Torts 2 Hypothetical

Elaine's company provides actors' wardrobes for a new movie being filed in Shreveport, Louisiana. Filming was running about two weeks ahead of schedule, and Elaine got a frantic phone call from the movie set advising her that additional wardrobe was needed immediately. She rushed to MAX, a retail clothing store which was packed full of people, because it was having a huge sale. Other customers had to dodge Elaine as she hurriedly walked down the aisle while texting her assistant who was on the movie set. Although she did glance up from time to time while walking and texting, she failed to see the empty clothes rack that was rolling across the aisle directly in front of her. She walked straight into it, tripped over the frame and fell hard on the concrete floor after slashing her face on a sharp corner of a jewelry display case near the aisle. The unattended clothing rack, which was on wheels, had been bumped and pushed out of the way by harried shoppers all day during the crowded sale. It is unclear whether anyone intentionally pushed the clothes rack into the aisle at the time Elaine tripped over it. Luckily, a MAX employee saw what happened and immediately raced to Elaine's aid and called an ambulance. Elaine was transported to General Hospital where she was triaged and admitted for a severe laceration to her face and other bumps and bruises. Elaine's laceration would require plastic surgery, and she agreed to have the procedure. Dr. Drake, a General Hospital employee and reputable plastic surgeon, had just returned from a 90-day extreme sports vacation and was exhausted. However, he still felt as though he could handle this delicate procedure and obtained the necessary consent forms from Elaine, which clearly listed the possible complications of surgery, including staph infection. Elaine's procedure took much longer than Dr. Drake had anticipated, and in a rush to finish, he made surgical errors that caused Elaine to develop a deadly staph infection. Follower her surgery, Elaine complained of intents and somewhat unusual pain for the type of procedure she had. In addition, her entire face was very red and unusually swollen for this type of procedure. She was already taking the usual post-surgical antibiotics, but more aggressive antibiotics were prescribed for almost 48 hours after the surgery. By that time Elaine was in severe pain and barely conscious. She died three days later. Dr. Drake informed Paul, Elaine's husband, that Elaine died from known complications from the surgery. Paul read the consent form and it did in fact state that staph infection was a known complication of the surgery. Paul is devastated and angry and has come to you for help. 1. Discuss in detail who may be at fault and why under Louisiana's "slip and fall" statute. 2. Discuss in detail who may be at fault and why under Louisiana's Medical Malpractice Act.