Insurance Dispute Lawyer Blog

Experts Testify in Neurosurgery Medical Malpractice Claim

Published on: May 12, 2023 | By Berniard Law Firm

medical_emergency_emergency_ambulance-scaled Medical malpractice claims are brought when a patient is a victim of negligence at the hands of their physician. Due to the nature of this category of claims, stories of medical malpractice are often horror stories showcasing worst-case scenarios. Even further, the most intense medical malpractice claims result in the death of the patient. Understandably, the patient’s family may seek to find responsibility for the death of their loved one. In the following lawsuit, a family fails to show the legal requirements to bring a medical malpractice claim after their family member died during surgery.

The plaintiffs in this lawsuit are the surviving family members of a man who died during brain surgery by the defendant’s physician. The family contends that due to the deceased’s history of cardiac trauma prior to surgery, he should have been evaluated for cardiac fitness before the physician performed the surgery. The trial court found that the expert testimony proffered by three physicians was insufficient to prove that medical malpractice had occurred. The plaintiffs appealed the decision, insisting that the defendant had breached his duty of care by not ordering further cardiac tests.

The plaintiff must establish the elements of a medical malpractice claim to bring the claim successfully. The first element required to be shown is the standard of care at which comparable physicians in Louisiana generally exercise when taking care of their patients. The second required element is that the defendant failed to meet the reasonable care prescribed by the first element or lacked the required knowledge altogether. The third and final element is that the failure to exercise reasonable care caused the plaintiff’s injuries. La. R.S. 9:2794(A).

New Orleans Police Officer Appeals Civil Service Commission Dismissal

Published on: May 11, 2023 | By Berniard Law Firm

police_5-scaled Police 0fficers are public servants responsible to the taxpayers and their profession. When an officer violates the rules of the New Orleans Police Department (NOPD), they are disciplined through penalties. Both state laws and the department policy bind the officer. Officers are given hearings and allowed to plead their case in line with due process considerations. The following civil service case illustrates how appeals work under the Civil Service Commission scheme.

A New Orleans police officer was caught driving a marked squad vehicle while under the influence of alcohol. As a result, he was required to enter the St. Tammany Parish District Attorney’s Pre-Trial Diversion Program. As a result of entering the program, he was deemed to have admitted responsibility for his violations of state law: driving while intoxicated (La. R.S. 14:98) and careless operation of a motor vehicle (La. R.S. 32:58).

Following his entry into diversion, the NOPD started an investigation of the Officer’s actions and violations of NOPD regulations. As a result, the Department Superintendent recommended various sanctions, including a suspension and letters of reprimand. The Officer appealed the decision, which was countered by a motion for summary judgment by the NOPD. The Officer had admitted guilt by entering the diversion program, giving the NOPD a strong claim for summary judgment. The Commission held a hearing for the appeal, which the Officer failed to appear at. The Commission, therefore, dismissed the appeal in favor of the NOPD. The Officer filed for a rehearing which was denied. He then appealed the denial for a rehearing.

What is Res Ipsa Loquitor?

Published on: May 10, 2023 | By Berniard Law Firm

chair_garden_green_hedge-scaled Personal injury lawsuits can be complicated, especially when they involve injuries sustained while shopping. Mary Mason found herself in this situation at a Burlington store in Lafayette, Louisiana, when a chair collapsed as she sat on it, causing her to fall and sustain injuries. Despite suing Burlington and claiming negligence, her case was dismissed due to a lack of evidence. This case highlights the importance of having experienced legal counsel to guide you through the lawsuit process. It also answers the question, what is Res Ipsa Loquitor?

Mrs. Mason and her husband visited the Burlington store in Lafayette on Ambassador Caffery Parkway. While Mrs. Mason waited in the car, her husband entered the store. After waiting for some time, Mrs. Mason entered the store to find her husband. As she walked by a chair display, she decided to test out one of the chairs on the platform. Unfortunately, as Mrs. Mason sat down, the chair collapsed, and she fell and hit the platform. She was on the phone with her husband at the time.

A store manager and Mr. Mason entered the area where Mrs. Mason fell. They determined Mrs. Mason’s fall was due to no screws in the chair’s back legs. The store manager removed the faulty chair, so the Masons took photos of it. Mrs. Mason also signed an incident report before leaving the store.

