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bed-empty-equipments-floor-236380-1024x678Medical Malpractice lawsuits can be extremely complicated and fact-specific. The general Louisiana law requires claims to be brought within one year of treatment. The Louisiana law also distinguishes liability based on intentional actions from negligent actions. The following case illustrates how in-depth a medical malpractice claim can become.

The Plaintiff, Mr. John Mack Evans, appealed the dismissal of his medical malpractice suit against Heritage Manor Stratmore Nursing & Rehabilitation Center (Heritage Manor). Mr. Evans was admitted to Heritage Manor by his treating physician, Dr. Robert Hernandez, after suffering a stroke and becoming paralyzed on one side. Dr. Hernandez was the facility’s medical director and determined that Mr. Evans required changing often to avoid developing sores. Dr. Hernandez also ordered speech, physical and occupational therapy. Ms. Samantha Edwards, a Certified Nursing Assistant, administered care to Mr. Evans and struck him in the eye when his resistance led to him hitting her. Ms. Edwards was terminated immediately. Mr. Evans suffered bruises and bleeding around his eye and nose. When Mr. Evans became abusive, he was transferred to Brentwood Hospital to see a psychiatrist.

The Department of Health and Human Resources (DHH) determined that Heritage Manor hired Ms. Edwards despite a conviction for battery and without checking her references. A medical review panel determined that Heritage Manor was partly responsible for placing Ms. Edwards in the role that injured Mr. Evans. Mr. Evans filed a lawsuit for medical malpractice against Heritage Manor for (1) physical injuries; (2) breach of fiduciary duty; (3) failure to provide adequate care; and (4) failure to supervise and train employees. Because Mr. Evans filed his complaint two years after he sustained injuries, Heritage Manor argued that his lawsuit was untimely. Heritage Manor further argued that injuries from battery do not fall under medical malpractice protections.

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alcohol-bar-black-background-close-up-602750-972x1024The majority of states have what are known as “dram shop laws”.  These laws address liability if someone is injured by a drunk person after consuming alcohol at an establishment.  Most of these laws allow for the bar or other entity that served alcoholic beverages to be sued. Louisiana’s version of the law is quite unique, actually doing the opposite.  The bar or other business must meet certain requirements to be afforded this essential immunity. The Fifth Circuit Court of Appeal in Louisiana recently considered such a situation.  

In 2013, Arthur Tregre, Jr., the plaintiff, was driving in Lake Charles Parrish.  The car ahead of him, driven by Dallas Veillon, was making a left turn when it was struck by a police car coming the opposite direction.  This caused the same police car to crash into Mr. Tregre, killing the officer and injuring Mr. Tregre. Mr. Veillon had been intoxicated at the time of the accident.  In fact, he had been just forcibly removed from the premises of a nearby bar, Boogie’s Lounge. Mr. Tregre sued the Sheriff, the bar and its bartender, and the bar’s insurance company.  The officer’s widow was also a plaintiff in the case. Both the insurance company and Boogie’s Lounge filed summary judgment motions to have the case dismissed. In 2016, the trial court granted these motions, dismissing the claims against the bar and its insurer.  Mr. Tregre, as well as the officer’s widow, appealed.

The law in Louisiana, fittingly called the “Anti-Dram Shop Act”, serves to remove the burden from establishments that serve alcohol.  The issue for the Fifth Circuit was whether or not there was any reason this law should not be applied. The law in question specifically provides that no person or employee of the person that holds a valid liquor permit and serves alcohol is liable for any injuries caused by a customer while off the premises.  La. R.S. 9.2800.1.  It also states that the proximate, or legal, cause of any such injury is the action of the intoxicated person.  The accident occurred on a nearby road, well outside the premises of Boogie’s. Still, Mr. Trevor argued that the employees of Boogie’s should have known better than to eject Mr. Veillon to the road where he would most likely drive and cause an accident.  Here, the Fifth Circuit applied the Anti-Dram Shop act, stating that it was Mr. Veillon’s actions of imbibing in large quantities of alcohol and then choosing to drive that caused the accident. Indeed, the law in Louisiana was enacted in order to put the blame on the intoxicated person.  Aucoin v. Rochel, 5 So.3d 197, (La. Ct. App. 2008).

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person-writing-on-notebook-669615-1024x678Non-competition, or non-compete, clauses are a common part of business and employment agreements.  They serve to prevent one party from taking knowledge or trade secrets to a competing business. Like any contract, these agreements are sometimes scrutinized to make sure they are actually fair to all parties.  Courts will not uphold such clauses that are so limiting as to be unjust. In 2017, the Fifth Circuit of Louisiana considered such an agreement.  

