Answers to Our Frequently Asked Questions
When you are involved in an accident or a loved one is the victim of medical malpractice or abuse, you may not even know the right questions to ask at first. Browse our collection of frequently asked questions to see what others have asked and read our answers to learn all you can about your case.
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Can a nursing home restrict family visits against a resident's will?
Nursing home residents have a right to be treated with dignity and respect, regardless of their physical or mental limitations. This means they must be given the ability to make decisions that allow for as much independence as possible. Part of the ability to make daily decisions involves being able to see visitors.
Setting a Reasonable Visitation Policy
Nursing homes must allow residents to receive visitors, but they do not necessarily have to allow people into the facility 24/7. They are allowed to set reasonable visiting hours, so guests do not interrupt the ability of the staff to perform essential care tasks. An exception to a visiting hours policy is made for registered medical personnel, who must be allowed access to a resident at any time.
Choice of Visitors
The law states that residents must be allowed to choose who they wish to see as visitors. This includes family members as well as personal friends and professionals such as lawyers or social workers.
Residents can add or withdraw consent for visitors at any given time. The nursing home can't interfere with the resident's choice of visitors unless there is evidence that a visitor poses a threat to staff or other occupants of the faculty. A verbal disagreement between parties is not evidence of a threat, however.
If a resident does not wish to see a certain person, such as an estranged family member, he can't be forced to allow that person into the facility. The nursing home must respect the resident's decision.
If a resident has a legal guardian, the guardian also has the authority to make visitation requests. If appropriate, the guardian may choose to deny visitation to someone he believes will try to harm or take advantage of the resident.
Residents have a right to privacy when speaking with visitors. They do not need to have a nurse or other staff member present during visitation.
Roommate Rights During Visitation
Many residents in a nursing home have a roommate. Sharing a room does not affect a resident's right to receive visitors. However, a resident may be asked to meet visitors in an alternative area to avoid disturbing a roommate who is sleeping or ill.
Visitor Refusal and Abuse
If you are suddenly denied access to visit a loved one, this may be a sign of nursing home abuse. For example:
- Hiding evidence of abuse. A facility may try to restrict visitors to prevent family members and friends from seeing signs of neglect such as bed sores, cuts, bruises, or weight loss.
- Minimizing effects of understaffing. A nursing home that is short staffed and cutting corners on patient care may try to restrict visitors to avoid alerting family members or friends to the problem.
- Ignoring a poorly maintained facility. If there are problems with a poorly maintained facility itself or maintenance issues, visitation denial may be to avoid having family members demand that these issues be addressed.
- Isolating or punishing residents. Denial of visitation rights may be used as a means to isolate a vulnerable elderly person, thus making him less likely to protest further abusive treatment.
When you suspect your loved one is a victim of neglect or abuse, the first step is to notify the nursing home administrator. The administrative office is required to investigate your complaint and report it the appropriate state authority. However, if you don't feel your complaint is being taken seriously, you can contact Adult Protective Services or the Office of Aging in your area in addition to retaining the services of an attorney.
Compensation for Nursing Home Abuse
Victims of nursing home abuse are entitled to compensation for medical expenses as well as pain and suffering. However, Medicaid or Medicare may be entitled to a percentage of any funds recovered in a settlement if these programs were used to pay for nursing home care.
To learn more about protecting a resident's rights in a nursing home abuse case, please call to schedule a free, no-obligation case review with one of the experienced attorneys at Neblett, Beard & Arsenault.
Is it malpractice if I suffer a fall in the hospital?
Hospital falls can result in sprains, bruises, cuts, fractures, or head trauma. If you suffer a fall in a hospital, your case may be considered either a malpractice or premise liability claim. The appropriate type of legal action to pursue depends on the circumstances that caused the incident.
Falls Related to Medical Malpractice
A fall in a hospital could constitute medical malpractice if a patient fell because of complications associated with his medical condition. Examples of this type of malpractice case might include:
- Falls related to medication. If dizziness or loss of coordination are side effects of the medication a patient received, the hospital has a duty to take precautions to prevent falls. This might include using restraints, electronic monitoring devices, or beds that are difficult to get out of without assistance.
