In Louisiana, the Statute of Limitations is Called The Prescriptive Period
Virtually every other state refers to the legal time period allowed to bring a case as the statute of limitations. In Louisiana, this period is referred to as the prescriptive period. Louisiana lawyers will advise clients when prescription accrues. A case that is no longer viable because it is past the time limitation to be filed in Louisiana is "prescribed."
Louisiana's Prescriptive Period For Medical Malpractice Claims Is One Year
Louisiana law requires that a patient bring a claim for medical malpractice within one year from the date of the medical malpractice or within one year of the date that the patient knew or should have known of the medical malpractice.
Even If the patient Had No Idea About Medical Malpractice, A Claim Can Never Be Brought More Than 3 Years
Louisiana has what is known as the discovery rule. If a patient did not know, or should not have known of medical malpractice with reasonable diligence, then that patient has one year from the date he discovers (or should have discovered) the medical malpractice in which to file a claim. However, in no event can a patient ever bring a claim more than three years from the date of the malpractice even if he had no idea that malpractice was committed on him until more than three years after the date of the alleged medical malpractice. This three year strict limitation is referred to as a statute of repose.
If The Medical Malpractice Results In The Wrongful Death of The Patient, The Family Has One Year From The Date of The Death
If the medical malpractice causes the wrongful death of the patient, then the family has one year from the date of the death to bring a wrongful death action against the healthcare provider. However, be very careful here, because the survival action (the patient's own claim for pain and suffering), still accrues one year from the date of the medical malpractice. If no claim is instituted by the patient's family until one year following the death of the patient and the medical malpractice was committed more than a year ago, the survival action is prescribed, but the wrongful death action may still be brought.
Unlike Other States, Louisiana Does Not Allow A Minor Up Until Their 18th Birthday to File A Suit
In Louisiana, a suit for medical malpractice against a minor must be brought within the same time period as outlined above. The claim is instituted by the parents individually and on behalf of the minor child. Minor children who have been victims of medical malpractice in Louisiana DO NOT have until their 18th birthday to bring a claim, like in many other states.
Louisiana Requires A Patient To First File A Request For A Medical Review Panel
If the healthcare provider meets the definition of a qualified healthcare provider under Louisiana's Medical Malpractice Act, a patient seeking to file a claim for medical malpractice must first request the formation of a medical review panel and have the claim decided by that medical review panel before filing a suit in district court.
A Law Suit In State Court Must Be Instituted Within 90 Days From Either Receipt of Notice Or The Decision Of The Medical Review Panel
If a healthcare provider is NOT a qualified healthcare provider, then the patient only has 90 days to file a law suit in state district court from the date he receives notice that the healthcare provider is not qualified under the state medical malpractice act. If the healthcare provider is qualified, the patient must submit the claim to a medical review panel and then has 90 days following receipt of the panel's opinion to file a suit in state district court.
An Additional Plaintiff May Not Be Added To The Case After The One Year Prescription Runs
In most states, the filing of an amending complaint which adds an additional plaintiff (like a family member who decides to join the action later), relates back to the date the original complaint was filed. This is NOT true in Louisiana. A recent Louisiana Supreme Court case specifically prohibited a plaintiff from amending its complaint to add an additional plaintiff more than one year after the date of the death of the patient.
Always Consult A Local Louisiana Attorney As Soon As Possible After The Malpractice
Medical Malpractice cases take time to evaluate. Even the most experienced medical malpractice attorneys need time to review the records and determine the correct parties to sue. It is generally too late to add parties after the one year prescriptive period has run. Thus, the more time that the attorney has to evaluate the medical care of all of the involved healthcare providers, the better chance of suing the party most culpable for that malpractice. Do not wait until the one year period is about to run before contacting an attorney. Many attorneys will not even review the case if it is too close to the prescriptive period.
Additional resources provided by the author
For additional information on Louisiana Medical Malpractice please visit www.medicalmalpracticelouisiana.com
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