The parties to this case, Frederick Yorsch and Stephen Morel, were business partners in Metairie, Louisiana.  They ran NOLA Title Company, L.L.C., which provided services related to the selling of real estate, such as title insurance.  They also began a separate company, My Tax Sale Resources, L.L.C., which provided tax services related to real property sales.  Both parties signed an agreement that included a non-circumvention and non-competition clause. At some point, Mr. Morel began working for CivicSource, a competing company.  Mr. Yorsch, the plaintiff, sought to have the court enforce the clauses within their agreement with an injunction . The trial court ruled that the clauses were too restrictive on employment opportunities and were unenforceable.  Mr. Yorsch appealed.

The issue for the Fifth Circuit was whether such broadly written clauses are impermissible.  Louisiana law, as a policy, seeks to prevent people from losing their ability to work. Restored Surfaces, Inc. v. Sanchez, 82 So.3d 524 (La. Ct. App. 2011).  Thus, courts will not enforce any contract or agreement that would restrain anyone from “exercising a lawful profession, trade, or business of any kind” except in very specific circumstances.  La. R.S. 23:921.  One exception is that members of limited liability companies may agree not to be involved in similar business as the company of which they are members within a certain parish or municipality.  La. R.S. 23:921(L).

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man-standing-on-parking-lot-163772-1024x576If you are a homeowner, the number of security measures you take to protect your house is likely largely influenced by the safety of your area. For example, if there’s a lot of crime in the area or a lack of good lighting on your street at night, you will probably more carefully guard your home. Contrarily, if you trust your neighbors and have a vigilant neighborhood watch group, you might even feel comfortable leaving your doors unlocked. Businesses think about many of the same factors when deciding how much security their store needs. One major difference between a home and a business is that a business’s lack of security can potentially make it liable for negligence if a crime happens on their property. 

Such was the case before the United States Court of Appeals for the Fifth Circuit. Jerry and Susan Simpson sued Dollar Tree after Mrs. Simpson was robbed in the parking lot of their Monroe, Louisiana, location. They brought the lawsuit to the District Court for the Western District of Louisiana, arguing that Dollar Tree failed to properly meet their duty to protect her and other customers from harm while on their property. The District Court didn’t think that the Simpsons had shown that there was a real question of material fact as to if Dollar Tree was negligent. As a result, the District Court granted Dollar Tree summary judgment and dismissed the case.

The Fifth Circuit then had to consider the Simpson’s appeal of this summary judgment. Like all other summary judgment appeals, the Fifth Circuit just needed to determine to if reasonable people could come to different conclusions on the facts of the case. If so, then it was inappropriate to grant summary judgment. See Fed. R. Civ. P. 56(a).

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man-wearing-black-officer-uniform-1464230-1024x683It’s almost impossible to watch a movie or TV show about the police or crime without hearing the phrase “Miranda Rights.” Even if most viewers don’t know the U.S. Supreme Court case Miranda v. Arizona, which outlined those rights, viewers are aware that upon arrest, a person has multiple rights which they are entitled to have read to them. This same concept is present in Louisiana law as well. If an arrestee isn’t read his rights in full, the arrest could be invalid. 

Brian Litton alleged that he was not read his rights in full when he was arrested under suspicion of drunk driving on July 13, 2015, in Bossier Parish by Deputy Tim Wooten. In Louisiana, there are multiple things a police officer must do after he arrests a person under suspicion of DUI. See La. R.S. 32:661(C). After officers determine there are reasonable grounds to arrest someone for drunk driving, they can subject the arrestee to a test to determine what their blood alcohol percentage is. However, they must first read to the arrestee a form stating both the rights he has, but also that if he refuses the chemical test his driver’s license can be suspended for a year just for refusing the test. See La. R.S. 32:667. Once those rights and consequences are read to the arrestee, he must sign the form as well. Mr. Litton signed the form but refused to take the test. Although Mr. Litton signed the form, he claims he was unaware that his license would be suspended for refusing the test because the officer did not read to him that part of the form.

When this case came before the Second Circuit Court of Appeal of Louisiana, a trial court had agreed with Mr. Litton and reinstated his license. The Louisiana Department of Public Safety and Correction, Office of Motor Vehicles, appealed to the Second Circuit. The decision was a fairly black and white affair. Deputy Wooten himself testified at the initial trial that he gave Mr. Litton the form but was unsure if prior to that he had read the entirety of the form to Mr. Litton. Mr. Litton took it a step further by saying he was sure that Deputy Wooten had not read to him the portion of the form relating to the potential loss of his license. There was no paper trail or any other proof that Deputy Wooten read the form to Mr. Litton in full. Because of that, the Second Circuit affirmed the trial court’s decision that the suspension of the driver’s license was invalid since Deputy Wooten did not fully follow the legal procedure for such an arrest. 

