Medical Malpractice

Medical errors are frighteningly common occurrences in our hospitals, doctors offices and long-term care and other medical facilities. A recent Johns Hopkins University study estimates that medical error is the third leading cause of death in America resulting in the deaths of 250,000 people in the U.S. every year.

Other studies put that number even higher. A survey of recent studies on medical error in hospital settings estimated that a staggering 210,000 preventable errors are made each year that contribute to the death of hospitalized patients alone, not accounting for outpatient clinics and long-term care facilities which carry similar risks to patients.

What Is Medical Malpractice?

Medical malpractice is a general term that covers a number of system and human errors that lead to harm or injury to a patient. It can include action or inaction on the part of a health care worker, such a pharmacist filling a prescription incorrectly or a physician failing to inform his patients of the risk of a particular medication.

Generally medical malpractice falling into the following broad categories:

• 1. anesthesia errors
• 2. birth injuries
• 3. surgical errors
• 4. medication errors
• 5. defective medical devices
• 6. failure to diagnose
• 7. medical record errors
• 8. mental health medical malpractice
• 9. elder care malpractice
• 10. hospital and emergency department errors

Determining if and how medical malpractice took place can be challenging. It is important to speak with a skilled, trusted attorney experienced in Louisiana medical malpractice cases right away if you believe you or a loved one was harmed by a medical error or negligence.

Louisiana Laws Governing Medical Malpractice

Louisiana’s Patient Compensation Fund automatically covers all public hospitals and associated healthcare workers. It also covers private “qualified healthcare providers” who can become members of the Fund if they meet certain requirements. Louisiana law caps medical malpractice damages for healthcare providers who are members of the Fund to $100,000 plus interest per patience per incident. Awards over that amount are paid directly by the Fund. Total medical malpractice damages in Louisiana are capped at $500,000 plus the cost of any future medical expenses. The PCF pays for future medical expenses directly, as they occur.

The statute of limitations for filing a medical malpractice claim in Louisiana court is one year from the date of the malpractice, or within one year of the “discovery of harm.” So for example, a doctor may have prescribed you a combination of medications known to cause liver damage, but you might not discover that damage until months later. In Louisiana, all medical claims must be filed within three years of the date of the injury or malpractice, regardless of when they are discovered. In general, surviving family members have one year to file a wrongful death case in Louisiana.

Before filing a medical malpractice suit in Louisiana, victims of medical malpractice must submit a written request to the Patient Compensation Fund for the review of the case by a group of experts. The request details the events, injuries, and allegations of the case. The Fund reviews the request and notifies the victim if the offending doctor a “qualified healthcare providers” covered by the Fund, and if a panel will be convened to review the case. If so, a panel of three doctors and one attorney (the attorney serves only as an advisor) is convened to review the case. The doctors on the panel are charged with determining whether the evidence supports the conclusion that malpractice occurred, and whether that malpractice caused the injuries in question. The panel’s report is considered medical expert testimony. Panel reports are admissible evidence at trial and can be used in alternative dispute resolution, and any party may call any member of the panel as a witness.

If your case goes to trial, Louisiana law gives individual judges wide discretion to interpret statutes and decide medical malpractice awards. Regardless of how your case is resolved, don’t try to navigate the complex medical malpractice system alone. If you or a loved one has been injured by medical error or negligence, you owe it to your family to speak with a skilled Louisiana medical malpractice attorney right away.

Medical Malpractice And Birth Injuries In Louisiana

Errors made during the birth of a child are a particular egregious form of medical malpractice. Medical errors in these first crucial moments outside the womb can result in a lifetime of costly care, the lost potential of an individual, and untold pain and suffering for the victim and his or her family members.

