Articles Posted in Negligence Claims

aircraft_carrier_infirmary_hospital-scaledMedical malpractice claims are not always limited to instances during treatment or surgery and may, as one young patient argued, include failures that occur afterward or post-operatively. 

Justin Thomas, an eighteen-year-old, aspiring armed serviceman, underwent a right shoulder arthroscopy at Lafayette Surgicare to repair his repeated rotator cuff dislocations. The surgery was considered an outpatient procedure that Thomas’s surgeon, Dr. Otis Drew (Dr. Drew), performed beginning just before 9:00 AM on July 1, 2013, and completed around 11:00 AM the same day. Before and after the surgery, Thomas was given significant anesthesia and medication. By 1:50 PM that afternoon, Thomas was discharged into the care of his parents. Less than six hours later, after Thomas’s mom gave him a prescribed dose of oxycodone, he fell unconscious and was unresponsive to Narcan, so an ambulance arrived at Thomas’ parents’ home taking him back to the hospital, where he lay in a coma for five days. As a result, Thomas experienced brain damage and lost the use of the left side of his body. 

In May 2016, a medical review board determined that despite Thomas’s injury, the medical staff, including Dr. Drew, met the required standard of care. Nevertheless, three months later, Thomas filed a lawsuit against Dr. Drew, the anesthesiologist, Lafayette Surgicare, Lafayette Surgery Center, and The Regions Health System of Acadiana. His complaint alleged that he was released too early post-operatively and prescribed extensive anesthesia and heavy narcotic medication that induced him into a coma. In response, Dr. Drew filed a summary judgment motion that the trial court, Fifteenth Judicial District Court Parish of Lafayette, granted, dismissing Thomas’s claims. Thomas appealed to Louisiana’s Third Circuit Court of Appeals (Third Circuit), arguing that the trial court erred in finding that his expert affidavit was inadmissible and did not create a genuine issue of material fact.

prison_robben_island_south-scaledThe burden of proof lies heavily on claimants to establish the elements of the claim they bring forward. Failing to do so can result in the dismissal of the charge. In the case of George Preston, a prisoner in a Louisiana jail, his complaint against Lieutenant Hicks and four state correctional officers for excessive use of force highlights the importance of meeting the requirements to substantiate a claim. Analyzing the alleged violation of Preston’s Eighth Amendment rights, the court carefully considered the evidence and ultimately decided to dismiss some claims while allowing others to proceed.

George Preston, a prisoner in a Louisiana jail, filed a complaint against Lieutenant Hicks and four state correctional officers for excessive use of force, violating his Eighth Amendment rights. The incident occurred when an officer opened an inmate’s cell. When the door opened, Preston rushed in and allegedly tried to hit the prisoner. The Sergeant on duty called for help from Lieutenant Bowie, Lieutenant Hicks, Sergeant Dauzat, and Sergeant Augustine. The officers then worked together to restrain Preston. 

Preston claimed Lieutenant Hicks knocked him to the floor and elbowed him repeatedly in his face. While on the floor, Sergeant Augustine pinned his left arm behind him while Lieutenant Hicks pulled and twisted his right arm. Preston alleged Hick’s actions caused his shoulder to dislocate. Preston claimed he only entered the cell as a joke and that the officer retaliated excessively. 

prison_prison_window_window-scaledWhen a prison official fails to provide necessary medical care to an inmate, legal action may be pursued against the individual. However, claiming deliberate indifference to an inmate’s serious medical needs requires meeting specific criteria. As exemplified by the case below, these factors are crucial in preventing individuals from bringing frivolous claims against government officials, ensuring that legitimate cases receive the attention they deserve.

In this case, Gregory Bailey, a Louisiana prisoner, filed a lawsuit against several defendants, including East Baton Rouge Parish Prison, the prison warden, the 19th Judicial District Court for East Baton Rouge Parish, a judge, and Dr. Vincent Leggio, alleging acts of deliberate indifference to his serious medical needs. The U.S. District Court for the Middle District of Louisiana dismissed Bailey’s claims, stating a failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6) and summary judgment under Federal Rule of Civil Procedure 56(a). This appeal to the U.S. Fifth Circuit Court of Appeal follows. 

