Here's what a Louisiana medical malpractice plaintiff needs to know about lawsuit filing deadlines, the burden of proof, and the state's caps on compensation.
Compared with other injury-related legal claims, a medical malpractice lawsuit is usually a fairly complex undertaking. That's true in every state, not just Louisiana. For one thing, legal issues and medical evidence can get very complicated very quickly in these cases, and plaintiffs (the injured patients, or their legal representatives) need to understand special proof requirements. But in Louisiana, plaintiffs also have to go through a complex medical review process before filing a lawsuit—and they need to request that review before the filing deadline.
In this article, we'll look at the most important Louisiana laws that could have a big effect on a medical malpractice lawsuit.
Louisiana's Medical Malpractice Statute of Limitations
A statute of limitations is a state law that sets a limit on the amount of time you have to file a lawsuit after you have suffered some type of loss or injury. There are different deadlines depending on the kind of lawsuit you want to file.
Like a lot of states, Louisiana has a dedicated statute of limitations for medical malpractice lawsuits. Louisiana Revised Statutes section 9:5628 specifies that injured patients must file their claim within one year of the health care provider's negligent action (or failure to act) that forms the basis of the case. Or, when the patients don't know right away about the malpractice, the case must be filed within one year after they discovered (or reasonably could have discovered) it.
Keep in mind that if you are relying on this so-called discovery rule, as the plaintiff you have the burden of proving that you did not discover, and you could not have reasonably discovered, the defendant's negligence more than a year before you filed your lawsuit.
The Louisiana law goes on to mandate that every medical malpractice lawsuit "be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect." This is known as a "statute of repose," and it bars lawsuits that are filed more than three years since the malpractice occurred, no matter how serious the medical error might have been, and regardless of whether the patient had a reasonable opportunity to discover that error and the resulting harm.
The "clock" for Louisiana's medical malpractice statute of limitations is paused (or "tolled" in legalese) when a plaintiff submits a request for review from a medical review panel, which the state requires in almost all medical malpractice cases before filing a lawsuit (more on that below).
Having read all of this, you might be wondering what happens if Louisiana's statute of limitations deadline has passed, but you try to file your medical malpractice lawsuit anyway. In that scenario, it's a safe bet that the doctor or health care facility you're trying to sue will ask the court to dismiss the case, and the court will grant the request. If that happens, that will be the end of your lawsuit.
Medical Review Panels in Louisiana
Before you file a medical malpractice lawsuit in Louisiana, you must submit your proposed complaint to a medical review panel and wait for an opinion from the panel on the validity of your claims. There are just a few exceptions to this requirement, including when:
- you previously agreed to binding arbitration of any disputes with the defendant health care provider
- the provider hasn't met the requirements for participating in the review process and the compensation fund (discussed below), or
- both you and the defendant have agreed to bypass the panel's review.
You must request this review before the deadline for filing a lawsuit (as described above). Once you've submitted your request, the statute of limitations is suspended unless:
- you haven't paid the fee for the medical review ($100 per defendant) within 45 days after receiving confirmation that your request was received, and
- you don't qualify for a fee waiver (either because you've gotten a court ruling that you can't afford to pay it, or because you've submitted an affidavit stating that a doctor has reviewed the medical records and believes that each defendant failed to meet the appropriate medical standard of care).
The suspension of the filing deadline will continue until 90 days after the panel:
- issues its opinion
- notifies you that the defendant isn't qualified for the review process, or
- dismisses your claim because the panelists weren't selected within a year.
Once any of these circ*mstances happens, you will be free to file your lawsuit, as long as the filing deadline hasn't passed. The same is true if the panel doesn't reach an opinion within a year after the panelists were selected.
The Medical Panel's Review and Opinion
The medical review panel will consist of three licensed health care providers, along with an attorney who will manage the process. The injured patient and the defendant health care provider(s) will submit evidence to the panel, such as medical records, reports from medical experts, and transcripts of depositions (when lawyers question witnesses under oath).
Based on its review of this material, the panel will issue a report with its opinion as to whether the evidence supports a conclusion that the defendant did not meet the appropriate standard of care when treating the patient. In the alternative, the panel may conclude that there is a significant factual question regarding liability for your injuries that must be decided by a judge rather than an expert. The report must include the panel's reasoning, as well as other detailed findings about the patient's injuries if the panelists believe the evidence points to a medical error.
If the plaintiff goes ahead with the lawsuit after the review process, the panelists could be called to testify as witnesses during the trial, and the panel's report may be admitted as expert evidence. However, that doesn't necessarily mean that the jury will agree with the panel's opinion.
