Around Louisiana

November 20, 2014

Nursing Home Patient’s Choking Death Case Must Go to Medical Malpractice Panel Before Going to Trial

In Louisiana, all medical malpractice cases must first go before a medical review panel before proceeding to court. Despite arguments to the contrary by a nursing home patient’s family, a case involving the choking death of a patient was one of medical malpractice and not just simple negligence. The Louisiana Court of Appeal ruled that the case would require medical expert evidence in order to resolve it, so the matter was not one of simple negligence and would need to go before the panel before proceeding to trial.

The case pertained to the choking death of Jerry Don Campbell, who was a patient at Claiborne Healthcare Center after having suffered a stroke. In addition to the stroke, the patient had dementia and difficulty swallowing. On one day in June last year, Campbell retrieved a peanut butter sandwich from a sandwich cart and sat down to eat it. Some time later, nurses found him unresponsive. The staff transferred him to a local hospital, but he did not survive.

October 15, 2014

What You Post Can Be Used Against You

by Cardone Law Firm

In this new age of technology the use of social media has taken over the daily lives of people. As a society, people crave for attention and are constantly posting pictures of their daily activities including where they are, who they are with, and what they are eating each and every day. This constant posting on social media websites has become another arrow in the quiver of legal defense firms. As Judge Richard Walsh stated, “Only the foolish or uninitiated could believe that Facebook is an online lockbox for your secrets.” These social media websites have become very important impeachment tools for the opposing party. The credibility of the plaintiff will be shattered if he or she is caught on the internet running, jogging, or any other physical activities if in the lawsuit they are claiming injuries that will affect this aspect of life.

A recent case shows the ability of the defense to use these websites as evidence to impeach the credibility of the plaintiff(s). In McMiller v. HummingBird Speedway, Inc. the victim filed suit against the defendant for rear ending him during a cool down lap following a July 7, 2007 stock car race. The plaintiff alleged substantial injuries including possible permanent impairment, loss and impairment of general health, strength, and inability to enjoy certain pleasures of life. As the discovery process progressed, the defendants of the law suit discovered pictures and comments from a fishing trip and attendance to the Daytona 500 race in Florida. The Court in the case held that this information was public information and could be used in trial against the victim. The Court also allowed the defendants to receive the login information for the plaintiff to search for any other post or tweets concerning the fishing trip and racing adventure in Florida. Smoking guns such as these pictures or comments will severely affect your case. This is why it is necessary to have an experienced New Orleans attorney on your side to navigate you through these issues that can affect your case.

September 26, 2014

Jury Entitled to Favor Crash Victim’s Expert in Deciding Fault, But Statute Bars $1M Personal Injury Judgment

by Cardone Law Firm

Personal injury cases can be complicated and difficult generally, and they are even more so when the entity you are suing is a governmental one. While the law does impose certain limitations, success is still attainable with a sufficiently strong case. A recent decision by the Louisiana Court of Appeal upheld a jury verdict against the Baton Rouge Police Department, highlighting that juries have wide discretion in assigning greater or lesser credibility to one expert witness as opposed to another. The family could not receive the full award, though, since Louisiana statutory law caps personal injury damages for cases where the accused wrongdoer is a governmental entity, such as the police.

Nelson Dakmak, Sr.’s tragic auto accident occurred in February 2008 while driving in Baton Rouge. Dakmak was attempting to execute a left-hand turn when a police cruiser driven by Officer Stephen Tibbetts slammed into his vehicle. Tibbetts was driving in excess of 90 mph at the time in pursuit of a possibly stolen vehicle, but he had not sounded his sirens or turned on the cruiser’s police lights.

September 12, 2014

Appeals Court Upholds Jury Verdict Finding Doctor Did Not Commit ‘Inexcusable’ Delay

by Cardone Law Firm

A woman who suffered a neurological injury as a result of complications from knee replacement surgery saw her judgment and damages award wiped out on appeal recently. The woman had received an unfavorable jury verdict in her malpractice action against her doctor, but the trial judge in the case had ruled in her favor and awarded damages. The Louisiana Court of Appeal, however, ruled that both sides had enough credible evidence to support their positions, and, based on that, a jury verdict in favor of the doctor was not patently unreasonable and should have been allowed to stand.

