Pain And Suffering Claims

October 10, 2013

Medical Malpractice Cases Require Timely Legal Action

Unfortunately, medical malpractice happens all too often. Doctors misdiagnose conditions, prescribe wrong medications, and make surgical errors. Victims of this negligence can face serious injuries including permanent disability requiring long-term care. In the worst cases, the victim dies. While these harms are physically painful, they can also be emotionally trying, throwing a victim into a tailspin of depression. Making matters worse, financial consequences bear down on these victims in the form of costly medical bills. Fortunately, a medical malpractice lawsuit can help these victims obtain compensation for their damages, but only if filed in a timely matter. However, strict rules exist as to how quickly such a suit must be brought. A recent decision by the Court of Appeal for the Second Circuit in Louisiana addressed this issue.

In Davidson v. Glenwood Resolution Authority, Inc., a metal piece of a retractor was accidentally left inside a patient after a 2006 abdominal surgery. However, at the time, neither the doctor nor the patient was aware of the foreign object being left inside the patient. Three months after the surgery, the patient began to feel something sharp in his abdomen that he knew should not have been there. A month after that, the patient had a CT scan after an auto accident which showed the presence of metal within the patient. The doctor who conducted the original surgery was contacted and he, in turn, contacted the patient, but the patient said he felt fine and he did not want to mess with whatever was problematic. It was not until two years later, in 2008, after an MRI was conducted that the patient actually discovered the presence of the metal object. Within a year of that test, in 2009, the patient filed a medical malpractice lawsuit.

In Louisiana, a medical malpractice lawsuit must be brought within one year of the alleged act or within one year from the date of discovery of the act, omission, or neglect. (La. R.S. 9:5628(A)) This means that once the victim obtains actual or constructive notice of the harmful act, the one year clock starts running. Constructive knowledge exists when facts indicate to a reasonable person that he is a victim of a tort. As interpreted by the Supreme Court in Campo, constructive knowledge is whatever is enough to excite attention and puts the plaintiff on guard and calls for inquiry.

October 9, 2013

Louisiana Wrongful Death Summary Judgment Overturned on Appeal

by Berniard Law Firm

If you have ever been selected to serve as a juror, you know that the jury’s job in a trial is to hear the facts and arguments presented by both parties to a case and to make an informed judgment based on the evidence. In criminal cases, the jury is asked to assess the state or federal government’s case against the defendant and determine his guilt or innocence. In civil cases, the jury evaluates a dispute between two parties, and determines whether one party must compensate the other for damages caused.

Before a civil lawsuit reaches the trial stage, either party to the case may file a motion for summary judgment. Summary judgment is when the court dismisses the case and rules in favor of the moving party (the party making the motion), on the grounds that there were no triable issues of material fact presented. “No triable issues” means that all reasonable-minded persons would come to the same conclusion after weighing the evidence presented.

A verdict for summary judgment can be hard to overcome on an appeal, as the court will be reviewing the facts in the light most favorable to the party opposing the appeal. Additionally, Louisiana legislature expressly favors the summary judgment procedure, as it saves the time and cost of a jury trial. Nonetheless, there are certain types of cases that by their nature should not be settled by summary judgment. An example of such a case would be Bryan and Madison Manis’ wrongful death lawsuit, in which the Louisiana Fifth Circuit of Appeal overruled a verdict for summary judgment in favor of the defendants.

October 6, 2013

Summary Judgment Obstacle for Delayed Suit in Medical Malpractice Case

by Berniard Law Firm

Put simply, summary judgment is a decision rendered by a court for one party and against another without the litigation of a full trial. According to the Louisiana Supreme Court, summary judgment is appropriate when all relevant facts are brought before the court, the relevant facts are undisputed, and the sole remaining issue relates to the legal conclusion to be drawn from the facts. As you can probably understand, arguing for or against a party’s motion for summary judgment is not only a complex process, but also one that carries much risk.

On September 2, 2008, Daniel Milbert fell off of a roof and broke his ankle. Shortly thereafter, Mr. Milbert received surgery to repair his ankle at the Lafayette General Medical Center and was placed on a pain pump. After speaking to one of his doctors about an increase in pain following his discharge from the hospital, Mr. Milbert was instructed to call if the pain worsened. After attempting to contact doctors at the medical center, Mr. Milbert and his wife were required to leave messages with Dexcomm, an answering service in Lafayette. After Mr. Milbert was diagnosed with compartment syndrome and had to undergo surgery, he and his wife filed suit against Dexcomm on December 23, 2009. Accordingly, Dexcomm filed a motion for summary judgment alleging that the right of recovery had expired. At trial, the court agreed with Dexcomm and granted the motion for summary judgment.

