Louisiana Injury Lawyer Blog

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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The Louisiana Supreme Court rendered the per curiam decision of Acara v. Banks, 10-0741 (La.6/18/10). The plaintiff, Ms. Acara, filed a medical malpractice claim against Dr. Bradley Banks after Dr. Banks allegedly gave an opinion in an earlier personal injury suit filed by Ms. Acara as to her medical condition without reviewing her medical records. Ms. Acara also complained that Dr. Banks gave a deposition in the earlier personal injury suit without her consent. The district court denied Dr. Banks's motion for summary judgment and the appellate court denied supervisory relief. The Louisiana Supreme Court reversed the ruling as regards the deposition, finding that plaintiff partially waived the physician-patient privilege when she filed her personal injury suit. The Supreme Court held that the privilege was waived only as to testimony at trial or to a discovery method authorized by the Louisiana Code of Civil Procedure, such as a deposition. While the Supreme Court did not specifically discuss ex parte communications with treating physicians, the ruling has the effect of prohibiting such unauthorized communications since ex parte communications are not an authorized discovery method as evidenced by Louisiana Code of Civil Procedure article 1465.1's prohibition of verbal communication between defense counsel and a treating physician.

The Louisiana Supreme Court affirmed the district court's denial of summary judgment on the issue of giving opinions without reviewing plaintiff's medical records, finding that genuine issues of material fact existed as to whether the standard of care was violated.

Evidence in the form of moving pictures or videotapes must be approached with great caution because they show only intervals of the activities of the subject, they do not show rest periods, and do not reflect whether the subject is suffering pain during or after the activity. See Olivier v. LeJeune, 95-0053 (La.2/28/96), 668 So.2d 347, 351; and Orgeron v. Tri-State Road Boring, Inc., 434 So.2d 65, 68 (La. 1983).

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Commercial truck drivers are required to undergo testing and licensure which involve attending a special school designed to teach the mechanics and attendant hazards of operating large rigs. Based upon that premise, a professional truck driver is a superior actor in the eyes of the law. Thus, with superior knowledge and training as a professional truck driver, he is held to a high standard of care to the motoring public. See Davis v. Witt, 2002-3102 (La.7/2/03), 851 So.2d 1119, 1128-29.

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Our law seeks to fully repair injuries which arise from a legal wrong. However, an accident victim has a duty to exercise reasonable diligence and ordinary care to minimize his damages after the injury has been inflicted. He need not make extraordinary or impractical efforts, but he must undertake those which would be pursued by a man of ordinary prudence under the circumstances. Thus, his recovery will not be limited because of a refusal to undergo medical treatment that holds little promise for successful recovery. The expense and inconvenience of treatment are also proper considerations in determining the reasonableness of a person's refusal to submit to treatment. Moreover, an unreasonable refusal of medical treatment which does not aggravate his injury will not restrict a victim's recovery. The tortfeasor has the burden of showing both the unreasonableness of the victim's refusal of treatment and the consequent aggravation of the injury. See Jacobs v. N.O.P.S.I., 432 So.2d 843, 845-46 (La.1983).

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"[Comparative] negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection. The standard of conduct to which the plaintiff must conform for his own protection is that of a reasonable man under like circumstances.... Failure to take every precaution against every foreseeable risk to use extraordinary skill, caution and foresight does not constitute negligence or [comparative] negligence... [The victim] is required only to use reasonable precautions, and [his] conduct in this regard is not negligence if, by a common-sense test, it is in accord with that of reasonably prudent persons faced with similar conditions and circumstances." See Louisiana Civil Code articles 2323 and 2324; Dupas v. City of New Orleans, 354 So.2d 1311 (La. 1978), quoting Smolinski v. Taulli, 276 So.2d 286, 290 (La. 1973).

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In determining an award for loss of earnings and earning capacity, what the victim earned before and after the injury does not constitute the measure. While the victim's earning capacity at the time of the injury is relevant, it is not necessarily determinative of his future ability to earn. Damages should be estimated on the injured person's ability to earn, rather than what he actually earned before the injury. Earning capacity in itself is not necessarily determined by actual loss; damages may be assessed for the deprivation of what the injured person could have earned despite the fact that he may never have seen fit to take advantage of that capacity. The theory is that the injury done to him has deprived him of a capacity he would have been entitled to enjoy even though he never profited from it previously. See Hobgood v. Aucoin, 574 So.2d 344, 346 (La.1990).

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"In a personal injury suit, plaintiff bears the burden of proving a causal relationship between the injury sustained and the accident which caused the injury. Plaintiff must prove causation by a preponderance of the evidence. The test for determining the causal relationship between the accident and subsequent injury is whether the plaintiff proved through medical testimony that it is more probable than not that the subsequent injuries were caused by the accident. *** Plaintiff is aided in [his] burden of proving causation by the presumption ... that '[a] claimant's disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition. In order to defeat the presumption, defendant must show some other particular incident could have caused the injury in question." See Maranto v. Goodyear Tire & Rubber Co., 650 So.2d 757, 759 & 761 (La.1995).

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A tortfeasor or negligent wrongdoer must take his victim as he finds him or her. The wrongdoer is responsible for all the natural and reasonable consequences of his wrong, even though they are made much more serious or harmful by reason of a pre-existing physical defect or weakness of the injured party. Differently stated, The duty of care and of abstaining from injuring another is due to the weak, the sick, the infirmed, equally with the healthy and the strong, and when that duty is violated the measure of damages is the injury inflicted, even though that injury might have been aggravated or might not have happened at all, but for the peculiar physical condition of the person injured. See Robnett v. Great American Ins. Co. of New York, 187 So.2d 152 (La.App. 2d Cir.), writ ref'd, 249 La. 470, 187 So.2d 445 (1966); Johnson v. Ceaser, 304 So.2d 855 (La.App. 4th Cir. 1974); and Taylor v. Rome, 303 So.2d 844 (La.App. 1st Cir. 1974).

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