workers compensation insurance provider alleging that they had refused to allow Mr. Arrant to see the physician of his choice and refused to provide tests and procedures recommended by his treating physician. The parties agreed that Mr. Arrant was hurt on the job, i.e., “he was involved in an accident within the course and scope of his employment.” However, at issue was whether Mr. Arrant’s appeal to the medical director’s decision to deny Mr. Arrant’s MRI requests was timely. A worker’s compensation judge found that it was not and the court of appeal agreed.

January 16, 2014

Prescription an Integral Element of Lawsuits After Wrongful Death

by Berniard Law Firm

A few months after being in a car wreck, the unthinkable happens, and as a result of the accident, your loved one passes away. As you are mourning the loss, you also have to start thinking about your legal options that stem from the crash and the possible avenues you have as a “survivor” of your loved one in order to receive some damages from the liable person. While this seems somewhat callous to talk about, especially in light of the pain you are already in from losing someone close to you, it is necessary to begin thinking about this somewhat quickly if you are going to actually be able to bring a survival action.

First, though, what exactly is a survival action? In simple terms, a survival action is an action for damages (an award of money) for injuries incurred by the deceased right before dying. You can think of a survival action as a lawsuit for injuries incurred that the actual deceased would have been able to bring had he or she not passed away. Since the decedent is not able to bring the suit himself or herself, the decedent’s estate has to bring the suit. This is typically a child or other close relative. (States will specify exactly which family members are allowed to bring a survival action in that state.)

Along with deeming who can bring a survival action, states also specify during what timeframe individuals are allowed to bring such a lawsuit. This is not because the state or the courts do not want individuals to be able to recover, but rather because a timeframe has to be set so that the liable individual does not have an indefinite period of time during which to worry about the possibility of a lawsuit.

January 9, 2014

Rear-End Collision Case Examines Liability, Statutes in Louisiana

by Berniard Law Firm

A case arising out of a St. Martin Parish accident has shed light on the responsibility placed on drivers following behind another vehicle. According to Journet v. Mouton out of the Court of Appeal for the Third Circuit, a driver following another vehicle must exercise great care. The case arose out of an accident where a man and his family swerved to miss a slowing sheriff’s deputy, crossed the center line, and slammed into a ditch on the other side of the road. The driver of the vehicle was severely injured and was left quadriplegic.

Reports indicate the deputy was responding to an emergency call but had missed the driveway and was slowing to turn around in another drive. The driver of the following vehicle, who was driving without a license, knew the officer knew him and knew he did not have a license. Therefore, the following driver deliberately chose not to pass the deputy and claimed there were no brake lights and no turn signal used by the deputy. However, the plaintiff’s wife contradicted this testimony, stating that she did see brake lights and a turn signal. The defendants filed for summary judgment, which was granted by the trial court and affirmed by the Court of Appeal.

To reach its decision, the court looked to relevant Louisiana statutes. Most pertinent amongst these is La.R.S. 32:81(A), which states a driver shall not follow another vehicle more closely than is reasonable and shall have regard for the speed of the other vehicle. The court also looked to a Louisiana Supreme Court interpretation of the matter, which held that it is the duty of the following driver to exercise a great deal of care and to keep a safe distance behind the lead car.

January 7, 2014

Louisiana Medical Malpractice Case Examines Federal Antidumping Laws

by Berniard Law Firm

A recent case arising from occurrences in West Carroll Hospital considers the Louisiana and federal antidumping laws. In addition, it also explains the requirements for a case under medical malpractice. Several hospitals were involved in the case, but only two were actually involved in the suit. A woman who had serious kidney and urinary problems was admitted to West Carroll Hospital; however, once the hospital realized that they did not have the specialized equipment to treat her, they desperately tried to find somewhere to transfer her that did have the ability to help her. After several days of miscommunications, the woman died because they could not transfer her fast enough to address her medical issues. Her six daughters then attempted to find some kind of remedy against the hospitals for the wrongful death of their mother.

