Louisiana Medical Malpractice Laws
Each state has their own set of medical malpractice laws in place, and it is important for patients to understand those laws and how they could affect their case. The following are the basics of the laws in Louisiana.
Medical Malpractice Louisiana
Plaintiffs who plan to file a medical malpractice lawsuit in Louisiana need to be well-informed before filing a claim since the laws of Louisiana are more progressive compared to most of the rest of the United States. They need to be aware of what evidence is required, what paperwork needs to be filed to get the process going, which acts qualify as medical malpractice, and what the typical court procedure is when a medical professional is accused of negligence. For those who need assistance in making it through their medical malpractice cases, hiring a medical malpractice attorney is the best option. No one should attempt to get into a malpractice court without legal advice. To do so could lead to failure even before the merits of the case can come out. This guide can help plaintiffs determine what to look for in an attorney that can make a medical malpractice claim easier.
Understanding the Meaning of Medical Malpractice
Malpractice cases are some of the most complex cases that the courts handle, no matter where in the world. There is a heavy burden of proof that falls on the plaintiff to prove that there was an injury that stemmed from the neglect or improper care of a qualified health care provider. The requirements of proof for medical malpractice in the state of Louisiana are specific, so the plaintiff or the attorney must gather enough evidence before a claim can be filed. This should include medical records, any statements from people who witnessed the injury, recordings of the incident if any exist, and physical evidence of any tests or images that were taken at the time.
After gathering the evidence, the complainant can file a request to the medical review panel. Having to file this formal request is the direct result of the LA Medical Malpractice Act that determines the steps for all malpractice cases in the state. The medical review panel examines the preliminary overview and decides if the case should proceed based on its merits. If the case has enough weight to move forward, the panel recommends that the case be filed with the court. The court then decides if there is any malpractice based on how well the evidence proves that the medical professional caused an injury and that the injury changed the life of the plaintiff. If the health care provider is found guilty, there are caps on the amount of damages a Louisiana resident can receive, but this depends on the type of injury sustained and how much future care the injury will require.
When Does Medical Malpractice Occur?
In order for a case to qualify as malpractice, there are a few things that need to be proven in the eyes of the court. First, the plaintiff needs to prove what the standard of care was for the situation. This is defined as what level of care a patient should be able to expect during the situation from any doctor that was presented with the same test results, history, and symptoms. The care level is going to be different based on where the plaintiff went, such as an urgent care center, ER, or medical office.
Second, the plaintiff needs to prove that the care he or she received was beneath the predetermined standard of care. Whether due to negligence, inexperience, or just not taking the time to discern the situation properly, the medical professional failed to provide the needed level of care. It may have been because the doctor was not listening to the symptoms, texting during the consult, or leaving before the situation was fully explained.
Finally, the plaintiff needs to provide proof that there was a connection between the person who inflicted the injury and the plaintiff that directly led to the injury. What the proof needs to point to is that if this professional were not the one treating the plaintiff, the injury would not have happened. If any other medical professional had been the one tending to the plaintiff at the time, the present circumstances would be different for that individual.
How Does the Medical Review Panel Impact Malpractice Cases in Louisiana?
When patients intend to file a claim of malpractice, they have to submit documents to the Louisiana patient’s compensation fund. This allows medical doctors to convene and review the case. The initial documentation only provides an overview of the case. If the overview is enough for the doctors to convene a panel, they will request additional documentation. The LA Medical Malpractice Act says that any doctor that is part of the compensation fund is automatically considered a qualified health care provider, which allows them to be considered expert witnesses in many instances.
Three doctors make up the panel, and each is a part of the patient compensation fund. There is also a fourth member, which is an attorney to help advise the doctors should they have any legal questions along the way. The three doctors on the panel pick an attorney they feel comfortable speaking with candidly during the review.
