Medical malpractice cases involve allegations that a health care provider violated the governing standard of care while treating a patient, resulting in an injury to the patient. The harm from medical malpractice can result from either an action taken by the health care provider, or by omission, the failure to take a medically appropriate action.
A medical malpractice case may be pursued by an injured patient against any licensed health care provider, including a medical doctor, nurse, physical therapist, and mental health care professional.
Medical malpractice actions are normally based upon the theory of negligence, alleging that a medical professional violated a duty of care to a patient, resulting in an injury to the patient. Examples of medical malpractice include,
Failure to diagnose a medical condition or disease,
Misdiagnosis of a medical condition or disease,
Failure to provide medically appropriate treatment,
An unreasonable delay in the start of treatment for a diagnosed medical condition or disease;
Mistakes in the prescription or dosing of medication.
Medical malpractice cases may also result from the assertion that a patient did not give informed consent for a medical procedure, with the patient alleging that the procedure involved a material risk that was not properly disclosed by the physician, and that the patient would not have agreed to the procedure had the patient been aware of the risk. The proper performance of a medical procedure is not a defense to an informed consent action. While an informed consent case can potentially be based on an allegation of battery, in general the allegation will be that the outcome of the medical treatment was different than it would have been had the patient been able to make an informed choice.
Informed consent claims can also arise based upon changes to a course of treatment or surgery made after consent was given. In some contexts obtaining the patient's consent is not necessary, For example, in trauma care or cases involving a patient with a mental health problem it may not be possible to obtain consent prior to the commencement of medical treatment, or consent must be obtained from a third party such as a guardian, spouse or parent.
Damages in medical malpractice cases normally take the form of economic damages such as wage loss, the cost of medical care, and other out-of-pocket expenses, and non-economic damages for pain and suffering resulting from the injury.
Louisiana caps medical malpractice damages at $500,000, no matter how severe the injury to the plaintiff. The liability of a health care provider is limited to $100,00, with any remaining amount paid from the state's Patient's Compensation Fund.
Joint and Several Liability
When more than one defendant is sued, under joint and several liability each defendant may be required to pay the full amount of the verdict. This policy helps ensure that a malpractice victim will be fully compensated even if one of the defendants has insufficient funds or insurance. Louisiana has largely abolished joint and several liability, such that defendants are liable only in proportion to their percentage of fault, unless it is shown that they conspired to commit and intentional or willful act that harmed the plaintiff.
The Collateral Source Rule
Under the traditional collateral source rule, payments received by the malpractice victim from third parties such as medical insurance companies would not be considered in the calculation of damages. Louisiana follows that traditional rule, except in relation to payments made by Medicaid.
The statute of limitations limits the amount of time a person alleging medical malpractice has to file a lawsuit against health care providers. In Louisiana, the statute of limitations for medical malpractice is one year from the act or omission alleged to have caused injury to the plaintiff, or from the reasonable date of discovery, but not more than three years from the date of injury.
Additional rules affecting malpractice litigation in the State of Louisiana include:
Alternative Dispute Resolution
Louisiana permits a contract between a patient and medical institution to include a binding arbitration clause. However, the clause may not require that the patient select a physician as arbitrator.
State Medical Review Panels
In Louisiana, most medical malpractice claims must be submitted to a state medical review panel before they may be filed in court. The parties to a claim may stipulate to waive the use of the medical review process. Within thirty days of review of the evidence, the medical review panel is to provide an expert opinion finding whether or not the evidence supports the plaintiff's position that the defendants failed to comply with the governing standard of care. If the panel finds that a defendant did not comply with the appropriate standard of care, the report must also state whether the plaintiff suffered any injury or disability as a result of the breach, and the nature, extent and duration of any disability. For permanent impairment, the panel must state the percentage of the impairment. The report must also state whether there are any material issues of fact, not requiring expert testimony, that relate to liability for consideration by the court. The report is admissible as evidence in any subsequent action brought by the claimant, but is not conclusive.
Medical Expert Witness Restrictions
In order to testify as an expert witness in a Louisiana medical malpractice case, a proposed expert must be practicing medicine at the time testimony was given or at the time the claim arose, must have knowledge of the governing standard of care for the treatment of the condition underlying the claim, must be qualified to state an expert opinion on standard of care based upon training or experience, and must be licensed to practice medicine or be a graduate of a medical school accredited by the AMA or AOA. For purposes of this rule, the practice of medicine includes training residents or students at an accredited school of medicine or osteopathy, and serving as a consulting physician to other physicians who provide direct patient care.
An apology law prevents a plaintiff from using an apologetic or concilatory statement made by a defendant as evidence of the defendant's liability. In Louisiana, any communication, statement, gesture or conduct by a health care provider expressing apology, regret, grief, sympathy, commiseration, condolence, compassion, or a general senseof benevolence that is excluded from evidence. However, a statement of fault that is made within the context of such a communication remains admissible.
If you believe that you have been injured by medical malpractice, a lawyer can help you by reviewing the facts and medical records of your case to determine if you have a viable case under the laws of your state. Medical malpractice cases are complex, and are very costly to litigate. Medical malpractice lawyers working on contingency fees will advance the cost of litigation, recovering those costs from the eventual verdict or settlement. A malpractice lawyer should be aware of changes in the law, and can help you avoid missing a filing deadline.