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The Law of Medical Malpractice in Louisiana:

A Survey of Basic Considerations

This article provides an overview of Louisiana medical malpractice law. The Bayou State’s unique legal system is rooted in civil law rather than common law and reflects a combination of French, Spanish, and English influences. As befitting the state’s independent legal tradition, Louisiana lawmakers have fashioned a distinctive medical malpractice system. Its signature features include a state malpractice insurance fund, strict limits on monetary damages, and a requirement to obtain a medical review panel’s opinion before filing suit.

Because it is useful for laypersons who have been injured by healthcare treatment to have some understanding of the law, this article will describe Louisiana law in plain language with minimal use of legal jargon, so that the material is accessible to nonlawyers as well as legal practitioners.

Section I below summarizes broad principles and concepts. Sections II through XI examine some of the mechanics of filing and litigating a medical malpractice action in Louisiana.

To jump directly to any topic in the Table of Contents, simply click on it.

I. Overview of Basic Principles and Concepts
II. Filing Deadlines for Medical Malpractice Claims
III. Medical Review Panels
IV. Patient’s Compensation Fund
V. Limitations on Damages
VI. State Healthcare Providers
VII. Medical Expert Witnesses
VIII. Comparative Negligence / Proportionate Liability
IX. Limitations on Attorney Fees
X. Apologies and Sympathetic Gestures
XI. Communications with Treating Physicians
XII. Disclaimer

I. Overview of Basic Principles and Concepts

In 1975 Louisiana adopted its Medical Malpractice Act, which was designed to protect healthcare providers by limiting the amount of monetary damages that can be recovered against them and requiring claims to be reviewed by a medical panel before a lawsuit may be commenced.

The statute only covers “qualified” healthcare providers. Becoming qualified involves presenting proof of financial responsibility and paying an annual surcharge into the Louisiana Patient’s Compensation Fund. See La. Rev. Stat. Ann. § 40:1231.2. Most healthcare providers in the state have taken the necessary steps to become qualified and obtain the statute’s protections.

The basic elements of a medical malpractice claim are the same as in most states. The plaintiff must show: (1) the standard of healthcare that should have been provided; (2) a breach of that standard; and (3) that the substandard care injured him or her. La. Rev. Stat. Ann. § 9:2794(A).

II. Filing Deadlines for Medical Malpractice Claims

Basic Time Limit

Under Louisiana law, the basic time limit for filing a medical malpractice claim is one year. The clock starts ticking on the date of the alleged negligence; if the negligence is hidden from view, the clock commences at the time the negligence was or should have been discovered.

Importantly, there is an outer limit of three years. That is, even in cases in which the negligence is hidden from view (e.g., a sponge left in the patient during surgery), “the outermost window for filing a malpractice case, regardless of the date of discovery, is three years.” La. Rev. Stat. Ann. § 9:5628 see also In re Medical Review Panel of Hurst, 2016-0934 (La. App. 4 Cir. 5/3/17), 220 So. 3d 121; Kelly v. Schumpert, 50,557 (La. App. 2 Cir. 4/13/16), 195 So. 3d 14.

Exceptions

There are some situations in which the clock may pause (meaning the time limit for filing the claim is extended). The clock may pause while the patient continues in the physician’s treatment. In addition, the clock may pause if the healthcare provider concealed the negligence or engaged in other fraudulent conduct that lulled the plaintiff into waiting too long before filing the claim. Wilkerson v. Dunham, 2016-1056 (La. App. 4 Cir. 5/3/17), 218 So. 3d 743.

Case Example

In Wilkerson, supra, a patient brought a malpractice claim against a podiatrist in 2014 after she continued to experience pain she attributed to three surgeries on her foot between 2008 and 2010. The court tossed out the claim on the ground that she simply waited too long before raising it. First, she failed to assert her claim within one year after discovering the alleged medical negligence. The “continuing treatment exception” was of no help to her because the doctor-patient relationship had ended in 2010. Nor had the podiatrist deliberately concealed anything from her, so there was no basis to pause the clock for fraud, the court found.

Injured Patients Who Are Minors

While some states provide more generous time limits in malpractice cases involving minors, Louisiana’s timeliness rules explicitly apply “to all persons … including minors.” La. Rev. Stat. Ann. § 9:5628(B); see also Bailey v. Haynes, 37,038 (La. App. 2 Cir. 4/9/03), 843 So. 2d 584.

