Louisiana Injury Lawyer Blog

In any action (or claim for recovery of damages for injury, death, or loss asserted under any law or legal doctrine or theory of liability, regardless of the basis of liability) for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss (including victim fault) shall be determined, regardless of whether the person is a party to the action or a nonparty, and regardless of the person's insolvency, ability to pay, immunity by statute, including but not limited to the provisions of R.S. 23:1032 (employer Worker's Compensation immunity), or that the other person's identity is not known or reasonably ascertainable (phantom tortfeasors).

If a person suffers injury, death, or loss as a result partly of his own negligence and partly as a result of the fault of an intentional tortfeasor, his claim for recovery of damages shall not be reduced.

He who conspires with another person to commit an intentional or willful act is answerable, in solido, with that person, for the damage caused by such act. If liability is not solidary then liability for damages caused by two or more persons shall be a joint and divisible obligation. A joint tortfeasor shall not be liable for more than his degree of fault and shall not be solidarily liable with any other person for damages attributable to the fault of such other person, including the victim regardless of such other person's insolvency, ability to pay, degree of fault, immunity by statute or otherwise, including but not limited to immunity as provided in R.S. 23:1032 (employer Worker's Compensation immunity), or that the other person's identity is not known or reasonably ascertainable (phantom tortfeasors).

Interruption of prescription against one joint tortfeasor is effective against all joint tortfeasors.

As recognized by the Louisiana Supreme Court in Dumas v. State, DCRT, 2002-0563 (La. 10/15/02), 828 So.2d 530, 537, prior to the 1996 tort reform amendments to La. C.C. arts. 2323 and 2324(B), the policy behind Louisiana's tort law was ensuring that innocent victims received full compensation for their injuries. With the 1996 amendments, the Louisiana Legislature shifted Louisiana's policy so that each tortfeasor pays only for that portion of the damage he has caused and the tortfeasor shall not be solidarily liable with any other person for damages attributable to the fault of that other person. With the advent of this new policy, the right of contribution among solidary tortfeasors also disappeared since it is no longer necessary in light of the abolishment of solidarity. The Louisiana Legislature struck a new balance in favor of known, present and solvent tortfeasors instead of the previous priority that fully compensated injured victims.

The Louisiana Supreme Court, in Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967, 974 (La. 1985), adopted the following factors (now known as the Watson factors) for determining the percentages of fault to be assigned to culpable tortfeasors, the trier of fact shall consider both the nature of the conduct of each party at fault and the extent of the causal relation between the conduct and the damages claimed. In assessing the nature of the conduct of the parties, various factors may influence the degree of fault assigned, including:

(1) whether the conduct resulted from inadvertence or involved an awareness of the danger;

(2) how great a risk was created by the conduct;

(3) the significance of what was sought by the conduct;

(4) the capacities of the actor, whether superior or inferior; and

(5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought.

And, as evidenced by concepts such as last clear chance, the relationship between the fault/negligent conduct and the harm to the plaintiff are considerations in determining the relative fault of the parties.

For the sixth straight year, Baton Rouge, Louisiana personal injury lawyer, Paul H. Due' of Due', Price, Guidry, Piedrahita & Andrews has been rated by Louisiana Super Lawyers. "Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process is multi-phased and includes independent research, peer nominations and peer evaluations. Super Lawyers magazine features the list and profiles of selected attorneys and is distributed to attorneys in the state or region and the ABA-accredited law school libraries. Super Lawyers is also published as a special section in leading city and regional magazines across the country. Super Lawyers magazine is published in all 50 states and Washington, D.C., reaching more than 13 million readers."

Baton Rouge, Louisiana personal injury lawyer Donald W. Price has been rated by Louisiana Super Lawyers 2012 in the practice area of Personal Injury Plaintiff. Donald Price has been rated by Louisiana Super Lawyers every year since its inception in 2007. "Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process is multi-phased and includes independent research, peer nominations and peer evaluations."

Baton Rouge, Louisiana personal injury lawyer, B. Scott Andrews, of Due', Price, Guidry, Piedrahita & Andrews has been recognized by Louisiana Super Lawyers 2012 in the practice area of Personal Injury-Plaintiff. "Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process is multi-phased and includes independent research, peer nominations and peer evaluations."

