Insurance Dispute Lawyer Blog

Doctor Held Not Vicariously Liable For Physical Therapist’s Actions by Louisiana Court

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

courthouse_311_jarvis_st-scaled When you think about medical malpractice lawsuits, a botched surgery or missed diagnosis are likely the first things that come to mind. The following case involves a less common situation involving purported medical malpractice involving physical therapy post-surgery. It analyzes the relationship between a doctor and a physical therapist and whether a doctor can be vicariously liable for the actions of a physical therapist.

Jean McKeogh underwent a total shoulder arthroplasty, which Dr. Michael O’Brien performed. Following the surgery, Dr. O’Brien saw McKeogh for office visits at a Tulane University clinic. Part of McKeogh’s follow-up care involved physical therapy, which was located in the same building as Dr. O’Brien’s offices. McKeogh went to physical therapy but subsequently told Dr. O’Brien she thought she had been injured during it. A CT scan showed she had fractured her elbow. McKeough then had a frozen shoulder and had to have a second surgery.

As a result of the injury and alleged negligence, McKeough requested a medical review panel. In her complaint, she claimed Dr. O’Brien had not used reasonable care with respect to his post-surgery care for her, including with respect to the physical therapy he prescribed. The medical review panel determined Robin Silverman, the physical therapist, had not satisfied the applicable standard of care. However, the medical review panel found there was no evidence to support a finding that Dr. Brien and Tulane had not met the applicable standard of care.

Can a business be liable if a patron slips and falls on a wet walkway?

Published on: September 2, 2023 | By Berniard Law Firm

addiction_bet_betting_casino-scaled Lawsuits involving slip and fall accidents are widespread. However, specific requirements must be satisfied to prevail in a slip-and-fall case. The following lawsuit helps answer the question: Can a business be held liable if a patron slips and falls on a wet walkway?

While walking with her son in the Treasure Chest Casino parking lot, Linda Cangelosi slipped and fell under the outdoor tent that covered part of the walkway entrance into the casino. Cangelosi slipped while stepping from the roadway to the walkway. At the time of her fall, the ground was wet, with puddles. After he fell, employees of Treasure Chest Casino assisted Cangelosi and called an emergency team. Cangelosi declined their offer to transport her to the hospital and continued to the casino. However, about 45 minutes later, she left because her hip hurt. She consulted with a doctor, who provided her with pain medication. Since the accident, Cangelosi had to use a walker and has been in pain. Cangelosi filed a lawsuit against Treasure Chest Casino. Both Cangelosi and Treasure Chest Casino filed motions for summary judgment. The trial court granted Treasure Chest Casino’s summary judgment motion. Cangelosi appealed.

Under La. C.C. art. 2317, the owner of a thing is liable for damage if they knew or should have known about the defect that causes damage, which could have been prevented if the owner had exercised reasonable care. Further, under La. C.C. art. 2322, this also applies to building owners. Therefore, if Cangelosi provided sufficient evidence that Treasure Chest Casino knew or should have known about the wet walkway that caused her slip and did not act reasonably, she could prevail in her lawsuit.

Management Company Not Qualified As Additional Insured In Cleaning Company’s Insurance Policy

Published on: September 1, 2023 | By Berniard Law Firm

ladder_art_red_garden-scaled It can be challenging to interpret insurance policies, especially when they involve complex provisions such as coverage for an additional insured. Before signing an insurance policy, it is imperative to understand its language and what it does and does not cover. Here, the plain language of the insurance policy proved instrumental in the appellate court’s ruling.

Pamela Sloane was injured while working for Integrity Cleaning Services (“Integrity”) at Forestwood Apartments. She was cleaning a ceiling fan while standing on a ladder. She inadvertently touched an exposed wire, which electrocuted her, and she fell from the ladder. Sloane filed a lawsuit against CLK Multifamily Management (“CLK”) and others. Sloane claimed CLK had not adequately maintained the premises or warned of the dangerous condition of the exposed wire. CLK filed its answer to the lawsuit, denying the allegations, and added Travelers Indemnity (“Travelers”) to the lawsuit. CLK claimed Integrity was contractually required to have a general liability insurance policy that covered CLK as additional insureds.

Travelers filed a summary judgment motion, claiming CLK was not an additional insured under the policy. Travelers attached a copy of the relevant insurance policy to its summary judgment motion. CLK disagreed and claimed it was indeed an additional insured. The trial court concluded CLK was not qualified as an additional insured and granted Travelers’ summary judgment motion.

What Is An Occupational Disease Under The Louisiana Workers’ Compensation Act?

Published on: August 31, 2023 | By Berniard Law Firm

green_mold_harmful_mold If you have experienced symptoms from working in a moldy work environment, you might think you are entitled to recover from your employer. However, navigating the Workers’ Compensation system can be challenging partly because of the distinct and often complicated vocabulary in the statutes. This case involves defining an occupational disease under the Louisiana Workers’ Compensation Act.

