Insurance Dispute Lawyer Blog

Louisiana Court Finds Hospital Director Void of Liability in Medical Malpractice Suit Involving His Staff

Published on: August 18, 2023 | By Berniard Law Firm

paramedics_doll_hospital_medical_0-scaled A visit to the hospital is a stressful and anxious time for patients and family members. Most people, however, assume that their doctors are competent and will administer the proper standard of care. This was not the case for Richard Smallwood.

Smallwood fell at his home and sustained bilateral patella tendon ruptures. He was admitted to the Ochsner-Baptist Hospital for surgery to repair the ruptures in his tendon. After a complicated postoperative course, Smallwood was discharged to another Oschner unit. After some time in the nursing unit, Smallwood died. The autopsy revealed that he had suffered a pulmonary embolism, a secondary result of his deep vein thrombosis (DVT). Since Smallwood had been in “generally good health” before the surgery, his sudden death was shocking. The petition for this case alleged that Smallwood was not given the appropriate prophylactic anti-coagulant medication in violation of the standard of care.

Since pulmonary embolisms are a common secondary result of DVT, Dorothy Pennington alleged a medical malpractice claim against the doctors and nurses in charge of Smallwood’s care. This included Dr. Todd, Dr. Hawawini, Dr. Jones, Dr. Ulfers, and the Ochsner Clinic Foundation. After moving for a directed verdict, the trial court found that all parties except Dr. Hawawini were liable for medical malpractice. Since Dr. Hawawini acted as the Hospital Director at the time of Smallwood’s death, it was challenging to show that Dr. Hawawini had breached a standard of care. This case centered around whether Pennington had properly established the standard of care and breach with respect to Dr. Hawawini.

Louisiana Court in East Baton Rouge Evaluates and Reverses Due Process Violation Judgment

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

psychology_psychotherapy_531071-scaled The fundamental right to due process is a cornerstone of constitutional protection, ensuring that individuals are treated fairly within legal proceedings. Nevertheless, the delicate line between potential bias and genuine due process violations is not always easily discernible. A telling example can be found in a noteworthy case from East Baton Rouge, where the revocation of a psychologist’s license came under scrutiny for alleged due process infringements. This case probes the intricate considerations surrounding bias, procedure, and the boundary between legitimate legal actions and violations of constitutional rights.

This case concerns the revocation of Dr. Eric R. Cerwonka’s psychologist’s license. An administrative complaint and supplemental notice, including an additional statement of material facts and matters, was filed against Dr. Cerwonka, alleging he violated the Louisiana State Board of Examiners of Psychologists (the Board’s) rules and regulations. After a disciplinary hearing, the Board revoked his license to practice psychology in Louisiana. Dr. Cerwonka then filed a petition with the Nineteenth Judicial District Court for the Parish of East Baton Rouge, where he claimed the Board lacked substantial evidence showing his license should be revoked and that his right to due process was violated.

The District Court found the Board violated Dr. Cerwonka’s right to due process by allowing a member of the same law firm as the Board’s general counsel to serve as presiding officer during the administrative proceeding and by permitting the individual who represented Dr. Cerwonka in a prior legal matter to serve as the Board’s prosecuting attorney.

Lafourche Parish Court Demonstrates the Importance of Employee-Employer Relationship in Workers’ Compensation Cases

Published on: August 16, 2023 | By Berniard Law Firm

sugar_cane_fields_okinawa-scaled Unfortunately, accidents in the workplace are not uncommon. What happens, however, if you unknowingly signed an agreement making your employer immune from a liability claim? The following Lafourche Parish case outlines this predicament.

In September 2013, Neville Patterson signed multiple documents with Raceland Raw Sugar, LLC (RRS) and Raceland Equipment Company, LLC (REC) to haul sugar cane for the former. Included in this paperwork was an indemnification agreement identifying Patterson as the contractor and RES and RRS as statutory employers.

Two months later, Patterson created N-A-N Trucking, LLC (N-A-N) and started to operate his truck. Following this development, RRS began making checks from hauls payable to N-A-N. These checks were endorsed by Patterson, who continued to receive driver wages from REC.

Liability in Product-Related Injury Cases: Key Legal Questions and Liability Theories

Published on: August 15, 2023 | By Berniard Law Firm

wheelchair_pattern_black_background_44-scaled When an injury related to a product occurs, assigning fault can involve multiple parties. In personal injury litigation, crucial legal questions arise regarding whom the plaintiff can seek compensation from, if anyone, and the underlying theory of liability. The following case offers a valuable exploration of common liability theories often encountered in product-related injury cases.