Birth injuries can include:

• 1. Cerebral Palsy
• 2. Brain Injuries caused by oxygen deprivation
• 3. Facial Paralysis
• 4. Cephalohematoma
• 5. Nerve Damage Such as Brachial Plexus
• 6. Fractured Collarbone
• 7. Seizures, Shock or Coma Caused by Perinatal Asphyxia
• 8. Subarachnoid or intracranial hemorrhage
• 9. Spinal Cord Injuries

When the birth of a child turns into a waking nightmare of unexpected medical challenges and needed care, it can be difficult for loved ones to think clearly and understand exactly what happened and who is responsible. As your new baby recovers, you owe it to your child to speak with a caring, trusted attorney with knowledge of and experience with Louisiana medical malpractice law. At Charbonnet Law Firm, we can help guide you through this unimaginably difficult experience and make the best possible decisions about your legal rights to protect your family.

What To Do If You Suspect Medical Error

Medical error or negligence is not always obvious, and healthcare providers very rarely admit an error that may have caused harm. A hospital or medical group may actively work to correct an error its staff made without ever letting you know something went wrong. Or if an obvious error takes place, the physician, facility or their insurance company may pressure a patient or legal guardian to sign a hasty settlement.

If you witness, learn about, or suspect medical malpractice that has caused you or a loved one harm

• 1- Seek care and advice from another healthcare provider who you trust to be honest and competent.
• 2- Document everything. Keep all written communications (diagnoses, insurance claims, prescriptions and directions) and write down everything that you can remember about the circumstances of your care and your interactions with healthcare staff, including dates and time.
• 3- Speak with a trusted medical malpractice attorney who can help you understand your case.

Charbonnet Law Firm Can Help. Call Today!

Don’t delay! Contact a skilled attorney with experience winning Louisiana medical malpractices cases today. At Charbonnet Law Firm, our skilled legal team will be by your side every step of the way, helping you navigate the legal and insurance systems, and building the strongest case possible to win the compensation you deserve.

Call us today for a free consultation with a member of our dedicated legal team. We will help you understand your medical malpractice case, your options for compensation, and what comes next. And if you chose to work with our trusted, experienced team, we will handle all the details and fight for the best settlement possible, so that you and your family can focus on healing.

Wrongful Death

The death of a loved one can be incredibly difficult. You can feel depressed, anxious, angry, and overwhelmed. If that death happened unexpectedly as a result of an accident, or the negligence or actions of another party, it can be all the more overwhelming and awful.

As you grieve your loss and find the strength to live without your loved one, you may be feeling pressured by insurance companies to settle any legal claim you have around your loss. Before you sign anything, you owe it to yourself and to your family to talk with a caring, compassionate team of attorneys experienced in Louisiana wrongful death law. No amount of money can repair the loss or take away your pain. But one of the best ways to seek justice and make sure no other family goes through what you have is to hold the party at fault financially responsible.

Wrongful Death Under Louisiana Law

The Louisiana Civil Code that governs wrongful death and survival action cases makes clear that “every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.”

Wrongful death can be the result of a number of different scenarios. Medical malpractice can lead to wrongful death, in cases such as surgical error or medication errors. Negligence can cause wrongful death, for example, if a party fails to make reasonable repairs to a stairway that leads to a slip and fall death. Traffic accidents involving distracted driving, disregard for traffic laws, or drunk driving are other examples. Wrongful death can result from a workplace injury or a defective product.

In general, in order to prevail in a wrongful death case, the surviving family member/s must meet a similar burden of proof as would be necessary to show liability if the victim had lived. So, for example, in the case of negligence, the victim’s family or estate would need to show that: 1) the party at fault had a duty to exercise “reasonable care,” 2) that party failed in its duty, and 3) that failure caused the death of the victim. The victim’s family must then show that damages were suffered by themselves (and the victim in the case of survival actions) as a result of the death and circumstances surrounding it.

Who May Seek Wrongful Death Damages In Louisiana?

Louisiana law allows the following people to bring a wrongful death or survival claim:

• 1- The victim’s spouse and children
• 2- The victim’s parents, if the victim left no surviving spouse or child
• 3- The victim’s brothers and sisters, if the victim left no surviving spouse, child, or parent
• 4- The victim’s grandparents, if the victim left no surviving spouse, child, parent, or sibling

These definitions include immediate family members through adoption. If a parent has effectively abandoned the deceased during their childhood, that parent is not entitled to seek wrongful death damages.