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action-adult-affection-eldery-339620-1024x576The already tragic loss of a parent is only made worse when you believe that the death should have been prevented. Such was the case for Chester Domingue when his ninety-four-year-old mother, Onelia, passed away as the result of a fall in her nursing home, Camelot. While a medical provider cannot anticipate every danger that a client could encounter, what reasonable precautions does Louisiana law require to prevent as many dangers as possible?

Mrs. Domingue, like most ninety-four-year-olds, fell a lot. To be exact, she fell at least twenty-seven times while a resident of Camelot. After many of those falls, the Camelot staff put in place different protocols and precautions. Since Mrs. Domingue used a wheelchair, many of these protocols centered around not letting her get in and out of the wheelchair alone, especially when she needed to go to the bathroom. Yet, she still sometimes tried to use the bathroom by herself. When she did so on April 17, 2014, she hit her head, fracturing her spine and giving her a concussion. Less than a month later, she passed away from those injuries.

In the aftermath, her son wondered why his mother was left by herself to go to the bathroom in the first place. He brought a lawsuit against Camelot alleging medical malpractice for their inattentiveness to his mother’s potential danger. Camelot petitioned to have the case dismissed via summary judgment. They believed that they didn’t break any laws in how they treated Mrs. Domingue. The Trial Court didn’t think that Mr. Domingue had shown that there was a real question of material fact as to if Camelot was negligent. As a result, the Trial Court granted Camelot summary judgment and dismissed the case. 

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photo-of-blue-sedan-parked-on-the-side-of-the-road-1213293-1024x683In certain situations, car owners and their insurance companies may be liable for a death caused by a non-owner driving the car. However, that liability only arises when the car owner expressly or implicitly grants permission to the driver. A common fear for car owners is that someone borrows their car and is involved in some horrible situation. 

The Leger family found themselves in just such a nightmare situation when their car was taken from their driveway in Scott, Louisiana after midnight one summer night and involved in a fatal accident. Sanchez Walters was one of three people in that car during its fateful ride and was killed when the car was involved in a one-car accident. The Legers knew they needed the assistance of an excellent attorney when they were notified of a wrongful death lawsuit brought against them, one of the other people present in the car during the accident, and their insurance company, on behalf of Mr. Walters. Fortunately for the Legers and the other passenger, the wrongful death suit against them was dismissed before trial. The suit was maintained, however, against the insurance company, State Farm Mutual Automobile Insurance Company, for insurance coverage. KC brought the lawsuit on behalf of her minor daughter, AW, contending that the car was taken that night with express or implied permission, giving rise to insurance liability. The trial court granted summary judgment in favor of State Farm due to a lack of evidence supporting Ms. C’s claim. Ms. C subsequently appealed to the Louisiana Third Circuit Court of Appeal. Nevertheless, the Court of Appeal affirmed the summary judgment, similarly finding that Ms. C was unable to provide sufficient evidence to establish a factual question as to whether express or implied permission to use the car was granted.

The facts of this case are pretty sparse and that lack of concrete factual certainty led directly to Ms. Cs inability to provide enough evidence that showed that the car was taken with the owners’ express or implied consent. All that is known is that sometime in the early morning hours the Legers’ car was taken by Kylor Broussard, Nicholas Ledet, and Mr. Walters. The Legers each provided affidavits stating that they did not give express or implied permission to the three occupants to take the car. After the car was taken, it was involved in a single car accident that caused fatal injuries to Mr. Walters. Evidence could not even be supplied establishing who was driving the car at the time of the accident. Ms. C argued that Mr. Walters was a passenger in the car. She alleged that negligent entrustment by the Legers led to his death. Ms. C originally brought lawsuits against Broussard, Mr. and Mrs. Ledet on behalf of their minor son, Mr. Leger, and State Farm. Ms. C dismissed the lawsuit against Broussard and the Ledets on her own, and the trial court granted summary judgment in favor of Mr. Leger, dismissing all of the claims against him with prejudice due to the lack of evidence supporting negligent entrustment. That left the lawsuit against State Farm as the only remaining portion of the original lawsuit. State Farm responded by motioning for summary judgment, arguing that all of the evidence pointed to a lack of express or implied consent from the Legers allowing use of the car.  Ms. C failed to provide any exhibits of evidence to challenge the motion for summary judgment. She instead argued that Broussard’s deposition testimony and a police statement raised a genuine issue of material fact as to who the driver was at the time of the accident and whether they had permission to drive the car. The trial court agreed with State Farm that the evidence was severely lacking and granted summary judgment. Ms. C subsequently appealed only the lawsuit against State Farm to the Court of Appeal. The Court of Appeal, however, affirmed the trial court’s grant of summary judgment in favor of State Farm.