Louisiana First Circuit Says Settlement Not Enforceable Based on Email Communications

Published on: May 9, 2023 | By Berniard Law Firm

email_letter_postal_codes-scaled Parties in conflict often prefer out-of-court dispute resolution. Although these agreements made outside the courtroom are appealing, they come with their slew of issues and may require a courtroom to enforce an out-of-court solution. When a deal outside the courtroom requires a court to intervene, how does that court decide whether to enforce the settlement agreement? And in the era of virtual communication and remote dispute resolution, how can a court decide when virtually made agreements are enforceable and binding on the parties?

The present case emerged out of a lumber dispute. In short, the defendants wrongfully cut down trees on the plaintiffs’ land. The plaintiffs filed a lawsuit against the numerous defendants for this wrongful timber cutting and the resulting property damage, penalties, interest, costs, and attorney fees. Some defendants also brought crossclaims against each other following the plaintiffs’ complaints.

The trial court conducted a conference where the parties discussed a potential settlement. Ultimately, the parties drafted an agreement in which one defendant, J.R. Logging, would pay the plaintiffs $20,000. In turn, the plaintiff’s claims against J.R. Logging and the other defendant, Fair Hills Farms, would be dismissed along with the crossclaims between defendants.

Mistake, Medical Malpractice, or Misunderstanding Risk?

Published on: May 8, 2023 | By Berniard Law Firm

medicine_pacemaker_surgery_hospital-scaled While much maligned in the popular consciousness, medical malpractice lawsuits serve a vital function in protecting patients’ rights when accessing healthcare. In Louisiana, a successful medical malpractice lawsuit must show the physician being sued had a standard of care for their patient, the physician violated this standard of care, and there was a connection between this violation and the injury suffered by the patient. See La. R.S. 9:2794(A). Though there are several reasons why a medical procedure may go wrong, proving it was the result of a violation of a standard of care can be difficult at best.

In March 2007, Alsie Thomas underwent surgery to install a pacemaker in his heart. Dr. Sergio Barrios conducted the surgery. While usually, the pacemaker is installed with three leads placed in the right atrium, right ventricle, and coronary sinus behind the heart. Dr. Barrios instead inserted the first lead in the opposite direction into the left ventricle and the second lead into the aorta instead of the right atrium, with the third lead being installed correctly. After the leads were installed, Dr. Barrios conducted several tests and determined that while there were some abnormal readings, the procedure appeared successful. Subsequent evaluations at the hospital also indicated the pacemaker had been positioned correctly.

However, five days after the surgery, Alsie suffered a stroke, which was diagnosed as a lack of blood flow due to an obstruction of a blood vessel. Throughout the rest of March and through April, Alsie continued to suffer from bouts of heart issues, but subsequent X-rays and scans showed the pacemaker appeared to be placed in the correct location.

A Constitutional Right for Prom? Or the Right to Fair Treatment in Public Schools?

Published on: May 7, 2023 | By Berniard Law Firm

salon_prom_interior_luggage-scaled The senior prom usually allows students to dress up and mingle with their classmates and chaperones. Often this is the last chance that some students will get to hang out with classmates before they graduate. Yet some students at L.W. Higgins High School (“Higgins”) in Jefferson Parish alleged they were discriminated against when they were denied entry to their school’s prom.

In 2008, twenty-two students and their parents filed a lawsuit against the Jefferson Parish School Board, Judy Gardner, and Germain Gilson, claiming they were denied entry to their school’s senior prom in violation of their rights. Specifically, they claimed they had a constitutional right to attend their prom and the dress code for which they were barred entry was applied discriminately and arbitrarily.

Ms. Gilson, the principal at Higgins, stated in her defense the school had issued handbooks to all students in Jefferson Parish, which included both a uniform dress code for formal events which in turn dictated the dress code policy for the senior prom at Higgins. Further, Ms. Gilson claimed that at the event itself, alterations and shawls were made available for students whose attire did not fit the proscribed dress code.

Underlying Medical Conditions, Can You Claim Res Ipsa Loquitur in a Lawsuit?

Published on: May 6, 2023 | By Berniard Law Firm

vcc_broadway_hi_res-scaled You think that when you’re being taken care of by hospital personnel, you are in safe hands and do not have to fear for your safety. However, if you are injured when being moved from a hospital cart to your bed, can you claim negligence based on res ipsa loquitur? The Fifth Circuit Court of Appeals addresses this question and the difficulties in recovering damages if you have an underlying preexisting condition.

Joshua Rice was a patient at Cornerstone Hospital for over a year before passing away in May 2012. Joshua’s father, Tommy Rice, brought a negligence suit against Cornerstone, claiming the staff entangled Joshua’s leg and arm when they moved him from a hospital cart to his bed. He suffered a fracture in his hip and shoulder as a result.