In Guy v. Brown, 2011-0099 (La.App. 4 Cir. 7/6/11), 67 So.3d 704, the Louisiana Fourth Circuit Court of Appeal held that a wrongful death claim arising out of medical malpractice must be brought within the three year peremptive period set forth in La. R.S. 9:5628. Therefore, if the death occurs three years after the alleged medical malpractice and no claim was previously and timely filed by the wrongful death beneficiaries, the claim is forever time barred.

Donald W. Price of the Baton Rouge, Louisiana personal injury and medical malpractice law firm of Dué, Price, Guidry, Piedrahita & Andrews has been selected for inclusion in Best Lawyers in America for 2012. Price has been recognized in two categories: Personal Injury Litigation and Medical Malpractice Litigation. Price was also selected by Best Lawyers as the Medical Malpractice 2012 Lawyer of the Year for Baton Rouge, Louisiana.

The Louisiana Supreme Court in McGlothlin v Christus St. Patrick's Hospital, 2010-2775 (La. 7/1/11), struck a powerful blow to the conspiracy of silence machine that dominates Louisiana medical malpractice litigation by holding that the Louisiana Medical Malpractice Act does NOT mandate the admission of a medical review panel opinion when the panel exceeds its statutory authority and renders an opinion based on its determination of the patient's credibility, rather than on the appropriate medical standard. Prior to this holding, it was common practice for Louisiana medical review panel members, when faced with conflicting versions of the events, to accept as truth everything the doctor said and to disregard what the patient said.

In a recent case handled by Baton Rouge, Louisiana medical malpractice attorney, Scott Andrews, the Louisiana medical review panel totally disregarded (and did not even read) the affidavits of the widow and an eye witness and found that the doctor did not commit medical negligence based solely on his deposition testimony. Even though the Medial Review Panel Attorney Chairman agreed that an issue of fact existed that prevented the panel from rendering a valid opinion, he nevertheless allowed the medical review panel to rule in favor of the doctor, with the caveat that plaintiff could object to admissibility of the opinion later. It is time for Medical Review Panel Attorney Chairmen to stand up to the conspiracy of silence machine and follow the law as written by the Louisiana Legislature, as interpreted by the Louisiana Supreme Court, and give victims of medical malpractice their rightful day in court.

A thirteen year-old girl who suffered extensive burn injuries over 84% of her body and blindness in one eye was awarded $10 million in compensatory damages by a Philadelphia state court from a drug manufacturer who failed to warn of the risk of contracting Stevens Johnson Syndrome when taking certain fever medications. The young girl contracted Stevens Johnson Syndrome after taking Children's Motrin in 2000. The drug manufacturer claimed that no causal link was shown in the case and that only 1 out of 25 million people taking the drug contract Stevens Johnson Syndrome.

When Stevens Johnson Syndrome caused by severe drug reactions are preventable, monetary compensation may be available from the drug manufacturer or from a healthcare provider who prescribed the medication or who failed to timely diagnose and treat the condition. Recently, Donald W. Price with the Baton Rouge, Louisiana personal injury law firm of Due', Price, Guidry, Piedrahita & Andrews, obtained a multi-million dollar jury verdict against a deceased Baton Rouge pediatrician who allegedly prescribed an inappropriate sulfa-drug to his minor patient for a sinus infection who soon developed Stevens-Johnson Syndrome and was left permanently scarred and disfigured. Even though the Louisiana Medical Review Panel that reviewed the case unanimously ruled that the pediatrician did not commit medical negligence, the Baton Rouge jury found that the evidence supported a finding that the pediatrician deviated below the applicable standard of care and that the deviation caused the child's severe burn injuries.

Louisiana Revised Statute 9:2794(D)(1)(a) requires that a physician who testifies as an expert witness in a medical malpractice case must be: "practicing medicine at the time such testimony is given or was practicing medicine at the time the claim arose." The Louisiana Supreme Court in Johnson v. Morehouse General Hospital, 10-387 c/w 10- 488 (La. 5/10/2011), held that the trial court did not abuse its discretion in allowing a disabled OB/GYN doctor who no longer had an active medical practice from testifying in a medical malpractice case involving obstetrics because the physician was still licensed to practice medicine and write prescriptions, and because he continued to render non-specialist medical services, albeit gratuitously, to friends and family.