Relationship to Medical Review Panels

The time limits discussed above interact with the state’s medical review panel requirement. As will be discussed, before filing a lawsuit, a malpractice plaintiff generally must wait until a medical review panel has evaluated the claim (see Section III below).

Lawmakers realized that this pre-suit requirement might cause some plaintiffs to miss the deadline for filing suit. Therefore, while the review panel is conducting its work, Louisiana law pauses the time limit for filing suit, and the clock does not resume ticking until 90 days after the review panel is dissolved. La. Rev. Stat. Ann. § 40:1231.8(A)(2)(a), (B)(3), (L).

III. Medical Review Panels

In General

The Louisiana Medical Malpractice Act requires all malpractice claims against a “qualified” healthcare provider (see Section I above) to be submitted to a medical review panel prior to filing suit. The basic purpose is to help weed out unsupported medical malpractice claims. The panel does this by rendering an expert opinion as to whether the defendant healthcare provider(s) “failed to act within the appropriate standards of care.” La. Rev. Stat. Ann. § 40:1231.8(G); see also Id., § (B)(1)(a)(i).

A medical review panel consists of three healthcare providers, one selected by the plaintiff, one by the defendant, and the third chosen jointly. An attorney is appointed to act as chairperson of the panel, but he or she has no vote regarding whether the defendant(s) committed medical malpractice.

Importantly, the medical review panel’s opinion is admissible as evidence in any lawsuit subsequently brought by the claimant. This is crucial because the panel’s expert opinion no doubt will carry significant weight with the jury. But the panel’s opinion is not conclusive, and the jury can make its own determination. Either party to the lawsuit has the right to call any member of the review panel as a witness, and that panel member must appear in court and testify. La. Rev. Stat. Ann. § 40:1231.8(C), (H); see also Flournoy v. Our Lady of Lourdes Regional Medical Center, Inc., 2017-81 (La. App. 3 Cir. 5/17/17), 222 So. 3d 103.

By agreement, the parties can request an “expedited” medical review panel process, which follows slightly different procedures. They also can agree to waive the review panel entirely. La. Rev. Stat. Ann. § 40:1231.8(B)(1)(c), (B)(1)(d), (N).

Premature’ Lawsuits

If a plaintiff files a lawsuit without first requesting a medical review panel, the defendant may argue that the lawsuit is “premature.” Then the parties will litigate whether or not, in this particular instance, the plaintiff was entitled to proceed to court. There are certain situations in which a plaintiff can go directly to court without first obtaining a medical panel’s opinion.

For example, in Watson v. Woldenberg Village, Inc., the plaintiff was entitled to bypass the medical review panel because the claim was not technically one for medical malpractice. Not every healthcare-related negligence claim is one for medical malpractice, the Louisiana Court of Appeal explained. Here, where a nursing home resident fell because someone allegedly forgot to securely attach a monitor to his wheelchair, the claim was not truly one for medical malpractice, and so no review panel was necessary. 2016-159 (La. App. 4 Cir. 10/5/16), 203 So. 3d 317; see also Dupuy v. NMC Operating Co., L.L.C., 2015-1754 (La. 3/15/16), 187 So. 3d 436; Alonso v. Tulane University Medical Center, 16-420 (La. App. 5 Cir. 12/7/16), 215 So. 3d 355.

Defendants sometimes argue that a plaintiff has attempted to circumvent the review panel procedure by asserting different claims in court from those presented to the medical review panel. In Coulon v. Endurance Risk Partners, Inc., the Louisiana Supreme Court rejected one such argument, concluding under the facts there that the plaintiff’s claims of negligent supervision and training were not “new and separate” from those that had been evaluated by the medical review panel. A medical review panel claim does not require “the same specificity as a petition in a lawsuit,” the high court observed. 2016-1146 La. 3/15/17, 221 So. 3d 809.

Relationship to Arbitration

Arbitration is a method of resolving disputes outside of court, under which the parties agree to have the case heard by a professional arbitrator rather than a judge and jury. Louisiana imposes specific requirements on medical arbitration agreements to ensure fairness to the patient. La. Rev. Stat. Ann. §§ 9:4230 to 9:4236.