Damages In Louisiana Wrongful Death Cases

Louisiana law demands that a person or party responsible for causing the death of another must compensate the deceased’s family for damages endured and future losses.

Damages can be economic or non-economic and can include:

• Loss of support
• Loss of services
• Loss of love and affections
• Lost wages and benefits
• Loss of society
• Mental anguish and emotional suffering
• Funeral and burial expenses

Under Louisiana law, certain family members may also seek damages through a “survivor action” for all medical costs and other damages, as well as the pain and suffering that their loved one endured prior to his or her death.

If a wrongful death is proven to have been caused by egregious, malicious, willful, wanton or reckless action or gross negligence, a Louisiana civil court may also award punitive damages separate from economic and non-economic damages. Damages for a wrongful death caused by a drunk driver, domestic abuse, or a hazing incident may also include “exemplary damages” under Louisiana law. The surviving family members of an unborn child can file a wrongful death claim seeking damages against parties found to be liable for his or her death under Louisiana Law.

Criminal Cases & Statute Of Limitations

Some wrongful death cases may involve the same facts of an ongoing or prosecuted criminal case. For example, if a drunk driver kills a pedestrian, the state may prosecute that person on criminal charges, and the family of the victim may also file a wrongful death claim against that person. A criminal case does not prevent a wrongful death claim, but it’s important to understand the differences between the two cases and how each may influence the other.

The statute of limitations for wrongful death claims in Louisiana is one year from the time of the death. If you have lost a loved one and believe another party to be at fault, speak to an attorney with experience in Louisiana wrongful death cases as soon as possible to ensure proper time to prepare a strong case before filing in court if it becomes necessary.

Call TheCharbonnet Law Firm Today

If you have lost a loved one due to a workplace accident, a car, truck or motorcycle accident, a slip or trip and fall, medical malpractice or any other action or negligence on the part of another, you owe it to yourself to speak with a trusted, skilled attorney today. The Charbonnet Law Firm is a family firm that has been winning for victims in Louisiana for more than five decades. Let us help you understand your legal rights and the options you have in your wrongful death case. We will be with your family every step of the way, taking care of all the details and ensuring the best possible resolution of your case, so that you can focus on healing.

Employment Law

Have you been paid less than the minimum wage for work in Louisiana? Have you not been paid overtime you believe you are owed? Did a business close down before paying you wages that you earned? Has your employer misclassified you as a “independent contractor” or supervisor/assistant manager, etc. in order to avoid paying you overtime? Has an employer asked you to work off the clock or required you to hand over your tips?

If any of these have happened to you or a family member, get the advice of an experienced Louisiana employment law attorney who can help you understand if you have a case and how to pursue the wages you earned and any other compensation you may be due.

 

What Is Wage Theft?

Any time a worker is not paid wages (in part or in full) that he or she has earned that is wage theft. Based on a 2017 study of the 10 largest states, the Economic Policy Institute estimates that U.S. workers lose nearly $15 billion to wage theft each year. That’s nearly as much as all property theft combined. According to the study, a typical worker who experiences wage theft is cheated out of $3,300 a year. It’s easy to see how unpaid overtime, “off the clock” work or “pooling tips” can really add up.

The Minimum Wage In Louisiana

Louisiana has not adopted a state minimum wage, instead workers in the state are entitled to the federal minimum wage which is currently $7.25 per hour for covered, “nonexempt” employees. Non-exempt employees are workers who have not specifically been hired as managerial employees who receive a set salary rather than hourly pay and so are exempt from overtime and other rules.

The minimum wage for tipped workers is $2.13 per hour in direct compensation, as long as this amount plus tips equals at least the minimum wage, the employee keeps all tips, and the employee regularly receives more than $30 a month in tips.

Employers whose workers earn close to the minimum wage who ask those workers to work off the clock are violating federal minimum wage law, as are employers who pay the tipped minimum wage and ask workers to hand over any part of their tips, or who don’t ensure their workers tips and wages add up to $7.25 an hour.

