Under Louisiana law, medical malpractice or negligence is a civil proceeding involving medical negligence, simply an act or an omission on the part of a healthcare professional that falls below an acceptable standard of care. However, it is often difficult to determine since the standard of care varies based upon the specialization or field of practice. If a doctor, nurse practitioner, or any other healthcare professional has a subspecialty, they would have a national standard, meaning the reasonable standard at which each professional must operate.
Who Are Medical Malpractice Claims Generally Made Against Or Who Would Be Liable?
In Louisiana, a direct action statute exists, which allows us to sue the insurance company directly. Still, because we operate in Louisiana, we have a medical malpractice act that went into effect in 1970. It provides for a process that requires anyone alleging medical negligence on the part of a qualified healthcare provider. So that’s a term of law, which states that a qualified healthcare professional can become qualified with the Louisiana Patients Compensation Fund. By doing that, they must verify that they have insurance coverage of at least $100,000, or they can post a bond for $100,000 to show that they are covered for the first $100,000. So, the practitioner would be responsible for the first $100,000. In addition, most have an insurance policy that would protect them for that $100,000 of liability that the qualified individual can be held for.
In Louisiana, we have a cap of $500,000 of general damages, so the cap is for general damages and special damages exclusive of past medical expenses. For example, lost earnings, pain and suffering, disability, scarring, and similar damages fall under the $500,000 cap. So, the first $100,000 would come from the practitioner individually, their bond, or their carrier. Then, anything above that would be paid by the patient’s compensation fund provided by a particular statute that creates the entity called the patient’s compensation fund. All of the qualified healthcare professionals pay into that fund annually to be qualified. In return for the contribution, they have the cap in effect. If they don’t qualify, they could be held liable for far beyond $100,000.
The process of claiming medical malpractice or negligence involves filing a claim against the practitioner, not against the insurance company with the PCF (Patient’s Compensation Fund). This begins the panel phase of the claim, which consists of three doctors, and an attorney appointed as a chairperson by attorneys representing the healthcare professional or professionals. These cases often involve multiple defendants, including a hospital, or let’s say a doctor works for a hospital, which would mean both parties may be held responsible. The attorney chairperson serves to facilitate the putting together of the panel. The panel will consist of three doctors, one chosen by the plaintiff, or the plaintiff can choose not to select one and have the attorney select one. Then the defense selects one, and then those two doctors come together and select a third. If you have a defendant nurse, the statute still calls for a doctor to look at the submissions and decide whether the practitioner violated the applicable standard of care.
After that process, let’s say the panel comes back and says, “No, there was no breach of the standard of care.” That is the green light, at which point the plaintiff now has 90 days to go file a claim in civil court for a claim of negligence against that practitioner. However, you cannot file a civil case in district court until you complete that panel phase of the process. The liability would be the individual practitioner, but because of that individual practitioner’s liability, the insurance would cover the first $100,000. Then after that, the panel would be responsible for any past medical expenses incurred, general damages, and lost earnings up to an additional $400,000 and $500,000 total, and any future medical expenses if the plaintiff is ultimately successful. If a claimant may need any future care or expenses, the process becomes that of a standard claims procedure. As the medical bills are incurred, they’re submitted to the panel, and they pay those medicals similar to what an insurance company would do.
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