LEGAL CORNER: Which type of lawyer do I need to file suit for breach of privacy of a child in a medical facility?

KPLC 7News at Noon - 12 p.m. - VOD - clipped version

LAKE CHARLES, La. (KPLC) - Submit your questions to news@kplctv.com. Civil matters only, please.

QUESTION: Not sure if this is a civil matter or not. I had a hip replacement about eight years ago and as a result my perineal nerve was damaged. I just found out that the numbness and now drop foot from the damaged nerve is now permanent. Is there a statute of limitations on suing for this type of case?

ANSWER: Medical Malpractice claims are considered civil law matter. Under Louisiana law, the statute of limitations or prescription for medical malpractice claims is one year from the date of injury. However, the Discovery rule freezes the one year limit and only begins to run once you have discovered or should have discovered the injury that was caused by the medical malpractice. Unfortunately, that time limit is capped at three years. So, if you recently discovered that the injuries were a result of the hip replacement procedure, you have three years from that date to file your claim and should contact an attorney that specializes in medical malpractice claims.

THE LAW: Louisiana Revised Statute Section 9:5628(A) states that No action for damages for injury or death against any physician, chiropractor, nurse, licensed midwife practitioner, dentist, psychologist, optometrist, hospital or nursing home duly licensed under the laws of this state, or community blood center or tissue bank as defined in R.S. 40:1231.1(A), whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.

QUESTION: I have a friend whose live-in boyfriend was arrested for Domestic Abuse Battery. The court issued a restraining order telling the boyfriend to stay away from my friend. They have a 3-year-old child together. Does the court order cover custody of the 3-year-old? What other issues does a civil order of protection provide? What happens if the boyfriend violates the restraining order?

ANSWER: Even though the victim is protected from abuse by the criminal court order, the criminal court order does not cover child custody. However, Louisiana law does allow a victim of domestic violence to seek a civil order from the court. If granted, it will prohibit the boyfriend from abusing, harassing, stalking and/or making threats to do so, from going near the person, residence or employment of the victim. The civil order of protection also provides for temporary custody of the 3-year-old child for up to eighteen months, use of the residence that the two were living, thus evicting the boyfriend and award use of certain property owned by them jointly such as a car or furniture in the home they were sharing. If the boyfriend violates the civil restraining order, he can be subject to civil and criminal penalties, including jail time.

THE LAW: R.S. 46:2135. Temporary restraining order

A. Upon good cause shown in an ex parte proceeding, the court may enter a temporary restraining order, without bond, as it deems necessary to protect from abuse the petitioner, any minor children, or any person alleged to be an incompetent. Any person who shows immediate and present danger of abuse shall constitute good cause for purposes of this Subsection. The court shall consider any and all past history of abuse, or threats thereof, in determining the existence of an immediate and present danger of abuse. There is no requirement that the abuse itself be recent, immediate, or present. The order may include but is not limited to the following:

(1) Directing the defendant to refrain from abusing, harassing, or interfering with the person or employment or going near the residence or place of employment of the petitioner, the minor children, or any person alleged to be incompetent, on whose behalf a petition was filed under this Part.

(2) Awarding to a party use and possession of specified jointly owned or leased property, such as an automobile.

(3) Granting possession to the petitioner of the residence or household to the exclusion of the defendant, by evicting the defendant or restoring possession to the petitioner where:

(a) The residence is jointly owned in equal proportion or leased by the defendant and the petitioner or the person on whose behalf the petition is brought;

(b) The residence is solely owned by the petitioner or the person on whose behalf the petition is brought; or

(c) The residence is solely leased by defendant and defendant has a duty to support the petitioner or the person on whose behalf the petition is brought.

(4) Prohibiting either party from the transferring, encumbering, or otherwise disposing of property mutually owned or leased by the parties, except when in the ordinary course of business, or for the necessary support of the party or the minor children.

(5) Awarding temporary custody of minor children or persons alleged to be incompetent.

(6) Awarding or restoring possession to the petitioner of all separate property and all personal property, including but not limited to telephones or other communication equipment, computers, medications, clothing, toiletries, social security cards, birth certificates or other forms of identification, tools of the trade, checkbooks, keys, automobiles, photographs, jewelry, or any other items or personal effects of the petitioner and restraining the defendant from transferring, encumbering, concealing, or disposing of the personal or separate property of the petitioner.

(7) Granting to the petitioner the exclusive care, possession, or control of any pets belonging to or under the care of the petitioner or minor children residing in the residence or household of either party, and directing the defendant to refrain from harassing, interfering with, abusing or injuring any pet, without legal justification, known to be owned, possessed, leased, kept, or held by either party or a minor child residing in the residence or household of either party.

QUESTION: What kind of lawyer would I contact if I want to file suit for a breach of privacy of a minor child in a medical facility? I have made calls to a few attorneys, but none of these attorneys handle this type of matter.

ANSWER: There is a procedure in place for reporting breach of privacy by a medical facility that must be undertaken before a Civil Rights attorney is consulted. The Health Insurance Portability and Accountability Act, commonly referred to as HIPAA, sets rules for health care providers and health plans about who can look at and receive one’s health information, including family members and friends. The HIPAA Privacy Rule sets boundaries on the use and release of health records, gives patients more control over their health information and holds violators accountable, with civil and criminal penalties that can be imposed if the patients’ privacy rights are violated. The parent or guardian of a minor child is considered to be the personal representative of the minor. If the parent or guardian believes that the minor’s privacy rights have been violated, a written complaint with the Department of Health and Human Services’ Office For Civil Rights either by letter or electronically via email, has to be filed within 180 days of when the parent or guardian knew or should have known that the act had occurred. For more information, please go to the U.S. Department of Health and Human Services website at https://www.hhs.gov/hipaa.

Disclaimer: The information furnished in this answer is general and may not apply to some situations. All legal situations are unique. No one should rely to their detriment on these answers. Anyone with a potential legal problem should seek the advice of a licensed attorney before taking any action or inaction. The answers provided are not intended to be specific legal advice and no attorney-client relationship is created between the SWLA Law Center and the viewers of KPLC-TV.

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