Living Wage For City Contract Workers In New Orleans

While Louisiana state law currently prohibits city and local governments from setting a minimum wage for private employers, a City of New Orleans has a living wage ordinance. It went into effect in 2016 and requires employers who do significant business with the city to pay covered employees a living wage and provide them with at least seven days of paid leave each year.

Employers covered under the ordinance include companies with city contracts over $25,000 a year and organizations that receive more than $100,000 in municipal financial assistance a year. The city’s current living wage is set each year according to the consumer price index and is currently $11.19 per hour.

If you work for a city of New Orleans contractor or organization that receives grants from the city and you have not been paid the living wage or given seven days of paid leave per year, you may be entitled to back pay and other compensation.

Misclassified As A Manager Or “Independent Contractor” In Louisiana?

Misclassification is one of the most common and pernicious forms of wage theft. By misclassifying an employee as an “independent contractor,” bad employers avoid paying overtime and exclude workers of many federal worker protections, such as minimum wage, workers’ compensation and unemployment insurance guarantees.

“Independent contractor” misclassification is a common problem in the construction, real estate, home care, and trucking industries. For example, in 2019, one framing and drywall contractor operating in Louisiana was ordered to pay $178,766 in back wages to 108 employees for violating the Fair Labor Standards Act (FLSA) by misclassifying employees and not paying them overtime.

Louisiana Employer Withholding Final Paycheck

According to Louisiana law, an employer must pay all owed wages within 15 days after employment ends or on the next regular payday, whichever comes first. This applies whether you quit, or have been terminated or laid off. If your former employer fails to meet this deadline, you can be awarded up to one day’s wages on top of what is owed to you for every day your final paycheck is late (up to 90 days).

Other Wage And Hour Violations In Louisiana

Other methods employers have used to cheat workers out of wages include illegal paycheck deductions and off-the-clock work. Expenses like workers compensation insurance and unemployment insurance are supposed to be paid directly by the employer and not passed on to workers as a line item on their pay stub, in the way that federal and state income taxes and Medicare are. It’s always a good idea to inspect your pay stub to make sure your hours and wages are correct and any deductions make sense to you.

If your employer regularly asks you to work through your break, come in early without clocking in, or work after you’ve clocked out, your employer could be committing a wage and hour violation. It can feel uncomfortable to say no to such requests (like you’re not being a “team player”), it could even feel like your job is on the line if you refuse. But your boss asking you to work for free is taking advantage and it is stealing. You, your family, and your coworkers deserve better. And you can seek compensation for all your unpaid wages and up to that amount in additional compensation for liquidated damages (for financial hardship you’ve experienced because of the stolen wages).

How To Recover Your Wages In Louisiana

If you are owed wages, you can either file a complaint with the Wage and Hour Division of the U.S. Department of Labor or file a lawsuit. An attorney experienced in Louisiana employment law can help you decide the best course of action, and file a claim or a lawsuit seeking to collect your unpaid wages. If you win your case, the judge can make your employer pay some or all of your attorneys’ fees.

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Louisiana law governing wills and succession is a complex mix of statutes, including very old concepts such as the right of usufruct and forced heirship. Without an experienced Louisiana estate planning attorney, it can be next to impossible to ensure that your wishes or those of a loved one are carried out.

A succession is the process, under Louisiana law, of settling one’s estate upon death and distributing property to the heirs after debts are paid (sometimes called probate in other states). Succession can also refer to the estate a person leaves behind at death.

Not all property goes through a succession in Louisiana. Assets that have a named beneficiary (for example, retirement assets, like IRAs and 401(k)s, life insurance policies and annuities) do not have to go through a succession. Instead, they are passed to the named beneficiary, so it is very important to ensure that beneficiary designations on all your accounts are up to date.