- Falls related to a failure to diagnose a specific medical condition. Doctors who fail to recognize the signs of a stroke or other medical condition resulting in unsteadiness, confusion, and/or limited mobility can be held liable for malpractice if the patient falls.
- Falls related to negligence. Hospitals have protocols for identifying patients as a fall risk when they are dehydrated or complaining of symptoms such as dizziness and lightheadedness. Neglecting to assist a patient or take other precautions to prevent a fall in this case could leave the facility liable for resulting injuries.
- Falls when patients are left unattended. Hospitals that leave patients unattended during transfer or while waiting in treatment rooms can be held liable for failing to provide proper supervision and monitoring, even if the patient wasn't initially considered a fall risk.
To prove a malpractice case, you must establish four key elements:
- The existence of a doctor/patient relationship with a provider at the hospital
- The correct standard of care for your condition, according to recognized medical experts
- How the hospital deviated from appropriate treatment for your condition
- The damages you suffered as the result of the failure to follow the appropriate standard of car—this can include the need for additional medical procedures or being required to take time off work to recover from your injuries
Falls Related to Ordinary Negligence
If you slip and fall in a hospital for a reason that isn't related to your medical condition, you would likely seek damages under ordinary negligence law. Examples of this type of case include:
- You tripped over medical equipment while visiting a patient at the hospital.
- You tripped on torn carpeting in the visitor's area.
- You slipped on a wet or recently waxed floor.
- You slipped due to poor lighting in a stairwell.
- You didn't see a pothole in the parking lot and tripped as you were returning to your car.
When a fall is related to ordinary negligence, the burden of proof is easier to meet. Instead of establishing the four elements of a malpractice case, you only need to determine what was reasonable under the circumstances with regard to proper hospital maintenance. For example, if you fell on a freshly mopped floor, you would only need to establish that the facility created the hazard by neglecting to place warning signs in the area.
One factor that distinguishes medical malpractice claims from ordinary negligence cases is comparative carelessness. In a malpractice claim, the doctor and other members of the healthcare team have the responsibility to prevent you from falling. In an ordinary negligence case, your compensation can be reduced if you were careless in preventing injury to yourself. For example, if you didn't see a hazard because you were texting on your phone, you'd likely be found to be partially at fault for the incident, and your settlement would be reduced accordingly.
Retaining Legal Representation
When you slip and fall at a hospital, retaining legal representation is essential. An experienced attorney can advise you on the correct type of action to pursue and how to best document your injuries. Your attorney can also negotiate a settlement on your behalf, leaving you free to focus on recovering from your injuries and getting back to your daily routine.
The legal team at Neblett, Beard & Arsenault is dedicated to helping Louisiana residents protect their right to compensation after slip and fall accidents. Contact us today to schedule a free, no-obligation case review.
What are the most common types of medical malpractice?
Although the majority of people who seek medical care receive the appropriate treatment and experience no complications, medical malpractice continues to be a significant public health issue. The most common types of medical malpractice are errors in diagnosis, medication errors, surgical errors, and pregnancy or childbirth errors.
Errors in Diagnosis
Obtaining an accurate diagnosis for a patient isn't always an easy task. Many medical conditions can have symptoms that overlap or that aren't always present in every patient. Poorly trained doctors or providers who don’t order the appropriate diagnostic tests can cause harm to patients by providing an incorrect diagnosis.
The most commonly misdiagnosed conditions are:
- Heart attack
- Heart disease
- Blood clot
- Tumors or masses inside the body
Diagnosis errors are usually caught at a later date, often when the patient doesn't respond to the prescribed treatment or seeks a second option. The length of delay in obtaining a correct diagnosis plays a key role in determining the patient's eligibility for compensation, since longer delays are more likely to limit a patient's options for treatment.
Americans are taking more prescription drugs than ever before, so it's not surprising that medication errors are a common form of medical malpractice. Examples of this type of error include:
- Giving a patient the wrong medication
- Failing to dispense the appropriate medication at the correct time
- Giving an incorrect dosage
- Failing to notice a harmful drug interaction
Surgical errors that may constitute the basis of a malpractice claim include:
- Performing the wrong operation
- Performing an unneeded operation
- Failing to obtain informed consent before the procedure
- Damaging a nerve during surgery
- Failing to control bleeding
- Leaving medical sponges or surgical instruments inside the patient
- Giving the patient an incorrect dose of anesthesia
- Failing to move the patient periodically during surgery to avoid putting too much pressure on certain parts of the body
- Giving the patient an infection by failing to follow proper sanitation procedures
- Knowingly using defective equipment
Surgical errors can occur even during routine procedures. However, spinal surgery and gastrointestinal surgery are associated with the highest numbers of surgical errors.
