After liability, the next question in any personal injury case is medical causation: did this accident cause the injuries complained of by the Plaintiff? In Louisiana, there is a presumption regarding newly-developed pain in relation to accidents—the Housley Presumption—which was under scrutiny in Louisiana’s 2020 Regular Legislative Session. It appears, however, that this presumption will live on for now.
The Housley Presumption
The Housley Presumption is named for the Louisiana Supreme Court case which “created” the presumption. The case, Housley v. Cerise, 579 So.2d 973 (La. 1991), revolved around damage claims following a fall in a rented residence, which allegedly caused a pregnant mother’s “water” to prematurely break, leading to an emergency c-section. Plaintiff provided evidence consisting of medical expert testimony, evidence of health prior to the fall, and evidence of the “temporal relationship” between the fall and the “water” breaking.
Relying on a prior case, the Louisiana Supreme Court stated:
[A] claimant’s disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition.
Id. at 980.
Therefore, under Louisiana law, as long as medical evidence demonstrates a “reasonable possibility” of a connection between an accident and a medical condition, there will be a presumption that the accident caused the condition if the symptoms allegedly begin with the accident.
This presumption is, however, rebuttable. Defendants can always offer evidence that some other incident or event caused the injuries—such as a subsequent accident, another medical condition, etc. The presumption also presupposes some proof of relative good health vis-à-vis the alleged accident symptoms. If the Plaintiff was not in good health, the presumptions should not apply. See, e.g., Ladner v. Government Employees’ Ins. Co., 992 So.2d 1098 (La. App. 4 Cir. 2008) (stating that the presumption would not apply when records did not demonstrate the Plaintiff’s prior good health and, in fact, demonstrated she had been previously treated for back problems, syncope, two heart attacks, two strokes, and other complaints prior to the accident).
Attempt to Overrule the Presumption
In Louisiana’s 2020 Regular Legislative Session, State Representative Nelson introduced House Bill 597, which would have legislatively overruled the Housley Presumption. Among other provisions, the bill would have created Louisiana Civil Code Article 2315.11, stating, as amended:
Notwithstanding any other provision of law, in a claim for personal damages that is not raised pursuant to the Louisiana Workers’ Compensation Law, the lack of a prior history of an illness, injury, or condition shall not create a presumption that an illness, injury, or condition was caused by the act that is the subject of the claim.
This new code article would have required a Plaintiff to maintain his or her full burden of proof on causation rather than allowing the Plaintiff to rely on the prior judicially-created presumption on causation.
This bill passed Louisiana’s House of Representatives by a vote of 61-39-5; passed Louisiana’s Senate by a vote of 22-13-4; and re-passed Louisiana’s House of Representatives as amended by the Senate by a vote of 68-23-13.
However, Louisiana’s Governor, John Bel Edwards, exercised his right of veto on this legislation. The Governor’s veto message, acknowledging the bill’s attempt to overrule Housley, stated that the Housley presumption was simply an “equitable rule” providing a common sense means for the fact finder to determine injury causation. He ended his message stating that “[t]his jurisprudential rule has stood the test of time and need not be changed.”
Therefore, as of the end of Louisiana’s Regular Session for 2020, the Housley Presumption lives. This may be one of the items in Louisiana’s recent attempts at insurance reform that could be revived in coming legislative sessions.
But for now, if you feel it now, but you did not feel it then, it is presumed to be accident-related.