MEDICAL MALPRACTICE INJURIES
INFORMATION AND WHAT TO DO
Doctors, surgeons and other medical professionals have the responsibility to treat their patients according to a reasonable standard of care in the medical community. When this standard of care is not met, it often leads to serious injuries. Unfortunately, it can be quite common for patients of these health care professionals to be treated with less than average care. According to the Journal of the American Medical Association, medical negligence is the third leading cause of death in the United States. An injury victim may have the right to file a medical malpractice action in order to hold the healthcare provider accountable and to obtain necessary compensation.
Not every bad medical result is caused by medical malpractice. Our lawyers thoroughly review potential claims early on and provide honest advice to clients about whether filing a claim is in their best interest.
At Murphy Law Firm, LLC, our experienced attorneys have handled a wide range of cases involving medical malpractice in clinics and hospitals throughout Louisiana. We are unrelenting in pursuing malpractice claims in order to meet all deadlines and to give our clients the best chance of success. We prepare every case thoroughly and understand how to determine whether a doctor’s mistake led to an injury or death.
Hold Doctors and Hospitals Accountable for Their Mistakes
Our firm has handled a wide range of claims involving medical negligence, including:
While we encourage the victims of medical malpractice to come forward to hold doctors and hospitals accountable, there is a statute of limitations to follow. According to the Louisiana Revised Statute 9:5628, no actions can be brought against a health care provider unless a claim is filed within one year of the alleged malpractice, or within one year of discovering that the negligence took place. One exception does take place though: even if a claim is filed within one year of discovering malpractice, it must be filed within three years that such actions actually occurred. Example: if you were to discover that medical malpractice took place while a family member was in the hospital 5 years ago, even if you filed a claim within one year of discovering this, no action can be taken against the health care professional.
§5628. Actions for medical malpractice
A. No action for damages for injury or death against any physician, chiropractor, nurse, licensed midwife practitioner, dentist, psychologist, optometrist, hospital or nursing home duly licensed under the laws of this state, or community blood center or tissue bank as defined in R.S. 40:1231.1(A), whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.
B. The provisions of this Section shall apply to all persons whether or not infirm or under disability of any kind and including minors and interdicts.
C. The provisions of this Section shall apply to all healthcare providers listed herein or defined in R.S. 40:1231.1 regardless of whether the healthcare provider avails itself of the protections and provisions of R.S. 40:1231.1 et seq., by fulfilling the requirements necessary to qualify as listed in R.S. 40:1231.2 and 1231.4.
Acts 1975, No. 808, §1; Acts 1976, No. 214, §1; Acts 1987, No. 915, §1, eff. Sept. 1, 1987; Acts 1990, No. 501, §1; Acts 1995, No. 818, §1; Acts 1995, No. 983, §1, eff. June 29, 1995; Acts 2001, No. 95, §1.
If the claim is filed within the statute of limitations set forth by the state of Louisiana, then according to Revised Statute 9:2749, the plaintiff must provide the necessary proof that his or her injury was the result of malpractice. The plaintiff must first prove the degree of care normally given to patients, then give evidence that the defendant either lacked the necessary knowledge for care or simply failed to exercise care to the necessary degree, and finally must prove that the injuries sustained by the patient were a result of such failure by the defendant. Both the plaintiff and defendant have the right to subpoena any physician, dentist, optometrist, or chiropractor to establish the knowledge, skill, and care that is ordinarily practiced in their respective fields.
§2794. Physicians, dentists, optometrists, and chiropractic physicians; malpractice; burden of proof; jury charge; physician witness expert qualification
A. In a malpractice action based on the negligence of a physician licensed under R.S. 37:1261 et seq., a dentist licensed under R.S. 37:751 et seq., an optometrist licensed under R.S. 37:1041 et seq., or a chiropractic physician licensed under R.S. 37:2801 et seq., the plaintiff shall have the burden of proving:
(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, dentists, optometrists, or chiropractic physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians, dentists, optometrists, or chiropractic physicians within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.
B. Any party to an action shall have the right to subpoena any physician, dentist, optometrist, or chiropractor for a deposition or testimony for trial, or both, to establish the degree of knowledge or skill possessed or degree of care ordinarily exercised as described in Subsection A of this Section without obtaining the consent of the physician, dentist, optometrist, or chiropractor who is going to be subpoenaed only if that physician, dentist, optometrist, or chiropractor has or possesses special knowledge or experience in the specific medical procedure or process that forms the basis of the action. The fee of the physician, dentist, optometrist, or chiropractor called for deposition or testimony, or both, under this Subsection shall be set by the court.
