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The Louisiana Supreme Court issued the following Per Curiam opinion in Williamson v. Hebert, 10-0071 (La. 4/5/10), regarding the interruption of prescription in a medical malpractice case based on the discovery rule:

“In Campo v. Correa, 01-2707 (La. 6/21/02), 828 So. 2d 502, 511, we explained ‘a plaintiff’s mere apprehension that something may be wrong is insufficient to commence the running of prescription, unless the plaintiff knew or should have known through the exercise of reasonable diligence that his problem may have been caused by acts of malpractice.’ Plaintiff in the instant case clearly had some apprehension something was wrong following her surgery, as she consulted two different doctors regarding her condition. However, both of these doctors assured plaintiff her condition would continue to improve, with one of the doctors indicating her symptoms might take two years to resolve. When plaintiff’s symptoms failed to improve by August 2002 (two years after the August 3, 2000 surgery), plaintiff performed computer research, and learned for the first time her symptoms may have been caused by malpractice. Plaintiff’s August 16, 2002 complaint was filed within one year of her discovery of this alleged malpractice.”

The Louisiana Supreme Court granted plaintiff’s writ and reversed the decision of the Louisiana Third Circuit Court of Appeal. The judgment of the district court denying the defendant’s exception of prescription was reinstated and the case remanded to the district court for further proceedings. This is a huge victory for victims of medical malpractice who prudently wait to see if their condition will improve before rushing to file a medical malpractice claim that might otherwise be frivolous.
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On my way back from a meeting in North Louisiana on Wednesday, March 31, 2010, I was detoured off of U.S. Highway 61 and around downtown St. Francisville, Louisiana, due to a overturned 18 wheeler that had spilled toxic and hazardous chemicals into the adjacent ditch in the middle of town. The 18 wheeler was traveling through a construction zone when its rear tires dropped off the pavement, resulting in a roll-over event. U.S. Highway 61 was closed for more than eight hours while emergency personnel cleaned up thousands of gallons of a 10 percent solution of sodium hypochlorite, a bleach and disinfectant. Four nearby homes were evacuated, but no injuries were reported. Since no injuries were reported, the 18 wheeler driver and company will most probably escape civil liability.

Prior to the 1996 Mike Foster Louisiana tort reform legislative package, transporters of toxic and hazardous materials were liable for punitive or exemplary damages for their wanton and reckless disregard for the safety of the public. So, prior to 1996, if the 18 wheeler driver whose big rig overturned and spilled toxic and hazardous chemicals in downtown St. Francisville, had acted recklessly in operating his 18 wheeler, he and the commercial company he worked for could be “punished” for spilling the chemicals even if no one was seriously injured. In this post-tort reform era, the 18 wheeler driver and company get off scot-free so long as no one is injured, and even if someone is injured, the drive rand company receive no additional punishment for the wanton and reckless conduct. Is this fair? Is the insulation of commercial carriers from punishment more important than the safety of the public? Perhaps our Legislature should revisit the 1996 changes to our law. In that vein, Senate Bill 547 has been introduced in the 2010 Regular Session of the Louisiana Legislature by Senator Robert Marionneaux, to enact Louisiana Civil Code article 2315.8, which is proposed to read as follows:

“In addition to general and special damages, exemplary damages may be awarded upon proof that the injuries on which the action is based were caused by a person’s willful and wanton misconduct.”
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The $350,000 non-economic cap on medical malpractice damages in Georgia was declared to be an unconstitutional violation of the right to jury trial by a unanimous Georgia Supreme Court on March 22, 2010. The Georgia Supreme Court ruled that the 2005 law “clearly nullifies the jury’s findings of fact regarding damages and thereby undermines the jury’s basic function. *** Consequently, we are compelled to conclude that the caps infringe on a party’s constitutional right. *** The very existence of the caps, in any amount, is violative of the right to trial by jury.” Adam Malone, the Atlanta, Georgia lawyer who represented the plaintiff in the successful constitutional challenge stated that: “The bedrock of our democracy depends upon our ability to self govern at the ballot box and in the jury box. *** Any attempt by the government to invade either is an assault on what separates America from the rest of the world.”