In his appeal, Bailey moved to progress in forma pauperis, thereby challenging the District Court’s decision that his appeal was not accepted in good faith. The Court of Appeal then reviewed Bailey’s good faith claims regarding whether his legal points were substantiated on their merits and not frivolous. See Howard v. King

caterpillar_truck_dump_truck-scaledWorkplace accidents can strike unexpectedly, leaving individuals injured and grappling with the complex question of who bears responsibility. However, when such accidents involve heavy machinery and contractual relationships, determining fault can become even more challenging. In the case of Clark Nixon, a dump truck driver at Terrebonne Levee & Conservation District (TLCD), the lines blurred further when an incident unfolded on the job site. As Nixon seeks justice for his injuries, the lawsuit shines a light on the intricate interplay of liability, contractual obligations, and the need for skilled legal representation to recover medical costs and hold those at fault accountable.

Nixon worked a contract job as a dump truck driver at Terrebonne Levee & Conservation District (TLCD). Nixon’s duties as a dump truck driver included delivering dirt to TLCD, where the surplus would eventually be used to build a levee. Specifically, Nixon would back his truck up to the dirt mound and unload the dirt from his truck. Once finished, a bulldozer truck would follow by pushing the dirt mound up a ramp, then reversing down the ramp to make room for the next dump truck. On the TLCD job site, there was also an individual known as the “spotter,” who verified the dirt being dumped and directed the dump truck driver where to unload their pile of dirt. 

After a spotter verified the dirt in Nixon’s dump truck, Nixon began to back his truck towards a specific dirt pile to unload. David Danos was handling a bulldozer at the same time. As Nixon was reversing toward the dirt pile, his truck collided with Danos’ bulldozer, which was traveling down the ramp after moving the dirt. 

flood_fields_pasture_trees-scaledThe story of an underdog seeking justice against a powerful corporation is a familiar legal narrative. And while we may be inclined to root for the little guy, that does not relieve him from proving he has a valid case.

In Louisiana, a plaintiff will not see his case go to trial if it lacks support to overcome a motion for summary judgment. The opposing side will look for holes in the plaintiff’s claim, posing the question: if you have not produced facts suggesting I committed this offense, how will you obtain the requisite evidence to prove it at trial? Accordingly, every “essential element” of a claim requires factual support to serve as a basis for deliberation at trial. La. C.C.P. art 996(c)(2).

The Mitchells, owners of a Shapes Gym in the Parish of Ascension, faced this “make it or break it” moment of summary judgment in their case against neighboring businesses, Wal-Mart, and Aaron’s. The Mitchells alleged that the neighbors’ improperly designed and maintained stormwater drainage systems were to blame for six inches of rainwater that flooded the gym in 2009 and again during litigation of the first flood claim in 2014. 

sidewalk_texture_background_1089989-scaledWhen it comes to personal injury claims resulting from slips, trips, or falls, the concept of open and obvious defects plays a significant role. Failing to act reasonably or being harmed by an apparent defect may hinder your ability to recover compensation for your injuries. This case exemplifies the importance of these factors in determining liability.

Ray Eskine was a permanently disabled individual who used a walker to move around.  When trying to see how long the grass was on his lot across the street, he walked across an elevated walkway in front of his house. One of the wheels on his walker slipped, causing him to fall into a ditch and get injured. 

Eskine and his wife filed a lawsuit against the City of Gretna and its insurer, claiming the walkway was defective and presented an unreasonably dangerous condition. They claimed the City of Gretna was responsible for the care of the walkway and had knowledge of the defective condition that resulted in his injury. 

accident_injury_risk_banana_0-scaledWhen you make a quick run to the store, the last thing you expect is to be injured while shopping. If you slip and fall at a store, you might expect the store to be responsible for any injuries you might have suffered. However, Louisiana law requires that a store have actual or constructive knowledge of the hazardous condition to be held liable. Therefore, if you are considering filing a lawsuit against a store for a slip-and-fall accident, it is essential to provide evidence of the store’s knowledge so your claim does not get dismissed.  

Quentella Batiste was shopping with her granddaughter at Vernon’s Supermarket in Lutcher, Louisiana. Batiste slipped and fell in a puddle of water in the beer and beverage aisle as she was headed to check out at the front of the store. She injured her shoulder, which required surgery. Batiste and her husband filed a lawsuit against Vernon’s Supermarket and its insurer.