Pregnancy and Childbirth Errors
Although modern medicine has made pregnancy and childbirth fairly safe, there are many complications that can occur during this time. When a doctor isn't mindful of potential complications, both the mother and her child can suffer harm. Examples of pregnancy and childbirth related malpractice include:
- Misdiagnosis of placental abnormalities
- Failure to monitor or recognize the signs of gestational diabetes
- Failure to stop an excessively long labor
- Surgical errors during a C-section delivery
- Nerve injuries to the baby during delivery
Next to general surgeons, OB/GYN physicians have the highest number of malpractice claims per year.
Proving a Malpractice Case
Experiencing a bad outcome is not proof of medical malpractice. To win your malpractice claim, you must establish the following four key elements:
- Duty. The healthcare provider had a duty of care or doctor/patient relationship with you.
- Breach of Duty. The provider failed to deliver care that is consistent with recognized medical treatment standards for your condition.
- Damages. Your condition worsened or you experienced other medical complications.
- Causation. Your damages are directly related to the provider's conduct and not attributed to some other cause.
A malpractice settlement typically includes funds for medical costs, lost wages, and pain and suffering. Cases involving disabled children often result in the highest settlements, due to the anticipated cost of their future medical needs.
Since malpractice law is so complex, retaining legal representation is the best way to ensure that your rights are protected. Your attorney can line up the necessary documentation about your injury, locate relevant expert testimony, and negotiate with the insurer on your behalf. In many cases, a malpractice attorney will be able to settle the case without the time and expense of a court trial.
The experienced attorneys at Neblett, Beard & Arsenault are committed to helping Louisiana residents who've been the victims of medical negligence receive the compensation they need to move forward with their lives. Contact us today to schedule a free, no-obligation case review.
Can I still receive compensation if my injuries don't appear immediately?
If you feel fine immediately after a car accident, it might be tempting to simply brush off the incident as bad luck and continue with your day. However, many symptoms of injury may not appear until a later date. It's important to be evaluated by a medical professional as a precautionary measure.
Late Physical Effects of a Car Accident
When the body is faced with any sudden and unexpected event, a rush of adrenaline is released. This can temporarily mask symptoms that could indicate an injury. But in the days or weeks following a car accident, you might notice symptoms such as:
- Neck and shoulder pain
- Back pain
- Abdominal pain
- Muscle stiffness
- Slowed reflexes
- Limited range of motion
- Vomiting or nausea
- Visual disturbances
- Confusion and disorientation
- Numbness or tingling in limbs
These symptoms may seem minor on their own, but they may not heal with rest and the passage of time. After a car accident, experiencing one or more of these symptoms could indicate complications such as a concussion, whiplash, back injury, or a blood clot.
Keep in mind that while car accident injuries are most often associated with high speed collisions, even a seemingly minor parking lot accident can potentially create problems.
Late Emotional Effects of a Car Accident
A car accident can cause emotional trauma as well as physical injuries. In the days or weeks that follow the accident, you might experience:
- Trouble sleeping
- Angry outbursts
- Sudden crying
- Flashbacks to the accident itself
In addition to physical symptoms, a concussion can cause emotional problems, including post-traumatic stress disorder (PTSD). A condition that is most commonly associated with military service, PTSD can appear after exposure to any trauma. Women, children, and people with a family history of mental disorders are most vulnerable to developing PTSD after an auto accident.
Seeking Medical Care After a Car Accident
After any car accident, it's important to seek immediate medical attention. Even if you feel fine at first, your doctor may notice abnormal test results that indicate a problem. You also want to create a paper trail in case you experience additional symptoms at a later date, so the other driver's insurance company can't argue that your injuries were caused by something else.
In the days and weeks following the accident, be alert for anything that seems out of the ordinary. If you notice anything unusual, return to your doctor for a follow-up visit. Your symptoms may turn out to be nothing, but it's always better to address any issue early on.
