LOUISIANA MEDICAL MALPRACTICE CLAIMS

An Overview

“When you are ill or injured you undoubtedly turn to a doctor, or other healthcare provider for help treating your injury or illness. Sometimes, however, a healthcare provider actually causes an injury or illness.”

Broussard & Hart, LLC

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When you are ill or injured you undoubtedly turn to a doctor, or other healthcare provider

for help treating your injury or illness. Sometimes, however, a healthcare provider

actually causes an injury or illness. When that happens, the victim may be entitled to

pursue compensation through a medical malpractice lawsuit in the State of Louisiana.

Because medical malpractice is an extremely complex area of the law it is wise to consult

with an experienced Louisiana medical malpractice attorney immediately if you believe

you are a victim; however, an overview of Louisiana’s medical malpractice laws and

procedures may also be helpful to a potential victim.

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WHAT IS A MEDICAL ERROR?

When a doctor of other healthcare provider makes a mistake it is referred to as a “medical

error.” Although a medical error can take almost any form, and occur under a limitless

number of scenarios, the majority of medical errors fall into one of the following

categories:

Diagnostic errors

Surgical errors

Anesthesia errors

Medication errors

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FREQUENCY OF MEDICAL ERRORS

Doctors, nurses, and others in the healthcare professions are human, just like the rest of

us, which makes them capable of making mistakes. The difference being that when a

healthcare provider commits a medical error it can have deadly consequences. Though

we would all like to believe medical errors rarely happen, the reality is that they are fairly

common. Estimates put the number of deaths attributable to a medical error at almost

500,000 each year in the United States with another two million non-fatal medical errors

occurring each year. In Louisiana, around 1,600 complaints are submitted to the medical

review panel in an average year.

WHAT IS MEDICAL MALPRACTICE?

A medical error does not always translate into medical malpractice. A medical

malpractice claim requires

the plaintiff, or victim, to

prove negligence on the part

of the defendant. Negligence,

in turn, centers on the duty

owed to the plaintiff by the

defendant. When the

defendant is a healthcare

provider, the duty of care is

both heightened and clarified

by the law. Specifically, the

law looks at whether not the defendant breached the “standard of care” owed to the

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plaintiff. Though a universally accepted definition for medical malpractice has yet to be

found, a common one reads as follows:

“professional negligence by act or omission by a health care provider in which the

treatment provided falls below the accepted standard of practice in the medical

community and causes injury or death to the patient, with most cases involving

medical error.”

In other words, would another practitioner who had the same credentials and experience

have done (or not done) the same thing given the same set of circumstances?

WHO CAN BE A DEFENDANT IN A MEDICAL

MALPRACTICE LAWSUIT?

People typically think of a physician when they envision the defendant in a medical

malpractice lawsuit; however, the ability to commit medical malpractice is not limited to

doctors. Anyone in the healthcare professions can potentially be named as a defendant in

a medical malpractice claim, including, but not limited to:

Doctors, surgeons, specialists

Psychiatrists, Dentists, Chiropractors

Nurses, home health aides, hospice care workers

Hospitals, urgent care centers, nursing homes

EMTs and paramedics

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PRIVATE VS. PUBLIC DEFENDANTS

In the State of Louisiana there are actually two important acts that govern medical

malpractice claims. The first, “The Louisiana Medical Malpractice Act”, or LMMA, La.

R.S. 40:1299.41 et. seq,, applies when the defendant is a private healthcare provider

while the “Malpractice Liability for State Services Act”, or MLSSA, La. R.S. 40:1299.37

et. seq., governs actions against a public or state healthcare provider.

MEDICAL REVIEW PANEL AND EXPERT

TESTIMONY

One of the biggest, and most important differences between a potential medical

malpractice lawsuit and a potential lawsuit involving any other type of personal injury

claim is that all medical malpractice complaints filed against qualified care providers

must first be submitted to a medical review panel before the victim is allowed to pursue a

lawsuit. A qualified provider must either be insured or provide proof of self-insurance for

the first $100,000 of liability. Additionally, to be qualified, the provider must pay to the

Patient Compensation Fund a certain percentage of gross receipts.