Believing they were not liable for Rice’s injuries, Cornerstone filed a motion for summary judgment. Under Rule 56(a) of the Federal Rules of Civil Procedure, a court should grant summary judgment when there is no genuine dispute of any material fact. If a plaintiff such as Rice cannot prove his case at trial, then a court will dismiss it.

Leaking Hole in Jail Cell, Can you File a Lawsuit for Cruel and Unusual Punishment?

Published on: May 5, 2023 | By Berniard Law Firm

prison_prison_window_window-scaled When prison officials do nothing to fix a large hole that leaks onto the floor in a jail cell, could the inmate have a claim for cruel and unusual punishment? The Fifth Circuit Court of Appeals case answers no. Many instances of inmates complaining about mistreatment are not uncommon to hear about, but when do we draw the line from complaints to unusual punishment? The subsequent lawsuit helps us answer this question of Eighth Amendment rights violations.

Ceasar Shannon was a Dixon Correctional Institute prisoner for over three years. The cell he was in had a large hole in the ceiling that would leak water when it rained. Shannon, along with other inmates, had made many complaints to maintenance requesting it to be fixed. Many times the guards just put buckets to catch the water dripping. One of these times, Shannon woke up at night to use the bathroom and slipped and fell on the puddle from the leak. Shannon suffered injuries to his back, shoulder, and hip.

Shannon filed a lawsuit against the Louisiana prison official under 42 U.S.C § 1983 action in federal district court. Under 42 U.S.C § 1983 a person can seek remedies against others who violated their constitutional rights. Shannon claimed the prison guards were aware of the hole in the wall and did nothing to fix the problem, thus showing deliberate indifference to Shannon’s health and safety, violating his Eight Amendment right to be free of cruel and unusual punishment. In response, the State filed a motion to dismiss. The State claimed slip-and-fall cases are negligence claims, not actionable under § 1983. The district court held in favor of the State. Unhappy with the district court’s ruling, Shannon appealed to the Fifth Circuit Court of Appeals.

Cancer Patient Prevails on Workers’ Compensation Claim Against Exxon

Published on: May 4, 2023 | By Berniard Law Firm

exxon_valdez_cleanup-scaled We have all read headlines about lawsuits filed against gas and energy companies by workers who have developed health problems at their facilities. But what happens when a plaintiff files a lawsuit which could be barred by a workers’ compensation act? Will the claim be able to withstand a peremptory exception? How does the plaintiff fight against such a motion?

Susan Mulkey appealed a trial court judgment sustaining a peremptory exception dismissing her claims against Exxon Mobil Corporation for damages. Her case arose from the death of her husband, Michael Mulkey Sr., who was exposed to toxic chemicals during his time at Exxon. Mulkey Sr. worked at Exxon for thirty-five years, during which he was exposed to benzene. He was subsequently diagnosed with acute myelogenous leukemia.

Mulkey Sr. claimed forty-one employees of Exxon were liable for his damages because of their negligence in properly safeguarding the work environment. When Mulkey Sr. died from leukemia, his wife and children filed a lawsuit for damages. Exxon filed a peremptory exception, claiming Mulkey failed to state a cause of action, which the trial court sustained. Exxon was eventually dismissed from the lawsuit, which Mulkey appealed.

Can a Train be Held Liable for the Delay in Emergency Services?

Published on: May 3, 2023 | By Berniard Law Firm

new_train_station_at-scaled When tragedy strikes, seconds matter. Any delay to the emergency response network can cost lives and livelihoods. When a train runs through an intersection, all activity has to yield to that train. What follows is the calamitous story of how a train may have prevented EMS from responding to a fatal accident. It also helps answer the question; Can a train be held liable for the delay in emergency services?

Wilson Battley Jr. was driving down the road when he ran into a turning tractor-trailer. Fire and police crews swarmed the area to get Mr. Battley out from under the tractor-trailer. Unfortunately, while this accident unfolded, a KCS train entered and blocked the western side of the intersection where Mr. Battley was stuck. Wilson died under that truck before emergency services could get him out.

Wilson’s surviving family sued KCS, the train company, for knowingly blocking the intersection and delaying emergency services. Wilson claimed the train conductors knew about the accident and decided to block the intersection anyway, thus delaying emergency services which quickened Wilson’s death. In the 19th judicial district, the court awarded summary judgment to KCS because the court found Wilson had failed to present evidence that any emergency services were delayed due to the train. On appeal in the First Circuit Court of Louisiana, the court considered the testimony presented from both sides to determine if anyone was delayed by the train.