Protecting Your Legal Rights
A personal injury claim can include compensation for a variety of accident-related expenses, including:
- Medical care, including anticipated future medical expenses if you're left permanently disabled
- Loss of wages, including applicable loss of future earning potential
- Pain and suffering, including the emotional trauma of the accident
You can receive compensation even if you're partially at fault for the accident, although your settlement will be reduced by your assigned percentage of fault. For example, if you were normally eligible to receive $200,000 and determined to be 50% at fault for the accident, you'd only receive $100,000 as compensation for the other driver's liability for your injuries.
Retaining legal representation is the best way to ensure that your case proceeds in a timely fashion. Your attorney can communicate with the other driver's insurance company, collect documentation to verify the extent of your injuries, and line up any applicable expert witnesses to testify on your behalf.
Have You Been Injured In A Louisiana Car Accident?
If you've been hurt in a car accident you need to speak with an experienced car accident attorney as soon as possible. Please contact us online or call our Alexandria office directly at 318.541.8188 to schedule your free consultation.
What is Med Pay coverage, and do I really need it?
Most people purchase car insurance based on price alone, but there are some important differences in coverage that you should be aware of. One type of supplemental coverage you should consider adding to your policy is MedPay coverage. MedPay is not a legally required type of auto insurance, but it can offer some important benefits if you're ever involved in a car accident as either a driver or passenger.
About MedPay Coverage
MedPay, also known as medical payments coverage, personal injury protection, or PIP, is intended to pay for the cost of medical care after an accident regardless of fault. This includes expenses such as:
- Ambulance fees
- Emergency room visits
- X-rays and diagnostic tests
- Physical therapy
- Professional nursing services and care
- Dental procedures
MedPay coverage follows the policyholder, which means you're still covered if you get into an accident while riding as a passenger in a friend's vehicle, walking, biking, or using public transportation. Other members of your household receive the same protection from your MedPay coverage. However, MedPay will not apply if you're injured in a work-related motor vehicle accident that should be covered under workers' compensation law.
MedPay vs. Health Insurance
If you already have health insurance, you might wonder whether MedPay is worth the added expense. Although this is a question that's hard to answer because each policy is different, most insurance agents agree that MedPay offers benefits to everyone except those with no deductible or copay platinum level plans.
Some health insurance policies specifically exclude injuries from car accidents, while others come with high deductibles and/or copays that can be a financial burden when an accident has left you unable to work. In either of these cases, MedPay coverage would be a good investment.
Although terms will vary from policy to policy, MedPay coverage is typically intended to supplement your existing health insurance. Coverage limits are relatively low, but it's an inexpensive way to add peace of mind knowing that you'll be able to handle immediate medical expenses after an accident.
When You're a Passenger in Someone Else's Vehicle
If you're injured as a passenger in another person's vehicle, the vehicle owner may have MedPay benefits that can be used to pay for your medical care. If the owner doesn't know whether he has MedPay coverage, this information can be found on the declarations page of the policy.
Since MedPay provides coverage regardless of who is at fault, using the driver's MedPay benefits to pay for your emergency medical needs can give you some financial breathing room to decide how to proceed with your claim.
Paying Back MedPay Benefits
If MedPay is used to pay for your accident-related medical expenses and it's later determined that the other driver was at fault for the accident, your insurer will want to collect reimbursement from the other driver's insurance. The legal term for this is subrogation. However, if your medical expenses exceed the at-fault driver's coverage limits, you do not have to repay the difference due to Louisiana's "make whole" doctrine.
After a car accident, MedPay coverage can be used to alleviate some of the immediate financial concerns associated with your injuries. However, you may also want to pursue a personal injury claim against the at-fault driver to seek compensation for:
- Medical expenses, including those that MedPay has already covered, as well as any anticipated future medical expenses
- Loss of wages during your recovery, including applicable loss of future earnings if you've been left permanently disabled from the accident
- Pain and suffering, including the physical and emotional effects of the accident
Have You Been Injured In A Louisiana Car Accident?
If you've been hurt in a car accident you need to speak with an experienced car accident attorney as soon as possible. Please contact us online or call our Alexandria office directly at 318.541.8188 to schedule your free consultation.