Mr. Milbert and his wife appealed.

October 3, 2013

Lack of Evidence Leads to Failed Suit Against Employer for Workplace Incident

by Berniard Law Firm

On July 12, 2006, Raymond Alex, Sr., a structure carpenter for the BNSF Railway was driving a company boom to a work site in Mermentau. Around 3 p.m., Mr. Alex stopped at an intersection, was rear-ended by a large tractor-trailer rig driven by Edward Zenon, Jr. As a result of the accident, Mr. Alex alleged he suffered injuries to his neck with radiating pain down his right arm and hand. He was given injections in his neck at first, but ultimately required cervical spine surgery.

In July 2007, Mr. Alex sued Mr. Zenon, the lessor of the tractor/trailer, PACCAR Leasing Company, and his employer, Creole Fermentation. After some initial discovery, Mr. Alex settled with the defendants.

Two years after his previous suit, Mr. Alex decided to sue his employer, BNSF, under the Federal Employer’s Liability Act (FELA). In his petition, Mr. Alex alleged that BNSF was negligent for failing to provide a reasonably safe place to work, failing to warn him of dangerous conditions and providing a poorly designed truck for him to work in.

October 1, 2013

Dispute Over Responsibility in Accident at Apartment Complex

by Berniard Law Firm

Every first year law student learns about negligence in their tort law class. Negligence claims are some of the most common claims brought in civil court. In order for a defendant to be found liable for negligence, it must be shown that the defendant owed the plaintiff a duty of care, which can also be refered to as a duty to protect. This means that the defendant has to have some level of responsibility for protecting the plaintiff from harm. If the defendant has no duty of care, then they cannot be held liable for negligence. The plaintiff has to prove that the defendant owed them that duty of care.

Sometimes it is easy to determine whether or not a defendant owed a plaintiff a duty of care. For instance, medical malpractice suits are often refered to as professional negligence since a doctor or nurse owes their patient a duty of care regarding their medical treatments. Likewise a lawyer owes his client a duty of care regarding their legal representation. But sometimes, a major point of contention in a lawsuit is whether such a duty of care exists at all. The case of Ponceti v. First Lake Properties shows what happens when a plaintiff cannot show that the defendant owed them a duty of care.

Ms. Ponceti and her daughter, Kaitlynn, lived in an apartment complex in Mandeville owned by First Lake Properties. One day Kaitlynn was riding her scooter in the courtyard of the complex. A teenager was riding his bike in the courtyard at the same time, and lost control of his bike while popping a wheelie. He hit Kaitlynn with his bike and injured her leg.

September 27, 2013

Fifth Circuit Sides with Plaintiff in Jones Act suit for Injuries Sustained on Sea Vessel

by Berniard Law Firm

The Jones Act deals with injuries suffered by employees working on American sea-going vessels and their rights to workers’ compensation for those injuries. The Act requires employers to “maintain a reasonably safe work environment.” Another important feature of the Jones Act is that not only is the employer liable for the negligence of their employees, but also any amount of negligence on the employer’s part will result in some level of liability. In other words, in a Jones Act case, if one employee negligently injures another, both the offendin employee and their employer are liable.

The case of Martinez v. Offshore Specialty Fabricators, Inc. deals with a Jones Act claim and really brings to light how important it is to obtain quality legal representation. Mr. Martinez was a seaman employed by Offshore Specialty Fabricators as a mechanic. On May 26, 2008, he and his supervisor, Mr. Smith, went aboard a ship owned by Offshore to repair a defective winch. Both Martinez and Smith testified that the work space was very cramped and required them to bend over while swinging a sledgehammer for almost an hour when suddenly Martinez felt a pop in his neck. Smith testified that he saw Martinez visibly twitch and asked what was wrong. Martinez informed him that something was wrong with his neck, and Smith immediately told him stop working.

Shortly after the injury he told an on-board medic about soreness in his arm due to using the sledgehammer. Two days later Martinez visited another medic and told him that he was unable to move his head or jaw without shooting pain in his neck and shoulder. He was also interviewed by a claims adjuster hired by Offshore and told the adjuster that his injury was due to the cramped working conditions and hammering.