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surgeons-performing-surgery-2324837-1024x683Losing a family member just a few shorts weeks after the family member was discharged from surgery can cause one to wonder if the death occurred due to medical malpractice. Providing expert medical testimony can often be essential to succeeding in a medical malpractice lawsuit, and certainly in the case of defending against a summary judgement motion due to failing to provide such an expert.

On June 14th, 2012, Dr. Surakanti performed an angioplasty surgery on Ms. Shepherd, who was 74 years old, diabetic, morbidly obese, and unable to walk at the time of the surgery. Three weeks after Ms. Shepherd was discharged from Our Lady of The Lake Regional Medical Center (“OLOL”), she passed away. The heirs of Ms. Shepherd (“Plaintiffs”), filed a lawsuit against Dr. Rodney, Dr, Surakanti, Baton Rouge Cardiology Center, and OLOL. The plaintiffs alleged in the lawsuit that the angioplasty performed on Ms. Shepherd by Dr. Surakanti was unnecessary, and that the procedure amounted to medical malpractice. The plaintiffs sought all general and special damages that they could legally recover in their lawsuit.  

In response to the lawsuit, Dr. Rodney, Dr. Surakanti, and Baton Rouge Cardiology Center filed motions for summary judgement. These three parties claimed that the plaintiffs were unable to provide evidence to support the claims of the medical malpractice lawsuit for three reasons. First, a Medical Review Panel had already determined that the standard of care provided to Ms. Shepherd was not breached. Second, the plaintiffs did not provide an expert witness to testify that the standard of care was breached. Third, lack of consent to the procedure could not be proven because such evidence had to come in the form of testimony from an expert witness. OLOL filed a separate summary judgement motion for the same reasons. 

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party-glass-architecture-windows-34092-1024x683Obtaining insurance coverage to protect a new company purchase can be crucial to preventing financial loss. But does a company have policy coverage on a new purchase when the insurance company provides only a certificate of insurance? A case in the First Circuit Court of Appeal for Louisiana recently addressed the issue. 

J&M Piling Driving (“J&M”) requested a quote for insurance from Chabert Insurance Agency (“Chabert”), in August of 2010. J&M was looking to insure the company’s new vessel, called the Lil Cherie. The Lil Cherie sank one month later, and J&M discovered that Chabert was not willing to provide coverage for the accident despite issuing two certificates of insurance. 

J&M then filed a lawsuit against Chabert. In the lawsuit, J&M alleged that Chabert informed J&M that the vessel was covered by insurance and therefore J&M was under the impression that Lil Cherie was fully insured. J&M sought damages for the value of Lil Cherie, personal items on Lil Cherie, salvaging the sunken vessel, and loss of income. 

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close-up-photo-of-person-playing-piano-1246437-1024x683A night at a piano bar in New Orleans is usually a relaxing and enjoyable evening. Yet, the night can take a whole step in the opposite direction if you fall down the front step of the building on your way out. What happens to your personal injury case, however, when there’s doubt about whether or not the piano bar destroyed evidence you could have used against them? Is it appropriate for a trial court to determine whether or not the evidence was intentionally destroyed?

This was Mary Fiveash’s fate when she left Pat O’Brien’s piano bar on January 14, 2014. Ms. Fiveash fell down a tiled step outside Pat O’Brien’s, resulting in multiple injuries. The most severe injury was a spiral break of the humerus bone in her right arm. She alleged that the step’s poor condition and the bar’s lack of adequate maintenance of the step, caused her fall and, therefore, her injury. Where the Louisiana Fourth Circuit Court of Appeal picks up the story is in what happened after Ms. Fiveash filed her initial lawsuit against Pat O’Brien’s and their insurer Evanston Insurance Company. 

Ms. Fiveash filed her initial case on July 11, 2014, and on September 12, 2014, her and her lawyers emailed Pat O’Brien’s to request that a construction expert examine the step for use of his assessment at trial. On October 24, 2014, they agreed for an inspection to take place on November 24. No more than a day after this agreement, a trash can carried up the step at Pat O’Brien’s damaged the step’s threshold, causing the bar to deem it an immediate safety risk and needing repair before the inspection. They notified Ms. Fiveash of this and said the changes would still leave the step in “identical condition” from when her injury occurred. Ms. Fiveash agreed to this only because of the “identical condition” guarantee. When the inspection took place on November 24, it was clear there had been a significant improvement in the step’s condition, leading Ms. Fiveash to allege foul play against the bar. Specifically, she claimed they intentionally altered the step to harm her case at trial, leaving her only with the pictures taken of the step’s initial condition. 

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