Louisiana Medical Malpractice Laws

Medical malpractice claims can be incredibly complex. If you or a loved one has been a victim of medical malpractice, you have a specified time period in which you are able to bring a claim. If you fail to file a claim within that timeframe, it is quite possible that you will not be able to do so at any point. This page provides a brief overview of what you may expect if you are pursuing a medical malpractice claim in Louisiana; however, the best course of action to take if you are considering doing so is to consult with an experienced medical malpractice attorney licensed in Louisiana. An experienced attorney will be able to guide you through the specifics of the laws that are more finely tuned with the details of your medical malpractice claim.

Suing for Medical Malpractice in Louisiana

A medical malpractice case may be brought by an injured patient against any licensed health care provider, including a medical doctor, nurse, physical therapist, and mental health care professional. The law in Louisiana places a set time period for which a medical malpractice claim may be filed. If named as a defendant in a medical malpractice case, the law in Louisiana allows the defense of pure comparative negligence to be used which allows a damage award to be reduced in proportion to the percentage of fault assigned by a court.

When it comes to medical malpractice claims, most cases settle out of court prior to the case advancing to the trial stage of litigation. However, if the case does advance to trial and you are successful in proving your case and receive an award of damages as a result, those damages will be capped depending upon the type of damages awarded.

Medical malpractice lawsuits in Louisiana are split into two categories: claims against private health care providers and claims against public health care providers.

If you are bringing a claim against a private health care provider, you must follow the law outlined under the Medical Malpractice Act. If you are bringing a claim against a public health care provider, you must follow the law outlined in the Malpractice Liability for State Services Act.

How long do I have to file a medical malpractice case in Louisiana?

The first step in bringing a claim of medical malpractice against a healthcare provider is making certain that you are permitted to do so. The law in Louisiana mandates that an action for personal injury must be filed within one year from the date you knew or should have known your injury occurred. [1] This time limitation is known as the “statute of limitations,” or prescriptive period. The reason behind placing a time limitation on when you may file a medical malpractice claim is sound. A court is interested in credible evidence in order to establish a cause of action. As time passes, it is possible that the crucial evidence that would initially aid your case would become less compelling.

While the one-year window of time to file a medical malpractice claim is strictly followed, there is an exception to the rule known as the “discovery rule.”

It is not uncommon for an injury that occurred due to the negligence of a healthcare provider to be discovered almost immediately after occurring. In those situations, it is best to consult with an attorney and file a claim as soon as possible. However, situations do exist where the injury may not be discovered by the injured party for months, even years, after the act that caused the injury occurred. In order to prevent punishing the injured party for not discovering their injury, the lawmakers in Louisiana created the discovery rule. The discovery rule freezes the one-year time limit and only begins to run once you either discover or should have discovered, the injury that was caused by the medical malpractice. However, the time period to discover your injury is capped at three years.

In Louisiana Medical Malpractice Cases, who is Responsible?

The law in Louisiana permits a medical malpractice suit to be filed when an injury was caused by the negligence or willful misconduct of a healthcare provider.

Those that can be held responsible due to being included in the definition of a “health care provider” include: a person, partnership, limited liability partnership, limited liability company, corporation, facility, or institution licensed or certified by the state to provide health care or professional services as a physician, hospital, nursing home, community blood center, tissue bank, dentist, a licensed dietitian or licensed nutritionist employed by, referred by, or performing work under contract for, a health care provider, or a registered or licensed practical nurse or certified nurse assistant, offshore health service provider, ambulance service, certified registered nurse anesthetist, nurse midwife, licensed midwife, nurse practitioner, clinical nurse specialist, pharmacist, optometrist, podiatrist, chiropractor, physical therapist, occupational therapist, psychologist, social worker, licensed professional counselor, licensed respiratory therapist, licensed radiologic technologist, and a licensed clinical laboratory scientist. [2]

When bringing a medical malpractice claim against any of the aforementioned, the burden of proof rests with you and you must prove:

(1) the standard of care applicable to the health care provider;

(2) whether the health care provider breached that standard of care; and

(3) whether any breach of the standard of care by the health care provider proximately caused you to suffer an injury that you would not otherwise have incurred.

What if I am partially to blame? Can I Still Recover Money for Louisiana Medical Malpractice?