September 19, 2013

Spoliation of Evidence Key Concern in Personal Injury Cases

by Berniard Law Firm

After you have been in a terrible accident or lost a loved one, especially when the accident or death was caused by the negligence of someone else, you probably want justice. The outrage, the pain, and the sense of loss are too much to bear, and you want someone to pay for what was done. You want to be made as whole as possible. But what if the evidence that would allow that justice to come to pass has been ruined? And what if it was the allegedly guilty party who destroyed it? This intentional destruction of evidence primarily for the purpose of depriving the opposing party of its use is known as spoliation of evidence.

While a party might assume that spoliation of evidence has occurred, mere allegations will not get you far, and actually proving that spoliation of evidence has occurred can be much harder than you might think. In the state of Louisiana, there are several rules and standards with regard to how a party must prove that such spoliation of evidence actually occurred. First of all, merely accusing someone of negligently destroying evidence is not enough to prove spoliation of evidence. The standard is much higher than that. The plaintiff actually has to prove that the evidence was intentionally destroyed, and it can be quite difficult to prove the intentions of one’s actions.

If a party fails to produce evidence within his or her reach, there is a presumption that the evidence would have been detrimental to the case; however, it is still essential to prove that the evidence was intentionally destroyed. Furthermore, the defendant has a duty to preserve evidence. This duty arises because of the foreseeability of needing that evidence in the future. If there is no ability to foresee the need for that evidence in the future, though, the duty does not exist.

September 17, 2013

Proper Service Essential for Successful Legal Remedy

by Berniard Law Firm

Under Louisiana law, there are very specific rules about how to properly serve someone, and one of the important aspects of service that an attorney has to get right is the timing of it. Furthermore, not only does the service have to be carried out in a timely manner, but it also has to be perfected properly.

This particular Supreme Court of Louisiana case dealt with service on a state entity, and it is important for your attorney to be aware of any differences that exist with regard to service requirements depending on who the other party is. According to the applicable state law, La. R.S. 13:850, “perfecting” a service request requires that the appropriate filing fees and transmission fees have been received by the clerk of the court and that the original signed document has been received by the clerk. All of this must be received within the proper timeframe. As stated in La. R.S. 13:850, the proper timeframe for perfection in this case is seven days.

In this case, the service request was received within the required ninety-day timeframe (ninety days since the filing of the petition), and the service request was perfected five days later once the requisite documents and fee payments were received by the clerk of the court. The question then is whether or not this counts as proper request for service: Was the request for service properly received within ninety days even though perfection of the request was outside of that ninety-day timeframe?

September 16, 2013

Inspecting Summary Judgment When Case Involves Improper Lawyer Actions

by Berniard Law Firm

Filing a Motion for Summary Judgment in Louisiana

Can a trial court properly grant a motion for summary judgment when material issues of fact still remain? According to Louisiana law, a motion for summary judgment is not properly granted if material issues of fact still remain. Summary judgment is only properly granted if pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show that no genuine issues of material fact exist.

The purpose of summary judgment is to circumvent a full-scale trial if there are no issues of fact. At trial, fact finders determine what the genuine facts are, and in the case of dispute, the fact finders have to decide what proposed facts are the most plausible in the context of the case. If no issues of fact exist, then this costly and time-consuming process can be avoided by granting a motion for summary judgment.

September 14, 2013

The Role of Court-Appointed Experts in Complex Litigation

by Berniard Law Firm

In order to aid the court, a judge might occasionally appoint an expert to help with specific aspects of the case. Court-appointed experts are different from a specific party’s experts because the court-appointed experts do not favor one side or the other, but rather, help the judge with certain tasks or analyses.

A trial court-appointed expert can be especially useful in a class action lawsuit in which several people have a claim against the defendant and there is no way that the court can hear each individual person’s case. In that instance, a court-appointed expert can help properly group the members of the class action lawsuit and help bring order to an otherwise unwieldy case.

In a recent case from Orleans Parish, the appellate court had to determine when a court-appointed expert is proper and what the limits of such an expert’s duties should be. Before getting into the applicable Louisiana law and how the appellate court ultimately ruled, some knowledge of the background facts is useful: The case from Orleans Parish was a class action lawsuit in which several employees were suing over medical problems they experienced from working in a building that had serious mold damage. Over 600 individuals had claims in the suit, and in order to deal with the case in a more organized and manageable manner, the class was to be broken up into various groups. In order to help with this enormous task, the trial court stated that it wanted to appoint an expert to help group individuals according to damages. Each party was allowed to submit nominations and discuss any issues they felt might arise if such an expert was appointed. Ultimately, an expert was appointed to help with the necessary tasks, and after the case was decided at the trial court level, the State argued that the court-appointed expert had outstepped his appropriate boundaries.