Louisiana Medical Malpractice Laws & Statutory of Limitations

If believe that you've suffered injuries or a prolonged illness because of a Louisiana health care provider's medical negligence, you may be thinking of suing for medical malpractice. The first thing you should know is that these cases are very complicated. Along with the inherent difficulty of proving medical malpractice, patients in many states face extra hurdles intended to weed out lawsuits that aren't supported by evidence. In Louisiana, these obstacles include a lengthy review process that you must get through even before filing a lawsuit in court.

Although you'll almost certainly need to find a good medical malpractice attorney, it's helpful to understand the rules—especially so you don't miss deadlines or make other mistakes that could doom your case before it starts.

This article gives a summary of the most important Louisiana laws that can affect the outcome of a claim for medical malpractice, including:

• medical review panels
• the deadlines for filing a lawsuit
• caps on medical malpractice awards, and
• what happens if you were partly to blame for your injuries.

The Medical Review Process in Louisiana

In Louisiana, you may not file a medical malpractice lawsuit against almost any health care provider without first requesting a review from a medical review panel and getting an opinion from that panel as to whether the evidence supports your claims. If you try to file a complaint in court before going through this process, the defendant health care provider(s) will ask the judge to dismiss the lawsuit as premature—and the judge will almost certainly oblige.

There are a few exceptions for this mandatory medical review, including when both you and the defendant(s) have agreed to bypass the process or to submit any medical malpractice dispute to binding arbitration, or when the defendant doesn't meet the qualifications for being covered by the medical review process and participating in Louisiana's Patient's Compensation Fund.

Louisiana's medical review process includes many steps and detailed requirements, but here are the basics:

• Request for medical review panel. You must submit your request and proposed complaint to the Division of Administration in Louisiana's Medical Review Panel Office before the deadline for filing a lawsuit. Once you do so, however, the request will pause the running of the "clock" for the statute of limitations (more on that below). Along with all the relevant names, your request should include a brief description of the alleged malpractice (for each defendant, if there is more than one) and your alleged injuries, as well as the date(s) when it happened.
• Filing fee and waivers. Within 45 days after you receive confirmation that the board received your request, you must pay a filing fee of $100 for each defendant. The fee may be waived only if a court has issued a ruling that you don't have the financial means to pay, or if you've submitted an affidavit stating that a doctor has reviewed the relevant medical records and has concluded that your malpractice allegations against each defendant constitute a failure to meet the appropriate medical standard of care.
• Medical panel formation. The medical panel will consist of an attorney (who won't have a vote but will manage the process) and three licensed health care providers. You (or your lawyer) and the defendants will participate in a detailed process for selecting the panel.
• Panel's review and opinion. The panel will review all of the written evidence that you and the defendant(s) have submitted, including medical records, transcripts of witness depositions, and reports from medical experts. Within 30 days after completing its review, the panel will issue a report with its opinion that (1) the evidence either does or does not support a conclusion that the defendant(s) failed to meet the appropriate standard of care, or (2) there's an important factual question that a judge (not an expert) needs to decide. The opinion must also spell out the panel's reasons, along with other detailed findings if the evidence points to the defendant's negligence.
• Payment of panel costs. You will have to pay the costs of the medical review panel (including per diem payments to the panelists and expenses) if its opinion is in your favor, unless you had already obtained a court ruling (before the panel was convened) that you wouldn't have the means to pay. If the panel issued a unanimous opinion in favor the defendant(s), you will have to post a bond in the amount of the panel costs before you may proceed with a lawsuit.
• Effect of medical review panel's opinion. If you do file a lawsuit after completing the medical review process, the panel's report may be admitted as evidence in the trial, along with other expert evidence. Also, any of the panelists may be called to testify as witnesses in the trial.

If the panel doesn't issue an opinion within a year after the panel was formed, you may go ahead and file a lawsuit—unless the court has granted a request for an extension. (La. Rev. Stat. §§ 40:1231.1, 40:1231.2, 40:1231.8 (2022).)

Louisiana's Statute of Limitations for Medical Malpractice Complaints

All states have laws that set deadlines for filing lawsuits in court. These laws are usually called "statutes of limitations," although Louisiana uses the terms "prescriptions" or "prescriptive periods." Whatever the term, Louisiana law says that medical malpractice lawsuits may not be filed more than one year after either:

• the date of the alleged negligence, or
• the date when the injured patient learned of the negligence or should reasonably have discovered it.

However, Louisiana also sets an outside time limit for filing a medical malpractice lawsuit (often known as a "statute of repose") of three years after the alleged negligence, regardless of the discovery date. So even if you didn't know that you were harmed because of a health care provider's negligence—and you couldn't have reasonably known that—you will lose your right to sue if you miss the three-year deadline.

However, the time that the medical review process takes will not count toward the statute of limitations for filing a lawsuit. Once you submit your request for a review, the time for filing a lawsuit will be suspended until 90 days after the panel gives notice that:

• it has issued an opinion
• the defendant health care provider isn't covered by the medical review process, or
• the claim is dismissed because the attorney panelist wasn't appointed within a year of your request (which is considered a waiver of the review process).

It's important to note that unless you qualify for a waiver of the filing fee for the medical review (discussed above), failure to pay the fee on time will mean that the statute of limitations was not suspended during the time after you requested the review, because your request is considered invalid. And if the filing deadline has passed by then, you won't be able to try again with another request for review.

Unlike some other states, Louisiana doesn't pause the statute of limitations when the injured patient is a minor or is mentally disabled. (La. Rev. Stat. §§ 9:5628, 40:1231.8 (2022).)

Louisiana's Cap on Damages in Medical Malpractice Cases

When you win a medical malpractice lawsuit, the jury will generally award you compensation for the damages (or losses) you experienced as a result of the defendant's negligence. However, several states limit awards in medical malpractice cases. Most of these caps apply only to noneconomic damages like pain and suffering. Louisiana, in contrast, sets a $500,000 limit on total damages, including economic damages like medical bills and lost income (but not including interest).

However, the $500,000 cap does not apply to future medical costs. If the jury finds that you will need future medical care, you will be able to make claims for payment of the costs from the Patient's Compensation Fund. (La. Rev. Stat. § 40:1231.2, 1231.3 (2022).)

Shared Fault Rules in Louisiana

Even if the defendant's negligence caused you harm, the jury might find that you were also partly responsible for your injuries and other losses. This could happen, for example, if you didn't follow your doctor's instructions about what to do (or not do) after surgery.

In a situation like this, Louisiana uses what's known as a "pure comparative negligence" rule. The jury will assign a percentage for your degree of fault. Then, your award will be reduced in proportion to that percentage. So if you were 20% at fault for your damages, and the jury awarded you a total of $200,000, you would receive $160,000. (La. Civil Code Art. 2323 (2022).)