Pain And Suffering Claims

October 25, 2011

Medical Malpractice Case in Louisiana Shows Importance of Panels

Is the Failure to Observe a “Do-Not-Resuscitate” Order Medical Malpractice?

A common element in medical malpractice cases we have previously examined on this blog is the role of Louisiana’s medical review panel. As a brief review, claims brought against healthcare providers under Louisiana’s Medical Malpractice Act (“MMA”) must be reviewed by a medical review panel before proceeding to court. The panel’s purpose is limited to determining whether the evidence supports the plaintiff’s allegation that the healthcare provider failed to observe the appropriate standard of care. If the board determines the standard was not met, it must then decide whether that failure contributed to the plaintiff’s injury. The panel’s report, though not conclusive, is admissible in any subsequent litigation.

A plaintiff who believes he has been a victim of medical malpractice must first determine whether a particular claim is even subject to the MMA, and therefore whether it must be submitted to a medical review panel prior to litigation. This is an important matter, because a medical malpractice claim against a health care provider is “subject to dismissal on an exception of prematurity if such claim has not first been presented to a medical review panel.” The Louisiana Supreme Court, in the case of Coleman v. Deno, identified six factors which are to be considered when determining whether a claim falls under the medical malpractice umbrella. But even with these factors as a guide, the decision may not necessarily be straightforward. A recent case that demonstrates the “grey area” of medical malpractice claims involved a hospital’s ignoring a patient’s Do-Not-Resuscitate Order (“DNR”). Agnes Liles was admitted to the Northern Louisiana Medical Center (“NLMC”) in Ruston on July 10, 2009. A few days later, he went into cardiac arrest. Despite NLMC’s knowledge of Liles’s DNR, hospital employees resuscitated Liles. The process left him with physical disabilities until his death two months later. Liles’s two daughters filed suit against NLMC for recovery of the medical expenses attributable to Liles’s post-resuscitation care as well as physical and mental pain and suffering, loss of enjoyment of life, and cognitive decline. They also asserted a claim for bystander recovery. NLMC filed an exception of prematurity in the trial court arguing that the plaintiffs’ claims must be reviewed by a medical review panel prior to litigation. The trial judge overruled the exception after a hearing and NMLC filed for supervisory review of the judgment with the Second Circuit Court of Appeal. The court relied primarily on two cases to ultimately conclude that “the actions by the nursing personnel in failing to honor the DNR order were not covered under the MMA as medical malpractice, but instead should be governed by Louisiana negligence principles of law.” The first case contained the Louisiana Supreme Court’s pronouncement that

October 23, 2011

Second Circuit Case Demonstrates Importance of Proper Contracts

by Berniard Law Firm

Our previous post discussed the various principles of contract law at work in the Mendoza case, which can be viewed here. This case involved a dispute between an injured worker’s employer and another company with which that employer had a contract. A provision of this contract provided for indemnification, the assuming by one entity of the liability of another.

Companies often assume the liabilities of other entities with which they hold contracts. This is seen as a cost of doing business. Indemnification makes up part of or the entirety of the consideration for some corporate contracts. Contracting away your liability can be extremely valuable. The dispute in this case was when the contract actually became effective. The court used various principles discussed in its opinion and the previous post on this topic to determine that the trial court was correct in denying summary judgment to one party and granting it to the other. Mid South, Mr. Mendoza’s employer, was to be indemnified and held blameless by EXCO as per their 2008 agreement.