C. In medical malpractice actions the jury shall be instructed that the plaintiff has the burden of proving, by a preponderance of the evidence, the negligence of the physician, dentist, optometrist, or chiropractic physician. The jury shall be further instructed that injury alone does not raise a presumption of the physician’s, dentist’s, optometrist’s, or chiropractic physician’s negligence. The provisions of this Section shall not apply to situations where the doctrine of res ipsa loquitur is found by the court to be applicable.
D.(1) In a medical malpractice action against a physician, licensed to practice medicine by the Louisiana State Board of Medical Examiners under R.S. 37:1261 et seq., for injury to or death of a patient, a person may qualify as an expert witness on the issue of whether the physician departed from accepted standards of medical care only if the person is a physician who meets all of the following criteria:
(a) He is practicing medicine at the time such testimony is given or was practicing medicine at the time the claim arose.
(b) He has knowledge of accepted standards of medical care for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim.
(c) He is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of care.
(d) He is licensed to practice medicine by the Louisiana State Board of Medical Examiners under R.S. 37:1261 et seq., is licensed to practice medicine by any other jurisdiction in the United States, or is a graduate of a medical school accredited by the American Medical Association’s Liaison Committee on Medical Education or the American Osteopathic Association.
(2) For the purposes of this Subsection, “practicing medicine” or “medical practice” includes but is not limited to training residents or students at an accredited school of medicine or osteopathy or serving as a consulting physician to other physicians who provide direct patient care, upon the request of such other physicians.
(3) In determining whether a witness is qualified on the basis of training or experience, the court shall consider whether, at the time the claim arose or at the time the testimony is given, the witness is board certified or has other substantial training or experience in an area of medical practice relevant to the claim and is actively practicing in that area.
(4) The court shall apply the criteria specified in Paragraphs (1), (2), and (3) of this Subsection in determining whether a person is qualified to offer expert testimony on the issue of whether the physician departed from accepted standards of medical care.
(5) Nothing in this Subsection shall be construed to prohibit a physician from qualifying as an expert solely because he is a defendant in a medical malpractice claim.
Added by Acts 1975, No. 807, §1. Amended by Acts 1979, No. 545, §1; Acts 1985, No. 709, §1; Acts 1995, No. 821, §1; Acts 1997, No. 623, §1, eff. July 3, 1997; Acts 2003, No. 581, §1, eff. June 27, 2003.
Unfortunately, there are limitations to how much a plaintiff can get in compensation. According to Revised Statute 40:1231.2, the maximum that can be awarded is $500,000 (plus interest and cost).
§1231.2. Limitation of recovery
A. To be qualified under the provisions of this Part, a health care provider shall:
(1) Cause to be filed with the board proof of financial responsibility as provided by Subsection E of this Section.
(2) Pay the surcharge assessed by this Part on all health care providers according to R.S. 40:1131.4.
(3) For self-insured health care providers, initial qualification shall be effective upon acceptance of proof of financial responsibility by and payment of the surcharge to the board. Initial qualification shall be effective for all other health care providers at the time the malpractice insurer accepts payment of the surcharge.
B.(1) The total amount recoverable for all malpractice claims for injuries to or death of a patient, exclusive of future medical care and related benefits as provided in R.S. 40:1231.3, shall not exceed five hundred thousand dollars plus interest and cost.
(2) A health care provider qualified under this Part is not liable for an amount in excess of one hundred thousand dollars plus interest thereon accruing after April 1, 1991, and costs specifically provided for by this Paragraph for all malpractice claims because of injuries to or death of any one patient. The sole cost for which a health care provider qualified under this Part may be assessed by a trial court shall be limited to the cost incurred prior to the rendering of a final judgment against the health care provider, not as a nominal defendant, after a trial on a malpractice claim, including but not limited to, costs assessed pursuant to Code of Civil Procedure Article 970 in any instance where the board was not the offeror or offeree of the proposed settlement amount. The health care provider shall not be assessed costs in any action in which the fund intervenes or the health care provider is a nominal defendant after there has been a settlement between the health care provider and the claimant.