The loss of a less-than-even chance of survival is a distinct injury compensable as general damages which cannot be calculated with mathematical certainty. The jury should make a subjective determination of the value of that loss, fixing the amount of money that would adequately compensate the survivor for that particular loss. In awarding damages for loss of a chance of survival, the jury is to focus on the chance of survival lost on account of the medical negligence as a distinct compensable injury and to value the lost chance as a lump sum award based on all the evidence in the record. In considering an award for loss of a chance of survival, the jury may consider evidence of percentages of chance of survival, loss of support, loss of love and affection, and other wrongful death damages. Smith v. State, 95-0038, (La. 6/25/96), 676 So.2d 543, 547-49.

In Russo v. Dr. Stephen Kraus, 2010-2463 (La. 1/28/2011), the Louisiana Supreme Court granted a writ and reinstated the judgment of the District Court denying a Sibley v. Board of Supervisors of Louisiana State University, 477 So.2d 1094 (La. 1985), hearing, which is a hearing to determine the constitutionality of provisions related to the Louisiana Medical Malpractice Act. The Louisiana Supreme Court's Order was based in part on the Court's prior findings concerning the existence of a medical malpractice insurance crisis in the 1970s."

In effect, the Louisiana Supreme Court ordered that because an insurance crisis existed in the 1970's, it is impermissible to conduct a "Sibley hearing" in 2011 to determine the unconstitutionality of the 3 year preemption period applicable to medical malpractice claims. The District Court had denied the plaintiffs the opportunity to have a hearing on the constitutionality of the 3 year preemption statute. The Fourth Circuit Court of Appeal reversed and ordered a "Sibley hearing." The Supreme Court held that the Court of Appeal "erred in reversing the District Court's judgment and remanding this matter for a Sibley v. Board of Supervisors of Louisiana State University, 477 So.2d 1094 (La. 1985), hearing on these issues. See Crier v. Whitecloud, 496 So.2d 305, 308-09 (La. 1986); see also, Branch v. Willis-Knighton Medical Center, 92-3086, pp. 9-10 (La. 4/28/94), 636 So.2d 211, 215, overruled on other grounds in David v. Our Lady of the Lake Hospital, 02-2675 (La. 07/02/03), 849 So.2d 38."

At first glance, it appears that the Louisiana Supreme Court is implying that it will reject a challenge to the constitutionality of the $500,000 cap on general damages and lost wages in medical malpractice cases. However, the preemption provision before the Court and the cap on damages present two different issues that have totally different equal protection constitutional implications. The preemption provision affects every medical malpractice claimant in the same manner, while the cap on damages adversely (and unconstitutionally) impacts only those claimants with severe and disabling injuries and damages. The 1970's cap is also woefully inadequate when considering 2011 dollars. So, while the medical malpractice insurance crisis of the 1970's may still matter when it comes to issues effecting every claimant equally, the 40 year old medical malpractice insurance crisis does not matter when determining the constitutionality of the cap.

Even if the negligence of a doctor did not cause the patient's death, because he was likely to have died anyway, damages can still be awarded if the doctor's negligence caused the patient to lose a less-than-even chance of survival. A loss of a chance of survival in any degree is compensable in damages. To establish causation in a situation when the patient dies, the survivor need only prove that the defendant's medical negligence resulted in the patient's loss of a chance of survival. The survivor does not have to prove that the patient would have survived if properly treated. Martin v. East Jefferson General Hosp., 582 So.2d 1272, 1278 (La. 1991); Hastings v. Baton Rouge General Hosp., 498 So.2d 713, 720 (La. 1986); and Smith v. State, 95-0038 (La. 6/25/96); 676 So.2d 543, 547.

There is no presumption that a doctor possesses the required skill and knowledge required of him by the controlling medical standards and that in treating his patients, that he applies that knowledge and skill. Williams v. Golden, 95-2712 (La. App. 4 Cir. 7/23/97), 699 So.2d 102, 106-07, writ denied, 1997-2788 (La. 1/30/98), 709 So.2d 708.