Articles Posted in Louisiana Personal Injury Law

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The Fourth Circuit Court of Appeal in Guillot v. DaimlerChrysler Corp., 2008-1485 (La. App. 4 Cir. 9/24/10), upheld awards of $2,775,000 to a mother and $2,100,000 to a father for the death of their 17 day old brain damaged baby who was surgically removed from the mother’s abdomen following an accident, and was removed from life support 17 days later. The mother was pinned between the vehicle door and a brick column when the defective Jeep Cherokee rolled backwards.

The Court of Appeal reasoned as follows: “We do not find that the trial court abused its vast discretion with respect to the general damage award, nor do we find that the award shocks the conscience. It is indisputable that the unique facts of this case are extraordinarily tragic. Additionally, the Louisiana Supreme Court has held that ‘[t]he determination of the severity of mental anguish of distress resulting from the death of another is a fact question which depends upon several components, including, but not limited to, the closeness of the ties between the parties, the degree of love in the relationship, and the length of the relationship.’ Herbert v. Webre, 2008-0060 (La.5/21/08), 982 So.2d 770, n. 7 (citing Hill v. Shelter Mut. Ins. Co., 05-1783 (La.7/10/06), 935 So.2d 691, 695).”

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Effective January 1, 2010, Louisiana’s Compulsory Motor Vehicle Liability Security Law requires every motor vehicle registered in Louisiana to be insured with minimum limits of 15/30/25. La.R.S. 32:900.

15 = per person maximum for bodily injury or death in one accident

30 = maximum for bodily injury or death to two or more persons in one accident

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Commissioner of Insurance Jim Donelon told the crowd at “The State of the Insurance Market in Louisiana: Five years Post-Hurricanes Katrina and Rita” that the insurance market in Louisiana is stable, though more expensive. Commissioner Donelon attributed the stabilization to the $30 Billion paid by insurers in the aftermaths of Hurricanes Katrina, Rita, and Gustav, and to new consumer protection laws enacted by the Louisiana Legislature. As a result of the claims paid, nearly every home in the direct path of the storms has a new roof and the general infrastructure has been strengthened. And most weak trees were downed by the storms and are no longer a hazard to policy holders.

Consumer protection laws include a two year prescriptive period in which to bring claims against insurers, limiting hurricane deductibles to one per year, and increasing LIGA’s coverage limit for homes to $500,000. Other laws enacted that have strengthened the insurance market include a statewide building code and a percentage named storm deductible on homeowner’s policies.

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Many new Louisiana traffic laws enacted during the 2010 Louisiana Legislative session will soon go into effect. Included in the new laws are the following:

-(effective August 15, 2010) Text messaging, using a wireless communication device while driving a motor vehicle, are now a primary offense for all Louisiana drivers. Now that the offense is primary, police officers may initiate a traffic stop for the offense alone, without having another reason to stop the motorist. The new law also prohibits persons 17 years of age or younger from operating a motor vehicle while using any “wireless telecommunications device”, including cell phones, PDAs, laptops, pagers and similar communication devices.

-(effective January 1, 2011) the amount of time a minor with a learner’s permit will spend in supervised “behind-the-wheel” training will be increased to fifty (50) hours, with at least fifteen (15) of those hours to include nighttime driving. Those drivers holding an intermediate license (unless accompanied by a parent or guardian, a licensed adult at least twenty-one (21) years of age, or a licensed sibling at least eighteen (18) years of age), are restricted from driving from 11 pm to 5 am. The law also restricts them from transporting more than one passenger that is under the age of twenty-one (21) and who is not an immediate family member.

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Courts have recognized the potential for a “conspiracy of silence,” whereby local doctors would refuse to find one another at fault in medical negligence cases, and the adverse effects this would have on patients. To offset this danger in Louisiana, the specialist’s duty is governed by a national standard of care. As such, a specialist is held to a higher standard of care because he has held himself out as having expertise in that specialty. See La. R.S. 9:2794; Ogletree v. Willis-Knighton Memorial Hospital, Inc., 530 So. 2d 1175, 1180 (La. App. 2nd Cir.), writ denied, 532 So.2d 133 (La.1988), citing Ardoin v. Hartford Accident and Indemnity Co., 360 So.2d 1331, 1335 (La. 1978); and Bryant v. St. Paul Fire and Marine, 382 So.2d 234, 237 (La.App. 3d Cir. 1980), citing Ardoin v. Hartford Accident and Indemnity Co., 360 So.2d 1331, 1335 (La. 1978).
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The plaintiff in a medical negligence case is not required to show that she would have obtained a perfect outcome in the absence of medical treatment that fell below the accepted standard of care. Rather, the plaintiff may recover on a showing that the physician’s unacceptable care denied the plaintiff a chance of a good outcome. Graham v. Willis-Knighton Medical Center, 27,338 (La.App. 2 Cir. 9/29/95), 662 So.2d 161.

If a defendant physician, by action or inaction, has substantially increased the chances of a patient developing complications and damages, then such conduct by the defendant physician is considered to be a cause of the patient’s damages. Hastings v. Baton Rouge General Hospital, 498 So.2d 713, 720-21 (La.1986).
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The burden of proving a superseding or intervening cause rests with the defendant and conjecture and possibility that another incident was involved as a causative factor of the injuries sustained is insufficient to prove an intervening cause; defendants must prove such intervening cause by a preponderance of the evidence. Lancon v. State Farm Mut. Ins. Co., 94-256 (La.App. 3 Cir.10/5/94), 645 So.2d 692, 696-97), writ denied, 95-0153 (La.3/17/95), 651 So.2d 272; and Turner v. Nationwide Ins. Co., 503 So.2d 734, 736-37 (La.App. 3d Cir. 1987).
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Loss of consortium is the term which the law uses to describe the loss of love, companionship, comfort and services which a family member might have provided if she had not been injured. You may consider the following factors in making this determination: loss of love and affection, loss of companionship and moral support, plaintiff’s decreased ability to perform household services, decreased aid and assistance from plaintiff in the family unit, and a loss of felicity or overall contentment and happiness. Ferrell v. Fireman’s Fund Ins. Co., 696 So.2d 569, 572 (La.1997).
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Louisiana law specifically recognizes the right of an injured victim to recover damages for past and future loss or impairment of the enjoyment of life, separate from and in addition to the right to recover damages for past and future physical pain and suffering and past and future mental anguish.

Pain and suffering, both physical and mental, refers to the pain, discomfort, inconvenience, anguish, and emotional trauma that accompanies an injury. Loss of enjoyment of life, in comparison, refers to detrimental alterations of the person’s life or lifestyle or the person’s inability to participate in the activities or pleasures of life. In contrast to pain and suffering, whether or not a plaintiff experiences a detrimental lifestyle change depends on both the nature and severity of the injury and the lifestyle of the plaintiff. McGee v. AC And S, Inc., 2005-1036 (La. 7/10/06), 933 So.2d 770, 775.
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Under Louisiana law, the tortfeasor may not benefit, and an injured plaintiff’s tort recovery may not be diminished, because of benefits received by the plaintiff from sources independent of the tortfeasor’s procuration or contribution. The purpose of this rule is to deter unreasonably dangerous conduct by making wrongdoers responsible for the full extent of the damage they cause. Bozeman v. State, 03-1016 (La. 7/2/04), 879 So.2d 692, 700.
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