Articles Posted in Louisiana Personal Injury Law

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The Louisiana legislature has created an extensive statutory scheme governing medical negligence claims brought against doctors who qualify as “health care providers” under the statute. Two primary features of this scheme are: (1) the mandatory submission of all claims to a medical review panel prior to any suit being filed, and (2) a limitation of $500,000 on the total amount of general damages and lost wages that can be recovered. LaMark v. NME Hospitals, Inc., 522 So.2d 634, 635 (La.App. 4th Cir.), writ denied, 526 So.2d 803 (La.1988).

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The jury is not required to disregard testimony merely because the witness may be interested or biased. It is within the province of the trier of fact to place more probative value on the testimony of an interested witness than that of a disinterested witness. Rosell v. ESCO, 549 So.2d 840, 848 (La.1989).

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The Louisiana Office of the State Fire Marshal issued a News Release regarding fireworks safety issues this holiday season. Fire Marshal H. “Butch” Browning said, “Due to the fire hazard as well as the inherent risk of injury involved in fireworks, citizens are urged to use extreme caution when handling fireworks to ensure a safe, fire-free holiday”. “The few moments of pleasure consumer fireworks bring are not worth the risk of property loss, injury, or death”. “Avoid needless risks”. “When things go wrong, they go wrong very fast, and often with disastrous consequences.” “Permanent scarring, loss of vision, dismemberment – these are all too often the harsh realities of amateur fireworks use.”

The News Release reminds us that:

According to the National Fire Protection Association (NFPA), amateur firework usage endangers not only the users, but also bystanders and surrounding property and structures. Pyrotechnic devices ranging from sparklers to aerial rockets cause thousands of fires and serious injuries each year.

In recent years, fireworks have been one of the leading causes of injuries serious enough to require hospital emergency room treatment. Fireworks can result in severe burns, fractures, scars, lifelong disfigurement or even death. The thousands of serious injuries each year typically harm the eyes, head, or hands and are mostly reported in states, such as Louisiana, where fireworks are legal. Even sparklers, which are considered by many to be harmless, can reach temperatures in excess of 1200 degrees F.

The Louisiana Fire Marshal’s Office offers the following fireworks safety suggestions:

— Always read and follow the label directions carefully
— Always have a garden hose or water bucket nearby for medical emergencies and/or to douse spent or misfired fireworks.

— Adults should always supervise fireworks activity.

— Fireworks should be placed on a hard, smooth surface prior to ignition. NEVER light fireworks in your hand.

— Quickly light one firework at a time, and move away quickly after lighting.

— Never point or throw fireworks at people, pets, cars, or buildings
— Keep fireworks away from small children.

— Do not alter or make your own fireworks.

— After displays, never pick up fireworks that may be left over. Fireworks that have been ignited and fail to immediately explode or discharge can cause injury, as they may still be active. Children should always tell an adult if they find fireworks rather than picking up smoking or charred fireworks themselves.

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For the third time in four years, Louisiana’s largest medical malpractice insurer, LAMMICO (Louisiana Medical Mutual Insurance Company) is issuing a large dividend of approximately $5.1 million to its Louisiana and Arkansas policyholders (including individual physicians and other health care professionals, groups & healthcare facilities). LAMMICO’s Louisiana doctors will get back 10 percent of their written premiums, bringing the total amount of premiums returned to around $25.5 million. So much for the medical malpractice crisis we keep hearing about!!!!

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My good friend and colleague, Ed Walters, recently revised his 1987 list of things Baton Rouge lawyers do not do for a Wex Malone Inn of Court meeting and for publication in the Baton Rouge Bar Association‘s December 2010 edition of the Around the Bar magazine. Ed’s article is entitled “from whence they came…redux” and includes this “UPDATED VERSION OF ED’S RULES”:

1. Baton Rouge lawyers don’t lie to each other or to the court.

2. A Baton Rouge lawyer will not default another lawyer when he has been notified that the other lawyer will be representing a party in a case.