The ill-fated procedure was Margaree Haney’s left knee replacement surgery, performed at Baton Rouge Surgical Hospital. After completing the procedure, Haney’s doctor, Janet Lewis, attempted to detect a pulse in the patient’s left foot but could not find one. After consulting with a vascular surgeon, Lewis transferred Haney to Baton Rouge General Medical Center. Eight hours after the first surgery, Haney underwent a second procedure to repair a damaged artery. Because of the time that elapsed between the two procedures, the patient suffered “foot drop,” a permanent neurological injury marked by the inability to lift the front of one’s foot.

Haney sued Lewis for malpractice, contending that the doctor failed to act quickly enough once a problem with the artery was detected. After a three-day trial, the jury returned a verdict in favor of the doctor. The patient asked the judge to issue a judgment notwithstanding the verdict (or JNOV) in her favor. The judge agreed, determining that the delay in correcting the problem was “inexcusable under the circumstances.” The judge awarded the patient $678,000 in damages.

August 6, 2014

The Anatomy of a Trip and Fall Case

by Cardone Law Firm

A recent lawsuit has been filed by a tenant in an apartment building who allegedly injured herself after she stepped in an uncovered hole. Denise Sanders filed suit against Eagle Investments, Inc. and its insurer in the 24th Judicial District Court of Jefferson Parish. The plaintiff alleges that she is a tenant of an apartment complex in the City of Avondale and that while she was walking in the complex she tripped and fell after stepping in the uncovered hole. She contends that she has sustained serious personal injuries from the incident. The defendant is accused of failing to inspect the property, failing to properly maintain the property, failing to warn tenants of defective conditions, and allowing a dangerous and defective condition to exist. Damages are being sought for pain and suffering, permanent damage, loss of enjoyment of life, and medical expenses.

Many trip and fall lawsuits are complicated and need a highly experienced attorney to prove the necessary elements. These types of lawsuits are usually governed by Article 2317.1 of the Louisiana Civil Code. The article provides that “The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.” Res Ipsa Loquitur is a legal theory that will allow a jury to use circumstantial evidence to find that there is negligence when there is no direct evidence of the actual happening of the event. A classic example where this legal theory comes into play is in a medical malpractice action when a patient is injured while under anesthesia and the patient was injured in a place that is remote from the surgical site.

July 28, 2014

Church Lacked Sufficient Control to Be Liable for Injuries Caused by Unpaid Intern’s Auto Accident

by Cardone Law Firm

Success in injury litigation involves several components. A successful outcome likely includes compelling facts and considerable credible evidence. In addition, a favorable outcome for an injured person also involves choosing the right person or entity to sue, especially when the injured person is trying to hold a person or entity not directly involved responsible for the accident. The rules regarding third-party liability substantially limit those who may be liable. For a woman injured in a 2011 auto accident, the Louisiana Court of Appeal ruled that the facts of her case did not allow her to extend liability to a Baton Rouge church for whom the other driver was interning when the accident happened, because the church did not maintain the required degree of control over the intern’s actions to create a “master-servant” relationship.

In January 2011, Ms. Cason was injured when her vehicle was struck in the rear by a vehicle driven by Mr. Saniford. When the accident occurred, Saniford was serving as an intern in Bethany World Prayer Center’s 220i internship program. That morning, Saniford was driving his mother’s vehicle and was picking up donuts for a prayer meeting at a local high school that he was to attend as part of his internship. The accident occurred while Saniford drove from the donut shop to the school.

Cason sued Saniford, Bethany World Prayer Center and Bethany’s insurer. The church and its insurer asked the trial to throw out the claims against them, arguing that Saniford and Bethany did not have the type of relationship necessary to impose legal liability for the crash on the church. The trial court agreed and granted summary judgment in favor of the church and insurance company.

July 21, 2014

Multi-Million Dollar Superdome Case

by Cardone Law Firm

Attorney Cliff Cardone has had the privilege of successfully representing multiple victims in a tragic accident that occurred at the Louisiana Superdome. During a Saints’ football game on December 16, 2007, an elevator crashed with 18 people on board which caused life changing injuries. Mr. Cardone was able to receive settlements for many of the victims, but did go to trial on behalf of the three remaining passengers. Judge Ethel S. Julien presided over the non-jury trial and found in favor of the three women who were parties to the case. The judge awarded over $2 million dollars in damages for surgeries, past and future mental and physical pain and suffering, past and future loss of enjoyment of life, past lost wages, future lost earning capacity, and past medical expenses.