How do I obtain workers' compensation benefits after a heavy lifting injury?
Injuries related to heavy lifting are a primary cause of workers' compensation claims and can affect workers in a wide range of industries. If you've been injured in a heavy lifting accident, it's vital that you understand your right to compensation.
Who Is Vulnerable to Heavy Lifting Accidents?
Lifting injuries can occur in almost every type of occupation. Construction workers often sustain lifting injuries while transporting building materials. Nurses and other healthcare professionals may be hurt trying to lift or reposition immobilized patients. A daycare worker might be injured while pushing a stroller or lifting a child up to wash his hands. A cook might be injured grabbing ingredients from a pantry shelf.
Some of the noted risk factors for heavy lifting injuries include:
- Carrying an object in a way that creates uneven pressure on the spine such as in one hand, on one shoulder, or under one arm
- Not taking adequate rest breaks
- Holding items for a long period of time
- Working in extreme heat or cold, which can induce fatigue
How Much Weight Is Considered Too Heavy for a Worker?
Obviously, people have different levels of physical strength. However, for the purpose of discussing employment-related injury, heavy lifting is defined as a single person lifting an object weighing more than 50 pounds.
A single person should be able to lift an object that weighs less than this amount if it meets all of the following criteria:
- No twisting motion is needed to lift.
- It's at waist height and directly in front of the person doing the lifting.
- It's within seven inches from the front of the person's body.
- The load won’t shift after it's lifted.
- There's a handle on the object.
When an object doesn't meet these criteria, it's recommended that the weight be decreased into several trips or mechanical assistance such as a moving dolly be used for transport. Alternatively, two people could work together to lift the object.
The Most Common Types of Heavy Lifting Injuries
Heavy lifting injuries can vary in severity but may include:
- Back sprains and strains
- Herniated disk
- Patellar tendonitis
- Rotator cuff tear
- Shoulder impingement syndrome
Most injuries are diagnosed by listening to a patient's description of symptoms, conducting a physical examination, and looking at the results of diagnostic tests such as X-rays, MRIs, or an ultrasound.
Physical therapy, braces, and pain-relieving medications may be recommended. Surgery can be required if the pain persists for an extended period of time.
Filing a Workers' Compensation Claim
Most part-time, full-time, seasonal, and temporary workers are covered by workers’ compensation benefits from the first day of their employment. If you've been injured, you should report the incident to a supervisor immediately. Although the law allows you 30 days to report your injury, it's best to file the necessary paperwork as soon as possible. This helps ensure that evidence linking your injury to your place of employment is preserved.
Your notice to your employer should be a written statement outlining the time, date, circumstances, and specific symptoms related to the incident. It should be signed, and you'll want to make a copy for your own records.
Your employer must send a First Report of Injury (LWC-WCIA-1) to its insurance company within 10 days from the time you provide notice of your injury. This form officially begins your claim, which may include medical treatment benefits, temporary total disability benefits, permanent disability benefits, catastrophic injury benefits, and/or vocational assistance.
You are not required to retain an attorney to receive workers' compensation benefits. However, if you are having difficulty accessing your benefits in a timely fashion, an attorney can advocate for your needs and help ensure you receive the compensation necessary to recover from your injuries.
Neblett, Beard & Arsenault’s experienced legal team is dedicated to helping Louisiana residents access their workers' compensation benefits. Contact us online or call us directly at 318.588.6303 to schedule a free, no-obligation consultation.
After a work injury, what happens if I can't return to my old job?
In the best-case scenario, you receive Louisiana workers' compensation benefits during a short recovery period and then return to work in your old position. However, some types of injuries make it difficult or impossible to handle your previous responsibilities. In these cases, you may qualify for vocational rehabilitation benefits through the workers' compensation program.
Eligibility for Vocational Rehabilitation Benefits
For the purpose of workers' compensation, returning to work is considered one of the following:
- Returning to your previous position
- Returning to a modified version of your previous position
- Returning to a related occupation suited to your education and marketable skills
If these options are not possible, a vocational rehabilitation counselor can help you seek on–the-job training, as well as a minimum amount of retraining or support with self-employment. What vocational training involves will depend on your injury, previous position, and past education.
