Louisiana Injury Lawyers Blog

November 27, 2014

How to Proceed with Your Medical Device Injury Case

Patsy Grabowski’s personal injury action is a clear illustration that, even when misconduct and injury clearly occur, proceeding through the legal process can be filled with complications, often related to selecting the proper person or entity to sue. The woman and her attorneys had to go all the way to the Louisiana Court of Appeal to revive her case relating to harm she suffered from a knee replacement gone wrong.

In 2007, Grabowski went to West Calcasieu Hospital outside Lake Charles for a total knee replacement. After later developing problems, Grabowski returned to the hospital. She underwent a second surgery, after which her surgeon informed her that the artificial knee had malfunctioned because the manufacturer’s sales representative, who was present in the operating room during the first surgery, had given him the wrong-sized part. As a result, Grabowski had suffered damage to a tendon in her knee.

November 20, 2014

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

by Cardone Law Firm

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.

November 17, 2014

Supreme Court Says that Breathalyzer Technician Not Required to Testify in DUI Case

by Cardone Law Firm

A recent Louisiana Supreme Court ruling dispelled the notion that, in order to offer into evidence documents certifying the accuracy of a breathalyzer machine, the state was required to make the certifying technician available to testify. The ruling explained that, since the documents were “not testimonial” in nature, their admission without the technician’s testimony did not violate the Constitution’s Confrontation Clause.

The case stems back to the 2012 traffic stop of Maurice Hawley. After a state trooper stopped the man’s vehicle for speeding and an improper lane change, he suspected the driver of being intoxicated. Hawley blew a .144 using an Intoxilyzer 5000 device, prompting the state to charge him with driving while under the influence.

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 27, 2014

Use of Incomplete Breathalyzer Test Result at Trial Triggers Reversal of Drunk Driving Conviction

by Cardone Law Firm

All criminal trials include the right of the accused to receive a fair trial. A man charged with drunk driving got his conviction overturned by the Louisiana Court of Appeal because the trial he received was not a fair one. The recent ruling stated that, when the trial court allowed the state to use a partial and incomplete breath analysis test result as proof that the driver had a blood alcohol content above .08 and had violated the law, it allowed the jury to be improperly prejudiced and necessitated a reversal of the conviction.

In May 2010, John Wayne Farley was involved in an auto accident for which he was at fault. Shreveport Police Police arrested Farley for driving drunk. During a breath test, Farley began blowing on the Intoxilyzer device but stopped breathing into the device before it could complete its analysis. According to the officer overseeing the test, the device’s display gave a reading of .17 prior to the driver’s discontinuation of the test.

At Farley’s trial (4th offense DWI), the state offered evidence from the officer regarding the .17 reading. The state used this evidence as proof of that the driver had a blood alcohol content above the legal limit of .08 and that the man was guilty of violating La. R.S. 14.98. The prosecutor told the jury several times about the officer’s observation of the .17 reading and reminded them that a .17 blood alcohol content was more than twice the legal limit.

August 20, 2014

6 Month Prison Sentence for Misdemeanor First Offense Drunk Driving Conviction Not Excessive, Appeals Court Rules

by Cardone Law Firm

While news stories often cover incidents where drivers facing second, third, or subsequent drunk driving offenses receive seemingly very light sentences, this does not mean that you should fail to take your DWI case seriously. Even first-offense misdemeanor charges can mean jail, as one southeast Louisiana man discovered when the Louisiana Court of Appeal refused to overturn his six-month prison sentence for the misdemeanor of operating while intoxicated.

During the early morning hours of Sept. 27, 2011, a Louisiana State Trooper observed Daniel Morales driving erratically in St. Bernard Parish. The trooper pulled Morales over and ordered the driver to perform field sobriety tests, which he failed. While in custody, Morales refused to take a breathalyzer test. He admitted having consumed 2-3 shots of whisky the night before, but he claimed that his condition was the result of having awoken very early that morning.

The trial court found Morales guilty of operating a vehicle while intoxicated, a misdemeanor, and issued him the maximum prison sentence of six months. Morales appealed the sentence, contending that it was excessive. The driver argued that, because the 2011 incident was his first offense and his illegal behavior neither caused nor threatened serious harm to anyone, imposition of the maximum prison sentence allowed by the statute was improper and that the court should have considered probation.

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.