There are numerous and complex rules in Louisiana regarding the handling of a medical malpractice claim.
The following information is only a basic description of how a claim under the Medical
Malpractice Act (hereinafter referred to as “The Act”) and is not intended to serve as legal advice.
The Act has defined medical malpractice as any negligent act or omission causing injury or damage to another as a result of service rendered, or which should have been rendered, by a health care provider. Typically, when a health care provider is found to have committed malpractice, they are in “breach of the Standard of Care”.
The Standard of Care
The Standard of Care that is required from every health care provider is to exercise that degree of skill ordinarily employed, under like and similar circumstances, by members of that profession, and to use reasonable care and diligence, along with their best judgment. Every health care provider must provide every patient with treatment that meets the appropriate standard of care.
If a patient believes that the treatment receives fails to meet the appropriate standard of care, then that patient must prove that the health care provider either 1) failed to use reasonable care and diligence, along with their best judgment and skill, or 2) lacked the requisite degree of knowledge or skill, and that as a direct and proximate result the patient suffered injuries.
It is important to note that if a patient’s condition fails to improve as a result of services rendered by a health care provider or if a patient’s condition meets an unexpected result, such an outcome does not necessarily give rise to a malpractice claim.
Filing a claim under the Louisiana Medical Malpractice Act
One might believe that in order to file a malpractice claim, all that is required is to file a Petition, asserting a violation under The Act. However, in most cases, a person is not allowed to file a civil suit before first bringing the claim before a “medical review panel”, which is a panel of three doctors or health care professionals who review the case and determine whether there has been a breach of the standard of care.
Such a claim must be file within one year of the date of the incident or within one year of the date the patient discovered the incident giving rise to the malpractice, but no later than three years from the date of the act of malpractice.
This three year period is called a preemptive period. If a claim is filed beyond this period, the claim will be dismissed. You will no longer have the opportunity to pursue your claim.
The Medical Review Panel
After the complaint is filed a “medical review panel” is convened. An “attorney chairman” is selected to organize a panel of doctors or other health care providers. The Attorney Chairman explains the respective duties and conducts the meeting of the panel members. The Plaintiff selects a member to serve on the panel. The Defendants selects another member to serve. These two panel members select a third member. The Attorney Chairman does not vote on the panel.
Panel Opinions
According to The Act, the panel shall, within one hundred eighty days after the selection of the last panel member, render one or more of the following expert opinions:
1. The evidence supports the conclusion that the defendant(s) failed to comply with the appropriate standard of care as charged in the complaint.
2. The evidence does not support the conclusion that the defendant(s) faild to meet the applicable standard of care as charged in the complaint.
3. That there is a material issue of fact, not requiring expert opinion, bearing on liability for consideration by the court.
4. Where the panel finds that the conduct complained of was a factor, whether the plaintiff suffered (a) any disability and the extent and duration of the disability, and (b) any permanent impairment and the percentage of the impairment.
Once the panel renders its opinion, the Attorney Chairman is charged with notifying the parties with the decision by Certified Mail.
After the decision…
After the panel as rendered its opinion, a party may file a civil complaint – a lawsuit for damages, even if the panel finds no malpractice on the part of the healthcare provider. A party must file a Petition in Court within 90 days of “Certified Mail” notification by the Attorney Chairman of the panel’s opinion or decision.
“The Cap”
This refers the limit of amount of recovery in a complaint under the medical malpractice act (The Act). The amount of recovery is “capped” by law to $500,000 plus future medical expenses. Regardless of whether a case has a value under or over $500,000, no award for any damages other than future medical expenses can exceed that statutory amount.
“Future Medical Expenses” can include all medical expenses from the time of the malpractice until the time of “maximum point of recovery”, even until death. The future medical expenses component can be quite sizeable.
The Patient’s Compensation Fund
The Patient’s Compensation Fund or “PCF” is a fund set aside by the insurance companies that insure doctors, nurses, hospitals and other healthcare professionals and providers to pay claims between $100,000.00 and $500,000.00. So in most cases the physician or hospital is only liable for the first $100,000.00 of any recovery that is due.
Settlement matters
The physician or hospital may settle with the plaintiff at any time and for any amount. However, if a physician or hospital settles for the full extent of liability, or $100,000, then there is an admission that the physician or hospital is at fault. The plaintiff is no longer required to prove that the physician or hospital committed malpractice.
After reaching a settlement with the physician or hospital, the plaintiff may attempt to settle with the PCF, or take the matter to trial.
Be assured that The McKenna Firm, LLC is prepared to represent you in all aspects of a medical malpractice claim. If you have any questions, please call us at (504) 581-9322 or email us at info@mckennafirm.com