Louisiana Injury Lawyer Blog

Where medical disciplines overlap, a specialist in one field may give expert testimony as to the standard of care applicable to areas of the practice of medicine common to both disciplines. Corley v. State, DHH, 32,613 (La.App. 2 Cir. 12/30/99), 749 So.2d 926, 931-32, citing Leyva v. Iberia General Hospital, 94-0795 (La.10/17/94), 643 So.2d 1236; Richardson v. State, 98-918 (La.App. 3 Cir.12/09/98), 726 So.2d 417; Kippers v. Corcoran, 97-870 (La.App. 5 Cir.01/27/98), 707 So.2d 463; Smith v. Juneau, 95-0724 (La.App. 4 Cir.04/09/97), 692 So.2d 1365; and Ricker v. Hebert, 94-1743 (La.App. 1 Cir.05/05/95), 655 So.2d 493.

In Sensebe v. Canal Indemnity Company, 2010-0703 (La. 1/28/2011), the Louisiana Supreme Court held that an "automobile business" exclusion in a Farm Bureau insurance policy violates Louisiana's public policy of requiring insurance coverage as expressed in the Louisiana Motor Vehicle Safety Responsibility Law, La. R.S.32:851 - 1043. Specifically, the Court found that the "automobile business" exclusion conflicts with the "statutory omnibus clause" contained in La.R.S. 32:900(B)(2), which requires coverage for all permissive drivers.

See also Marcus v. Hanover Insurance Company, 1998-2040 (La. 6/4/99), 740 So.2d 603, 606, wherein the Louisiana Supreme Court struck down a "business use" exclusion as being in direct conflict with the statutory omnibus clause.

Continue reading "Farm Bureau Insurance's "Automobile Business" Exclusion is Against Louisiana's Public Policy" »

In a medical negligence claim against a Louisiana doctor practicing in a specific specialty, the plaintiff has the burden of proving, by a preponderance of the evidence: (1) the degree of knowledge or skill possessed, or the degree of care ordinarily exercised by physicians licensed to practice and actively practicing in the same medical specialty as the defendant doctor; (2) that the defendant doctor either lacked this degree of knowledge or skill or failed to use reasonable care or diligence, along with his best judgment in the exercise of that skill; and (3) that, as a proximate result of this lack of knowledge or skill, or failure to exercise this degree of care, the patient suffered injuries which would not otherwise have been incurred. La.R.S. 9:2794.

In Louisiana, "[t]o establish a claim for medical malpractice, a plaintiff must prove, by a preponderance of the evidence: (1) the standard of care applicable to the defendant; (2) the defendant breached that standard of care; and (3) there was a causal connection between the breach and the resulting injury. La. Rev. Stat. 9:2794.2.

Expert testimony is generally required to establish the applicable standard of care and whether or not that standard was breached, except where the negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony. ***

In ruling on a motion for summary judgment, we are not free to simply disregard the ... unopposed expert medical evidence."

Schultz v. Guoth, 2010-0343 (La. 1/19/01), citing Samaha v. Rau, 07-1726 (La. 2/26/08), 977 So.2d 880, 883, and Pfiffner v.Correa, 94-0924 (La. 10/17/94), 643 So.2d 1228.

Based on the foregoing, the Louisiana Supreme Court reversed the lower courts and granted summary judgment in favor of a defendant obstetrician who offered a unanimous medical review panel opinion in his favor and an affidavit of one the medical review panel members in support of his motion. The plaintiff, whose baby was still born allegedly as a result of the medical malpractice, produced no expert testimony or counter-affidavit.

