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.
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 of 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 lawsuit 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 before).
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.
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 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:
The suspension of the filing deadline will continue until 90 days after the panel:
Once any of these circumstances 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 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.
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 may be time to discuss your situation with an experienced medical malpractice attorney in your area.