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"NOVEL THEORY" PREVENT CLASS ACTION CERTIFICATION

In Baker v. PHC-Minden, L.P., 49-122 (La. App. 2 Cir. 8/13/14), the court determined that lawsuits brought pursuant to the Health Care Consumer Billing and Disclosure Protection Act (“the Act”) could not be brought as a class action at this time. In general, the Act provides that a contracted health care provider is prohibited from discount billing, dual billing, attempting to collect from, or collecting from an insured a “health insurance issuer liability” or any amount in excess of the contracted reimbursement rate for covered health care services. Recently, the Supreme Court ruled in Anderson v. Ochsner Health Sys., 13-2970 (La. 7/1/14) -- So.3d-- that a private right of action is created by the Act. However, no jurisprudence yet exists to define this right of action.In rejecting class status, the Second Circuit commented that a “court must have experience with a tort in the form of several individual actions before it can certify issues in a way that preserves judicial resources [i.e, class actions.]” Furthermore, the court observed that Louisiana courts will deny class certification when presented with novel and untested legal theories. Because a private action under the Act is a novel issue with no development in the case law, the court reversed the class certification of the trial court.

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EXPERT TESTIMONY REQUIRED TO ESTABLISH COMPLEX MEDICAL MALPRACTICE CASE

In Spiewak v. Sightler, 2013-1028 (La. App. 1 Cir. 2/14/14), the plaintiff filed a medical malpractice claim against Woman's Hospital Foundation. The defendant filed a motion for summary judgment supported by expert opinion evidence that the treatment in question met the applicable standard of care. The plaintiff did not offer expert opinion evidence in opposition to the motion. The motion was granted.

A "med-mal" plaintiff possesses the affirmative burden to establish the applicable standard of care, a breach of that standard of care, and that the substandard care caused injury. When non-evident malpractice is involved, this burden will typically require expert medical testimony.

The First Circuit in Spiewak determined that expert medical testimony was necessary to support the plaintiff's claims because the case involved complex medical issues. On this basis, the First Circuit affirmed the grant of summary judgment in favor of the defendant.

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FORUM SELECTION CLAUSES NOT LONGER PER SE AGAINST LOUISIANA’S PUBLIC POLICY

In Shelter Mut. Ins. Co. v. Rimkus Consulting Grp., Inc. of Louisiana, 2013-1977 (La. 7/1/14), the Supreme Court sought to resolve a circuit split regarding whether forum selection clauses violate public policy in Louisiana. A forum selection clause is a contractual provision which mandates that all disputes be litigated in a particular state, county, parish, or court. The United States Supreme Court held in Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S. Ct. 1907, 32 L. Ed. 2d 513 (1972), that contractual forum selection clauses are prima facie valid. Louisiana has followed suit. Therefore, forum selection clauses are not per se against Louisiana's public policy.

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LOUISIANA SUPREME COURT DECIDES THAT THE HEALTH CARE AND CONSUMER BILLING AND DISCLOSURE PROTECTION ACT PROVIDES A PRIVATE RIGHT OF ACTION FOR PATIENTS AGAINST HEALTH CARE PROVIDERS

The Supreme Court recently considered whether a plaintiff has a private right of action for damages against a health care provider under the Health Care and Consumer Billing and Disclosure Protection Act. Anderson v. Ochsner Health Sys., 2013-2970 (La. 7/1/14) -- So.3d--. The trial court had commented that the text of the Act neither explicitly grants nor prohibits a private right of action. However, based on the trial court's review of the language of the statute, judicial opinions interpreting the statute, and the purpose of the Act, it held that the legislature intended to create a private cause of action. The Louisiana Supreme Court affirmed the trial court's decision, citing to the legislature's failure to expressly prohibit an individual remedy in the Act, the legislative intent to protect consumers, and the constitutional right of access to the courts.

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LIABILITY OF THE PATIENT’S COMPENSATION FUND AND THE INDIVIDUAL PHYSICIAN IS A SEPARATE ISSUE, THUS SUMMARY JUDGMENT FINDING THE PHYSICIAN LIABLE DOES NOT AUTOMATICALLY RENDER THE PCF LIABLE

The Supreme Court recently held that the Patient’s Compensation Fund (PCF) is not bound by a partial summary judgment rendered solely against a defendant physician. In Khammash v. Clark, 2013-1564 (La. 5/7/14) -- So.3d --, the physician settled with the plaintiffs for $100,000 and did not oppose a partial summary judgment which decided that the physician’s conduct was the cause of the plaintiff’s damages. Thereafter, the plaintiffs pursued the remainder of Medical Malpractice Act cap from the PCF.At trial, the jury determined that the physician’s breach was not the cause of the plaintiff’s injuries and awarded no damages. The appeals court reversed, finding that the issue of causation was not properly before the jury as it had been determined by the partial summary judgment. The Supreme Court reversed and held that the liability of the physician and the PCF are independent issues. Therefore, the PCF was not bound by the prior partial summary judgment.

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LOUISIANA SUPREME COURT ALLOWS CREATION OF SALES TAX SHELTER LLC

Recently, the Louisiana Supreme Court addressed whether an out-of-state limited liability company can be formed for the sole purpose of avoiding payment of Louisiana sales tax. In the case of Thomas v. Bridges, 2013-1855 (La. 5/7/14) -- So.3d --, a Montana limited liability company was formed by Thomas, a Louisiana resident, to purchase an RV and to avoid sales taxes. The Louisiana Dept. of Revenue assessed Thomas with the sales tax personally, which was upheld by the Board of Tax Appeals. The Supreme Court disagreed, and found that: (1) the Louisiana Dept. of Revenue failed to recognize the existence of a validly formed LLC; (2) sales tax could not be assessed on Thomas personally unless the veil of the LLC was pierced; and, (3) Montana law would have governed any attempt by the Department to “pierce to corporate veil.”

