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:
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 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:
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 (2021).)
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:
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'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 (2021).)
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 (2021).)
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 § 2323 (2021).)