Have questions about Louisiana Medical Malpractice Laws? Let us help.
Can you give me an overview of the Medical Malpractice claim process in Louisiana?
Medical malpractice claims in Louisiana are designated as either “claims against private qualified healthcare providers” or “claims against state healthcare providers”. All claims against a “qualified” health care provider or a state healthcare provider must first be presented to a
medical review panel for an opinion before a lawsuit can be filed. Essentially, your claim is reviewed by a panel of three impartial physicians chosen under the guidance of an attorney chairman, who is chosen by agreement between your attorney and the defendant’s attorney. The panel can only render one of three findings: a breach of the standard of care occurred, no breach of the standard of care occurred, or there is a question of material fact not requiring expert testimony. It is only after the opinion is rendered that a lawsuit can be filed.
Healthcare providers considered “qualified” by the medical review panel must be providers who make premium payments to the
Louisiana Patient’s Compensation Fund. When healthcare providers opt out of paying premiums, they will not receive the benefits included in Louisiana’s medical malpractice laws, including a cap of $500,000 on damages awarded.
Does the Medical Review Panel Have the Final Say?
No. The opinion of the medical review panel is not controlling or binding. Medical malpractice lawsuits can still be filed regardless of the panel’s decision. After the panel has rendered its opinion, Plaintiffs have 90 days to file a medical malpractice lawsuit in the appropriate state district court. If the case goes to trial, the decision of the medical review panel can be admitted as expert evidence, but the decision is not controlling. In addition, medical review panel members can be called to testify for either the plaintiff or the defendant.
What is the "Prescriptive Period"?
Louisiana calls their statute of limitations for filing medical malpractice lawsuits the “
prescriptive period“. Claimants have one year from the date of the malpractice, or one year from when you knew or should have known malpractice occurred, but in no event longer than three years to file a request for review by a panel.
Does the Damage Cap of $500,000 Apply to All Medical Malpractice Claims in Louisiana?
Yes, with the additional provision that the capped amount does not include future medical expenses. When patients suffer serious, long-term health issues as a result of medical malpractice, they are eligible to receive compensation for future medical expenses, in addition to the $500,000 awarded to them. It is important to note that “future” medical expenses really include all the medical expenses that have resulted from the malpractice.
How Does the Court Decide the Amount of Damages Awarded to a Victim of Medical Malpractice?
In Louisiana medical malpractice cases, you can only recover for the specific damages you have suffered as a result of the negligence. Typically, a jury will hear all the evidence and decide how much to award. Unfortunately, if the amount of the jury award exceeds the cap of $500,000 plus medical expenses, the award will be reduced to this maximum, or “capped” amount. Additionally, an award of damages may be reduced by the fault of you or of a third party. Louisiana has what is called “pure comparative (contributory) negligence”. Except in cases of intentional tort, the plaintiff’s recovery amount depends on their percentage of fault. Determining this percentage of fault involves considering whether you or another party contributed to the injury, even though they may not have been parties to the medical malpractice incident.
What is Medical Malpractice?
When healthcare providers actions fall below the standard of care ordinarily practiced by similarly situated healthcare providers (negligent actions) and you suffer harm as a result, they may be sued for medical malpractice. Examples of medical malpractice include but are not limited to:
Misdiagnosis/failure to correctly treat a condition, disease or disorder
Anesthesia errors
Surgical errors
Prescription medication errors
Birth injuries
Nursing home patient neglect
What is Considered to Be Medical Malpracticee?
Attorneys for medical malpractice victims in Louisiana must show specific elements of negligence (a tort) to present a solid medical malpractice claim. These elements are:
The degree of knowledge or skill possessed or the degree of are ordinarily exercised by physicians within the involved medical specialty (specialists) or in a similar community or locale (locality rule);
That the defendant either lacked this degree of knowledge or skill or failed to use reasonable are and diligence, along with his best judgment in the application of that skill; and
That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care, the plaintiff suffered injuries that would not otherwise have been incurred.
If a Healthcare Provider Failed to Warn a Patient of Risks Involving a Medical Procedure, Can the Provider be Sued?
Possibly. It is the duty of physicians, surgeons, and all licensed medical providers to inform patients of known risks surrounding procedures, medications and other forms of treatment. Referred to as “duty of informed consent”, this action is necessary for allowing patients to make their own decisions about their health. However, healthcare providers must be aware of the risk involving a certain medication or treatment at the time it was dispensed.
Can You Sue a Doctor for Malpractice in Louisiana if a Patient's Private Health Information was Disclosed without Authorization?
Yes, if the disclosure causes some kind of harm to the patient, such as loss of employment or severely negative backlash against their reputation.
