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The legal concept of a statute of limitations is a fixed period of time within which a lawsuit must be commenced. Under Louisiana law, the statute of limitations for a personal injury action is one year. Thus, the injured victim must commence a lawsuit within one year from the date of injury. Once the one year period runs out, the opposing party could raises it as a defense to dismiss the case unless a legal exception applies.

Typically in a personal injury case involving joint tortfeasors, filing suit against one alleged tortfeasor is a way to interrupt the statute of limitation against all other joint tortfeasors. However, per the ruling in Galling, “where no liability is found on the part

of a timely sued alleged tortfeasor, then prescription is not interrupted as to untimely sued torfeasors, as no joint or solidary obligation exists.” Moreover, according

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On May 22, 2006, Patricia Case was driving on Oday Road following a tractor driven by Barry Frederick, an employee of Burt Oubre of Burt Oubre Farms. She then decided to pass the tractor at the same time that Barry Frederick was turning left across Mrs. Case’s path. The two vehicles collided.

Following the collision, Mrs. Case “experienced back pain radiating into her legs.” Utimately, Mrs. Case received lumbar microdiskoctomy and laminectomy from Dr. Louis Blanda in 2007. Dr. Blanda testified that Mrs. Case would have some permanent restrictions on her activity level. For example, Mrs. Case was determined to not be able to participate in lifting involving objects over 50 pounds. Dr. Blanda also testified that the surgery was a minimally invasive procedure; in his opinion, Mrs. Case should be

able to return to work within limitations.

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The Environmental Protection Agency can attempt to phase out chemicals which are “unsafe” under the Toxic Substances Control Act (abbreviated TSCA and pronounced “ToSCA”). TSCA is a complete failure of a statute and hardly regulates anything. Unlike its counterpart in the European Union, TSCA does not require every chemical manufacturer to report on its chemicals before being granted market access. Rather, TSCA blacklists a handful of chemicals and companies have to report anything that is chemically similar. If a company makes something that is tremendously dangerous but not chemically similar to something already on a TSCA blacklist, TSCA does not apply.

TSCA may be supplemented soon with Senator Lautenberg’s Safe Chemicals Act. Doing so would no doubt be a great victory for environmentalists as it would replace TSCA with something which might actually work. The Safe Chemicals Act is taking aim at a number of problems that TSCA has been unable to address, foremost above them, asbesdos. The question, however, of what is and is not reasonably “safe” remains.

Historically asbestos was considered to be useful material in its day. Its strength makes it a great cement additive; what’s more, its resistance to heat makes it excellent for brake pads, building insulation, and flame retardant.

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Faulty Jury Instructions in Iberville Parish Accident Result in De Novo Review by Appellate Court

On the afternoon of June 20, 2005, Jesse Brooks, an operating engineer who worked for Industrial Plant Maintenance in St. Gabriel, was driving a backhoe along the shoulder of La. Highway 30. Brooks was followed by his coworker, Steve Harris, in another vehicle. As Brooks approached a driveway that connected with the highway, the backhoe hit a depression and rolled over on its right side. Harris immediately approached the backhoe, where he found Brooks unconscious in the cab. Brooks died shortly thereafter. Brooks’s widow, Lola, filed a wrongful death action against the State of Louisiana through the Department of Transportation and Development (DOTD). At trial, the jury found the DOTD negligent in maintaining the shoulder of the highway, returned a verdict for Mrs. Brooks, and awarded her approximately $812,000 in damages.

The DOTD appealed, alleging several errors on the trial court’s part. Among them was an improper jury instruction. Under Louisiana law, the trial judge is required to instruct jurors on the law applicable to the issues submitted to them to decide. La. C.C.P. Art. 1792(B). The jury charge “must correctly state the law and be based on evidence adduced at trial… Adequate jury instructions are those which fairly and reasonably point out the issues and which provide correct principles of law for the jury to apply to those issues.” LeBlanc v. Landry, 21 So.3d 353, 358-359 (La. App. 1st Cir. 2009). If the trial judge “omits an applicable, essential legal principle, [the] instruction does not adequately set forth the law applicable to the issues to be decided by the jury and may constitute reversible error” which is remedied by a de novo review of the jury’s findings by the appellate court. Leblanc, 21 So.3d at 358-359; see also Picou v. Ferrara, 483 So.2d 915 (La. 1986).