Angela Lyle worked in the payroll department at Brock Services. Her office was in a trailer in Norco, Louisiana, at the Valero plant. Lyle claimed she saw mold throughout the trailer that increased over the two years she worked at the site. She suffered from fatigue, burning eyes, sores, and other symptoms. After suffering a nosebleed, she underwent a medical evaluation. Testing confirmed mold was present in the office, so Lyle’s trailer was replaced. Once the trailer was replaced, some of Lyle’s symptoms went away, but others persisted, and new symptoms emerged.

She resigned and was diagnosed with sarcoidosis in her lungs and lymph nodes. She then filed a claim with the Workers’ Compensation, claiming she had suffered an occupational disease and was entitled to damages. The workers’ compensation judge denied her claim as neither her mold exposure nor the development of sarcoidosis qualified as an occupational disease or accident under the Louisiana Workers’ Compensation Act. Brock filed a summary judgment motion, arguing Lyle could not establish sarcoidosis was an occupational disease. The workers’ compensation judge granted Brock’s summary judgment motion, finding Lyle’s sarcoidosis was not an “occupational disease. Lyle appealed, arguing the workers’ compensation judge ignored the definition of an “occupational disease” under the Louisiana Workers’ Compensation Act.

Contra Non Valentem Inapplicable To Lawsuit From Lung Cancer Death

Published on: August 30, 2023 | By Berniard Law Firm

nuclear_waste_radioactive_trash-scaled Even in cases involving tragic factual situations, strict procedural requirements must be followed to prevail on your claim. This case involves the time limits in which you must file a lawsuit and the principle of contra non valentem, which is a rule that the time limit in which someone has to file a lawsuit does not start if the other person was hiding information that would allow them to bring their claim.

This case involves the tragic death of a husband and father, Julius Lennie. Tuboscope employed him for over thirty years. Various oil companies hired Tuboscope to clean and refurbish pipes and tubes used in the oilfield. The clean process involved the emission of a naturally occurring radioactive material. In 2010, after retiring, Lennie was diagnosed with lung cancer and died shortly thereafter. Almost four years later, his spouse and children filed a lawsuit against various companies that had hired Tuboscope.

His surviving family claimed Lennie had been exposed to dangerous levels of radiation while working, which caused his cancer and death. They alleged the companies knew naturally occurring radioactive materials were dangerous but had not warned Lennie or taken appropriate corrective actions. The Lennies argued they had filed the lawsuit after reading an article about radiation exposure in pipe yards, so they were not on notice of their claims until September 2013.

Understanding Statutory Employer Immunity in Workers’ Compensation Cases in Louisiana

Published on: August 29, 2023 | By Berniard Law Firm

ladder_step_ladder_passage-scaled Statutory employer immunity is critical in determining liability and compensation for workplace injuries in workers’ compensation. The following case is an example where the court had to decide whether the defendant was entitled to statutory employer immunity under the dual contract theory provided for in La.R.S. 23:1061(A)(2). We will examine the facts of the case, the arguments presented by both parties and the court’s decision. We will also examine the legal framework surrounding statutory employer immunity and its impact on workers’ compensation cases.

The case involves Patrick Cummins, a worker hired by a subcontractor to perform its contract with R.A.H. Homes and Construction, LLC (“R.A.H.”), the defendant. The homeowners had contracted R.A.H. to construct a single-family home, including the installation of an attic HVAC system. Cummins became seriously injured when the attic access ladder malfunctioned, and he fell while performing the work required under R.A.H.’s contract with the homeowners.

Cummins sued several defendants, including R.A.H., in tort, alleging that R.A.H. was directly responsible for the improper installation of the attic ladder that led to the accident. In response, R.A.H. asserted an affirmative defense of statutory employer immunity under La.R.S. 23:1061(A)(2), claiming that a statutory relationship existed through the two-contract theory.

Who’s At Fault if your car is stolen then involved in a wreck? The Thief, Victim, or Third Party Owner? (One Judges Dissenting Opinion)

Published on: August 28, 2023 | By Berniard Law Firm

car_burglary_thief_burglar-scaled In the legal system, dissenting opinions, i.e., opinions delivered by one or more judges who disagree with the decision, play a crucial role in shaping the interpretation and application of the law. They provide valuable insights into alternative viewpoints, often sparking discussion and debate and ultimately leading to the evolution of jurisprudence. One such notable dissenting opinion can be found in the case of Christopher Blanchard v. Demetrius J. Hicks et al., authored by Justice Cooks. In this blog post, we look at the case, the arguments made in the dissent, and the importance of dissent in the legal landscape.

