Medical Malpractice: Can failure to communicate test results be medical malpractice?

The poet Robert Frost famously wrote that: “Good fences make good neighbors.” But what if there is a problem even fences won’t solve? Louisiana law offers some answers.

Under Louisiana law, a landowner cannot use their property in a manner that interferes with their neighbor’s enjoyable use. While a neighbor may have to put up with some inconveniences, excessive inconveniences that cause damage may be actionable. If a landowner’s activity is considered a nuisance, he may be liable for damages, and the court may require the landowner to stop the activity.

To determine whether a particular activity is considered a nuisance, courts look to the following factors: (1) the character of the neighborhood; (2) the degree of the intrusion; and, (3) its effect on the use and enjoyment of neighboring properties. For example, a person living in a heavy industrial area may have to put up with more noise than someone living in the suburbs. Whether activity is considered a nuisance is determined on a case-by-case basis.

Further, the nature of the noise and its persistence and duration can be a factor in determining whether the activity is a nuisance. For example, in Parish of E. Feliciana ex rel. E. Feliciana Parish Police Jury v. Guidry 2004-1197 (La. App. 1 Cir. 8/10/05), 923 So. 2d 45, writ denied, 05-2288 (La. 3/10/06), 925 So. 2d 515, the court looked not only at the level of the noise, but also at the “nature” of the noise. The court held that noise from a motor cross track was a nuisance, likening the noise to a chainsaw, a buzzing bee, or a dentist drill.

Even when a landowner has a right to conduct a business on his property, he cannot create a nuisance in running the business. Louisiana courts have held that noxious smells, dust, debris, rats, flies, and noise may all constitute a nuisance, even if the business was otherwise lawful.

The duty owed to neighbors applies not only to the landowner, but may also apply to tenants or contractors performing “work” on the property. To prove a nuisance, the offended neighbor must show that the landowner/tenant/contractor either “knew or should have known” that the activity was a nuisance.

When mending fences is not possible, you may have other options.

Chelsea Payne is an associate at Keogh Cox and has been practicing for three years. Her practice mainly relates to construction law and complex litigation. Chelsea enjoys playing tennis and spending time with her family.

By Brian Butler

Many do not realize modern vehicles are always ready to record critical driving information. As with airplanes, most passenger vehicles are now equipped with Event Data Recorders (EDR), or "Black Boxes." This information may be critical after an accident to show what happened, and who was at fault.

EDRs may record pre-event data for five seconds before and one second after an accident, possibly including vehicle speed, engine speed, percent throttle, change in velocity, and whether the brakes were applied. The make and model of the vehicle will determine what data is available. If you want this data, you must act quickly because it will be “overwritten” at some point if the vehicle continues in use.

It is also important to retain a competent expert to download the data. In Laborde v. Shelter Mutual Insurance Co., 82 So. 3^rd 1237 (La. 3/9/2011), the trial court excluded the printout of data downloaded from a Black Box because of the boxes "chain of custody" and the method the information downloaded. It is important that your legal team knows how to obtain and preserve this evidence.

Data from Black Boxes can be useful in many ways. In some cases, it may help to prove that the accident involved a low impact or to show that no brakes were applied. In other cases, it may harm your position, but the data is almost always relevant. There are costs in downloading and interpreting the data. But in the right case, the secrets kept in the Black Box may be the only way to reveal the truth.

Brian has been doing defense work for the last 28 years. He has handled all types of defense matters over his career, but in recent years his practice has been focused in serious injury or damage cases and has worked extensively with experts involving complex cases, fire cases, and forensic work.

Can a nonresident corporation, who is not a party to a pending action, be compelled to respond to discovery in Louisiana? The Louisiana Fifth Circuit says YES. See Molaison v Cust-O-Fab Specialty Services, LLC, a case where Keogh Cox successfully handled the appeal.

The Molaison case involved an industrial accident claim where catastrophic injuries were alleged. In this context, the appellate court found that a non-resident company has sufficient presence in Louisiana to subject it to the court’s subpoena power. However, the trial court must first assess the scope of discovery to ensure it is calculated to lead to discoverable evidence and is not too onerous.

In Molaison, the owner of an industrial plant who employed the plaintiff claimed that its nonresident status prevented the parties from requiring it to respond to discovery by deposition or otherwise. The plant owner cited a Louisiana Supreme Court case that held personal jurisdiction, without more, did not subject a nonparty, out-of-state defendant to submit to discovery in this state.

But, in this case, the nonparty maintained a facility in Louisiana and employed the plaintiff. As a consequence, the Molaison court found that the Louisiana “discovery rules control” and “the trial court did not err in finding that (the company) was subject to the subpoena power of a Louisiana court.”

The contractor established it issued the subpoena to obtain evidence from the chemical plant owner that was relevant to the allocation of fault under Louisiana’s pure comparative fault tort system. Therefore, the appeal court reasoned that the nonresident plant owner was subject to the subpoena, “even if (the company) is not obligated to pay in tort by operation of workers compensation immunity.”

Of note, the court also held that the review of a discovery order that finds a nonresident company subject to the subpoena power is a final appealable judgment, as opposed to an interlocutory order subject the discretionary review on supervisory writ.

Case Reference: Molaison v Cust-O-Fab Specialty Services, LLC, 21-585 (La. App 5 Cir. 6/1/22); 343 So. 3d 866.