Louisiana Law And Wills

To protect your family, it is essential to sit down with a skilled, trusted attorney with experience in Louisiana estate planning law and create a legally sound last will and testament. A will helps ensure that you have a say in what happens to the fruits of a lifetime of your hard work. With it, you can determine to a large extent how your property will be distributed. You can also name a guardian for minor children (called a “tutor” in Louisiana law). You can create a trust for grandchildren, heirs with special needs, or heirs who are not yet financially responsible enough. A will allows you to make provisions that can reduce or eliminate the burden of an estate tax. A will also allows you to name an executor who collects the assets of your estate, pays any debts, and distributes your estate to your heirs.

In order to be legally binding, it is essential that a last will and testament follow the exact form and formalities prescribed under the Louisiana Civil Code. Otherwise, a will is considered void. Such a situation can create a legal nightmare for loved ones seeking to carry out the wishes of the deceased.

A well crafted will allow you to specify to whom you want to leave your property, regardless of your marital status. You can leave everything that is yours to your spouse, your children or your Uncle Joe. The only exception being cases involving a “forced heir.”

A “Forced Heir” Under Louisiana Law

Under the Louisiana Civil Code, any child of the deceased who is under the age of 24 or who is permanently incapable of taking care of himself or herself, regardless of age, is considered a forced heir. A forced heir is entitled to a portion of your estate that the forced heir can claim even if you have left all of your property to someone else, including your spouse. Married couples can, however, leave a lifetime usufruct to the surviving spouse over the forced heir’s inheritance so that the surviving spouse can benefit from the asset during the remainder of his or her lifetime.

Determining What Is Included In Your Estate Under Louisiana Law

If you are married, under Louisiana law, your estate generally consists of your separate property and half of the community property of the marriage.

Under Louisiana civil law, separate property includes:

• 1) property owned before marriage.
• 2) property inherited by one spouse during marriage.
• 3) property gifted to just one of the spouses during marriage.

Community property, according to the Louisiana Civil Code, is any and all property acquired by either spouse during a marriage that is not “separate property” as defined above. Generally, each spouse owns half of the community property acquired during marriage. What is considered community property, however, can be limited by a prenuptial agreement that both parties enter into prior to their marriage, called a “marriage contract” under Louisiana law.

Default Succession Under Louisiana Law

In Louisiana, generally if a person dies without a legally binding will or with no will at all, a specific succession is followed that treats separate and community property differently and includes the legal right of usufruct.

In general, separate property is inherent in the following order:

• 1. Children (or their descendants, if children are deceased)
• 2. Brothers and sisters (or if any of them are deceased, their descendants) with a usufruct to the living parent(s)
• 3. Parents
• 4. Spouse
• 5. Grandparents or other ascendants
• 6. Closest living relative
• 7. The State of Louisiana

At each step, the listed heir/s would inherit the entirety of the separate property of the estate. If no such heir/s exist, then all separate property goes to the next heir/s down the list.

Similarly, the deceased’s portion of the marriage’s community property is inherited in the following order:

• 1. To children (or their descendants, if the children are deceased), with a usufruct to the surviving spouse
• 2. To the surviving spouse

If there are no surviving direct descendants or spouse, the deceased portion of the marriage’s community is treated as separate property and is inherited according to the order above.

Usufruct

Usufruct and usufructuary are important legal terms as they make Louisiana wills and estate planning unique. A usufruct is the right to use property and receive the income from that property; a person who inherits this right is called a usufructuary. It is not uncommon in Louisiana for one person to inherit the usufruct and another person to inherit the underlying ownership of a property. This underlying ownership right is called “naked ownership” and entitles its holder to sell or mortgage this ownership (without affecting the usufructuary) and to the right to full ownership of the property after the death of the usufructuary. For example, a person could leave “naked ownership” of a home to his or her children and a usufruct to his or her spouse. The surviving spouse could live in or rent the home until his or her death at which time the children have full ownership rights to it.

The legal definition and interpretation of usufruct rights are complex and ever-changing under Louisiana civil law. It is essential to consult a trusted, experienced Louisiana estate planning attorney when considering including a usufruct in your will.

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