Vernon’s Supermarket filed a summary judgment motion, arguing the Batistes could not prove Vernon’s Supermarket created or actual or constructive knowledge of the hazardous condition of the purported water on the floor, as required under the Louisiana Merchant Liability Statute, La. R.S. 9:2800.6. Vernon’s Supermarket provided deposition testimony where Baptiste said she did not know where the substance she slipped on came from, how long it had been there, or whether anyone at the store knew the substance was present before she fell. They also provided surveillance footage and testimony from several employees to support Vernon Supermarket’s claim no one knew about the substance before Batiste’s fall. 

hammer_court_judge_justice_3-scaledWhen considering a legal malpractice claim, it is crucial to understand that proving your attorneys’ negligence alone is insufficient. To establish the merit of such a claim, you must demonstrate an underlying loss resulting from their negligence. This requires presenting compelling evidence that your original claim would have been successful had your attorneys not been negligent. The case of Shawn Cupit, who pursued a wrongful death lawsuit, highlights the significance of providing admissible evidence and the challenges involved in proving a legal malpractice case.

Shawn Cupit hired Joseph Moffett, a lawyer in Mississippi, to represent him in a wrongful death lawsuit involving the death of his mother. His mother had been a patient at a rehabilitation hospital in Concordia Parish, Louisiana, because of injuries related to a burned foot. One night, she climbed out a window at the rehabilitation hospital and was hit and killed by a drunk driver. They filed a lawsuit against the drunk driver, his insurer, and the rehabilitation hospital. They claimed the rehabilitation hospital had been negligent in observing their patient and did not provide a safe prejudice.  

Moffett retained Roger Burgess and Baggett McCall as local counsel in Louisiana. Burgess submitted a request for a Medical Review Panel under La. R.S. 40:1231.8. The Medical Review Panel found the rehabilitation hospital had not failed to comply with the required standard of care. Burgess and McCall also retained expert witnesses, but the expert’s medical opinion letter concluded there was no evidence of the rehabilitation hospital committing medical malpractice. 

slip_up_danger_careless-scaledImagine attending a routine medical appointment at your local doctor’s office. You enter the premises expecting a standard check-up, but unexpectedly, you trip over a defective threshold and fall onto a hard terrazzo floor. This unsettling scenario is precisely what Lois J. Tate encountered in their accident, sparking a personal injury action against Touro Infirmary and Louisiana Children’s Medical Center. The Louisiana Fourth Circuit Court of Appeal affirmed the Trial Court’s decision to grant summary judgment in favor of the defendants, Touro Infirmary, and Louisiana Children’s Medical Center.

In a life-altering event, Tate tripped over what she claimed to be a defective threshold at the office of Dr. Shelton Barnes. The office was located in a building leased from Touro Infirmary. This unexpected fall led to injuries, which prompted Tate to file a lawsuit for damages based on negligence and strict liability against the defendants, including Touro Infirmary, Louisiana Children’s Medical Center, and Dr. Shelton Barnes. Tate’s claim encountered a significant challenge when the Trial Court granted summary judgment favoring the defendants. Tate could not prove a crucial element of her claim—Touro’s knowledge of the alleged defect. Undeterred, Tate appealed the decision.

Under Louisiana law, a summary judgment is applied when there’s no genuine dispute regarding a critical fact that could influence the relief a litigant seeks. To successfully contest a summary judgment, a plaintiff cannot only rely on allegations or speculation. They must present substantial proof of a genuine issue of material fact. For Tate, this involved demonstrating Touro’s awareness of the defect. Simon v. Hillensbeck.

courthouse_court_law_justice_0-scaledIf you are involved with a lawsuit, you probably imagine your day in court involving a jury listening to the evidence and rendering a decision. After all, the US Constitution protects our right to a trial by jury. But what happens if the court issues a notice scheduling your trial to be heard in front of a judge instead of a jury? 

Leigh Ann Schell and McGready Richeson (“Plaintiffs”) filed a lawsuit against Kuchler Polk Weiner LLC (“Kuchler”). Kuchler filed an answer and included a jury demand. Kuchler also paid the applicable filing fee. The trial court then held a pre-trial conference where it selected a trial date. At the conference, both parties’ attorneys and the trial judge signed a pre-trial notice that included the trial date for a trial to be held in front of a judge. 

Later, Kuchler’s attorneys noticed the alleged error of setting the trial before a judge, not a jury. Kuchler filed a Motion to Continue, arguing it had not waived its right to a jury trial and had not authorized its attorneys to waive that right on its behalf. As evidence, Kuchler introduced an affidavit from its managing partner and authorized representative stating Kuchler had never authorized anyone to waive its right to a trial by jury. The trial court denied the motion, and Kuchler appealed.

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