Louisiana's Medical Malpractice Damages Cap
Like a lot of states, Louisiana has a law on the books that "caps" medical malpractice damages, effectively limiting the amount of money that a successful plaintiff can receive, even after a jury has heard all the evidence at trial and found the defendant liable for medical malpractice. But unlike most of the other states with these limits, Louisiana has enacted a cap on the total amount of compensation available to a plaintiff, not just a limit on certain categories of damages (like those related to the patient's pain and suffering).
Specifically, Louisiana Revised Statutes section 40:1231.2 limits total damages awards to $500,000 in medical malpractice cases, with the exception that costs of future medical care are not subject to the cap.
The Louisiana Supreme Court has reviewed the constitutionality of this cap and upheld it in the face of challenges by medical malpractice plaintiffs.
One twist to this cap is that any amount over $100,000 will be paid out through the Louisiana Patient's Compensation Fund, an insurance-type fund that covers all state health care providers (public hospitals and associated physicians), as well as private doctors and other health care providers who have met certain eligibility requirements.
If you're looking for more specifics on Louisiana's medical malpractice laws and how they apply to your potential case, it could be time to discuss your situation with an experienced medical malpractice attorney in your area.
FAQs
Like a lot of states, Louisiana has a dedicated statute of limitations for medical malpractice lawsuits. Louisiana Revised Statutes section 9:5628 specifies that injured patients must file their claim within one year of the health care provider's negligent action (or failure to act) that forms the basis of the case.
How long do you have to sue for medical malpractice in Louisiana? ›
The statute of limitations for medical malpractice in Louisiana is one year from the date of your original incident. If you find out about your medical malpractice at a later date, then the time limit for you to file your medical malpractice claim starts from that specific date.
What is the Louisiana medical malpractice Act? ›
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.
How are medical malpractice cases paid out in Louisiana? ›
The state Patient's Compensation Fund Oversight Board is funded by premiums from more than 23,000 health care providers, according to the fund's 2020 annual report. Doctors who enroll in the fund must pay the first $100,000 of each malpractice claim through an insurance company or as a self-insured provider.
What are the 3 types of medical negligence? ›
Here's our list of some of the more common types of personal injury claims for medical negligence:
- Medical Misdiagnosis. Failing to diagnose a condition correctly can lead to unnecessary suffering. ...
- Surgical Negligence. ...
- Prescription and Medication Errors. ...
- Negligent Medical Advice. ...
- Pregnancy and Birth Injuries.
Louisiana's Medical Malpractice Damages Cap
Specifically, Louisiana Revised Statutes section 40:1231.2 limits total damages awards to $500,000 in medical malpractice cases, with the exception that costs of future medical care are not subject to the cap.
How do I file a medical malpractice claim in Louisiana? ›
The first step is to request a medical malpractice medical review panel. Such a request must be sent to the Division of Administration, not the Patient's Compensation Fund. To check on receipt of a fax or determine if the provider is covered through the State, please call the panel office at (225)342-8509.
What is the best definition of malpractice? ›
Definition of malpractice
1 : a dereliction of professional duty or a failure to exercise an ordinary degree of professional skill or learning by one (such as a physician) rendering professional services which results in injury, loss, or damage. 2 : an injurious, negligent, or improper practice : malfeasance.
What is Louisiana Patient's Compensation Fund? ›
The Patient's Compensation Fund is an off-budget unit of the state which is 100 percent self-funded and not pooled in the general fund. The Fund was created in 1975 to provide an affordable and guaranteed medical malpractice coverage system for the private healthcare providers in the state.
How do you prove medical negligence? ›
Duty of care – there must be a verifiable patient-physician relationship, i.e., the doctor owed you a certain duty of care. Standard of care – the doctor did not provide you with a reasonable standard of care. Foreseeability – the injuries that you suffered were reasonably foreseeable.
Most medical negligence claims are handled on a No Win, No Fee basis. This means that you only need to pay legal fees if your case is successful. If your clinical negligence case is won you will pay us what is known as a 'success fee'. This is limited to a maximum of 25% of the compensation amount obtained.
How long after medical negligence can you sue? ›
There's usually a time limit of three years for bringing a medical negligence claim. But, crucially, this can either be: Three years from the time the negligence occurred, or. Three years from when you first become aware that there was a problem (if this was later than the time at which the negligence occurred)
Which elements must be present to prove malpractice? ›
To do so, four legal elements must be proven: (1) a professional duty owed to the patient; (2) breach of such duty; (3) injury caused by the breach; and (4) resulting damages. Money damages, if awarded, typically take into account both actual economic loss and noneconomic loss, such as pain and suffering.