In general, this dispute really came down to an issue of timing. The two companies in question signed an agreement in December 2008. The incident that created Mr. Mendoza’s cause of action occurred in October 2007. He filed suit in August of 2008. Mid South did not file an answer to the complaint until July of 2009. After this filing Mid South demanded defense from EXCO; this defense was promptly denied. Mid South again attempted to illicit indemnification and defense from EXCO in September 2009 based on a 2004 contract that Mid South held with Anadarko, a company whose interests were subsequently absorbed by EXCO. EXCO did not respond until after Mid South filed a cross-claim against EXCO. EXCO filed an exception and answer in April 2010 along with a motion for summary judgment. In July 2010, Mid South filed its cross-motion for summary judgment. The former motion for summary judgment was denied and the latter granted in August of 2010. When the trial court denied EXCO’s motion to designate the judgment as appealable, EXCO sought aid from a higher court. The Court of Appeal for the Second Circuit of Louisiana granted EXCO’s writ application but ultimately sided with the trial court.

October 21, 2011

Texas Contract Law Informs Second Circuit Decision

by Berniard Law Firm

A well-written contract can not only solve most problems, it can prevent most problems from becoming problems in the first place. For a contract to have its maximum problem eliminating effect, however, all parties to the contract must agree as to what it mean. Contract law is filled with cases that could have been avoided if the entities involved had simply expressed their terms more clearly or asked the right questions before, during and after the drafting of the contract. While this ambiguity may be intentional by one side or both in the event they think a benefit can be attained, the truth is the best contract is often the one where both parties are simply looking to achieve the main goal fairly. Those instances where ambiguity dominates, however, cause problems. The case of Mendoza v. Grey Wolf Drilling Co., discussed in an earlier post, is one such case.

The Mendoza case was two-fold. It involved questions as to whether and when one company assumed liability for another company. Several contract law principles were implicated in this dispute from which this opinion resulted. Contracts get drafted under the assumption that the parties have reached an agreement. This alleged agreement is nowhere to be found when there is a dispute over the meaning of a contract. When adverse parties give contradictory interpretations of the same contract language a suit often ensues. It is because of the relative frequency of this occurrence that the courts have come up with various rules for interpreting contracts when the parties themselves cannot.

The Court of Appeal for the Second Circuit of Louisiana applied Texas contract law in this case. This was due to an agreement between the parties which was most likely part of the contract itself; there was no dispute over this portion of the contract. For guidance, Texas law contains several well-established principles for evaluating disputed contracts:

October 19, 2011

Tractor-Trailer Accident on I-20 Leads to Court’s Consideration of Request for Remittitur

by Berniard Law Firm

A defendant who wishes to challenge a jury’s damages award can petition the court for a new trial. As this is often an undesirable path for both the defendant and the plaintiff, Louisiana law offers an alternative approach: when the trial court believes that the verdict is “so excessive … that a new trial should be granted for that reason only,” La. Code Civ. Proc. art. 1814, it can order remittitur. This option is available only if the plaintiff agrees to it, under the assumption that accepting a lower amount of damages may prove preferable to another trial. The trial court is permitted to order remittitur “only if the issue of quantum is clearly and fairly separable from other issues in the case.” The recent case of Great West Casualty Co. v. AAA Cooper Transport offers an instructive example of Louisiana’s remittitur statute as applied by the Court of Appeals for the Fifth Circuit. On November 27, 2006, a tractor-trailer which operated by Juan Rodriguez-Salas was struck by another tractor-trailer; the second truck was being driven by Ray Johnson and was owned by AAA Cooper Transportation. Rodriguez-Salas’s truck rolled over, and he suffered injuries to his right shoulder as a result. Rodriguez-Salas sued Johnson and AAA Cooper in the U.S. District Court for the Middle District of Louisiana. He sought to recover for his medical expenses and damages for pain and suffering and lost wages. After a trial, the jury awarded Rodriguez-Salas $38,000 for lost wages; $120,000 for pain, suffering, and mental anguish; and $10,000 for loss of enjoyment of life. AAA Cooper, objecting to the damages award, filed a motion for a new trial. The district court entered judgment on the verdict and denied AAA Cooper’s motion. AAA Cooper appealed, seeking a reduction in Rodriguez-Salas’s $130,000 general damages award on the theory that Rodriguez-Salas’s injuries were to only one shoulder and only required treatment for eight months; in AAA Cooper’s view, $40,000 was an appropriate amount.