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In a tort action for a car wreck, the court is authorized to award a successful plaintiff two types of damages. Special damages are intended to reimburse a plaintiff for the quantifiable costs and expenses he incurred as a result of his injuries. Medical expenses and car repair costs fall into this category. To recover special damages, the plaintiff is required to show the amounts he paid and show that they were the consequence of the accident. General damages, on the other hand,

“involve mental or physical pain and suffering, inconvenience, loss of intellectual or physical enjoyment, or other losses of lifestyle which cannot be measured exactly in monetary terms.” Robbins v. State ex rel. Dept. of Labor, 728 So. 2d 991 (La. App. 2d Cir. 1999).

Naturally, arriving at an amount for general damages is far less precise, and so Louisiana law leaves “much discretion … to the judge or jury” in setting the award amount. La. C.C.Art. 2324.1. In fact, in order for an appellate court to modify a general damages award, the trial record “must clearly reveal that the trial court abused its broad discretion in making the award, based on the facts and individual circumstances peculiar to the case under consideration.” Youn v. Maritime Overseas Corp., 623 So. 2d 1257 (La. 1993).

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Louisiana Court Stresses Importance of Constructive Notice in Trip-And-Fall Cases

In Smithwick v. City of Farmerville, the Second Circuit Louisiana Court of Appeals affirmed a trial court’s dismissal of a plaintiff’s trip-and-fall case for failure to prove that the municipal defendant had actual or constructive notice of a shallow depression in the city-maintained right-of-way.

The plaintiff, Carol Smithwick, was waiting at a street corner in Farmerville, Louisiana for her child’s school bus to arrive. Smithwick was traversing a sidewalk, and as she stepped off the sidewalk and onto the street, she tripped on a depression in the street’s shoulder. The depression was shrouded by grasses growing around it, and the depression was not immediately visible to Ms. Smithwick at the time. Accordingly, she tripped, fell, and sustained immediate injuries that later caused reflex sympathetic dystrophy.

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When hurt, many people begin stressing over who to hire to represent their interests. There are thousands of lawyers offering their services and one case, in particular, is a helpful guide to understanding how important picking the right one is. In Horton v. Beck Partners, L.L.C., the claims of a psychiatric patient, Denise Horton, were dismissed because she did not first submit her claims to a medical review panel. In fact, Horton did not characterize her claims as medical malpractice and thereby appealed the decision. Rather, Horton sued for general negligence which is a cause of action under general tort law.

However, the court determined the case did fall under the scope of the Louisiana Medical Malpractice Act, hereinafter ‘Malpractice Act’, which allowed the defendant physician to invoke an ‘exception of prematurity.’ This exception is a procedural mechanism utilized by healthcare providers in the event medical malpractice claims are not first presented to a medical review panel. To elaborate, if a healthcare provider is sued and an action commenced in a court of law, this exception will be maintained and the lawsuit dismissed if the plaintiff fails to first present the claims to a medical review panel.

This outcome is dictated by the Malpractice Act which states that a medical review panel must first review any and all claims against healthcare providers before any action is taken through a court of law.  Consequently, in Horton v. Beck Partners, L.L.C., both the trial court and the court of appeals maintained the physician’s exception of prematurity, since a medical review panel was not first consulted, and dismissed the plaintiff’s claims.

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A recent Louisiana Court of Appeals decision shows that the question of which type of claim to file after an injury, general tort or medical malpractice, can make or break a case against a health care provider.

In February 2008, Helen Williams was a patient receiving oxygen at Pointe Coupee General Hospital (“PCGH”) in New Roads, Louisiana. Early one morning nurses noticed smoke coming out of a piece of radiology equipment and the fire department was called. By the time the fire department got there, the hospital sprinkler system had already put out the fire which had been confined to the radiology department. However, the decision was made to move patients to the east side of the hospital, behind fire doors. Physicians discussed which patients could be discharged or moved to a local nursing home. They chose to move Ms. Williams to Lakeview Nursing Home in New Roads. She died later that day.