The case of Christopher Blanchard v. Demetrius J. Hicks et al. arose from an incident in which Officer Blanchard’s patrol car was struck by a stolen truck. The plaintiff, Officer Blanchard, alleged that the defendant, Demetrius J. Hicks, was negligent in leaving his vehicle unattended with the keys in the ignition and the engine running, thereby facilitating the theft that led to the accident.

The majority of the court relied on the precedent set by the Supreme Court’s decision in Racine, which held that leaving keys in a vehicle does not create liability for the motorist if a thief steals the car and causes injury to a third party. However, Judge Cooks dissented from the majority’s opinion, arguing that Racine does not dispose of the factual matter at hand.

Gender Discrimination and Online Fallout – A High School Legal Tale

Published on: August 27, 2023 | By Berniard Law Firm

cheer_cheerleader_girl_women-scaled Gender Discrimination has unfortunately been around for as long as time, infiltrating many corners of people’s lives. But when you feel discriminated against at your high school, the lawsuit process can be much trickier than some might think. The Court of Appeals for the Fifth Circuit addresses whether a Title IX claim can be brought and successfully won when a picture is posted to the internet, violating a school’s policy.

Rebecca Arceneaux attended Assumption High School (“AHS”) and was on the varsity cheerleading team from her freshman to junior years. A photo of Arceneaux in her uniform skirt that was raised appeared on the popular social media app Snapchat. This publicly viewed picture was brought to the attention of the school, and Arceneaux was punished with in-school suspension and dismissed from the cheerleading team. Arceneaux’s parents appealed the suspension with no avail. On May 19, 2016, her parents filed suit on her behalf against the school, claiming the discipline constituted gender discrimination under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, which is actionable under 42 U.S.C. § 1983.

On appeal, the Court of Appeals for the Fifth Circuit considered words of Title IX and gender discrimination. AHS is under the jurisdiction that receives federal funding for operation and benefits. Arceneaux alleged that this jurisdiction subjected her to intentional discrimination by punishing female student-athletes more harshly than a male athlete would be punished for doing the same or similar behavior.

Louisiana Court Promotes Liberal Construing of Will Execution Requirements

Published on: August 26, 2023 | By Berniard Law Firm

notepad_pad_paper_yellow-scaled Wills and testaments often lead to family drama after a family member dies. Fights over control, money, and inheritance can lead to many legal and emotional battles. When those battles of power come to a legal setting, how do courts assess if a will has validly identified a new overseer of the estate?

Strouder Pelfrey died in August 2015 with a last will and testament in place. His son, Steven Pelfrey, later filed a petition requesting the trial court appoint him as the administrator and declare his father’s will and testament invalid. Steven argued that the will violated La. C.C. art. 1577 by lacking a sufficient attestation clause. Following Steven’s petition, Theresa Pelfrey filed a petition to probate the will and be appointed executrix as Strouder designated in his will. The trial court appointed Theresa executrix of the decedent’s estate, pending the result of Steven’s petition to be appointed administrator. The trial court later determined that Strouder’s will did not violate La. C.C. art. 1577, and denied Steven’s petition. Steven appealed that decision, bringing the case to the Second Circuit.

Louisiana law states that the requirements for the execution of wills and testaments must be followed–otherwise, the testament is invalid. La. C.C. art. 1573. Strict adherence to these requirements ensures the will’s authenticity and protects wills from various issues, such as fraud or undue influence. Succession of Roussel, 373 So. 2d 155, 158 (La. 1979).

Louisiana Court Says Trampoline Injury Not Caused by Defect in Shreveport Trampoline Park

Published on: August 25, 2023 | By Berniard Law Firm

trampoline_sports_equipment_sport_1-scaled Sometimes, those delightful recreational activities we all enjoy carry an inherent risk. Often, we assume the risk of those injuries when we engage in that potentially reckless conduct. Knowing your legal options following these injuries is necessary, mainly because recovering for these somewhat ordinary injuries can be difficult. What does it look like when a party cannot recover for a recreational injury–here, an injury from a trampoline park visit?

Kurt and Tabitha Perkins visited a Shreveport indoor trampoline park, Air U. Kurt was injured while at Air U, and he was relatively young, had no known or apparent medical issues before the injury, and had done some time with the U.S. Marine Corps. The Perkinses filed a lawsuit against Air U and other parties, namely insurance companies and Air U’s unidentified employees.

Kurt stated in a deposition that he did not know why his left knee gave out when jumping on the trampoline, as he had no other injuries or treatment to his left leg. The other patrons at the trampoline park, mostly young kids, had no trouble jumping on the trampoline. Kurt and Tabitha stated that they did not notice any defects on the trampoline and that Kurt jumped normally when he was hurt. Tabitha also said that an Air U employee did not call an ambulance because he was not a manager.