Medical malpractice law in Louisiana has some very progressive -- and very different -- quirks when compared to most of the rest of the country. Louisiana, alone of the 50 states, is a civil law state as opposed to a common law state. That means there is a heavier reliance upon both written statutes and an individual judge’s interpretation of those laws than there is in other states (where legal rules are based largely on decades of court decisions). Read on to learn more about bringing a medical malpractice lawsuit in Louisiana.
Louisiana, through a series of laws, has established a Patient’s Compensation Fund that automatically covers all state health care providers (public hospitals and associated physicians). Private health care providers may join the Fund as long as they meet a few requirements. A physician who is a member of the PCF is called a "qualified health care provider."
Louisiana’s damage caps in medical malpractice cases are based upon joining the PCF. Recovery against a qualified health care provider is limited to $100,000 plus interest per patient per incident. Any award in excess of this cap is paid directly by the Patient Care Fund. A plaintiff’s total recovery in medical malpractice cases is limited to $500,000 plus the cost of any future medical expenses. The PCF pays for future medical expenses directly, as they occur.
Medical malpractice claims in Louisiana must be filed within one year of the date of the malpractice, or within one year of the discovery of the malpractice. Regardless of when the injury is discovered, all claims must be filed within three years of the date of the injury or action that allegedly amounted to malpractice. Generally, wrongful death cases must be brought within one year of the decedent’s passing, although Louisiana courts are a bit divided as to whether that applies to wrongful death cases specifically arising from medical malpractice.
Before filing suit in Louisiana, victims of medical malpractice must file papers requesting that the Patient Compensation Fund empanel a group of experts to review the case. The request must include some basic identifying information as well as brief descriptions of the alleged medical malpractice and resulting injuries.
The PCF then reviews the request and notifies the claimant whether a panel will be convened to review the case and whether the offending doctor is a qualified health care provider under PCF rules. If the offending doctor is a qualified health care provider, a panel of three doctors and one attorney is convened to review the case. The attorney, chosen by the three doctors, is limited to a non-voting advisory role.
The panel is charged with determining whether the evidence in the case supports the conclusion that the defendant committed malpractice, and whether that malpractice caused the defendant’s injuries. The panel’s report is considered medical expert testimony, and may be used as such in any subsequent litigation or alternative dispute resolution proceedings. Panel reports are admissible evidence at trial, and any party may call any member of the panel as a witness.
Medical malpractice laws, in Louisiana more so than other states, can be difficult to understand. Always remember that a competent, professional attorney is your best source of information if you’re contemplating filing a malpractice claim. Do as much research on your own as you can, but always seek professional advice as soon as possible.