Labor Market Surveys
A labor market survey is based on the results of a functional capacity evaluation. This is a test administered by a physical therapist who looks at what parts of a job would be difficult for you to perform given the state of your injuries. Some of the specific tasks you're evaluated on include your ability to stand, climb, lift weights, and carry boxes.
Your labor market survey will be prepared by a vocational expert hired by the insurance company. The survey should contain one or more jobs that appear to be compatible with your physical limitations, past education, and current skills as described in your functional capacity evaluation. Locally available jobs must be given priority when compared to positions in a statewide job pool.
It is important to remember that vocational rehabilitation doesn't necessarily have to involve finding an injured worker another job. You can apply for the jobs listed in your labor market survey, but the state can consider vocational rehabilitation accomplished even if you don't find a position within the specified timeframe for receiving benefits. Job placement is not legally required, as long as they've established your wage-earning capacity.
Receiving Additional Training
Vocational rehabilitation is designed to return a worker to employment as soon as possible. You will not be offered retraining opportunities if it is determined that there are suitable jobs already available to you. Retraining is only an option when your injuries have made it impossible to return to your previous employment, and there are no other jobs available that match your education and skill level.
Workers injured on the job who are determined to be eligible for vocational rehab training services can typically receive benefits for up to 26 weeks, with an additional 26-week extension allowed in select cases. However, a request for vocational retraining must be filed within two years from the end date of temporary total disability as determined by the treating physician.
In most cases, retraining programs are provided within the state. If a program requires temporary residence away from the worker's home, the employer or workers' compensation insurer must pay reasonable costs for board, lodging, or travel.
Protecting Your Legal Rights
If your employer won't respond to your request for vocational rehabilitation services or you do not feel as though the services being provided are meeting your needs, you can file a dispute with the state workers’ compensation court. In this case, you'll qualify for an expedited hearing on the matter.
Legal representation isn't required to receive workers' compensation benefits, but having an experienced attorney to advocate for your interests can be valuable when you're experiencing difficulty gaining approval for the appropriate vocational rehabilitation services or if you don’t believe the results of your labor market survey accurately reflect your employment prospects.
The legal team at Neblett, Beard & Arsenault is dedicated to helping Louisiana residents access their workers' compensation benefits. We've worked with both part-time and full-time employees, including those with seriously disabling injuries, in a wide range of industries. Contact us online or call us directly at 318.588.6303 to schedule a free, no-obligation consultation.
How is my average weekly wage calculated for my workers' compensation benefits?
Knowing your average weekly wage is a crucial part of calculating how much you can expect to receive in workers' compensation benefits.
Figuring Your Gross Wages
For the purpose of workers' compensation claims, the term gross wages is used to refer to the total amount of your pay before deductions—Social Security, state and federal income tax, retirement plans, and health insurance. Taxable fringe benefits such as the payment of some business expenses should also be included in your gross wages.
As a general rule of thumb, gross wages include any type of compensation you're supposed to pay income taxes on or that is transferred into a pre-tax account each pay period.
Calculating Four Weeks of Wages
Your average weekly wage for your workers' compensation benefits is calculated using gross pay from the four full weeks before you were injured.
For a full-time employee, four weeks may be more than four calendar weeks if any of the following apply:
- You were required by your employer to work a reduced schedule.
- You were laid off for all or part of a week.
- You took a full or partial vacation week.
- You were off work due to a holiday.
For most claims, you should not count the week that your accident happened. If you were not able to continue working immediately after your injury, this week does not represent a full week of earnings.
Workers’ compensation benefits generally begin on your first day of employment. If you were hurt at work before you have four weeks of earnings in your new position, your benefits will be calculated based on your expected earnings for a four-week time period.
Special Rules for Workers With Two or More Jobs
In today's economy, many workers are forced to work two or more jobs to make ends meet. If you have more than one employer at the time of your injury, the state will calculate your average weekly wage based on the hourly rate you earned at the job where you suffered the injury. This hourly rate will be multiplied by the total hours you worked in both jobs, up to a maximum of 40 hours per week.
If you were injured at your lower paying job or regularly work more than 40 hours per week between all of your jobs, this method of calculating your average weekly wage will result in reduced benefit eligibility.