Louisiana, along with 12 other states (Alaska, Arizona, California, Florida, Kentucky, Mississippi, Missouri, New Mexico, New York, Rhode Island, South Dakota, and Washington) recognizes the doctrine of pure comparative fault. Under the doctrine of pure comparative fault, any award of damages you are awarded from a court are reduced in proportion to your contribution to your own injury. This doctrine is extremely friendly to you in that you are able to recover for damages even if you are found to have been 99% at fault for your injury. [3]

For example, imagine if a patient, without permission, gets out of their hospital bed and begins running down the hospital’s hallways, ignoring posted signs warning of the dangers of running in the hospital and the patient ends up slipping and breaking their leg. If a court finds that the hospital is 1% at fault for failing to properly supervise the patient, the patient will still be able to recover a monetary award that is reduced in proportion to their 99% contribution to their injury.

An argument against the adoption of pure comparative fault is that it is contrary to the nature and purpose of the legal system to allow a plaintiff who has substantially contributed to their own injury to recover damages for any portion of their loss. As a result, the majority of states have adopted a modified system which allows for only a partial apportionment of fault. Usually, the percentage of fault is either capped at 51% or 50%. If the plaintiff contributed to their injury in a way that surpassed the allowed threshold, they will be barred from recovering for their injury.

Are there medical malpractice recovery caps in Louisiana?

If you are ultimately successful in your medical malpractice claim, you will be awarded damages in accordance with the doctrine of pure comparative fault. The term “damages” is synonymous with a monetary award which is used to compensate the plaintiff for the injuries they sustained as a result of the plaintiff’s negligence. There are two types of damage awards you may receive:

Economic Damages compensate you for any financial losses you incurred as a result of your injury. This can include financial losses like:

• Medical bills
• Prescription fees
• Physical therapy costs
• Wages lost from an inability to work
• Loss of future wages

​Non-economic Damages compensate you for occurrences that are hard to properly value. For example:

• Pain and suffering
• Loss of consortium
• Loss of enjoyment of life

Damage awards are not capped if the defendant is not insured by the state – a rarity in Louisiana. However, the law in Louisiana provides a $500,000 cap on non-economic damages awarded in a medical malpractice lawsuit when the defendant is insured by the state. [4] The cap is contingent upon the defendant being a qualified health care provider under the Louisiana Medical Malpractice Act. The adoption of the cap originally took place in 1975 and has withstood many constitutional challenges. Most recently, the case of Oliver v. Magnolia Clinic saw a challenge where claims were made that the cap deprived victims of their right to adequate remedy at law and violated the Equal Protection Clause by arbitrarily and capriciously discriminating on the basis of physical condition. However, the Court ultimately found that the right of malpractice victims to sue for damages was not a fundamental constitutional right. The court went on to explain that the legislature, in placing the damage cap, acted to combat the rising medical insurance premiums in order to avoid a healthcare crisis. Claims that exceeded the cap would effectively increase the probability that health care providers would not have medical malpractice insurance that would be sufficient to pay the awarded damages. [5]

It is important to note that any award amount over $100,000 will be paid out through the state Patient’s Compensation Fund. The fund is an insurance-type fund that automatically covers all state health care providers and includes private doctors and other health care providers who have met certain eligibility requirements. [6] The Patient’s Compensation Fund becomes a party to the litigation once there has been a judgment of liability or a settlement.

Punitive Damages are different from special and general damages in that they are intended to punish the defendant rather than compensate the plaintiff. However, the law in Louisiana does not generally recognize the award of punitive damages in a personal injury action.

Expert witness reporting and testimony

The testimony given by an expert witness is invaluable to you if you are bringing a claim of medical malpractice. It is the expert that will be able to establish that the defendant either lacked or failed to exercise the requisite degree of knowledge or skill held by healthcare providers in their field and that as a proximate result of the 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.

However, the law in Louisiana requires potential expert witnesses to meet certain criteria prior to being considered an expert worthy of providing testimony. The requirements that must be met are:

(a) They are practicing medicine at the time such testimony is given or was practicing medicine at the time the claim arose.

(b) They have knowledge of accepted standards of medical care for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim.

