Background and Applicability of Louisiana Medical Malpractice Statutes
In 1975, Louisiana passed a comprehensive and sweeping law on medical malpractice. Louisiana medical malpractice claims are divided into two categories:
(i) claims against private healthcare providers and
(ii) claims against public or state healthcare providers.
Claims against private healthcare providers are governed by the Medical Malpractice Act, (the "MMA"), La. R.S. 40:1299.41 et. seq, while claims against public or state healthcare providers are governed by the Malpractice Liability for State Services Act, (the "MLSSA"), which is found in La. R.S. 40:1299.37 et. seq. These laws, establish the substantive and procedural law relating to claims of medical malpractice.
Louisiana Law Places A Cap of $500,000 On A Victim's Recovery
Both laws provide that claims against "Qualified Healthcare Providers" are capped at $500,000, plus past and future medical expenses. This $500,000 cap applies not only to all non-economic damages like pain and suffering but also to claims for lost wages. The definition of Qualified Healthcare Provider is very broad to include virtually every type of individual or entity providing healthcare to people.
To be considered as a "qualified" healthcare provider in the private sector, that provider generally needs to make premium payments into a fund called The Louisiana Patient's Compensation Fund. If a healthcare provider chooses not to participate by paying such premiums, then that healthcare provider does not receive the benefits of the medical malpractice act, including the cap on damages. In other words, there would be no cap against that healthcare provider's claims.
The $500,000 cap is not tied to any increases for inflation. It is the same cap today as it was in 1975.
The Prescriptive Period (Statute of Limitations) For Louisiana Medical Malpractice Claims Is One Year
The Statute of Limitations (or prescriptive period as it is called in Louisiana) to request the formation of a medical review panel is one year from the date the patient knew or should have known of facts sufficient to alert them of a possible case of medical malpractice. However, in no event can a claim be brought more than three years from the date of the malpractice. For Wrongful Death Claims, the Statute of Limitations is one year from the date of death. Thus, if a sponge is left in a patient for three years and one day and the patient did not discover it before then, the claim is extinguished.
All Claims of Medical Malpractice Against Qualified Healthcare Providers Must Be Submitted To A Medical Review Panel
In addition to placing a cap of $500,000 on damages, Louisiana law also requires that a person seeking to institute a claim for medical malpractice must first request that the matter be reviewed by a medical review panel.
A medical review panel is made up of three physicians in the same specialty as the accused defendant doctor. One of the panelist is chosen by the defendant, one chosen by the patient and the third is chosen by the two doctors chosen by the defendant and patient. An attorney chairman is also chosen by the parties. His function is to run the medical review panel and provide them with any legal guidance. However, he has no vote on whether medical malpractice was committed.
The parties are allowed to submit evidence to the medical review panel for their consideration. This evidence generally consists of the medical records, films, depositions and a position paper explaining each side's contentions. The medical review panel meets to discuss the evidence and de
A Lawsuit May Be Instituted After The Medical Review Panel Renders Its Opinion
Regardless of how the medical review panel rules in the case, the patient has 90 days following receipt of the opinion of the medical review panel to file a lawsuit in State District Court. The party that lost the medical review panel may be required to post a bond for the costs of the medical review panel after suit is filed. At trial, the opinion of the medical review panel is admissible as evidence. Additionally, the members of the medical review panel may be called to testify as witnesses for either side.