The panel will go over all of the evidence submitted and decide if the case should move forward. When the review is complete, the members of the panel draw up a final report. This report is admissible in court, and any member that sat on the panel can be called to the stand to testify as an expert witness on the case, for either the prosecution or the defense. This process makes Louisiana unique from other states, and also makes early evidence gathering necessary to file a claim of malpractice.
What Statute of Limitations Does Louisiana Put on Malpractice Cases?
Strict rules cover the time allowances a plaintiff has to file a claim of malpractice. When someone faces an obvious injury, the plaintiff has one calendar year from the date of the injury to file a claim. If the injury is not immediately obvious, then the plaintiff has one calendar year from the date the injury becomes obvious to file a claim. In cases where the injury does not become obvious immediately, plaintiffs only have a maximum of three years to file their claim against the health care provider involved.
One thing that sets Louisiana apart from nearly all other states is that there are no written exceptions to the time limits for children or people who have mental impairments. Most states allow a parent to wait until the child is older to see what type of effect the injury will have on the rest of that child’s life. However, that is not the case here.
There are times where a case can be put into the court system after the three-year deadline, but they are rare and are the exception to the rule. The same goes for people with mental illness. Many states have exceptions for those who are not able to understand their injuries due to their altered mental status, but Louisiana does not. The state believes that anyone who suffered from malpractice needs to make it known immediately.
If the case is not filed within three years, the doctor or other medical professionals involved are able to continue to practice medicine without any consequence for their actions. Should anyone believe he or she has any type of malpractice claim, finding out their available options is the only way to hold the medical professional accountable.
What Types of Damages Can a Malpractice Case Seek?
When an injury that could have been avoided takes place, the court decides on what type of damages are available for the plaintiff. There are limits on what can be awarded, but the state does cover many reasonable medical expenses when a doctor is found to be at fault for malpractice. Some of the most common monetary damages include:
- Costs of medical bills for the initial injury as well as for any follow-up medical care required to facilitate healing
- Prescription costs that are a direct result of the injury and the healing process
- Payment for any type of therapy that becomes necessary to help the plaintiff try and return to some semblance of a normal life
- Wages that are lost during the recovery process
- Future lost wages if the injury is long-standing or permanent
Non-monetary damages can include:
- Expenses to cover the loss of how much life the plaintiff is no longer able to enjoy
- Pain and suffering as a result of the injury, permanent disability, or disfigurement
- Expenses to cover a loss of consortium
When damages are awarded for Louisiana medical malpractice, there is a cap for all current medical expenses of $500,000. This includes monetary and non-monetary damages that a plaintiff can receive. The only expenses that this does not cover are for any future medical procedures the plaintiff may require. This may seem like a low amount to some, but the Supreme Court of Louisiana upheld it as being a solid amount of compensation and constitutional.
Anything beyond $100,000 comes directly from the compensation fund as well as any future payments for procedures the plaintiff would need. The first portion comes from the accused directly or from the malpractice insurance. The compensation fund is similar to having malpractice insurance for the doctor since it covers a portion of any awards and all future medical payments. However, it is not something that any private health care provider should rely on.
Does Louisiana Define a Health Care Provider More Specifically?
Louisiana has a wide net of people and health care facilities that fall under the term health care provider when it comes to a medical malpractice case. Here is a list of some of the professionals and medical facilities that can be covered by a malpractice suit:
- Any person, limited liability partnership, corporation, facility, limited liability corporation, or institution that has gone through and been certified by Louisiana to offer professional services or health care to people
- Physicians, dentists, dieticians, nutritionists, therapists, nurses, midwives, anesthesiologists, pharmacists, optometrists, counselors, podiatrists, scientists, medical technologists, and social workers
- Hospitals, nursing homes, hospice facilities, dental offices, blood and tissue banks, medical clinics, office buildings, and testing facilities
Can the Plaintiff Be at Fault in Malpractice Cases?