(3)(a) Any amount due from a judgment or settlement or from a final award in an arbitration proceeding which is in excess of the total liability of all liable health care providers, as provided in Paragraph (2) of this Subsection, shall be paid from the patient’s compensation fund pursuant to the provisions of R.S. 40:1231.4(C).
(b) The total amounts paid in accordance with Paragraphs (2) and (3) of this Subsection shall not exceed the limitation as provided in Paragraph (1) of this Subsection.
C. Except as provided in R.S. 40:1231.4(C), any advance payment made by the defendant health care provider or his insurer to or for the plaintiff, or any other person, may not be construed as an admission of liability for injuries or damages suffered by the plaintiff or anyone else in an action brought for medical malpractice.
D.(1) Evidence of an advance payment is not admissible until there is a final judgment in favor of the plaintiff, in which event the court shall reduce the judgment to the plaintiff to the extent of the advance payment.
(2) The advance payment shall inure to the exclusive benefit of the defendant or his insurer making the payment.
(3) In the event the advance payment exceeds the liability of the defendant or the insurer making it, the court shall order any adjustment necessary to equalize the amount which each defendant is obligated to pay, exclusive of costs.
(4) In no case shall an advance payment in excess of an award be repayable by the person receiving it.
(5) In the event that a partial settlement is executed between the defendant and/or his insurer with a plaintiff for the sum of one hundred thousand dollars or less, written notice of such settlement shall be sent to the board. Such settlement shall not bar the continuation of the action against the patient’s compensation fund for excess sums in which event the court sha1l reduce any judgment to the plaintiff in the amount of malpractice liability insurance in force as provided for in R.S. 40:1231.2(B)(2).
E.(1) Financial responsibility of a health care provider under this Section may be established only by filing with the board proof that the health care provider is insured by a policy of malpractice liability insurance in the amount of at least one hundred thousand dollars per claim with qualification under this Section taking effect and following the same form as the policy of malpractice liability insurance of the health care provider, or in the event the health care provider is self-insured, proof of financial responsibility by depositing with the board one hundred twenty-five thousand dollars in money or represented by irrevocable letters of credit, federally insured certificates of deposit, bonds, securities, cash values of insurance, or any other security approved by the board. In the event any portion of said amount is seized pursuant to the judicial process, the self-insured health care provider shall have five days to deposit with the board the amounts so seized. The health care provider’s failure to timely post said amounts with the board shall terminate his enrollment in the Patient’s Compensation Fund.
(2) For the purposes of this Subsection, any group of self-insured health care providers organized to and actually practicing together or otherwise related by ownership, whether as a partnership, professional corporation or otherwise, shall be deemed a single health care provider and shall not be required to post more than one deposit. In the event any portion of the deposit of such a group is seized pursuant to judicial process, such group shall have five days to deposit with the board the amounts so seized. The group’s failure to timely post said amounts with the board will terminate its enrollment and the enrollment of its members in the Patient’s Compensation Fund.
Added by Acts 1975, No. 817, §1. Amended by Acts 1976, No. 183, §3; Acts 1984, No. 435, §2, eff. July 6, 1984; Acts 1986, No. 499, §1, eff. July 2, 1986; Acts 1990, No. 967, §2, eff. Oct. 1, 1990; Acts 1991, No. 800, §1; Acts 2008, No. 558, §1; Redesignated from R.S. 40:1299.42 by HCR 84 of 2015 R.S.
NOTE: Former R.S. 40:1231.2 redesignated to R.S. 40:1131.2 by HCR 84 of 2015 R.S.
Hurt? We Can Help:
In Louisiana, an individual must file a claim with the patient compensation fund, where it will go before a review panel of doctors who will determine whether the doctor or hospital is liable. Our lawyers will help explain your injuries, how they were caused, and who should be held liable for compensating you.
Don’t be a Victim Twice
Meritorious medical malpractice claims are not only beneficial for patients who have been harmed by negligence. They may also cause hospitals and clinics to increase training and safety, which may prevent malpractice in the future. Hold hospitals accountable for their actions- by helping yourself you could also be helping future patients. If you believe you’ve been a victim of medical malpractice, contact us at Murphy Law Firm, LLC. Come in or call (225)928-8800 today for your free consultation.