The Fifth Circuit, in applying Louisiana law, first reviewed the district court’s finding that a new trial was unnecessary. The district court determined that sufficient evidence of Rodriguez-Salas’s “injuries, medical treatment and recovery, and the effect of both on his work and daily activities” had been presented at trial “to reach a fair determination of his general damages and lost wages.” The Fifth Circuit agreed, noting that the record included such evidence as Rodriguez-Salas’s testimony about his injuries, testimony from doctors about Rodriguez-Salas’s condition, and Rodriguez-Salas’s medical records. Accordingly, in affirming the trial court’s judgment, the Fifth Circuit concluded that “the district court did not abuse its discretion” and that “the award [was] not against the great weight of the evidence.”

Although remittitur offers the parties in litigation a more efficient means by which to resolve a dispute over a damages award, it is still subject to many of the same limitations that apply to appeals in general — that is, that great deference must be afforded a jury’s award of damages. Only through a showing of abuse of discretion by the trial court can a defendant prevail on a remittitur action.

October 15, 2011

Second Circuit Second Guesses Trial Court’s Apportionment of Fault in Caddo Parish Car Wreck

by Berniard Law Firm

When apportioning fault between two or more parties in a negligence action, the finder of fact is given great deference on review. An appellate court may not set aside a trial court’s finding unless there is “manifest error” or it is “clearly wrong.” Cole v. Dept. of Public Safety & Corrections. In order

to reverse the trial court’s apportionment of fault, the appellate court must “find from the record that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong.” The Louisiana Supreme Court has provided extensive guidance on the trial court’s responsibility for allocating fault. The court is “bound to consider the nature of each party’s wrongful conduct and the extent of the causal relationship between that conduct and the damages claimed.” Watson v. State Farm. Furthermore, in assessing fault, the trial court can consider several factors related to a party’s conduct, including:

“(1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought.”Watson

October 13, 2011

Injury At Sea And Indemnification: Who Pays?

by Berniard Law Firm

Transferring from the deck of your boat to an offshore platform in the Gulf of Mexico to begin your day’s work should not be a terrifying experience. While the transfer involves getting into the personnel basket that transfers you onto the platform and little else, the process itself is not as simple as one plain act. Tragically, this simple transfer does not always occur as planned. A recent case highlights importnat legal principles associated with this scenario.

In Channette v. Neches Gulf Marine, Inc. and Seneca Resources Corporation, injured seaman Michael Channette was being transferred from the M/V GOLIAD, operated by Neches Gulf Marine, to an offshore platform operated and owned by Seneca Resources. When the transfer went wrong and Channette was injured, Neches Gulf Marine sought indemnity from Seneca Resources. Indemnification is “The act of making another “whole” by paying any loss another might suffer. This usually arises from a clause in a contract where a party agrees to pay for any losses which arise or have arisen.”

In this case, this is exactly what Neches Gulf Marine asserted – that Seneca Resources was contractually obligated to indemnify them. Unfortunately for Neches Gulf Marine, the district court granted a summary judgment motion for Seneca Resources, thus ruling they had no duty to indemnify Neches Gulf Marine.

October 11, 2011

Court of Appeals Upholds Trial Court Ruling Granting Longshoreman’s Workers Compensation Claim

by Berniard Law Firm

The United States Court of Appeals for the Fifth Circuit recently affirmed in principal part, the trial court’s ruling granting a longshoreman damages for a workers’ compensation claim. Benjamin McCuller and his wife, Miranda McCuller, sued Nautical Ventures, L.L.C., under the Longshore and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C. § 905(b), after Benjamin, who was working as a longshoreman, was injured when he fell while descending a ladder on a ship owned by Nautical. Mr. McCuller was working for Halliburton Energy Services at a marine terminal in Fourchon, Louisiana when he was injured after one of the ladder rungs broke during his descent.