Louisiana’s $500,000 cap on medical malpractice damages passed the Louisiana Legislature in the 1970’s and includes both non-economic and loss of earnings and support. In 1985, the Louisiana Supreme Court in Sibley v. Board of Supervisors, 477 So.2d 1094 (La.1985), declared Louisiana’s cap on medical malpractice damages constitutional. Louisiana’s medical malpractice cap was later declared unconstitutional by the Louisiana Third Circuit Court of Appeal in 2006 in the Taylor and Arrington cases, but the ruling was vacated by the Louisiana Supreme Court on February 2, 2007 on procedural grounds and remanded to the trial court for another trial on the constitutional challenge. Representatives of the medical industry, trial lawyers, and the Louisiana Legislature had numerous meetings in an attempt to reach a consensus on increasing Louisiana’s cap on medical malpractice damages, while at the same time, reducing the number of frivolous medical malpractice claims and reducing the costs associated with the medical review panel process. Not surprisingly, no consensus could be reached.
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On March 16, 2010, the Louisiana Supreme Court in Menard v. Lafayette Insurance Company, 09-1869, found that the Louisiana Third Circuit Court of Appeal erred in its application of the manifest error standard of review in increasing a jury’s award for future medical expenses in a personal injury case. The jury awarded plaintiff $88,373.73 for future medical expenses. The Louisiana Third Circuit Court of Appeal found internal inconsistencies in the jury’s award and increased it to $1,413,508.75. The Louisiana Supreme Court found no such inconsistencies, but rather found two opposing views that provided a reasonable basis for the jury’s decision.

The Louisiana Supreme Court set forth the law supporting an award for future medical expenses as follows: “Under Louisiana law, a tort victim may recover past (from injury to trial) and future (posttrial) medical expenses caused by tortious conduct. The victim must, however, establish he incurred past medical expenses in good faith as a result of his injury and future medical expenses will more probably than not be incurred. A plaintiff shows the probability of future medical expenses with supporting medical testimony and estimations of their probable cost. Importantly, future medical expenses must be established with some degree of certainty. Nevertheless, when the record establishes that future medical expenses will be necessary and inevitable, the court should not reject an award of future medical expenses on the basis that the record does not provide the exact value of the necessary expenses, if the court can examine the record and determine from evidence of past medical expenses and other evidence a minimum amount that reasonable minds could not disagree will be required. The proper standard for determining whether a plaintiff is entitled to future medical expenses is proof by a preponderance of the evidence the future medical expenses will be medically necessary. Notably, it is well acknowledged an award for future medical expenses is in great measure highly speculative and not susceptible to calculation with mathematical certainty. It follows, therefore, such awards generally do not involve determining the amounts, but turn on questions of credibility and inferences, i.e. whose experts or other witnesses does the jury believe?”
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The Louisiana Supreme Court on March 16, 2010, reversed in part and affirmed in part the matter of Brewer v. J.B. Hunt Transport, 2009-1408 c/w 2009-1428. Brewer was permanently and severely injured when his pick-up truck rear-ended and rode underneath an 18 wheeler on I-12 in Livingston Parish, Louisiana.

The Twenty-First Judicial District Court for the Parish of Livingston entered judgment on the jury verdict finding Brewer 100% at fault for the rear-end collision. The Louisiana First Circuit Court of Appeal reversed based on the trial court’s legal error in allowing evidence of Brewer’s unrelated prior bad acts (pre-accident drug use and arrests) into evidence, and on de novo review, found Brewer 40% at fault for the rear-end collision and the 18 wheel tractor trailer driver 60% at fault for suddenly changing lanes in a construction zone and into Brewer’s lane of travel. The Louisiana First Circuit Court of Appeal awarded a total of $10,677,634.93 in special damages and $2,500,000.00 in general damages for Brewer’s injuries, which included a traumatic injury to the right anterior temporal lobe of his brain, resulting in bed-wetting, seizures, short-term memory deficits, a lowered IQ, personality changes, and disinhibition.