There are several states where the plaintiff can also be partly at fault for his or her own injury, and Louisiana is one of them. However, unlike many other states in the United States, unless the plaintiff is 100 percent at fault, he or she can still receive compensation. Some states do not allow reward if the plaintiff is 50 percent at fault or more. In Louisiana, the plaintiff can be up to 99 percent at fault and still receive some type of compensation. As an example, if a patient getting an inoculation were to take the syringe and poke themselves in the eye with it causing nearly all of his or her own injury, the professional who allowed the patient to grab the syringe could be found 1 percent at fault, and the patient could still receive monetary damages.
What Types of Medical Malpractice Cases Are Possible?
Each state has seen different types of malpractice cases. Some people may not even realize a mistake qualifies as medical malpractice until someone else points it out. They may believe that it was an honest mistake and not anything to worry about, but that is not a safe way of thinking. Just because a medical mistake did not cause an issue yet, does not mean it never will. Here are some of the scenarios that could lead to a medical malpractice case:
- A physician giving a patient the wrong dose or type of medicine that caused a health issue
- Neglecting to order common tests to help diagnose the patient properly
- Avoidable surgical errors, such as leaving equipment behind or operating on the wrong organ
- Discharging the patient prior to it being safe to do so
- Not talking to the patient about the dangers of a medication, treatment, or procedure ahead of the administration and the side-effects caused injury the patient
- Ignoring obvious alterations in a patient’s vital signs
- Being oblivious to obvious signs of an infection after a surgical procedure
- Not treating a common, obvious ailment with a traditional form of treatment
- Not listening or answering patient questions incorrectly that led to the injury
- Ignoring any alarm pointing to an issue and the delay leading to the death or injury of the patient
- Neglecting to intubate a patient who could not easily breathe on his or her own
- Not taking a full patient history or neglecting to read through the history to help with the diagnosis
- Performing some type of surgical procedure that the patient did not need
- Problems with anesthesia that made it difficult for a person to wake up, or lead to the patient’s death
- Neglecting follow-up or aftercare with a patient that should have had it
- Providing a patient with a diagnosis that does not match with the symptoms the patient was experiencing
- Giving medication that was listed on the allergy section of a patient’s chart
- Combining medications that led to a dangerous interaction
- Waiting to diagnose an obvious ailment that made the prognosis worse
- Problems with a pregnancy or birth of a child that could have been prevented
- Not reading the results of a test properly or ignoring something that would have sped up the diagnosis
- Using equipment that is faulty or not double-checking questionable results
- Disfiguring someone to the point of them no longer being recognizable
Is Having a Law Firm Helpful When Making a Medical Malpractice Claim?
When it comes to medical malpractice cases, going through them alone is not recommended. The courts are set up to be friendly to plaintiffs who sustained injuries, but the cases are complex. The more details go into a case, the more confusing it becomes. Whether to go with a whole firm or an individual medical malpractice attorney; this is up to the plaintiff. However, there should be legal advice and counsel when it comes to going to court for malpractice.
Medical malpractice lawyers can be of significant help when it comes to proving medical negligence, personal injury, or wrongful death. They understand the deadlines that the state requires, know what documents are required to get the process started, and understand the type of evidence to be gathered. Also, they have a network of people who can help gather evidence, interview witnesses, and testify in court should that become necessary.
Some of the other benefits of having an attorney for a malpractice case include:
- They can objectively look at a case and explain the merit, or lack thereof, to the plaintiff before he or she puts in more money in filing a case that is not winnable from the start.
- They are aware of the dates and documents to be filed so they can quickly investigate and make sure the filing falls within the time limitations.
- Attorneys have skills of communication that often outweigh what a layperson can do, especially in terms of communicating with insurance companies. Letting an attorney speak with the insurance company can help increase settlement amounts in some cases.
- Allowing an attorney to show up in court, speak with people, file documents, and gather evidence reduces the burden on the plaintiff. This keeps the stress down and allows for better healing following any type of injury.