Under Louisiana law, if the parties validly agree to arbitrate a claim, the medical review panel procedure does not apply. “Where the parties elect arbitration as a means of resolving their disputes they have elected to proceed completely outside the judicial system and should not be permitted to avail themselves of both arbitration and statutes designed to work within the system [such as the medical review panel statute],” the Louisiana Court of Appeal reasoned in In re Medical Review Panel for Claim of Teal, 88-264 (La. App. 4 Cir. 9/16/88), 531 So. 2d 1108; see also La. Rev. Stat. Ann. § 40:1231.8(A)(1)(a).

IV. Patient’s Compensation Fund

Louisiana is one of a handful of states with a Patient’s Compensation Fund. Created in 1975, the Fund basically operates as an “excess insurer.” Healthcare providers buy their own insurance (or self-insure) for the first approximately $100,000 of exposure per claim, and enroll in the Fund for the excess coverage. The vast majority of healthcare providers in Louisiana are enrolled in the Patient’s Compensation Fund. La. Rev. Stat. Ann. §§ 40:1231.1 to 1231.7; see also http://www.doa.la.gov/Pages/pcf/Index.aspx (last visited September 2017).

One important enticement to enroll in the Fund is because it limits the amount of monetary damages that can be recovered against a healthcare provider. The next subsection discusses damages in more detail.

V. Limitations on Damages

Damages” refers to money claimed by a plaintiff as compensation for a loss. In medical malpractice lawsuits brought under Louisiana law, there is a statutory upper limit, or “cap,” on damages. Specifically, the total amount of damages recoverable, not counting future medical care and related benefits, may not exceed $500,000 plus interest and costs. La. Rev. Stat. Ann. § 1231.2(B)(1).

Furthermore, a qualified healthcare provider is not liable for more than $100,000 per claim, plus interest. If the claimant settles with the healthcare provider for the $100,000 maximum, the claimant may then continue to litigate the claim against the Fund itself and obtain an additional award, subject to the $500,000 cap, from the Fund. Id. see also Moore v. IASIS Glenwood Regional Medical Center, Inc., 51,177 (La. App. 2 Cir. 2/15/17), 216 So. 3d 187; In re Medical Review Panel of Williams v. EMSA Louisiana, Inc., 2015-1178 (La. App. 4 Cir. 10/21/16), 203 So. 3d 419.

Healthcare providers do not receive the cap’s protection unless they have enrolled in malpractice insurance coverage through the Patient’s Compensation Fund, as discussed above in Sections I and IV.

VI. State Healthcare Providers

A separate Louisiana statute, the Malpractice Liability for State Services Act, addresses malpractice claims brought against healthcare providers who perform services on behalf of the state, such as those who work at state-run hospitals. La. Rev. Stat. Ann. § 40:1237.1 to 1237.4.

As in the private sector, malpractice claims against state healthcare providers generally must be submitted to a medical review panel, whose opinion can then be introduced as evidence in any subsequent litigation. La. Rev. Stat. Ann. § 40:1237.2; see also In re Smithson, 2007-2262 (La. App. 1 Cir. 6/6/08), 991 So. 2d 1075.

VII. Medical Expert Witnesses

In General

Most medical malpractice cases depend heavily on medical experts, who aid the court and the jury in understanding the underlying medical issues. In Louisiana, expert testimony almost always is required to establish a malpractice claim, unless the negligence would be obvious even to a layperson. See Flournoy, supra.

As noted earlier, if a medical review panel has evaluated the malpractice claim, either party has the right to call any member of the review panel as a witness. La. Rev. Stat. Ann. § 40:1231.8(C), (H).

Beyond this, a Louisiana statute sets forth certain requirements that a medical expert witness must satisfy in order to be qualified to testify about whether a Louisiana-licensed physician was negligent. Specifically, the witness must be someone who (1) is practicing medicine at the time the testimony is given or was practicing medicine at the time the claim arose; (2) has knowledge of accepted standards of medical care for the illness or condition involved in the claim; (3) has appropriate training or experience to offer an expert opinion regarding the accepted standards of care; and (4) is licensed to practice medicine in Louisiana or any other jurisdiction in the United States, or is a graduate of an accredited medical school or osteopathy school. La. Rev. Stat. Ann. § 9:2794(D).

Same Specialty?