Average Weekly Wage for Salaried and Seasonal Employees
If you're paid a salary, calculating your average weekly wage can be done with one of the following calculations:
- (Monthly salary x 12) divided by 52 weeks in a year
- Annual salary divided by 52 weeks in a year
A seasonal worker is someone who regularly works less than 44 weeks per year. This includes workers in professions such as road construction and landscaping as well as those who work in seasonal hospitality positions at pools, amusement parks, and other tourist attractions.
A seasonal worker's average weekly wage is figured by dividing annual earnings by 52 weeks in a year.
Benefit Cap for High Earners
Injured workers employed in high paying professions may not receive benefits based on their entire average weekly wage. The state caps the maximum benefit amount based on an average weekly wage of $876. If your actual earnings are more than this, you'll only receive benefits based on the $876 wage rate.
How to File a Workers' Compensation Claim
Louisiana law allows workers 30 days to report an injury to their supervisor, but it’s best to file the necessary paperwork as soon as possible. Once you make a report to your employer, the company must send a First Report of Injury (LWC-WCIA-1) to the insurance company within 10 days. This step officially begins your worker's compensation claim, including medical treatment and income replacement benefits.
Although you are not required to retain an attorney to receive workers' compensation benefits, an attorney can help communicate with the insurer and advocate for higher benefits in situations where your average weekly wage is called into question. Contact us online or call us directly at 318.588.6303 to learn more.
What is oncology malpractice, and how can I pursue a case against my oncologist?
Oncologists are doctors who specialize in the diagnosis and treatment of cancer. Most focus on one subtype of cancer such as pediatric oncology or gynecological oncology. Like other types of healthcare providers, oncologists can be sued for malpractice if they fail to follow the accepted standards for patient care.
Elements of a Successful Malpractice Case
If you believe your oncologist is guilty of malpractice, you must prove four separate elements to win your case:
- Duty. This is established simply by proving you had a doctor-patient relationship with the oncologist you are accusing of malpractice.
- Breach of Duty. When a doctor fails to abide by the appropriate standard of medical care, he is considered negligent. Determining the appropriate standard of care for your type of cancer will likely require testimony from several medical experts who can provide specific examples of mistakes your oncologist made.
- Causation. To win a malpractice claim, you must prove that your oncologist's breach of duty caused you harm. This might include requiring additional procedures to correct the mistake or limiting your future treatment options due to a delay in diagnosis.
- Damages. The term damages is used to refer to harm you’ve suffered as the result of the oncologist’s conduct. This can be physical pain, psychological trauma, or added medical costs.
A Bad Outcome Isn’t Necessarily Malpractice
Cancer treatment requires evaluating many different variables, and patients don’t always respond as desired. Even if you’ve received a poor prognosis, this doesn’t necessarily mean your oncologist is guilty of malpractice.
Malpractice requires specific deviations from the accepted standard of care for cancer treatment. Examples of errors that could form the basis of a malpractice claim include:
- Failing to diagnose cancer
- Misdiagnosing cancer as another less serious condition
- Mistaking a benign tumor for a malignant tumor
- Prescribing or administering the wrong medication
- Failing to monitor the success of a treatment with the appropriate lab results
- Misinterpreting the results of diagnostic tests such as a CT or PET scan
- Failing to perform comprehensive cancer surgery or obtaining clean margins during surgery
- Neglecting to make arrangements for appropriate follow-up care
- Failing to obtain informed consent for treatment
Proving Causation Depends on Your Type of Cancer
To win a malpractice claim, you must be able to establish that the oncologist’s conduct caused you to suffer harm. An error that is quickly corrected or doesn't affect your overall prognosis doesn't rise to the legal standard for malpractice.
However, some types of cancer are much more treatable than others. For example, pancreatic, liver, lung, and esophageal cancer all have fairly high mortality rates. Many patients who receive the best possible medical care may still not survive. In these cases, an oncologist's liability for a delay in diagnosis or mistreatment is substantially less that it would be for a patient diagnosed with a more treatable type of cancer.
For highly treatable types of cancer such as prostate, thyroid, or skin cancer, liability may depend on how advanced the cancer is. An error that occurs before a tumor has had a chance to grow or spread to other organs is less likely to affect the overall prognosis than one occurring when treatment options are more limited.