- The attorney can call regularly and provide updates on the case without the injured party going to the courthouse or making unnecessary phone calls.
- Their experience gives them an edge over inexperienced lawyers, or worse, inexperienced plaintiffs trying to go through the process alone. That experience can mean the difference between winning a settlement and being stuck with a pile of overdue bills.
- Attorneys know how to say things to appease the court. They can say the right words to the judge to get their point across while simplifying what is said so the jury can better understand the process.
One of the primary benefits a plaintiff can get by hiring a lawyer is having someone that will protect him or her from outsiders. When a mistake happens, much finger-pointing usually follows. This is not only stressful, but it also makes an injured person second-guess the situation. That is not the best way to heal or move forward with life. Instead, allowing the attorney to be that shield can help give the injured party the ability to calm down and know what is going on by getting regular updates about the case over the phone.
What Type of Attorney Is Best for Malpractice Cases?
Any attorney with experience in medical malpractice can be a huge help when going to court or filing the right documentation. If the possibility of having an attorney who specializes in malpractice is there, that should be the route a plaintiff takes. Ideally, the attorney-client relationship should begin during the first meeting as the plaintiff should feel a connection with the attorney.
The attorney should also be available to the plaintiff on a regular basis. For example, this could mean driving out to a plaintiff’s Baton Rouge home to meet up, calling the plaintiff to provide updates on the case, or being available day or night for text messages if something goes awry. Having an attorney who is always available is huge for a plaintiff, especially if the person feels isolated after the injury.
If the attorney also happens to have medical experience in some way, this can also be a major asset to the plaintiff. Not only can the experience give the attorney an edge in court, but it can also strengthen the attorney-client relationship. Such a background can help the attorney answer questions for the plaintiff and help the attorney understand how life has changed for the plaintiff on a different level.
Should the Plaintiff Ask Specific Questions to a Malpractice Lawyer Before Hiring One?
Not every attorney out there is going to be a good match for every plaintiff. Some personalities do not mix well, no matter what the circumstances are. If the plaintiff does not feel a bond with the first attorney he or she speaks with, the plaintiff should continue to look elsewhere until that bond is found. One way to figure out the best attorney to go with is by asking questions. The answer to those questions can give the plaintiff a much better feel for the experience and scope of the attorney’s strengths and weaknesses. Here are some of the best questions to ask.
- Is there a case based on the preliminary overview? If not, what are the available options?
- Is the attorney experienced in medical malpractice, or is his or her expertise in a different area of the law?
- Does the attorney regularly win cases like this? What is the outcome of those wins, settlements, or trials?
- Does the attorney understand the case based on the initial overview? Does the attorney understand the specific procedure or treatment that was used enough to convey it to a judge or jury?
- Is the attorney going to do most of the work on the case, or will the attorney pass on many of the duties to interns, assistants, or paralegals?
- Who will be reaching out and communicating about the case? Will it be the attorney directly or someone under the attorney?
- How will the plaintiff reach the attorney in case of an emergency?
- Are there any impending time limits that affect the current status of the case?
- What parts of the case should be emphasized in court versus what parts should be played down in order to have the best chance of winning?
- Will the attorney make house-calls if that becomes necessary?
- Would expert testimony help this case?
- Does the evidence found in this case point to a trial or a settlement, in the opinion of the attorney?
- Is the attorney too busy to take on this case?
- What was the result of the most recent case this specific attorney tried?
- What sizes of settlements are common for this specific attorney
- Are there up-front fees to pay for the attorney or to start the process?
- Would the case be taken on contingency?
- What fees should the plaintiff expect down the line?
- What type of network does this attorney have in terms of expert witnesses, doctors who could explain the case, and investigators?
- How many trials has the attorney actually tried?
The answers to these questions will help the plaintiff understand the scope of the attorney’s capabilities. The information also lets the plaintiff see if he or she could work with the person over the long-term. Malpractice cases are not resolved fast, and they require an extensive amount of patience in most cases. If there is no bond from the beginning, the plaintiff can be expected to like the attorney less in the next 6-12 months.
