Negligence Claims

Louisiana Medical Malpractice Lawsuit by Dental Patient Fails at Appeals Court

Published on: April 13, 2023 | By Berniard Law Firm

dentist_dental_dentistry_teeth-scaled Appeals from trial court decisions can be costly, especially if the result is again not decided in your favor. Tara Lorraine (“Ms. Lorraine”), a dental patient at Bluebonnet Dental Care, L.L.C., learned this the hard way after appealing a jury verdict decided against her. The Louisiana Court of Appeals for the First Circuit (“First Circuit”) affirmed that jury verdict and assigned costs of the appeal to be paid by Ms. Lorraine. The following case shows the difficulty in proceeding with a medical malpractice lawsuit in Louisiana based on alleged substandard dental procedures.

Ms. Lorraine alleged that her injuries occurred during several dental treatments over several months. First, on January 21, 2010, Ms. Lorraine accused Dr. Ross Quartano (“Dr. Quartano”) of spilling etchant on her throat, which left her with a permanent scar. Then, on April 30, 2010, she accused Dr. Louis Lamendola (“Dr. Lamendola”) of extracting one of her teeth without her consent. Finally, Ms. Lorraine claimed that Dr. Andre Bruni (“Dr. Bruni”) and Dr. Quartano failed to remove substantial underlying decay before they filled some of her teeth, causing her such extreme pain that eventually, she had to seek additional help from a different dentist.

Subsequently, Ms. Lorraine filed a complaint with Louisiana’s Patient Compensation Fund, asking for a medical review panel of each of the three doctors. Upon reviewing Ms. Lorraine’s complaint, the medical review panel found that there was no evidence to support a breach of the standard of care as it related to Dr. Quartano and Dr. Bruni and that a material fact existed regarding Ms. Lorraine’s informed consent with Dr. Lamendola’s removal of her tooth. Thus it did not necessitate an opinion from the medical review panel. However, despite these findings, Ms. Lorraine filed a lawsuit against the same three doctors in the 19th Judicial District Court. Like the medical review panel, the jury found that Ms. Lorraine failed to prove the breach of standards of care. Therefore, the court entered a judgment in favor of the doctors, dismissing Ms. Lorraine’s claims and denying her request for a new trial.

Louisiana Court holds that tutors are not considered a “parent” entitled to bring a claim for loss of consortium

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

child_musical_instruments_1065633-scaled Car accidents are extremely traumatic events that can impact the lives of anyone involved. The legal issues arising after a car accident can be complex and affect everyone involved. For example, what are the rights of a tutor when bringing claims on behalf of the children they are responsible for? Will they be considered “parents” under the law and be allowed to bring a claim for loss of consortium? The following case out of Baton Rouge discusses those issues in relation to a car accident.

Geneva Marie Fils, an infant at the time, suffered severe personal injuries after being in a car accident. After the accident, Geneva’s maternal aunt and tutor, Calverna Reed, filed a lawsuit related to the car accident. In it, she sought damages on behalf of herself and Geneva for their loss of consortium. A loss of consortium claim is brought when someone has been deprived of their family relationship benefits (ex: love and affection) due to injuries caused by the defendant.

The trial court dismissed Reed’s claim for loss of consortium. Afterward, the First Circuit Court of Appeals took the case to determine whether Reed’s loss of consortium claim could stand, considering that she was not a parent or guardian of Fils at the time of the accident.

Fax Filing A Lawsuit, Make Sure You Follow the Rules Precisely

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

office_fax_phone_1645312-scaled After a workplace accident, an employee may be flustered, but it is essential that the employee promptly becomes knowledgeable about court requirements and deadlines. If a claim is not filed within an allocated timeline, the claimant may be barred from bringing the claim forward. The following case out of Jefferson Parish shows why, if you’re fax filing a lawsuit, you must follow the rules precisely.

On January 9, 2014, Mr. Palazola fell from a raised platform while in the course and scope of his maintenance job. About a year later, on January 6, 2015, he filed a facsimile petition for damages with the 24th Judicial District Court for Jefferson Parish. On January 23, 2015, the clerk’s office received a copy of Mr. Palazola’s petition with formatting differences from the previously filed facsimile petition.