What is an example of malpractice? ›
Examples of Medical Malpractice
Surgical errors or unnecessary surgery. Prescribing the wrong medication. Disregarding or failing to consider appropriate patient history. Not ordering proper tests.
What is difference between negligence and malpractice? ›
Medical malpractice is when a healthcare professional is aware of the possible consequences before making a mistake that led to an injury. Medical negligence is when a healthcare professional makes an honest mistake that leads to an injury.
Are you self insured in accordance with the Louisiana medical malpractice Act? ›
To be qualified, the health care provider must either be insured by a commercial malpractice policy or be self-insured. If self-insured, the health care provider must file proof of financial responsibility in the form of a $125,000.00 deposit with the PCF.
What does PCF stand for in insurance? ›
Patient Compensation Funds — also called "excess recovery funds," are state-operated programs that afford excess insurance coverage for healthcare providers, including doctors, hospitals, dentists, and some allied healthcare professionals.
What is state Patient Compensation Fund? ›
What is the basis for most medical malpractice claims? ›
The basis for most medical malpractice claims involves four elements: duty, breach, injury, and damages.
When a patient sues a physician for negligence who has the burden of proof in court? ›
Burden of proof
[14] In cases of medical negligence, the patient must establish her/his claim against the doctor. The burden of proof is correspondingly greater on the person who alleges negligence against a doctor.
Explaining Your Damages. This is the last step to proving liability in a medical malpractice case. Providing the details of your accident can help people to understand the inconvenience, pain, suffering, and even losses that you've dealt with because of your doctor's negligence.
What is an example of negligence in the medical field? ›
Failure to diagnose or misdiagnosing an injury or illness. Misreading or ignoring laboratory results. Unnecessary surgery. Surgical errors or wrong site surgery.
Can I sue for medical malpractice and negligence? ›
Wherever a medical practitioner is negligent and is employed by a hospital, it may be possible to sue the hospital for negligence.
How is injury compensation calculated? ›
Your compensation will be calculated by adding together: General damages - awarded for pain, suffering and loss of amenity (PSLA), and; Special damages - awarded for any financial losses or costs you have incurred.
What happens when a medical negligence claim goes to court? ›
The defendant will either then admit or deny clinical negligence. If negligence is admitted then the two parties will aim to reach an agreed settlement. However, if medical negligence is denied then your medical lawyer will, subject to supporting evidence, issue court proceedings.
How long does a professional negligence claim take? ›
It usually takes more than twelve months (but can be much longer depending on the value and complexity of the matter) for a claim to reach trial after court proceedings have been issued. The parties can carry on negotiating and make offers to settle the dispute all the way leading to trial.
Is there any way around statute of limitations? ›
In general, there's no way around the statute of limitations. You have to officially file the suit in the courts within two years of your accident, or unfortunately, there's very little that even the best personal injury lawyer can do for you.
How does the Louisiana Patient Compensation Fund work? ›
Louisiana Patient's Compensation Fund
The law allows a provider to have financial responsibility for the first $100,000 of exposure per claim whether through insurance or security deposit and enroll in the Fund for the excess coverage and be under an umbrella of the cap on damages.
What is the best definition of malpractice? ›
Definition of malpractice
1 : a dereliction of professional duty or a failure to exercise an ordinary degree of professional skill or learning by one (such as a physician) rendering professional services which results in injury, loss, or damage. 2 : an injurious, negligent, or improper practice : malfeasance.
Are you self insured in accordance with the Louisiana medical malpractice Act? ›
To be qualified, the health care provider must either be insured by a commercial malpractice policy or be self-insured. If self-insured, the health care provider must file proof of financial responsibility in the form of a $125,000.00 deposit with the PCF.
What does PCF stand for in insurance? ›
Patient Compensation Funds — also called "excess recovery funds," are state-operated programs that afford excess insurance coverage for healthcare providers, including doctors, hospitals, dentists, and some allied healthcare professionals.
Which elements must be present to prove malpractice? ›
To do so, four legal elements must be proven: (1) a professional duty owed to the patient; (2) breach of such duty; (3) injury caused by the breach; and (4) resulting damages. Money damages, if awarded, typically take into account both actual economic loss and noneconomic loss, such as pain and suffering.
What is an example of malpractice? ›
Examples of Medical Malpractice
Surgical errors or unnecessary surgery. Prescribing the wrong medication. Disregarding or failing to consider appropriate patient history. Not ordering proper tests.
What is difference between negligence and malpractice? ›
Medical malpractice is when a healthcare professional is aware of the possible consequences before making a mistake that led to an injury. Medical negligence is when a healthcare professional makes an honest mistake that leads to an injury.