What Makes Trying a Malpractice Case Different in Louisiana?
There is only one state in the U.S. that is considered a wholly civil state, which makes trying any cases in its jurisdiction more difficult. What that means is that the state looks at specific statutes more carefully than it does past cases in its borders or elsewhere around the world. It gives the judges who sit on the bench the ability to interpret the written statutes as they see fit but within reason. That makes trying any case on Louisiana soil much more difficult than in other states.
A malpractice case is no different. The statutes are there for everyone to read, but the judge presiding over the case is going to make the difference. If the judge does not feel the burden of proof has been met, there is little that a plaintiff or an attorney can do about it. That is why coming into court prepared is vital. Court proceedings need to be formal, organized, and logical. If the attorney does not present that type of a case, the plaintiff will not likely win due to the civil nature of the state as a whole.
Does the Process Change If the Malpractice Led to Death?
Most of the process for a medical malpractice case is the same as the process for the death of a loved one. However, the plaintiff, in that case, is the estate of the person who passed on. In this instance, the person died as a result of the neglectful or improper actions of another who was supposed to be taking care of them. Louisiana defines wrongful death as an injury that becomes fatal to someone that should have been avoidable under better circumstances. Instead of being able to talk with the injured party, this type of case relies on records of what happened and the report by the Louisiana State Board of Medical Examiners. The death certificate will be able to provide some insight as to what happened prior to the passing of the injured party.
This type of case can stem from many different causes, including:
- Actions of a human being
- Actions of the institution that the patient was staying at when he or she passed
- Willful actions by a human or an institution
- Accidental negligence by a human or an institution
- Someone being reckless around the patient that led to the death
- A malfunctioning device that caused the patient’s death directly or indirectly
Several people can file a claim after the untimely demise of a loved one, including:
- A spouse who is left after the patient passes away from his or her injuries
- Surviving children of the patient who died because of the injuries
- In cases where there was not a spouse or children, surviving parents can file a claim
- In cases where there are no spouse, child, or parents, the option goes to surviving siblings or surviving grandparents who want to file a claim on the deceased’s behalf
- Adopted family members also have the same rights to file a claim as long as the adoption was formal and finalized prior to the person’s passing.
Some damages can be awarded for this type of malpractice, as well. There are both economic and non-economic damages, just as with a traditional malpractice case. Those damages can include:
- Cost of burying the deceased
- All funeral expenses
- Any medical bills that were a result of the injury or the attempts to recover from the injury prior to death
- Any wages that would have been lost from the person being in the hospital
- Added value for how much the deceased helped in his or her own household
- Damaged property bills that stemmed from the injury
- Any pain and suffering the deceased went through during his or her final moments
- Compensation for a loss of companionship, care, emotional support, or guidance the family suffered as a direct result of the death of the deceased
There is a limit of how long a family can wait to file this type of malpractice suit, and that is one year from the person’s untimely demise. This gives the family time to grieve, time to figure out the best course of action, and time to prepare the documents for the compensation fund panel. The total damages are the same as with a traditional malpractice case, which is set at $500,000 in the event of someone’s death.
Pursuing a medical malpractice case in Louisiana is a complex process that is dangerous for a plaintiff to take up alone. It is recommended that anyone who struggled with the effects of an injury seek out the legal advice of an experienced attorney. The medical malpractice lawyer can help explain the deadlines, what needs to be proven, the route through court, and what could come with a settlement. The attorney can also explain what would need to happen in order for the case to make it through the medical review panel and be brought to court. The process is important, and the only way to get to a possible settlement is by approaching the process one step at a time. Do not try and rush through it, or some aspects of the case will be overlooked. Instead, find a lawyer, listen to his or her advice, and focus on healing. That way, when the day arrives to share what happened, everyone is ready to get to the truth.