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CONDUCT INVOLVED IN THE TRANSPORTATION OF PATIENT SUBJECT TO THE MEDICAL MALPRACTICE ACT
In Thomas v. Nexion Health at Lafayette, Inc., 14-609 (La. App. 3 Cir. 1/14/15), the Court was asked to decide whether an allegation that a healthcare employee negligently failed to use a motor vehicle restraint during patient transport constituted an act of alleged medical negligence subject to the Medical Review Panel process or a general tort. Citing to the Medical Malpractice Act, which specifically references the “handling of a patient,” the Court concluded that the claim sounded in medical malpractice. As such, the plaintiff was required to have submitted the matter to a Medical Review Panel prior to filing.
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WATSON FACTORS UTILIZED TO IMPOSE LIABILITY UPON A PLAINTIFF FOR FAILING TO READ PRESCRIPTION BOTTLE
In Watson v. State Farm Fire & Cas. Ins. Co., 469 So.2d 967, 972 (La. 1985), the Louisiana Supreme Court set forth numerous factors to assist the trier of fact in comparing fault between multiple parties. These factors include:
- Whether the conduct resulted from inadvertence or involved an awareness of danger;
- The risk created by the conduct;
- The significance of what was sought by the conduct
- The capacities of the actors, whether superior or inferior; and,
- Any extenuating circumstances which might require the actor to proceed in haste without proper thought.
The recent decision in Williams v. Walgreen Louisiana, Co. Inc., 14-716 (La. App. 5 Cir. 2/25/15) applies the Watson factors under interesting facts. In Williams, the plaintiff alleged a severe medical reaction, including multiple strokes, when the pharmacist gave the wrong prescription to her son who went to the pharmacy to purchase the prescription. Instead of her typical blood pressure medication, the plaintiff was given Zyprexa, a potent anti-psychotic medication. The bottle's label identified the medication and described the patient as someone other than the plaintiff. The Court held that the law required the plaintiff to review the bottle's label prior to ingestion.Under these facts, the Appellate Court upheld the following allocation of fault: Walgreen (60%), plaintiff (35%) and plaintiff's son (5%).
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News
February 2015 Firm News
A Court may rely on the contract terms between the parties to determine the existence and scope of duties owed. In Foster v. Sasol N. Am., Inc., No. 2:13 CV 2813, 2015 WL 338988 (W.D. La. Jan. 26, 2015), the Western District Court, citing Graham v. Amoco Oil co., F.3d 643 (5th Cir. 1994), granted the firm's Motion for Summary Judgment dismissing all claims against an on-site contractor for injuries to a sub-contractor's employee allegedly caused by the on-site contractor's negligence.
The United States District Court for the Western District of Louisiana, reasoned that the sub-contractor's contract with owner expressly assigned it the exclusive and sole responsibility to ensure its employees complied with the owner's safety requirements. Further, the client's contract with the owner did not include any supervisory oversight or safety obligations. Accordingly, the Court held that neither a duty nor an obligation to the Plaintiff existed because the terms of the contract determined the scope of the duties owed. All claims against the on-site contractor were dismissed. The case was handled by Keogh Cox attorneys John P. Wolff III, Chad A. Sullivan and Richard W. Wolff.
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SALES AND USE TAX ORDINANCE DECLARED AMBIGUOUS
In Pot-O-Gold Rentals, L.L.C. v. City of Baton Rouge, (La. 1/16/15), a taxpayer operating a waste removal business brought an action against the City of Baton Rouge seeking a refund of sales taxes. The taxpayer argued that EBR Sales & Use Tax Ordinance 10127 § 2 did not give Baton Rouge the authority to collect a tax on sanitation services because the services were provided independently of the actual leasing of property. On appeal, the Louisiana Supreme Court noted that an ambiguous tax ordinance must be interpreted in favor of the taxpayer. The Court found that the cleaning and sanitation services were routinely provided separate from the actual leasing of property. As such, the tax ordinance was ruled ambiguous as to services provided in connection with an otherwise taxable activity. The taxpayer was therefore not liable.
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HOSPITAL NOT LIABLE FOR ALLEGED FAULT OF INDEPENDENT JANITORIAL SERVICE
In Smith v. Northshore Reg’l Med. Ctr., Inc., (La. App. 1 Cir. 1/26/15), the plaintiff was visiting a hospital when she slipped and fell in a puddle of water. The location of the fall was in a hallway where a janitor had been using a buffer machine immediately prior to the accident. The plaintiff filed a complaint against the hospital, the janitor individually, and the company providing the janitorial services.The hospital moved for summary judgment arguing that the relationship between the hospital and the janitorial service was not an employee/employer relationship. The trial court ruled in favor of the hospital, in part, because the hospital did not possess the right to exercise control over work performed by the janitorial service. The First Circuit upheld the decision noting that the “lack of control” suggested there was no genuine issue of material fact as to the absence of an employer/employee relationship.
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WORKERS’ COMPENSATION CLAIMANT ALLOWED BENEFITS DESPITE UNTRUTHFUL PRE-EMPLOYMENT QUESTIONNAIRE RESPONSES
In Lavalais v. Gilchrist Const. Co., LLC, (La. App. 3 Cir. 2/4/15), the Third Circuit extended workers compensation benefits to an employee despite a finding that the employee provided false answers to a routine pre-employment health questionnaire. The Court determined that the employee’s untruthful answers did not directly relate to the injury and therefore did not trigger a forfeiture of workers compensation benefits under La. R.S. 23:1208.1.Lavalais sustained injuries to his neck, back, and right knee in a car accident while in the employ of Gilchrist. Prior to the accident, Lavalais had suffered college football and accident-related injuries. Despite its finding that the plaintiff has been untruthful, the Court narrowly construed La. R.S. 23:1208.1 and held that Lavalais’ untruthfulness did not trigger forfeiture of benefits because the defendant did not meet its burden to show the prior injuries made re-injury “inevitable” or “very likely to occur.”