A medical review panel is a three-person board made up of physicians who have

expertise in the area of medicine involved in the complaint. A non-voting attorney chairs

oversees the panel. The purpose of the panel is to determine if the evidence presented by

the plaintiff amounts to a breach of the standard of care owed by the defendant to the

plaintiff. Although the panel’s opinion is not a binding final decision, it is considered to

be expert opinion and is, therefore, admissible at trial should the case proceed to the

lawsuit stage. Therefore, a favorable decision from the MRP is not required to proceed

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with a lawsuit, but does

provide a substantial boost to

the chance for success. In

Louisiana, the medical review

panel has only sided with

patients seven percent of the

time since the year 2000.

Once the panel has rendered a

decision, a patient has 90 days within which to file a lawsuit in State District Court.

DAMAGES

If a medical malpractice claim makes it to the lawsuit stage and is subsequently

successful, the victim may be entitled to damages; however, Louisiana has a statutory cap

on damage awards in medical malpractice lawsuits, , meaning a victim is limited to the

amount of damages that can be recovered regardless of the amount of harm the patient

suffered. For providers who are insured by the state (see Patient Compensation Fund in

the next section), a provider’s liability is limited to $100,000 and total damages,

regardless of the type, are capped at $500,000. The damage cap, however, does not apply

to future medical expenses. Punitive damages are not available in Louisiana for medical

malpractice.

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LOUISIANA PATIENT’S COMPENSATION FUND

Established by the LMMA, the Patient’s Compensation Fund essentially provides

liability insurance coverage for healthcare providers. State healthcare providers are

automatically enrolled in the fund while private healthcare providers may participate if

they file proof that they are covered by a policy of malpractice liability insurance in an

amount of at least $100,000 per claim and pay the surcharge assessed by the Louisiana

Insurance Rating Commission. The fund is funded by surcharges paid annually by

providers and hospitals. The fund will then cover awards or settlements in excess of the

$100,000 personal liability cap. In addition, any future medical expenses are covered by

the fund and are paid out as the expenses are incurred.

STATUTE OF LIMITATIONS

Though the law affords a victim the opportunity to recover damages for medical

malpractice in the State of Louisiana, the law limits the amount of time within which the

victim must assert a claim by imposing a “statute of limitations.” In Louisiana, a medical

malpractice lawsuit must be 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, under no circumstances may the statute of limitations

extend beyond three years.

If you believe you are the victim of medical malpractice, consult with an experienced

medical malpractice attorney immediately to ensure that your rights are protected and that

you are fully and fairly compensated for your injuries.

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Medical Malpractice by NOLO, A Guide to Medical Malpractice Law in Louisiana

NOLA, Five Things to Know about Medical Malpractice in Louisiana

Louisiana Division of Administration, How to File a Medical Malpractice Panel Request

Louisiana Division of Administration, FAQs

Louisiana Law Review, The Medical Malpractice Damages Cap: What Is Included?

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About Broussard & Hart, LLC

If you or a member of your family has been

seriously or fatally injured in an accident or as a

result of medical malpractice, you have experienced

and continue to experience trauma and grief. During

this difficult time, as you struggle with medical,

emotional, and financial issues, you will need to

make decisions that will permanently affect your

ability to take care of yourself and your family.

At Broussard & Hart, L.L.C., our Lake Charles law

firm staff and lawyers are focused on helping those

who, like yourself, have suffered losses to

catastrophic injuries or wrongful death, working to

see that they recover the compensation they need

and deserve. Our efforts stem from a genuine

concern for those we serve.

Our firm is prepared to handle a wide variety of

personal injury claims, including those involving

medical malpractice, trucking accidents, 18-wheeler accidents, and maritime law. After our Louisiana

attorneys have reviewed your case they will give you an honest assessment of your options. If you

would like to schedule a free, confidential consultation with our law firm in Lake Charles, please contact

our office.

1301 Common Street

Lake Charles LA 70601

Phone: 337-564-3318

Website: http://broussard-hart.com