Ms. Williams children and grandchildren (“plaintiffs”) filed an action alleging that PCGH failed to properly provided oxygen for their mother as she waited in the hallway, was removed from the hospital, and was transported to the nursing home. They claim that Ms. William’s death resulted from negligence, not medical malpractice, and as such the case did not need to be submitted to a Review Panel, that specializes in the field of medicine, prior to going to court. PCGH disagreed and filed a prematurity exception claiming the allegations involved medical malpractice and must be submitted to a the review panel under the Louisiana Medical Malpractice Act (“MMA”) La. R.S. 40:1299.41et seq. After a hearing, the trial court maintained PCGH’s exception and dismissed the plaintiffs’ suit upon finding the review panel must first be consulted.

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In Louisiana, a study shows that crash rates continue to rise for drivers under the age of 25 despite outlawing text messaging while driving. In three other states, crash rates were shown to have actually increased after the enactment of anti-texting laws, and, in all four states researched, there were no reductions in crashes after the enactment of these laws.

The study, conducted by the Highway Loss Data Institute (HLDI), was carried out in Louisiana, California, Minnesota, and Washington. Researchers compared statistics of crashes before and after the texting bans were enacted in these states. The four states’ data was then compared to the states that do not have texting bans. The results were obviously not the expectation of lawmakers and has left many troubled by what can be done to counter the dangers technology is creating.

HLDI says that one possible explanation for the increasing negligence and rise in crash levels could be that people are continuing to text in spite of these laws.

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After having faced a significant heart-related scare and receiving a stent implant, many patients are now facing a rather unbelievable reality: it has been discovered that doctors across the nation have been performing unnecessary surgical procedures in order to financially benefit. Doctors, implanting the device intended to unblock clogged heart vessels, are now accused of recommending the procedure in order to bill private and government health insurers for unnecessary medical procedures. A stent is essentially a mesh tube that is inserted most commonly inside the heart and then expanded, using a small balloon to open blocked arteries that prevent blood flow to heart muscle. Despite the fact that stents are a medical breakthrough, it seems as though many individuals are having these devices implanted without having any need for them. While some might believe this does not have any significant drawbacks, the reality is that the procedure implanting them, and the devices themselves, expose patients to a risk of future medical complications due to the fact they have an unnecessary foreign device inserted into their body.

As a result of these discoveries, numerous doctors all over the United States are currently being investigated or indicted, even sentenced to prison for performing unnecessary procedures on individuals. The main criminal charge these medical professionals face is health care fraud. Many times, this situation would go unnoticed if it were not for the hundreds of patient complaints pouring into the hospital boards, motivating investigations into why the doctors have performed so many of these specific procedures on individuals. One investigation of Dr. Mark Midei, of Maryland, led the Maryland Medical Board to hold that Medei was involved in “gross overutilization of health care services… and willfully making a false report or record in the practice of medicine.” One statistic in particular leads some to believe that Dr. Midei is not alone in this practice: the number of stent procedures has almost tripled within the past ten years. What’s more, the number of patients receiving this type of implant has increased steadily every year since 1993, and continues to rise.

Additionally, in Lafayette, Louisiana, in 2009, Dr. Mehmood Petel, formerly of Our Lady of Lourdes Hospital and Lafayette General Hospital in Louisiana, was convicted of 51 counts of fraudulent medical procedures and received the maximum sentence of ten years in a federal state penitentiary. Over 75 patients charged Dr. Patel with fraud and of performing unnecessary heart stent procedures on them. Testifying experts, as well as the Department of Justice, revealed that the majority of the patients who received such implant had little or no disease. Patel was also found to have falsified patient symptoms in medical records, including specific symptoms such as heart pain. The amount of money that Patel billed insurers was astronomical; between 1999-2003, Patel billed Medicare and provate insurance companies more than $3 million, pocketing more than $500,000.

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