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Insight

Misrepresentations Lead to Dismissal of Suit

In a case handled by Keogh Cox lawyers Steve Whitlow and Jenny McLin, a Louisiana court of appeal has affirmed the ruling of a Workers Compensation Judge holding that an employee who made misrepresentations about his claim forfeited his right to workers compensation benefits. Arguello v. Brand Energy, 13-CA-990 (La. App. 5th Cir. 5/21/14), ___ So. 3rd ___.

In ruling for the employer, the trial court found that the claimant had committed three separate violations of La.R.S. 23:1208. The claimant was also assessed with a $500 civil penalty payable to the Kids Chance Scholarship Program.

Workers' Compensation
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"INCURRED" MEDICAL CHARGES PAYABLE UNDER "MED-PAY" TAKE INTO ACCOUNT DISCOUNTS PROVIDED BY THE HEALTH CARE PROVIDER TO THE INSURED

The Louisiana Supreme Court recently considered whether an automobile liability policy’s “med pay” coverage reimburses for the full, non-discounted amount of a hospital bill when the policy covers all “incurred” medical expenses. See, Hoffman, et. al v. Travelers Indem. Co. of Am.,2013-1575 (La. 5-7-14) -- So.3d --. The Court held that the insurer was only required to reimburse the discounted total because its insured was not obligated to pay the pre-discount costs and, therefore, never "incurred" a charge for the full amount.

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TRAGIC ACCIDENT ON A CARNIVAL RIDE RAISES ISSUE OF WHETHER FAIRGROUNDS CAN BE LIABLE IN NEGLIGENCE AS HOST

In Lewis v. Pine Belt, et. al, 2014 WL 1805306 (La. App. 2 Cir. 5/7/14), the Louisiana Second Circuit upheld the denial of a partial summary judgment filed by The State Fair of Louisiana (the “State Fair”). The case involved horrific facts. During 2011, the four year old plaintiff was taken to the fair along with his “Head Start” class. At the fair, his class rode the “Twin-Ring Demolition Derby Carnival Ride” and became trapped between moving components when one of his classmates gained access to an unattended control panel. Initial attempts to rescue the plaintiff with the “Jaws of Life” were unsuccessful and the plaintiff experienced severe brain damage.The owner and operator of the ride was the Lowery Carnival Company (“Lowery”). Prior to the partial motion for summary judgment at issue, the State Fair had demonstrated in a separate motion that Lowery was an independent contractor such that the State Fair was not vicariously liable for its actions.Through its subsequent motion, the State Fair cited to a string of cases holding that the owner of carnival rides possesses “exclusive control” such that the hosts or sponsors of a fair cannot be held liable for injuries sustained on the rides. See, e.g., St. Pierre v. Frye Amusement, 93-0653 (La. App. 4 Cir. 3/29/94), 635 So. 2d 358. Nevertheless, the trial judge found those cases distinguishable. The court cited to evidence that the State Fair held itself out to the public as the “owner, host and promoter of a safe fair.” As such, the court identified a duty on the part of the State Fair to ensure that the rides had safety measures in place to prevent a customer from gaining access to the control panels for the rides. Stating that it was a “close call,” the trial court held that the fact the State Fair possesses no duty to control the operation of the rides did not prevent it from owing the duty “to ensure that all of the rides were safe from unauthorized tampering.”

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PLAINTIFF’S BURDEN TO PROVE A “SLIP AND FALL” FOUND UNDER BOTH THE SLIP AND FALL STATUTES AND GENERAL NEGLIGENCE STANDARD

In Davis v. U-Haul Company of Louisiana, 2014 WL 1923230 (La. App. 5 Cir. 5/14/14), the Louisiana Fifth Circuit upheld summary judgment where the plaintiff could not offer “positive evidence” that the condition complained of (a cooked onion on the floor) existed for “such a period of time” that it would have been identified and corrected by a reasonable proprietor under Louisiana’s “slip and fall” statute, LSA-R.S. 9:2800.6. The Davis court held that a plaintiff cannot recover without a demonstration of all of the elements required both by the slip and fall statute and by Louisiana’s general negligence standard.

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News

Appellate court affirms ruling of a Workers Compensation Judge

In a case handled by Keogh Cox lawyers Steve Whitlow and Jenny McLin, a Louisiana court of appeal has affirmed the ruling of a Workers Compensation Judge holding that an employee who made misrepresentations about his claim forfeited his right to workers compensation benefits. Arguello v. Brand Energy, 13-CA-990 (La. App. 5th Cir. 5/21/14), ___ So. 3rd ___. In ruling for the employer, the trial court found that the claimant had committed three separate violations of La.R.S. 23:1208. The claimant was also assessed with a $500 civil penalty payable to the Kids' Chance Scholarship Program.

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THIRD CIRCUIT REQUIRES “ADMISSION” OF SUMMARY JUDGMENT EVIDENCE

Merely "offering, filing and introducing" evidence in support of a summary judgment has been held insufficient to have the evidence considered – at least in Louisiana’s Third Circuit – which recently ruled that the introduction of evidence does not permit a trial court to consider such evidence in granting a motion for summary judgment. See, Bourque v. Transit Mix, 2014 WL 1805368 (La. App. 3 Cir. 5/7/14). To be considered, the evidence must be introduced and the judge must then admit the evidence into the record. **Update, the Third Circuit’s ruling has been addressed in the latest iteration of the summary judgment rules. Courts are no longer required to “admit” evidence for summary judgment.

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