The Louisiana Supreme Court found that the Louisiana First Circuit Court of Appeal’s de novo review of the trial court judgment was inappropriate because the bad acts evidence was directly related to the central issue of damages and not to the central issue of liability, which was the basis for the jury’s ultimate conclusion. However, the Louisiana Supreme Court still determined that the jury’s allocation of fault between the parties was manifestly erroneous. The Louisiana Supreme Court reversed the allocation of fault and reassessed fault 70% to Brewer and 30% to the 18 wheel tractor trailer operator.
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The State of Louisiana’s Office of Risk Management is being privatized. Louisiana Commissioner of Administration Angele Davis announced that F.A. Richard & Associates, Inc. (FARA) will take over the adjusting and management of all property and casualty claims and loss prevention for the State of Louisiana’s self-insured risks. It is estimated that the State of Louisiana will save at least $20 million over five years.

According to the press release issued by the Louisiana Governor’s office, Office of Risk Management (ORM) Director Bud Thompson said, “I commend my staff for their yeoman’s work in the research, preparation and execution of this RFP, especially their commitment to evaluate the proposals objectively and analyze the advantages, disadvantages and projected cost-savings to our in-house program in the long-term best interest of the State. Anticipated advantages of privatization include access to state-of-the-art technology improvements; reduced claims and program costs; management flexibility; and the transition from day-to-day claims and loss prevention to enterprise risk management.

It is estimated that 85 Louisiana state employees will lose their state jobs, but those employees will be offered positions by FARA at salaries based on its existing pay scales.
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On March 3, 2010, the operator of a Harley Davidson motorcycle changed lanes into the path of an International 18 wheeler as he approached the Gause Boulevard exit on I-10 in Slidell, Louisiana. The motorcycle operator was pronounced dead at the scene from the injuries sustained in the motorcycle wreck.

According to Baton Rouge, Louisiana motorcycle accident lawyer, Scott Andrews, a following motorist who strikes a preceding motorist is usually presumed at fault for the rear-end collision because the following motorist must maintain a sufficient distance from the vehicle in front of him to avoid a collision under circumstances which should be reasonably anticipated. The presumption is rebutted by proving that the driver had his vehicle under control, that he closely observed the preceding vehicle, and that he followed at a safe distance under the circumstances. The following driver may also rebut the presumption of liability by proving that the other driver created a hazard which he could not reasonably avoid, such as changing lanes suddenly and without warning.
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A 2007 International 18-wheeler driver fell asleep and crossed the center line of Louisiana Highway 24 in Larose, Lafourche Parish, Louisiana, killing a Dodge truck driver. The pick-up driver was unable to avoid the collision with the oncoming big rig. According to a study conducted by the Institute for Traffic Safety Management and Research, through interviews with randomly selected long-distance truck drivers, 47.1% had fallen asleep at the wheel at least once, and 25.4% within the last year.
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I am a Baton Rouge, Louisiana medical malpractice lawyer who recently underwent a minor overnight medical procedure that resulted in an unexpected and severe burn injury to my face. When I left the hospital, the extent of the burn injury was suspected to be minor and the cause was unknown. When I got home, I realized that the burn was much more severe than I had thought and I was extremely angry. I contacted the medical facility and the director promptly returned my phone call, expressed his genuine concern, and assured me that every effort would be made to determine the cause of the burn so that no other patients would be harmed. I was satisfied with the response and no longer felt any ill-will toward the facility for what happened to me because as a medical malpractice lawyer, I realize that sometimes bad things happen, complications occur, and injuries are sustained, but that does not mean that medical malpractice has occurred. A simple and sincere phone call was all that was necessary to “calm the savage beast”.

All too often, however, I hear about medical providers faced with even minor complications or unforseen injuries who ignore their patients or, worse yet, treat their patients like it was their fault. In my humble opinion, a good bed-side manner, an empathetic ear, and an expression of concern for the patient goes along way toward reducing medical malpractice lawsuits involving accepted complications and unforeseen injuries. I would venture to say that over one-half of all of my medical malpractice consultations with potential clients begin with a recitation of how poorly the patient or his/her family felt they were treated by the medical provider after the complication or injury occurred. So, follow the Golden Rule–Do Unto Others as You Would Have Them Do Unto You–and we will all sleep a little better at night. Of course, if the complication or injury is the result of actual medical malpractice, even a kind and understanding health care provider should be held accountable for his/her actions.
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