Protecting Your Legal Rights
In most cases, Louisiana law requires a malpractice claim to be filed within one year of the action forming the basis of the suit. If the error isn't discovered immediately, the deadline is extended to three years after the action that constitutes the malpractice claim. If a malpractice claim involves a child diagnosed with cancer, a parent or legal guardian must file the claim on his behalf. When a cancer patient has passed away, it's possible for a spouse, adult child, or parent to file a wrongful death malpractice claim.
The legal team at Neblett, Beard & Arsenault is dedicated to helping Louisiana residents who've suffered harm due to oncology malpractice receive the compensation they deserve. Contact us online or call 318.588.6303 to schedule a free, no-obligation case review.
What is psychiatric malpractice, and how do I pursue a case?
Psychiatrists play a vital role in helping patients who suffer from depression, anxiety, and other mental health conditions. However, when they cause harm by failing to provide appropriate care, they can be found liable for malpractice.
Types of Errors That Could Constitute Psychiatric Malpractice
The relationship between a patient and psychiatrist depends on a number of factors, including subjective ideas of personal comfort. Simply not liking your psychiatrist or believing that seeing another provider for your therapy would be more effective doesn't make your psychiatrist guilty of malpractice. The legal definition of malpractice requires your psychiatrist to provide substandard care that deviates from widely established guidelines from respected professional groups such as the American Psychiatric Association.
Some examples of conduct that could form the basis of a malpractice claim include:
- Neglecting to perform a suicide risk assessment for a depressed patient
- Diagnosing improperly
- Making medication errors
- Ignoring signs of serious side effects with mood altering medication
- Creating false memories of abuse or trauma
- Neglecting to make arrangements for appropriate follow-up care
- Starting treatment before obtaining informed consent
- Sharing private patient information without consent
- Taking advantage of a patient's trust by beginning an inappropriate sexual relationship
Types Of Compensation You Can Receive
A psychiatric malpractice claim can involve many different types of compensation. For example:
- Cost of medical care such as emergency room care following a suicide attempt due to improperly prescribed medication
- Loss of wages or future earning capacity, if the psychiatrist's conduct has limited your ability to earn a living
- Pain and suffering
Louisiana limits compensation in medical malpractice cases to $500,000, but this cap doesn't apply to medical expenses. Settlement amounts of over $100,000 are paid from the state's Patient Compensation Fund.
Building a Malpractice Case Against Your Psychiatrist
The following four separate elements must be proven in any malpractice claim:
- Duty. To be guilty of malpractice, the psychiatrist must have owed you a duty of care. This is proven by establishing evidence of a doctor-patient relationship through bills for past sessions or records of your appointment times.
- Breach of Duty. The term breach of duty refers to deviations from the accepted standard of care for a specific condition. In a malpractice case, several different experts may be called to testify as to what the best course of treatment would have been given the unique circumstances surrounding your case.
- Causation. A malpractice case requires that your psychiatrist’s conduct caused you direct physical or mental harm. In cases where an error was quickly discovered or the psychiatrist's actions didn't affect your overall prognosis, no malpractice has been committed.
- Damages. Damages are the specific harm you've suffered as a result of your psychiatrist’s conduct. Wages and medical expenses are called economic damages because they have a cost that can be verified with documentation. Pain and suffering is a category of non-economic damages.
Seeking Legal Representation For Your Malpractice Claim
Louisiana law typically requires you to file a malpractice claim within one year of the medical treatment that forms the basis of the suit. In cases where a care provider's error isn't immediately discovered, the deadline is extended to three years.
Most psychiatric malpractice suits involve the patient bringing the legal action, but sometimes another party is needed to begin the case. When an adult patient is determined to be not competent to bring legal action due to a mental disability or impairment, a third-party guardian can file on his behalf. Parents or legal guardians must file suits on behalf of children under 18, since minors have no legal standing in a court of law. In a malpractice case involving a patient who committed suicide, the wrongful death action is brought by the deceased person's next of kin—such as a spouse, adult child, or parent.
Since malpractice cases involve multiple complex issues, having access to skilled legal representation is a must. Neblett, Beard & Arsenault is committed to helping Louisiana residents who've suffered harm due to psychiatric malpractice receive the compensation they deserve. Contact us online or call us at 318.588.6303 to schedule a free, no-obligation initial consultation.