The defendants, IMC Consulting, Landry Construction, and Cali & LaPlace Engineers, responded by filing an exception of prescription because Mr. Palazola’s facsimile did not meet the requirements outlined in La. R.S. 13:850. According to Louisiana Revised Statute 13:850, facsimile transmission provides that:

FMLA Retaliation and Title VII Hostile Work Environment Claims Fail on Lack of Evidence

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

building_hospital_within_931281-scaled Some consider the workplace as their second home. It is a place where one can thrive intellectually and network simultaneously. However, when a workplace becomes hostile or sexually charged, it can make an employee’s life unbearable. Therefore, to bring a successful claim against FMLA and a hostile workplace, a plaintiff must prove all elements under FMLA and show proof the hostile environment affected their well-being.

Amy Smith (Smith) worked for Touro Infirmary (Touro) from 2008 to 2014 as a respiratory therapist. Smith claimed during her employment, her direct supervisor Larry Anderson (Anderson), sexually harassed her and created a sexually charged workplace. According to Smith, the female respiratory therapists who participated in Anderson’s advances were favored over those who did not comply.

Smith took medical leave under the Family Medical Leave Act (FMLA) while pregnant and was later terminated. Smith alleged her termination was due to her noncompliance with Anderson’s sexual advances. She claimed this because she believed she abided by Touro’s leave policy of reporting while gone and provided additional medical documentation when needed. In addition, Smith filed a discrimination claim with the Equal Employment Opportunity Commission (EEOC) and referenced her discriminatory workplace. The district court dismissed Smith’s case on summary judgment, and she appealed.

If You Approach a Barking Dog and It Bites You, is the Owner Liable for your Injuries?

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

dog_animal_greyhound_983014-scaled While holding the owner responsible for a dog’s behavior is typically the norm, most reasonable people would know not to approach a barking dog in a gated residence. However, Demetrious Frazier found himself at odds with Luke Difulco after being bitten by one of his dogs while performing his work duties at their home. The following lawsuit answers the question; if you approach a barking dog and it bites you, is the owner liable for your injuries?

Frazier was an employee of the City of Alexandria and worked as a meter reader. He visited the Difulco’s home one afternoon to read their residential meter. As he approached the gate, two dogs began barking, followed by Luke Difulcot’s son, Daniel, who came outside to greet Frazier. Although Daniel offered to kennel the dogs for Frazier’s comfort, he entered through the gate without responding, and the ten-year-old black Labrador bit him on the hand.

In contrast to Daniel’s testimony, Frazier claimed that he saw no evidence of a dog when he approached the Difulco’s residence and entered through the gate to check the meter. After entering the gate, he was attacked by a dog, and then a second one approached him. Frazier received workers’ compensation and medical payments from his employer, and he sought additional damages against Luke Difulco through the lawsuit subject of this appeal.

Who is Liable for Injuries for a Slip and Fall on a Public Sidewalk?

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

foggy_sidewalk_morning_fog-scaled Premises liability is an active area of personal injury law, and accidents occurring on public property are no exception. The question often arises, who is liable for a slip and fall on a public sidewalk? In this case, the Louisiana Third Circuit Court of Appeal was asked to determine the premises liability of the town of Lake Arthur for a fall occurring on a public sidewalk built and maintained by this public entity.

On July 11, 2014, Robin Rogers Richard fell while walking along a sidewalk in Lake Arthur. The portion of the sidewalk where her fall occurred was a driveway that allowed maintenance vehicles to access a public park, with a sloping transition on either side running perpendicular to the street. This portion of the sidewalk was completed in September 2013 by John Anderson Concrete Finishes, Inc. (Anderson), under the direction of Robert Bertrand, the major of Lake Arthur.

Ms. Richard filed a motion for summary judgment on the liability issue, arguing the slope of the transition area did not meet certain state and national requirements and was, therefore, defective per se. However, at her deposition, she indicated that her last step before her fall was on a flat portion of the new sidewalk, not the sloped portion. In response, Lake Arthur, Anderson, and its insurer, Seneca Specialty Insurance Co, filed motions for summary judgment alleging statutory immunity from liability and they were not liable because the condition of the sidewalk was open and obvious.

Injured by Stocking Cart in Grocery Aisle, Whose Fault is it?

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

shopping_cart_shopping_supermarket_1-scaled Everyone can picture a grocery store on a busy day. The aisles are congested, and workers are hurrying to replace products on the sales floor. There may be stocking carts blocking walkways. Who is responsible if a shopper trips over a worker’s cart and injures herself? What about if the worker and the shopper knew the cart was there?