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By Act 75 of the 2010 Regular Legislative Session, Louisiana Revised Statute 9:2800.17 was enacted to provide as follows for liability for the diminution in the value of a damaged vehicle:

Whenever a motor vehicle is damaged through the negligence of a third-party without being destroyed, and if the owner can prove by a preponderance of the evidence that, if the vehicle were repaired to its preloss condition, its fair market value would be less than its value before it was damaged, the owner of the damaged vehicle shall be entitled to recover as additional damages an amount equal to the diminution in the value of the vehicle. Notwithstanding, the total damages recovered by the owner shall not exceed the fair market value of the vehicle prior to when it was damaged, and the amount paid for the diminution of value shall be considered in determining whether a vehicle is a total loss pursuant to R.S. 32:702.

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The Baton Rouge, Louisiana personal injury law firm of Dué Guidry Piedrahita Andrews Courrege L.C. was selected for first tier (those firms that scored within a certain percentage of the highest scoring firms) inclusion in the 2010 inaugural rankings of U.S. News – Best Lawyers “Best Law Firms”, in the practice areas of Personal Injury Plaintiffs and Product Liability Plaintiffs. “The selection involved surveying thousands of law firm clients; leading lawyers and law firm managers; partners and associates; and marketing officers and recruiting officers. Each were asked what factors they considered vital for clients hiring law firms, for lawyers choosing a firm to refer a legal matter to, and for lawyers seeking employment.”

“Client and lawyer surveys collected mostly reputational data. Using a scale of 1 (weakest) to 5 (strongest), clients voted on expertise, responsiveness, understanding of a business and its needs, cost-effectiveness, civility, and whether they would refer another client to a firm. Lawyers voted on expertise, responsiveness, integrity, cost-effectiveness, and whether they would refer a matter to a firm and whether they consider a firm a worthy competitor.”

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The July 2010 Louisiana bar examination results are posted on the Louisiana Supreme Court‘s website. LSU Paul M. Hebert Law Center led all schools with a 76.8% passage rate. Tulane University Law School followed with a 73.2% passage rate; Loyola University College of Law had a 68.7% passage rate; and Southern University Law Center finished with a 55.2% passage rate. Congratulations to all new members of the Louisiana bar.

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A victim who continued to smoke after spine surgery, despite being advised and urged by his doctor to stop smoking, was not guilty of failure to mitigate damages because he recognized the severity of his smoking addiction and vastly reduced the number of cigarettes consumed per day. According to the Louisiana Fifth Circuit Court of Appeals, the victim’s “common sense and fortitude addressed the psychological and physical addiction which possesses him, and, ergo, we see no failure on his behalf in failing to mitigate damages.” Blanchard v. Means Inds., 93-715 (La.App. 5 Cir. 3/16/94), 635 So.2d 288, 293-94.

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In Batiste v. Bayou Steel Corp., 10-1561 (La.10/1/2010), the Louisiana Supreme Court revisited the standard for establishing intentional tort as an exception to Worker’s Compensation exclusivity under Louisiana Revised Statute 23:1032(B). The plaintiff was tightening an electrode (in the course and scope of his employment) when his wrench slipped, causing him to lose his balance and fall 35 feet to the ground. The plaintiff filed a wrongful death suit alleging the accident was substantially certain to happen, and therefore fell outside the exclusivity of the worker’s compensation scheme of recovery.

The Louisiana Supreme Court reaffirmed the test set forth in Bazley v. Tortorich, 397 So.2d 475 (La. 1981), for establishing an intentional act, which requires the actor to either 1) consciously desire the physical result of his act, whatever the likelihood of that result happening from his conduct; or (2) know that the result is substantially certain to follow from his conduct, whatever his desire may be as to that result.

The Louisiana Supreme Court also reaffirmed the “substantial certainty” test as set forth in Reeves v. Structural Preservation Systems, 98-1795 (La. 3/12/99), 731 So. 2d 208, 213:

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