Frequently Asked Questions

Medical malpractice is negligence, or an error, in the providing of medical care, that results in an unintentional injury to a patient. This occurs when a medical professional deviates from the standards or care required by his or her profession. Poor bedside manner or experiencing a known complication does not give rise to a legal claim. However, if a doctor, nurse, hospital, or other healthcare professional treats you in a negligent manner, and you are injured by the treatment, you may have a claim for medical malpractice.

Of note is that the negligence must cause actual harm in order for it to rise to the level of a legal claim.

All medical malpractice cases are unique and dependent on the specific medical care provided in each case.

Under Louisiana law, “healthcare providers” can be found negligent in a medical malpractice action.  Healthcare providers include individuals, partnerships, corporations, and facilities who are certified by this state to provide health care or professional services as a physician, hospital, nursing home, community blood center, tissue bank, dentist,  licensed dietitian or licensed nutritionist, nurse or certified nurse assistant, offshore health service provider, ambulance, certified registered nurse anesthetist, nurse midwife, licensed midwife, nurse practitioner, clinical nurse specialist, pharmacist, optometrist, podiatrist, chiropractor, physical therapist, occupational therapist, psychologist, social worker, professional counselor, perfusionist, respiratory therapist, radiologic technologist, clinical laboratory scientist, or any nonprofit facility.

Preventable medical errors may include failure to diagnose, misdiagnosis, delayed diagnosis, medication errors, lack of informed consent, exceeding the parameters of informed consent, surgical mistakes, hospital negligence, performing unnecessary surgery, physical injury during transport or transfer, failure to address post-operative complications, failure to communicate changes in a patient’s condition, misinterpretation of diagnostic studies, misinterpretation of lab results, failure to act on known abnormal diagnostic studies and lab results, inadequate medical management, negligence during Labor and Delivery, errors in reading imaging studies (including X-rays, CT Scans, MRIs, and Mammograms), birth injuries, nursing home negligence, performing the wrong procedure or operating on the wrong site.

The “standard of care” generally required of health care providers in rendering professional services or health care to a patient shall be to exercise that degree of skill ordinarily employed, under similar circumstances, by the members of his or her profession in good standing, and to use reasonable care and diligence, along with his or best judgment, in the application of his or her skill. A “breach in the standard of care” is when a healthcare provider fails to exercise the degree of skill ordinarily employed or fails to use reasonable care and diligence or his or best judgement in applying that skill.

No. The following elements must be proven to prevail in a medical malpractice case in Louisiana: the standard of care required, that a breach in the standard of care occurred, and that the breach in the standard of care caused harm to the plaintiff.  If you can prove that the defendant breached the standard of care, you would still have to prove cause and harm.

No. Medical malpractice cases in Louisiana are civil actions and are not held to the “beyond a reasonable doubt” burden of proof required in criminal cases. A medical malpractice plaintiff in Louisiana must only prove the elements of his or her case by a “preponderance of the evidence,” meaning that it must be shown that “more probable than not” or “more likely than not.”  In other words, just more than 50%.   A good way to visualize this is by a weighing of the evidence. If all the evidence in favor of the plaintiff (patient) was placed on one side of a scale and all the evidence in favor of the defendant (healthcare provider) was placed on the other, if the scales tilt in favor of the plaintiff (patient), even just a little, the patient has proven his case.

Both special damages and general damages can be recovered by the patient in medical malpractice actions.

Special damages are those damages that can be objectively determined, as they have a fixed value. Special damages include medical expenses, loss wages, and other economic losses.

General damages are those damages that are more subjective. The value of general damages cannot be determined with any mathematical certainty and people may disagree as to how much general damages are worth. General damages include things such as pain and suffering, mental anguish and emotional distress, loss of enjoyment of life, loss of enjoyment of life, disfigurement, and scarring. The value of general damages is usually determined looking to the amount damages awarded by a court to a plaintiffs with similar injuries.

Additionally, certain family members can recover for their loss of consortium, service, and society, which includes their loss of love and affection, loss of companionship, loss of right of performance of material services, loss of right of support, loss of aid and assistance, and loss of felicity as a result of the patient’s injury.

In Louisiana, a medical malpractice plaintiff has the burden of proving:

(1) The degree of knowledge or skill possessed, or the degree of care ordinarily exercised by,  a healthcare provider rendering treatment under similar circumstances;

(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; and

(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.

In Louisiana, medical malpractice lawsuits are governed by special laws that require, before a lawsuit can be filed, that these matters undergo a preliminary administrative proceeding by a Medical Review Panel.  The Panel process is expected to take a year, but they can take longer.  After the Panel renders an opinion, a lawsuit may be filed.

The filing of the lawsuit does not mean that the matter is then set for trial. Preparing a medical malpractice case for trial takes time. Before a case is set for trial, medical records and medical bills are collected, written discovery is propounded and answered, lien amounts from insurance companies are requested, experts are retained, and depositions are taken, requiring coordination of schedules of multiple professionals, including medical doctors and attorneys. The process can be slow and delays are often encountered.

When it is time to set a matter for trial, litigators are limited in the number of settings during which a jury is present.  With all of this in mind, realistically, it may take 5 years or more to resolve a medical negligence claim.

The term “prescription” is Louisiana’s equivalent to the term “statute of limitation” used in other states. A prescriptive period refers to the period of time fixed by law for the exercise of a right. If the right is not exercised, usually by filing the appropriate legal documents before the prescriptive period ends, the right to do so is lost.

Per the Louisiana Medical Malpractice Act, the total amount recoverable for all malpractice claims for injuries to or death of a patient, exclusive of future medical care and related benefits, shall not exceed $500,000 plus interest and cost. This is commonly referred to as the “medical malpractice cap” on damages.

The medical malpractice cap does not apply to the cost of the patient’s future medical due to the malpractice. Future medical care can include costs for doctor visits, blood tests and other lab work, imaging studies such as x-rays, CT scans, and MRIs, surgeries and other medical procedures, hospitalizations, physical therapy, speech therapy, occupational therapy, medications, home health, prosthetic devices, medical equipment, and others medical costs reasonably necessary for the care of the patient as a result of the malpractice.

The medical malpractice cap only applies to medical malpractice claims against “qualified healthcare providers” – those healthcare providers who file a proof of financial responsibility with the Patient’s Compensation Fund Oversight Board and pay the assessed surcharge.

In Louisiana, medical malpractice claims are governed by special laws that do not apply to other areas of litigation. For most medical malpractice cases, before a lawsuit can be filed in court, a preliminary administrative procedure must be followed. First, a request for review by a medical review panel must be filed with the State of Louisiana. If the defendant healthcare provider is a “qualified healthcare provider” under Louisiana law, the case must be reviewed by a Medical Review Panel composed of three physicians, who are under the guidance of an attorney who acts as a chairperson of the Panel.

The panel will review the medical records and offer one of three opinions:

• The healthcare provider breached the applicable standard of care, in other words, did not do what was expected of him or her in treating this particular patient;
• The healthcare provider did not breach the standard of care, in other words, did nothing wrong; or
• There is a material issue of fact that the panel cannot determine based upon the medical records alone.

Only after the medical review panel renders its opinion, or dissolves by operation of law, can a lawsuit be filed with the court.