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 the plaintiff (the injured patient, or his or her legal representative) needs to understand special proof requirements. Then there's the lawsuit-filing deadline to contend with, and statutory compensation limits (the "damages" cap) to keep in mind. In this article, we'll look at a number of Louisiana laws that could have a big effect on a medical malpractice lawsuit.
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 a medical malpractice lawsuit, and it specifies that the injured patient must file their claim within one year of the health care provider's harmful action (or failure to act) that forms of the basis of the case. Or, if the malpractice is not known of right away, the case must be filed within one year of the date on which it is actually (or could reasonably have been) discovered by the plaintiff. 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 occurrence of the malpractice until the time when you finally took action.
You can read the full text of Louisiana's medical malpractice statute of limitations online at Louisiana Revised Statutes section 9:5628.
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 means that no lawsuit can be filed if more than three years have passed 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 he or she was harmed by it.
Having read all of this, you may 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. That’s why it’s so important to understand the medical malpractice statute of limitations.
Louisiana Revised Statutes section 9:2794 sets out the elements of a medical malpractice lawsuit in Louisiana, in terms of establishing liability.
The plaintiff has the burden of proving the defendant health care provider's legal liability "by a preponderance of the evidence" -- meaning the plaintiff must show that it's "more likely than not" that the defendant committed malpractice.
In order to do this, the plaintiff must typically:
Like a lot of states, Louisiana has a law on the books that limits (or "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. And Louisiana is pretty unique among states in that it 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, according to Louisiana Revised Statutes section 40:1231.2, the state 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 -- as recently as 2012.
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 automatically covers all state health care providers (public hospitals and associated physicians), and includes 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 may be time to discuss your situation with an experienced medical malpractice attorney in your area.