(c) They are qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of care. In determining whether a witness is qualified on the basis of training or experience, the court shall consider whether, at the time the claim arose or at the time the testimony is given, the witness is board certified or has other substantial training or experience in an area of medical practice relevant to the claim and is actively practicing in that area.

(d) They are licensed to practice medicine by the Louisiana State Board of Medical Examiners. [7]

Are some parties immune from medical negligence cases?

The law in Louisiana mandates that no state health care provider or employees of state health care providers that are acting within the scope of their employment can be held liable for medical malpractice in excess of $500,000. [8]

Settling medical malpractice cases in Louisiana

In Louisiana, when bringing a medical malpractice claim against a qualified health care provider, you must first file the claim with the Commissioner of Administration. Qualified health care providers are those that elect to enroll in the Louisiana Patient’s Compensation Fund. The claim will then be reviewed by a medical review panel which provides a source of inquiry and relief for legitimate victims of medical malpractice. [9]

The reason behind having the medical review panel review your claim is to reduce the number of medical malpractice lawsuits by providing you with an early opinion about whether or not the health care provider breached their standard of care.

After you file your claim, which includes a description of the malpractice and other information about your claim, a letter will then be issued to the defendant which advises them about the filing. The defendant’s attorney will respond to the letter by contacting your attorney. Both parties will then agree to the appointment of an attorney chairperson that will manage the review panel process. You will appoint your choice of a healthcare provider to the panel while the defendant will then appoint its choice of healthcare provider. A third-panel member will then be appointed by the first two appointees. A statement concerning the provided care, together with the medical records, will be the evidence that will be submitted to the three members of the panel. When the panel meets, the only evidence allowed is the medical record and other relevant written material. No testimony or other oral evidence is allowed.

The only role of the panel is to decide whether the defendant met the requisite standard of care. Whether the panel agrees that the defendant breached the requisite standard of care or not, you may continue to take your claim to trial as long as you file your suit within 90 days of receiving the panel’s opinion. Once the panel forms an opinion, it may be introduced as evidence at trial.

Litigating medical negligence cases in Louisiana

After having your claim reviewed by the medical review panel, if you wish to proceed to the trial stage of litigation you must first file a complaint with the appropriate court. The complaint must specifically describe the alleged malpractice that occurred as well as the claims for relief for which you are seeking.

Initiating the Case

If the parties to a medical malpractice claim are unable to come to a settlement, the claim will proceed to civil court. In Louisiana, a civil action begins by filing a complaint with the court. The complaint tells the court who you are suing, what your case is about and what type of damages you feel you deserve. The Clerk of the Court will assign a case number, the division, and a judge, all of which should be included in the complaint.

You will need to complete a civil cover sheet before filing the complaint.

After filing the civil cover sheet and complaint with the court, you will need to serve each defendant with the complaint and civil summons within 120 days. Service is generally performed by the sheriff or a private person appointed by the court. [10]

After all named defendants have been served with your lawsuit, they must File an answer within 21 days from receipt.

Preparing for Litigation

After the complaint and answer have been filed in the appropriate court, the parties may begin the discovery process. Discovery is a procedure designed to allow disclosure between both sides of a lawsuit which allows both sides to know what to expect at trial.

In a medical malpractice case, medical records and doctor’s notes are usually items that will be requested for disclosure.

Each side may obtain discovery by:

• Deposition
• Written interrogatories
• Production of documents or
• Requests for admission

A deposition is a fact-finding tool where the opposing side is permitted to ask questions of the witness being deposed who is under oath. The deposition does not usually take place in a courtroom. Instead, the questions are asked in an attorney’s office where attorneys are present in order to help advise their client on how to answer certain questions as well as to make objections if necessary. Through the question and answer session, opposing counsel will try to find out what facts the opposing party believes to be true and what facts they may be exaggerating. Most witnesses may be deposed, including:

• Independent expert witnesses
• Treating physicians
• Any party named in the case

Written interrogatories are written questions sent to the opposing side that request answers which will be used to establish the facts that will be presented once the case goes to trial.

Production of documents is a request made to the opposing side whereby tangible documents are sought. In a medical malpractice case, an example of a request for production of documents would be a request to view the medical records of the claimant.