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CLAIM REJECTED WHERE SLIP AND FALL PLAINTIFF COULD NOT DEMONSTRATE THE CAUSE OF HER FALL
In Trench v. Winn-Dixie Montgomery LLC, 14-152 (La. App. 5 Cir. 9/24/14), — So.3d —, the court considered whether summary judgment was appropriate in a “slip and fall” where the plaintiff claimed that a store manager conceded that too much wax had been used in cleaning the floors. Despite this assertion, and the manager’s denial, summary judgment was upheld because the plaintiff lacked evidence to show what caused her fall. As such, plaintiff’s evidence was considered “mere speculation” and insufficient to defeat a supported summary judgment motion.
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SOPHISTICATED CONSUMER PRESUMED TO KNOW INHERENT DANGERS ASSOCIATED WITH HOT COFFEE
In Triche v. McDonald’s Corp., 14-318 (La. App. 5 Cir. 10/29/14), — So. 3d —, the plaintiff alleged that he was burned after an unreasonably hot cup of coffee fell out of defendant’s cup holder and spilled onto his leg and foot. The plaintiff asserted that defendant’s employee had failed to properly secure the coffee cup in the cup holder.The court noted that defendant’s duty to protect its patrons includes use of “to go” paper products by employees at drive-thru windows. However, the court upheld the dismissal of the claim because the plaintiff failed to demonstrate that the coffee was excessively hot or that the restaurant failed to properly secure the cups in the tray holder. In discussing whether the coffee was so hot as to be considered an unreasonably dangerous product under the Louisiana Products Liability Act, the court also determined that the plaintiff was a sophisticated consumer of coffee and therefore presumed to know the inherent danger associated with hot liquids.
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Insight
When No Higher Court Remains
On April 20, 2010, BP's Deepwater Horizon rig exploded at a cost of eleven lives. What followed was the largest accidental marine oil spill in history. In the aftermath, BP looked for a solution, ostensibly to cap its exposure and address a swirling PR disaster. BP began to actively negotiate a settlement.
On March 2, 2012, BP agreed to a detailed settlement which set forth specific criteria for recovery under the Fund created by the Agreement. In August of that year, BP asked U.S. District Judge Carl Barbier to approve the settlement. The Agreement was approved.
Despite championing the settlement, BP later filed a lawsuit seeking to set aside the settlement, unless it was interpreted as suggested by BP. BP's challenges were rejected by the Federal District Court. Thereafter, the New Orleans-based Fifth Circuit Court of Appeals affirmed that ruling in a 2-to-1 decision. BP then applied for a Petition of Writ for Certiorari with the United States Supreme Court in a final challenge to the settlement.
About BP's legal maneuvers, Samuel Issacharoff, a New York University Law Professor, said the following: "This case is about a contract that BP signed that it now wishes it hadn't."
One of BP's primary complaints was that, in effect, the settlement could be interpreted to provide recovery for individuals or businesses who could not show a direct link between a financial downturn and the spill. In response, it was stated that the settlement was crafted to use objective measures to gauge whether losses are recoverable.
On December 8, 2014, the U.S. Supreme Court rejected BP's Petition for Writ of Certiorari. As such, the settlement agreement first proposed by BP will remain in place. No higher court remains.
Under the Agreement, potential claimants have 6 months from the Supreme Court's Petition denial to file claims.
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THE SCOPE OF IMMUNITY OFFERED TO AN LLC "MEMBER"
In Nunez v. Pinnacle Homes, LLC, 13-1320 (La. App. 3 Cir. 12/17/14), — So. 3d —, the Third Circuit upheld the imposition of personal liability upon a Member of the defendant LLC after the LLC failed to build plaintiff’s house at the proper elevation. The case was on remand from the Supreme Court with the instruction to consider the impact of the Supreme Court ruling in Ogea v. Merritt, 13-1085 (La. 12/10/13), 130 So. 3d 888, which had addressed the exceptions to the non-liability of LLC Members.Generally, a member of an LLC is protected from personal liability for damages allegedly caused by the LLC. However, La. R.S. 12:1320(D) outlines exceptions to the general rule. One such exception is a “breach of professional duty.” Adopting an expansive definition of “professional,” the Nunez court held that a licensed contractor qualified as a professional and was therefore personally liable because he was “acting as a professional with attainments in special knowledge, particularly as evidenced by his having attained licensure from the state, as distinguished from mere skill.”The dissent in Nunez argued that the ruling improperly expanded what activities should be considered “professional” and potentially “open[s] any member or manager of an LLC to personal liability upon a finding of professional liability.” The dissent also questioned whether the majority faithfully interpreted Ogea. In this context, it would not be surprising to see the Supreme Court again take up the case.
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SLIP AND FALL CLAIM REVIVED BY LOUISIANA SUPREME COURT
In Becker v. Jefferson Parish Hospital District No. 2, 2014-1849 (La. 11/21/14), it was undisputed that the plaintiff slipped and fell on a foreign substance on the floor of the defendant hospital. The intermediate appellate court affirmed the trial court's decision to dismiss the lawsuit via summary judgment on the grounds that the plaintiff failed to demonstrate that he could meet his evidentiary burden to show that the hospital possessed actual or constructive knowledge of the foreign substance on the floor. The Louisiana Supreme Court reversed, concluding that there remained genuine issues of material fact left to be decided at trial. While not stated, the “material issue of fact” may have been created by the plaintiff's testimony that a hospital employee informed him that he had slipped on ultrasound gel (a condition most probably created by the hospital employees).
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