During their stay at a PNK Lake Charles, L.L.C. casino hotel (from now on “PNK”) in July 2015, Anthony Luna, who had limited mobility due to a recent knee surgery, was provided a wheelchair by a PNK employee. While being pushed to their hotel room by one of his children, the wheelchair suddenly stopped, jamming Luna’s foot. Luna inspected the wheelchair but found nothing amiss. However, during another ride, the wheelchair abruptly stopped again, breaking the front left wheel in half and collapsing.

Anthony and Dana Luna and their minor children filed a lawsuit against PNK, alleging negligence and seeking damages under La. C.C.P. art 2315 and La. C.C.P. art 2317. They claimed that PNK’s negligence in providing a defective wheelchair caused injuries to Luna, hindering his recovery following knee surgery.

Faulty Foundations: Battling the Dark Side of Medical Innovation – The Defective Medical Device Lawsuit Saga

Published on: August 14, 2023 | By Berniard Law Firm

old_medical_device-scaled Medical professionals are expected to uphold a standard of care in their practice. Unfortunately, life can present us with unfortunate circumstances where this standard is not met. When we experience injuries or worse due to the actions of those responsible for our treatment, healing, or diagnosis, medical malpractice claims can serve as a means to seek compensation and justice.

In a recent legal battle that captured attention, a lawsuit between Randy A. Roberts, Sr., Johnson & Johnson, Inc., and its subsidiary Ethicon, Inc., took an intriguing turn. Roberts alleges that he suffered injuries caused by a defective medical device manufactured by J&J, leading him to file a product liability lawsuit. However, a district court granted summary judgment in favor of the defendants, prompting an appeal.

Roberts claims that during a hernia repair surgery in 2006, a Prolene Hernia System (PHS) produced by J&J was implanted in his body. Subsequently, he experienced debilitating pain, requiring three surgeries in 2015 to remove the PHS due to an infection. Dissatisfied with the outcome, Roberts initiated legal action against J&J, seeking damages under Louisiana law.

Could the Foreseeable Have Been Unforeseen? Deciphering Liability in Accidents

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

tourists_driver_couple_mini-scaled Some accidents are unpredictable, while others appear to be accidents waiting to happen. Having reliable witnesses, qualified experts, and an excellent attorney in either unpredictable or predictable cases could be the dividing line in determining your liability when an accident arises. For Larry Jeane, Sr. (“Mr. Jeane”), the deceased party in a two-car accident along Louisiana Highway 107, whose vehicle crossed the centerline and collided with another car carrying six adults and one minor, the courts were positioned to consider his liability after the accident.

Mr. Jeane was transported by ambulance to Rapides Regional Medical Center (“RRMC”) after the accident. He reportedly had no recollection of the accident. Mr. Jeane had a history of heart disease and type-II diabetes, but it was likely his injuries from the accident that resulted in his death less than a week later. While at RRMC, his attending physician, Dr. Jeremy Timmer (“Dr. Timmer”), noted that Mr. Jeane had been on the phone with a friend and started talking “funny,” possibly due to low blood sugar when he collided with the other vehicle. The seven passengers of that other vehicle, namely Sarah Barber, Jamie Turner, Racheal Spivey, Elizabeth Spivey, Dana Spivey, Wallace Spivey, Racheal Spivey, and Jamie Turner on behalf of the minor, Abigail Turner (collectively “the plaintiffs”) eventually sued Mr. Jeane’s estate and his insurance company for damages resulting from the accident.

Throughout the litigation, the plaintiffs then moved for partial summary judgment solely on the issue of liability. To support the motion, the plaintiffs submitted three supporting documents: (1) an affidavit from Sandra Shannon (“Ms. Shannon”), who was driving the vehicle directly in front of the plaintiffs and witnessed the accident; (2) an affidavit from Sarah Barber (“Ms. Barber”), who was driving the other vehicle involved in the accident; and (3) a record of the deposition taken of Pineville City Marshal, Sarah A. Smith (“Ms. Smith”), who responded to the scene after the accident occurred. Ms. Shannon’s affidavit stated that she saw “[Mr. Jeane] was slumped over” at the wheel as his vehicle “veered gently.” Ms. Barber testified in her affidavit that she saw Ms. Shannon’s vehicle swerve off the road “suddenly, without any prior warning” before she saw Mr. Jeane’s vehicle approaching her, but she could not avoid the collision. Finally, Ms. Smith noted that she did not witness the accident but rode with Mr. Jeane to the hospital when he told her he did not know what happened.

How Are Liability and Damages Allocated In A Complex Car Accident?

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

tyre_burst_karoo_flat-scaled Allocating fault in a car accident is especially difficult when involving multiple individuals. This case illustrates how the allocation of fault affects how damages are awarded and illustrates what type of expenses are compensable.