In Louisiana, La. R.S. 40:2113.4-2113.6, the “antidumping law,” requires hospitals to take patients who need emergency services and live in the territorial area regardless of whether they are able to pay for their care or if they have insurance. Federal law has the same type of requirement under the Emergency Medical Treatment and Active Labor Act. The Emergency Medical Treatment and Active Labor Act even specifies that hospitals cannot turn away patients who have Medicare or Medicaid, and hospitals cannot discriminate based on race, religion, economic status, or national ancestry.

The Emergency Medical Treatment and Active Labor Act further defines “emergency” as a “physical condition which the person in imminent danger of death or permanent disability.” The definition of “emergency services,” then, is “those services which are available in the emergency room and surgical units in order to sustain the person’s life and prevent disablement until the person is in a condition to travel.” Louisiana law requires that the patient be stabilized before they are moved to another facility. However, the Louisiana antidumping law does not permit a private cause of action. That is, an individual cannot sue the hospital for a violation of this law. Even if they could, however, the first hospital, West Carroll, admitted her without incident, so there would be no claim under the antidumping law.

January 3, 2014

Medical Malpractice Subject to Prescription Limits

by Berniard Law Firm

Doctors at the Women and Children’s Hospital in Lake Charles, Louisiana, botched Beverly Lebouef’s surgery in 2003. Eventually Lebouef sought legal advice and brought action against her surgeon. Much later in the pre-trial phase, arguably over a year later, she added a new doctor to his lawsuit who had helped perform one of the surgeries. The question is not about prescribed medication, but “prescription periods” and the accompanying rules.

In Louisiana, no action for damages for injury against any physician or hospital shall be brought unless filed within one year from the fate of the alleged act or negligence or within one year from the date of discovery of the alleged act or negligence. This period is considered a prescriptive period. Prescription begins when a plaintiff becomes aware of facts that would suggest to a reasonable person that he or she suffered injury that could be remedied by law. Prescription starts even if the plaintiff does not have actual knowledge, but constructive knowledge, which is the minimum amount of notice required to make the injured plaintiff aware and allow for the injured plaintiff to inquire further. If the notice is enough to make reasonable victim aware, then prescription has begun.

A plaintiff’s apprehension that something is wrong does not start prescription except when the plaintiff knew or should have known through reasonable diligence that the plaintiff’s issues may have resulted from medical malpractice. The crucial issue is the plaintiff’s reasonableness in taking action or not acting, which considers the plaintiff’s education, intelligence, symptom severity and the defendant’s conduct.

December 29, 2013

Rayville Doctor Found to Have Acted Within Standard of Care

by Berniard Law Firm

Going to the hospital can be an unsettling experience. There are many ways treatment can go wrong and result in serious injury or death. Medical conditions can be misdiagnosed or wrongly diagnosed, wrong prescriptions or doses can be prescribed, and surgical errors can occur. When these mistakes happen and a medical malpractice lawsuit is filed against a doctor and hospital, the trier of fact must determine three elements in order to decide whether or not medical malpractice occurred, which often requires a careful examination of a doctor’s standard of care.

In a recent case heard by the Court of Appeal for the Second Circuit, Crockham v. Thompson, a woman filed a medical malpractice lawsuit against her mother’s doctor and hospital after her mother died from a brain hemorrhage induced by high blood pressure. According to the lawsuit, the mother had been paraplegic for 20 years and often suffered from bowel blockages. In this instance, the woman went to the hospital to have a blockage removed, but failed to get better after the operation was completed. The plaintiff took her mother back to the hospital where she was given oral medication for her high blood pressure, but she later suffered the stroke and her family chose to take her off life support.

In her wrongful death claim against the doctor, the plaintiff in this case claimed the doctor breached his duty of care to the deceased. The plaintiff claimed the blood pressure medication should have been given intravenously rather than by pill because the pill would have bypassed her mother’s non-functioning bowel. Also, the plaintiff suggested the standard of care had been breached because the doctor failed to make his daily round in the morning, failed to admit the patient to the ICU, and failed to develop a cardiovascular profile for the patient. The plaintiff supported her argument with the fact that the hospital’s medical board had found the doctor breached the standard of care. However, at trial, a jury found for the doctor and denied the plaintiff compensation. The Court of Appeal affirmed.