The incident happened at the end of the football game as everyone was leaving the game. As the group of people were in the elevator, it went into a free-fall due to overcrowding. After being lifted back to an unloading position, the elevator fell again with the passengers on board. The judgment is against SMG, which is a private entity that manages the Superdome for the state. In 2012, attorneys for SMG argued that the company was only liable for a maximum amount of $500,000 dollars in damages. Louisiana law provides that there is a monetary cap of $500,000 dollars for claims against the state. SMG tried to argue that since there was a contractual relationship with the Louisiana Superdome and Exposition District that this cap would apply to them and that they could not be held liable for any amount over $500,000 dollars. However, the judge rejected this argument and allowed Mr. Cardone to proceed with their case in which they received an amount vastly greater than the cap.

June 26, 2014

Supreme Court Reverses Lower Courts, Call DWI Stop Reasonable

by Cardone Law Firm

A recent ruling from the Louisiana Supreme Court changed the landscape of DWI arrests in the state, for it eliminated a four-item mandatory checklist created by the Louisiana Court of Appeal four years earlier in cases where an out-of-jurisdiction police officer stops a driver. The new ruling declared that the Constitution does not require checklists and that the proper analysis focused upon reasonableness under the “totality of the circumstances.”

The appeal involved the arrest of John Emmitt Gates. Gates was arrested by Brian Bell, a police officer in Haughton, a small town near Shreveport. Bell was on duty and within the Haughton city limits when a couple in a SUV told him about a suspected drunk driver. Bell spotted the vehicle the couple described just outside the city limits. Due to the driver’s extremely erratic driving, Bell stopped the truck.

Read more about Louisiana’s DWI law.

Bell detained the driver but did not question or arrest him. When a Bossier Parish deputy arrived, the deputy performed a field sobriety test and arrested Gates for DWI. The driver argued successfully at trial for the suppression of evidence related to the stop, asserting that the stop was unconstitutional because Bell did not get permission from the Bossier authorities to stop Gates before doing so.

June 26, 2014

Consequences of Road Rage

by Cardone Law Firm

A recent incident occurred that could have easily been prevented. David Jackson, 26, became involved in a road rage incident with a 50 year old male driver of a 2007 Chevrolet pickup truck. The incident started when Jackson flung a cigarette butt outside of his vehicle hitting the side of the pickup truck. When this occurred, the driver of the pickup truck followed the car and cut it off on purpose. The dispute raged on for a few miles on Interstate 10 until the driver of the car, Jackson, pulled out a gun and fired three bullets at the truck on I-10 near Williams Boulevard. Inside the truck was the driver’s 10 year old son, who suffered a graze wound and is in stable condition. After the shots were fired, the driver of the pickup truck rammed into Jackson’s car to make sure he would not get away. Jackson was eventually arrested by the police and charged for multiple felonies.

Read more about hit and run law.

June 17, 2014

Fiery Crash on the Bonnet Carre Spillway

by Cardone Law Firm

Over the weekend a fiery crash occurred between two pickup trucks traveling west on Interstate 10. The crash happened on the Bonnet Carre Spillway Bridge, which has been proven to be a dangerous stretch of the interstate heading into or away from the city of New Orleans. The collision happened around 1 pm in the afternoon on Father’s day in which the police believe one pickup truck rammed into the back of another. The driver of the truck that was hit slowed down in order to avoid hitting the vehicle in front of him. Photos of the accident have been uploaded to social media sites which show the extent of the vehicle fire that produced a column of black smoke. Fortunately, the state police are reporting that there were no serious injuries.

This stretch of the interstate is known for horrible crashes due to the excessive speed of drivers and the lack of police officers patrolling the area. This section of the interstate often has one lane closed due to repairs on the bridge or the installation of traffic monitoring systems which lead to bad back ups and car crashes. A year ago, state police reported two fatal accidents that happened on the same section of the bridge as the crash that occurred over this past weekend. The fatal accident crash occurred around 4 am when a car was driving westbound when it hit the left guardrail and spun around facing oncoming traffic with its lights out. An 18 wheeler stopped to block the car from other vehicles but a street sweeper crashed into the 18 wheeler at a high rate of speed causing the death of the driver and passenger of the sweeper.