While driving on Highway 28 East in Louisiana, Erin Wright rear-ended Christina Dauzat. Before they reached the intersection where the accident occurred, an unrelated accident occurred involving Joanne Marlow and Darrell Paulk. Paulk refused to move his car, which resulted in one of the lanes of traffic being blocked. Before the accident, a truck driven by an unknown driver drove towards Dauzat as it tried to go around the Marlow/Paulk accident.

Dauzat filed a lawsuit against Wright and her insurer, State Farm. At a trial, the court allocated 80% fault to Wright, 10% to the unnamed truck driver, and 10% to Paulk. The trial court awarded general damages of $8,000 (after the 20% reduction from the fault of the unnamed truck driver and Paulk, neither of whom Dauzat filed a lawsuit against) and $9,741.51 in special damages. These damages did not include the $1,440.86 cost of transporting Dauzat via ambulance following the accident. Both Dauzat and Wright appealed.

Res Judicata Does Not Apply To Dismissal Without Prejudice

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

court_civil_ceremony_legal-scaled In law, there is a saying that you do not get two bites from the same apple. This means if a court issues a final judgment on the merits of your claim, you cannot file another lawsuit against the same parties involving the same claim. Does a dismissal without prejudice bar you from filing another lawsuit?

Robert Palermo and his wife filed a personal injury lawsuit against CanadianOxy and its insurers, including Certain Underwriters, for the injuries Palermo allegedly suffered from his on-the-job exposure to asbestos-containing materials. In response, Certain Underwriters filed an answer, raising various affirmative defenses and seeking contributions from several entities. Some of the third parties from whom Certain Underwriters sought contribution filed exceptions based on procedural issues, including improper service and lack of jurisdiction. The trial court granted these exceptions.

Certain Underwriters did not re-serve the third parties to remedy the improper service within the time specified in the trial court order, so the court dismissed the Certain Underwriters’ claims against the third parties without prejudice under La. C.C.P. art. 932(B). Certain Underwriters were granted leave to file a supplemental demand. Certain third parties then filed various exceptions, including an exception of res judicata.

What happens if you are involved in a car accident where your damages exceed the auto insurance policy limits of the person responsible?

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

auto_defect_car_wreck-scaled What happens if you are involved in a car accident where your damages exceed the auto insurance policy limits of the person responsible? One possible option is seeking coverage under your uninsured motorist insurance policy. However, questions can arise about what, if any, coverage you are entitled to if it appears the accident did not cause your injuries. Determining the scope of injuries caused by the at-issue accident can be especially complicated if you have previously been involved in other car accidents that injured you or if you have other preexisting conditions. The following case helps shed some light on these issues.

Jacqueline Gaspard was rear-ended while she was stopped at a red light. She filed a lawsuit against the drivers and insurers of the cars that were also involved in the accident and Allstate Insurance Company, her uninsured motorist insurer. She claimed the damages exceeded the liability coverage of the other individuals involved in the accident.

The second vehicle’s driver behind Gaspard was found to be 100% at fault for the accident. She settled the claims against that driver and his insurer for $50,000, the limits of that driver’s liability policy. She then dismissed her claims against the vehicle’s driver and insurer.

Final Judgment Required For Appellate Court To Consider Merits Of Case

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

district_court_input_court-scaled Words matter, especially when it comes to trial court orders. Without the proper language, a judgment is not an appealable, valid final judgment, so an appellate court cannot consider the merits of an appeal.

McKinley Taylor filed a lawsuit against Cajun Constructors, his former employer. He claimed Cajun Constructors owed him unpaid wages for his work as a carpenter. He claimed they had decided upon a daily per diem rate during his first week on the job. The trial court issued an untitled document, which appeared to be written reasons for a ruling, not a final judgment. The trial court found Taylor was not paid the agreed-upon per diem. The trial court also awarded Taylor penalty wages and attorneys fees under La. R.S. 23:632 because Cajun Constructors’ failure to pay him the per diem was not in good faith. Cajun Constructor appealed.

Cajun Constructors was ordered to show why its appeal should not be dismissed because there was no valid final judgment. In its response, Cajun Constructor acknowledged the trial court’s ruling did not contain the required language “ordered, adjudged and decreed.” See GBB Props. Two, LLC v. Stirling Props. LLC. Additionally, there was not a separate document from the trial court other than the written reasons for its ruling, as contemplated under La. C.C.P. art. 1918. Therefore, Cajun Contractors agreed the trial court’s ruling did not appear to be a final appealable judgment. The trial court also had not yet determined the amount of attorney fees to award to Taylor. Despite agreeing the trial court’s document was not an appealable valid judgment, Cajun Constructors explained it had filed the appeal to preserve its right to appeal. Cajun Constructors then requested the appellate court dismiss the appeal without prejudice and send the case back to the trial court to enter a valid, appealable final judgment.