This scenario is exactly what happened to Donna Massery, a shopper when she tripped over a vegetable cart at a Rouses Market in New Orleans. She had arrived at Rouses and was searching for ginger when she approached Produce Manager, Jose Villa, to ask for directions. Villa was restocking produce that was on a cart. The cart was approximately 5 to 6 feet wide and 3 feet tall, with a long bed spanning the length. The middle section of Villa’s cart was empty, though boxes were stacked on both the left and right sides.

Ms. Massery reached for the ginger upon Mr. Villa’s direction, turned to walk away, and fell over the cart. She sustained soft tissue damage from catching herself with her hands and hitting her shin and knee on the cart. There was a factual dispute over the length and substance of Ms. Massery and Mr. Villa’s conversation. Mr. Villa contends that he alerted her to the hazard and directed her to move away. Ms. Massery claims it was a shorter conversation limited to the subject of her ginger inquiry.

Louisiana Jury Awards No Damages Because of Preexisting Injuries, Can an Appeals Court Fix the Ruling?

Published on: March 22, 2023 | By Berniard Law Firm

courthouse_alabama_building_226689-scaled Everyone wants to emerge victorious after their day in court, but occasionally the jury will refuse to award the judgment you deserve. When a person loses their case at trial, they can appeal it to a higher court. The appeal process allows for a narrow reconsideration of a case to assure that the lower court got to the correct answer; if the appeals court finds that the lower court did not get the correct answer, they can amend the lower court’s judgment, including the calculation of damages.

Preexisting medical conditions aggravated by an accident do not preclude an injured party from recovering damages and medical expenses from the person who hit them. Ms. Kimberly Guidry has such preexisting medical conditions and was involved in an accident that aggravated those preexisting medical conditions. At trial in the 15th Juridical District, the jury found awarded no damages, no medical expenses, and no lost wages to Kimberly.

Kimberly had presented medical expert testimony that showed her injuries were aggravated by the accident, but the jury awarded her nothing. With this denial, Kimberly appealed to the Third Circuit Court of appeals. She claimed the jury committed “manifest error” in their findings and that the trial court had committed a “legal error” in failing to grant her a new trial due to this adverse ruling. Kimberly’s case helps answer the question; “If a Louisiana Jury awards no damages because of preexisting injuries, can an appeals court fix the ruling?”

Three-Year Rule Applies to Worker’s Compensation Claims for Necessary Treatment

Published on: March 17, 2023 | By Berniard Law Firm

time_clock_defect_showing-scaled Timing is an important part of claiming worker’s compensation in Louisiana. Louisiana R.S. 23:1209(C) requires that:

The employee files an initial claim or makes other suitable arrangements within one year of the injury; and
The employee makes any subsequent claims no more than three years after the last payment of medical benefits.

Can the Louisiana Department of Transportation Be Found Liable for a Car Accident?

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

transportation_vehicle_road_879026-scaled Driving poses undeniable risks. However, travelers may need to consider how unsafe a barrier curb may be in certain situations. When is the state liable for these conditions? A case from the St. John Baptist parish considered how the state department of development and transportation was at fault for construction risks that contributed to an accident.

One afternoon, James Harris drove along the Airline Highway in Louisiana with his wife and their two grandchildren. As Harris traveled southbound, another northbound driver, Marilyn (MB), began driving erratically. MB’s car eventually drifted into the opposite side of traffic after crossing over a barrier curb on the highway. Harris moved onto the right-hand shoulder of the road to avoid MB. Unfortunately, despite his efforts to prevent a collision, MB’s vehicle crashed into Harris’, and he injured his left leg, foot, and hip. Ultimately, Harris’ left leg was amputated eight inches below the knee, and MB died from the accident.

Harris sued the Louisiana Department of Transportation and Development (DOTD) for failing to have a jersey curb that would have prevented MB’s car from drifting into the opposite side of traffic. In addition, he sued Progressive Security Insurance Company, MB, MB’s insurance provider. The trial court found the DOTD to be 90% at fault and Ms. MB to be 10% at fault for the accident, and the jury ultimately awarded Harris $5,000,000 in general damages and $1,000,000 for loss of enjoyment of life. On appeal, the DOTD argued that the trial court abused its discretion in finding the DOTD liable and in the number of damages awarded to Harris.