If the defendant is a medical specialist, an expert witness in the case normally should be someone in the same specialty. This is because a malpractice claim requires evidence that the defendant departed from the degree of care ordinarily practiced by healthcare providers “within the involved medical specialty.” However, a physician practicing in a different specialty may be allowed to testify if he or she has sufficient knowledge of the medical procedure at issue. La. Rev. Stat. Ann. § 9:2794(A)(1); see also Id. , § (D)(3) Pertuit v. Jefferson Parish Hosp. Service Dist. No. 2, 14-752 (La. App. 5 Cir. 5/14/15), 170 So. 3d 1106; Barrilleaux v. Board of Sup’rs of Louisiana State University, 2014-1173 (La. App. 1 Cir. 4/24/15), 170 So. 3d 1015.

Local/Community Standard

Louisiana adheres to a local/community standard of healthcare. That is, a malpractice plaintiff must prove that the defendant healthcare provider departed from the degree of care ordinarily exercised by healthcare providers practicing “in a similar community or locale.” La. Rev. Stat. Ann. § 9:2794(A)(1). The idea behind this requirement is that a small rural community may have different standards of healthcare practice than a city such as Baton Rouge.

Note that this local-standards rule applies in suits against dentists, optometrists, and chiropractors as well as physicians. Id.

Right to Subpoena Experts

Under Louisiana law, any party to a malpractice action has the right to subpoena “any physician” to testify “without obtaining the consent of the physician” if that physician possesses “special knowledge or experience in the specific medical procedure or process that forms the basis of the action.” The physician’s fee for such testimony “shall be set by the court.” La. Rev. Stat. Ann. § 9:2794(B).

The same subpoena right applies to dentists, optometrists, and chiropractors. Id.

VIII. Comparative Negligence / Proportionate Liability

Sometimes a healthcare provider will try to pin blame for a poor treatment outcome on the patient, accusing him or her of neglecting to follow post-surgery instructions or supplying inaccurate health history information, for instance. In cases where a patient bears some fault for causing his or her own medical injury, Louisiana applies the doctrine of “comparative negligence.” Under this doctrine, a careless or negligent patient’s lawsuit is not barred completely, but any monetary damages obtained are reduced.

For example, if the plaintiff was 25 percent at fault for the bad treatment outcome and the physician 75 percent, the plaintiff can recover monetary damages from the negligent physician but the amount will be reduced by 25 percent. La. Civ. Code Ann. art. 2323; Moore v. IASIS Glenwood Regional Medical Center, Inc., 51,177 (La. App. 2 Cir. 2/15/17),216 So. 3d 187.

On a different issue, if there are multiple defendants, who pays what share of the monetary damages? Under Louisiana law, liability for damages normally is divvied up among the defendants on a percentage basis according to their degree of fault. La. Civ. Code Ann. art. 2324; Dumas v. State ex rel. Dept. of Culture, Recreation & Tourism, 2002-0563 (La. 10/15/02), 828 So. 2d 530.

IX. Limitations on Attorney Fees

Unlike some states, Louisiana does not have a medical malpractice statute that specifically limits attorney fees.

X. Apologies and Sympathetic Gestures

If a healthcare provider apologizes for a poor treatment outcome, can the apology be used in court to help prove negligence?
Under Louisiana law, a healthcare provider’s communication expressing “apology, regret, grief, sympathy, commiseration, condolence, compassion, or a general sense of benevolence” generally cannot be used as evidence in a malpractice case. But a “statement of fault” made in connection with such a communication might be allowed into evidence. La. Rev. Stat. Ann. § 13:3715.5.

XI. Communications with Treating Physicians

May defense counsel communicate informally with a patient’s treating physicians without the patient’s consent?

This issue arose in Ernst v. Taylor, where the Louisiana Court of Appeal held that a patient’s confidentially rights were violated when defense counsel spoke with one of her treating physicians without following proper “discovery” procedures and without giving notice to the patient’s attorney. And this “ex parte communication” tainted the physician’s testimony at trial. 2008-1289 (La. App. 3 Cir. 5/6/09), 17 So. 3d 981; see also La. Code Evid. Ann. art. 510(F)(2) and Labarrera v. Boyd Gaming Corp., 13-629 (La. App. 3 Cir. 1/30/14), 132 So. 3d 1018.

XII. Disclaimer

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