The bulk of the appeals court opinion discussed whether Halliburton, Nautical, or Mr. McCuller was at fault for the injuries suffered by Mr. McCuller. First, the appeals court agreed with the trial court that Nautical had breached its “turnover duty” when it deployed a defective ladder, which had been damaged during a sea deployment several weeks before Mr. McCuller’s fall. “The ‘turnover duty’ relates to the condition of the ship upon the commencement of stevedoring operations” and “requires a vessel to exercise ordinary care under the circumstances to turn over the ship and its equipment in such condition that an expert and experienced stevedoring contractor, mindful of the dangers he should reasonably expect to encounter will be able by the exercise of ordinary care to carry on cargo operations with reasonable safety to persons and property.” This specific duty is the statutory basis for the McCullers’ claim as codified in the Longshore and Harbor Workers’ Compensation Act. In other words, this tort statute places upon the ship owner the duty to discover and fix potentially dangerous ship defects after a ship returns from sea. In the case at hand, the court found that an expert inspecting the ship should have discovered the crack in the ladder. Therefore, the appeals court affirmed the trial court’s ruling that Nautical was at fault for Mr. McCuller’s injuries because it was negligent in breaching its turnover duty by providing a faulty ladder for his use. However, it should be pointed out that the damages were reduced because Mr. McCuller was found to be 30% at fault for carrying a clipboard down the ladder when he was injured. But, the appeals court made clear that Mr. McCuller in no way had a duty to discover and fix the defective ladder.

However, the appeals court also made clear that there are certain circumstances when Mr. McCuller and/or Halliburton (his employer) would have a duty to discover potentially dangerous ship defects. In other words, there is one significant exception to the “turnover duty.” That is, if the defect causing the injury is or should be “open and obvious” to a reasonable longshoreman or stevedore-employer, than the ship owner cannot be held liable for the resulting damages. However, in the instant case the trial court found, and the appeals court agreed, that the crack in the ladder was not, and should not have been “open and obvious” to a reasonable stevedore and/or longshoreman.

October 9, 2011

Second Circuit Appeals Court Upholds Caddo Parish Wrongful Death Ruling

by Berniard Law Firm

The Louisiana Second Circuit Court of Appeals recently affirmed a $550,840 jury-verdict award based on a medical malpractice claim. The verdict accounted for both wrongful death and survival damages, all of which were awarded for the benefit of the decedents 8 surviving children.

In order to prevail in a medical malpractice lawsuit, the plaintiffs must show by a preponderance of the evidence that the hospital, their doctors, nurses and/or staff breached the applicable “standard of care,” and that this breach of care was a substantial factor in contributing to the patients injury or death. The applicable standard of care is “the degree of skill ordinarily employed, under similar circumstances, by members of the health care profession in good standing in the same community or locality, and to use reasonable care and diligence, along with his or her best judgment, in the application of his or her skill to the case.” The standard of care for medical malpractice claims is a comparative one; that is, a member of the medical profession is required to conduct themselves with the same amount of care as would a professional of equal status, under equal circumstances, and within the same community. For example, a nurse practicing medicine in a state-of-the art hospital in New Orleans would be subjected to the standard of care used by similarly situated nurses in similar hospitals, and a doctor would be held to the standard of a similarly situated doctor, etc., etc. Moreover, hindsight or subsequent events cannot be considered when determining whether the standard of care was breached. Instead, the judgment and conduct of medical professionals must be evaluated under the then existing circumstances.