Request for admission is a set of statements drafted by one side and sent to the other where the receiver must answer in the affirmative or the negative. In a medical malpractice case, an example of a request for admission would be a statement like, “the defense has no evidence to support a basis that the claimant caused their own injuries.” If the defense answers in the negative, the claimant would know that the defense is intending to proffer some type of evidence in an attempt to prove that they were at least partially to blame for their own injury.

In a medical malpractice case, it is possible that the person bringing the claim will need to be medically evaluated in order to corroborate that the injury being complained of does in fact exist.

Pretrial Litigation

Litigation can be long, arduous and expensive. For these reasons, it is not uncommon for a case to settle prior to reaching the trial stage of litigation. In fact, settlement is often encouraged and both sides are able to work on a potential deal up until the date of trial. However, unlike some other states, Louisiana does not have a statute regarding alternative dispute resolution. [11]

Trial

During a trial, all admissible evidence will be presented to the ‘trier of fact’ who is a person or group of people who hear testimony and review evidence in order to issue a ruling in favor of one party or another. There are two potential triers of fact in a personal injury case in the state of Louisiana: a judge or a jury. In Louisiana, juries are permitted in all cases involving claims for monetary damages and in some cases seeking equitable relief.

To choose a jury, a procedure known as “voir dire” is conducted whereby attorneys ask potential jurors questions in order to determine what biases the panel members may have in favor or against the cast being brought before the court. Once this process is completed, both sides will decide what parties they would like to remove from juror consideration by way of peremptory challenges. In Louisiana, if the trial is being heard by a jury of six, each side is allowed three peremptory challenges. If the trial is being heard by a jury of twelve, each side is allowed six peremptory challenges. [12]

Once each side finishes announcing the parties they wish to have removed, the jury is impaneled.

In Louisiana, a person is considered to be qualified to be a juror if they are:

• a citizen of the United States;
• a resident of Louisiana
• at least 18 years of age
• of sound mind;
• in possession of the person’s natural faculties
• able to read or speak the English language

After the jury selection is completed, opening statements will begin. During opening statements, both attorneys are permitted to make statements that explain their client’s position and may also outline the evidence they expect to present during the trial that will support their claims.

From there, the plaintiff will begin to argue their case. The plaintiff will call witnesses at this time and each witness will be questioned by the plaintiff’s attorney and then likely cross-examined by the

opposing side’s attorney. After all the plaintiff’s witnesses have been called and evidence has been presented, the plaintiff will rest their case.

Once the plaintiff finishes the presentation of their case, the defense will begin to present their evidence. The defense will present the physician’s side of the case and attempt to show why negligence was not involved in creating the patient’s injury.

Once both sides have argued their cases, closing arguments will take place. During closing arguments, each side’s attorney will explain to the jury what they believe the evidence proves.

Finally, jury instructions are then be given by the judge to the jury and the jury is then free to deliberate and come back with a finding.

Appeal

Many times the losing side in a medical malpractice case will opt to appeal a decision from the lower court. An appeal allows a higher court to review the actions of a lower court in order to determine if the law was appropriately applied.

A notice of appeal must be filed within 30 days after the entry of the final judgment from the lower court. [13]

How to find the best Louisiana Medical Malpractice Lawyer for your case

Initiating any legal proceeding can be daunting and overwhelming, especially if you or a loved one has had the unfortunate experience of being injured as a result of medical malpractice. It is likely that you would rather focus on healing and seeking the proper medical treatment than worry about contacting your healthcare provider’s attorney or looking for experts that can support your claim. This is why it is important to find legal representation that can take your mind off of the legalese so that you can focus on getting yourself better.

One of the main motivating factors in bringing a medical malpractice lawsuit against a healthcare provider that caused your injury is to receive proper compensation for the pain, suffering and losses you have likely endured. For this reason, it is of utmost importance that you find competent, diligent and personable counsel to represent your interests.

When looking to hire legal representation, it is important to remember that the attorney will be working for you – not the other way around. Take your time when looking for legal counsel and do not hesitate to interview more than one law firm. Looking at a variety of firms will give you a good sense of what each firm brings to the table and help you decide which fit is best for you.

When looking for legal representation, experience is the key. You will want to hire an attorney or law firm that is well versed in in medical malpractice cases. Do not be afraid to ask an attorney or law firm their level of experience. It may also be wise to ask if they have ever litigated a case similar to yours and whether or not they were successful. If they have had experience with cases with facts similar to yours, they may be able to give insight into how long the case may last and what your expected damages may be.