Continue reading "Expert Medical Evidence Usually Necessary to Support a Louisiana Medical Malpractice Claim" »

A plaintiff in a medical negligence case must present his claim first to a medical review panel of physicians of the same specialty as the defendant physician and licensed to practice in Louisiana. Physicians from other states or from different specialties can not be appointed to a medical review panel. The panel evaluates the evidence submitted and renders a non-binding opinion. The opinion of the panel has been admitted into evidence in this case. The jury may consider it along with all of the other evidence in the case on this issue, but its findings are not binding on the parties or on the jury. Like any other evidence, it may be evaluated for bias when you determine the weight you may give, if any, to the opinion. La. R.S. 40:1299.47(C) & (H); and Derouen v. Kolb, 397 So.2d 791, 794 (La. 1981).

On January 6, 2011, Chief Justice Catherine D. "Kitty" Kimball announced that the Louisiana Supreme Court has appointed the following five members to sit on the newly established Committee to Study Plain Civil Jury Instructions:

-Committee Chairman: H. Alston Johnson, III, Phelps Dunbar law firm

-Judge James E. Stewart, Second Circuit Court of Appeal

-Judge Rosemary Ledet, Orleans Parish Civil District Court

-Judge Guy Holdridge, 23rd Judicial District Court

-Julie J. Baxter, Rhorer Law Firm.

Louisiana desperately needs civil jury instructions that are short, concise, and easy for the lay person to understand. Currently, it is common for the instruction to the jury to be over 25 legal pages and take over one hour to read aloud to the jury. The instruction is also given at the end of the trial and after all evidence has been heard, rather than at the beginning of the trial, which would give the jury a better idea of what to look for when hearing the evidence.

According to the Chief Justice, "Instructions that are given to juries in civil trial should be in language that is plain and easy to comprehend so that juries are not confused by complicated legal language. We know that this is a matter the members of the Louisiana State Bar Association (LSBA) are also interested in, and with the assistance of the LSBA leadership, the Louisiana Supreme Court has established this Committee of distinguished and experienced members of the bench and bar to make recommendations on plain civil jury instructions for Supreme Court consideration."

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).

I recently purchased a Harley Davidson Soft-Tail Fat Boy motorcycle, and was quick to purchase a DOT compliant helmet because motorcycle accidents are a leading cause of head injuries and because helmets save lives. In fact, NHTSA "estimates that helmets saved 1,829 lives in 2008, and that 823 more could have been saved if all motorcyclists had worn helmets." Of the 5,290 motorcyclist who were killed in the United States in 2008, 76 were in Louisiana, with 41% of the dead motorcyclists not wearing a helmet. Don't be a statistic. Wear a helmet.

Shortly before midnight on January 6, 2011, a 65 year old California man was struck by an 18 Wheeler on Interstate 20 in Bienville Parish, Louisiana, as he exited the driver's side of his parked vehicle.

Parking on the shoulder of a busy highway is extremely dangerous and should be avoided unless there is a serious emergency and parking on the shoulder is unavoidable. In that instance, one should consider exiting the vehicle on the side away from the highway to avoid walking into the path of another vehicle.

Continue reading "18-Wheeler Accident on I-20 in Bienville Parish Claims Life" »

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).

An Oakdale, Louisiana man was severely injured in a one vehicle crash on U.S. Highway 165 around Alexandria, Louisiana, on January 3, 2011. The man was traveling northbound on US 165 when he lost control of his SUV and exited the highway to the right before over steering to the left and colliding with a guardrail, and then traveling back to the right and rolling over.

It is believed that a medical condition may have played a role in the accident. If the Oakdale man had injured someone else in the wreck, he may have been able to assert momentary loss of consciousness as a defense to a claim against him.

Continue reading "Oakdale Louisiana Man Injured in Guard Rail Collision in Alexandria" »

The presentation of commission and investiture of the Honorable Toni Manning Higginbotham as a Judge of the First Circuit Court of Appeal, State of Louisiana, will occur at an En banc session of the Court of Appeal on Wednesday, January 5, 2011, at 5:00 p.m. at the First Circuit Court of Appeal, 1600 North Third Street, Baton Rouge, Louisiana. A reception will immediately follow sponsored by the Toni Higginbotham Campaign Committee.