In the instant case, the 75-year-old decedent underwent a colectomy and was recovering in the intensive care unit. She was recovering “fairly well” until December 2, 2003, at which point her condition began to deteriorate. She reportedly was having trouble breathing throughout the day and was pronounced dead at 6:28 P.M. The direct cause of her death and whether or not the hospital was at fault was an issue decided by the jury. The jury returned a 9-3 verdict in favor of plaintiffs, finding that Christus Schumpert Medical Center breached the standard of care in its treatment of the decedent, and the breach in the standard of care was a substantial factor in contributing to the death of the decedent. In reaching this verdict the jury heard testimony that the patient was having significant difficulty breathing throughout the day, and that the children of the decedent had brought this to the attention of the medical staff on several occasions. Moreover, that the attending physician ordered a number of medical tests to better assess the decedent’s breathing troubles, and that these tests were not administered by the attending nurse. To be sure, there was some testimony that the attending nurse maintained the standard of care, and that the decedent may have died from a pulmonary embolism, which would have been sudden and unexpected, relieving the hospital of any fault. However, in the end the jurors weighed the volumes of testimony and 9 of the 12 jurors sided with the plaintiffs.

October 5, 2011

Iberville Parish Backhoe Accident Sheds Light on DOTD Duty of Care

by Berniard Law Firm

When an accident occurs as a result of poor road conditions the question arises whether or not those responsible for the road’s upkeep can be held liable. This was the issue at hand when Jesse Brooks was killed after the backhoe he was driving on Highway 30 in Iberville Parish hit a depression in the shoulder and rolled on top of him. The appellate court held that the Louisiana Department of Transportation and Development owed a duty of care to all motorized vehicle operators on state highways and that that duty was breached by a failure to maintain the highway in a safe operating condition. The Supreme Court of Louisiana, on the other hand, reversed the ruling and laid out an outline of when and to whom the DOTD owes a duty of care.

In deciding these types of negligence cases, the court invokes an unreasonable risk of harm criterion in an attempt to balance possible harm with social utility, including costs to the defendant of avoiding the harm. Thus, the risk of injury or death, which was high in the Brooks case, will be weighed against factors such as the legality of the vehicle being driven on the highway, the social good that was coming from the highway’s use, and the cost of highway maintenance.

Since state funding is limited, it is almost fiscally impossible to require the DOTD to maintain highways in such a state as to be safe for all vehicles, even those not designed for highway use. Thus, the court will first determine if the vehicle involved in the accident was designed for highway travel. In the Brooks case, the backhoe he was driving was not designed for the highway. This fact, along with his excessive speed for such an unbalanced vehicle, outweighed his social good, which was simply moving a backhoe from one business to another. In addition, the cost to fix such minimal highway shoulder defects would burden the DOTD in an unacceptable manner when the risk could have been minimized by Brooks himself through his speed and choice to drive an unsuitable vehicle on the highway. Essentially, the court reasoned that Brooks was taking a more unreasonable risk than the DOTD, and thus ruled the DOTD is not liable for Brooks’ death.

October 3, 2011

Supreme Court Finds Sufficient Service in New Orleans MedMal Case

by Berniard Law Firm

The Louisiana Supreme Court recently clarified rules of service of a medical malpractice lawsuit against State of Louisiana officials. The Court’s conclusion recognizes that some notice requirements are more flexible than others. The case is also a warning about difficulties in knowing whether all parties to a lawsuit receive proper service of the opposing claim.

Whitley v. State Board of Supervisors of Louisiana State University Agricultural Mechanical College, ex rel. Medical Center of Louisiana at New Orleans-University Campus, No. 2011-CC-0040 (La. 7/1/11) resulted from medical care to Regina Whitley after she had been injured in an automobile accident when five months pregnant. She later delivered a stillborn infant. Whitley sued the hospital located in New Orleans for medical malpractice regarding its care of her and her unborn child.

Whitley’s lawsuit was timely served on the Chairman of the University’s Board of Supervisors. Two and a half years later, Whitley’s lawyer faxed a copy of the citation and petition to the Attorney General (AG) and the Office of Risk Management (ORM). The University sought to have the case dismissed because it argued that the AG and ORM did not receive timely service. The argument failed at trial court and the court of appeals.