You may also want to get a feel for if you actually like the attorney or law firm that you are interviewing. Communication between attorneys and clients is incredibly important. Is this attorney someone you will enjoy communicating with? Further, you should also ask your potential attorney or firm how they communicate with their clients. People communicate in different ways which can lead to frustration if the methods used between the parties do not mesh. Your attorney should adapt their communication methods to fit your needs.

Some notable medical malpractice law decisions from Louisiana

These cases represent awards to plaintiffs in medical malpractice cases in Louisiana. These results are in no way a guarantee that subsequent, similar, cases will see the same results.

Willis v. Ochsner Clinic Foundation

Tyronglia Willis, the plaintiff, brought a medical malpractice lawsuit on behalf of her son who was left with irreversible brain damage after an infusion pump malfunctioned during surgery.

The boy had to undergo surgery to correct a congenital heart defect. However, during the surgery, the pump failed and delivered epinephrine, an adrenalin drug, into the boy’s body. This caused the boy to go into cardiac arrest.

The medical malpractice lawsuit was originally filed against the hospital and the manufacturers of the infusion pump. However, the boy’s family was able to reach an undisclosed and confidential settlement with the infusion pump manufacturers.

A jury sided with the plaintiff and awarded $24.2 million in damages. The jury determined that the manufacturers were 65% responsible for the harms caused to the boy, which means that they would have been responsible for $15.6 of the $24 million in damages awarded by the medical malpractice jury had they not settled the claims against them.

The hospital admitted its liability for the boy’s injuries and paid its maximum liability of $100,000 as mandated by the Patient Compensation Fund. Louisiana’s Patient Compensation Fund, which is a medical malpractice fund that Louisiana administers, was found by the medical malpractice jury to be responsible for 35% of the medical malpractice verdict.

Justice v. Humana Hospital

A young woman injured her head and neck in a severe car accident. Before transporting her to the hospital, EMTs secured her neck with a safety collar. Upon arrival at an emergency room, doctors took only an X-ray of the woman’s neck but did not perform a CT scan or MRI. As a result, the doctors neglected to find that the woman had three fractured vertebrae in her neck.

After doctors removed the collar, the woman moved her neck around, which led to the development of quadriplegia a few days later.

As a result, the woman filed a medical malpractice lawsuit against the involved doctors based upon the claim that they were professionally negligent and that their negligence led to her injury. More specifically, the plaintiff alleged that the physicians violated the standard of care by not ordering an MRI or CT scan of her neck before removing the collar.

At trial, the plaintiff argued that her treating physicians failed to properly assess her bone and soft-tissue components, which can be achieved only by a performing an MRI. The plaintiff claimed that this caused the physicians to incorrectly determine that her neck was not severely injured and that this belief led to the removal of her safety collar. The plaintiff further claimed that had an MRI been performed, the fragments of her broken vertebrae would not have pierced her spinal cord which caused her current state of paralysis.

The jury agreed with the plaintiff and awarded $18.2 million in damages. Because the lawsuit was brought against qualified health care providers under Louisiana’s Medical Malpractice Act, non-economic damages were capped to $500,000 and the liability of each qualified health care provider was limited to $100,000. The remainder of the damage award was the responsibility of the Patient’s Compensation Fund.

Footnotes

[1] La. Civ. Code art. § 3492

[2] La. Civ. Code art. § 1231.1

[3] La. Civ. Code art. § 2323

[4] La. Rev. Stat. Ann. § 40:1299.42

[5] Oliver v. Magnolia Clinic, 85 So.3d

[6] La. Rev. Stat. Ann. § 40:1299.44

[7] La. Rev. Stat. Ann. § 9:2794(D)

[8] La. Rev. Stat. Ann. § 40:1299.39

[9] La. Rev. Stat. Ann. § 1299.47

[10] LA. Code Civ. Proc. Ann. Art. 1234

[11] La. Rev. Stat. Ann. § 40:1299.47(A)

[12] LA. Code Civ. Proc. Ann. Art. 1764

[13] LA. Code Civ. Proc. Ann. Art. 2123