Louisiana Injury Lawyer Blog

In Louisiana medical malpractice actions the jury shall be instructed that the plaintiff has the burden of proving, by a preponderance of the evidence (more probable than not), 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.

These instructions are not to be given if the doctrine of res ipsa loquitur is found by the court to be applicable. La.R.S. 9:2794(C).

In Louisiana medical malpractice actions, the plaintiff has 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 (the locality rule) 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 (locality rule is inapplicable to specialists); and

(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.

La.R.S. 9:2794(A).

In a Louisiana medical malpractice action against a Louisiana physician, 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. "Practicing medicine" 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.

(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. 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.

(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.

La.R.S. 9:2794(D)

In Pfiffner v. Correa, 9400924 (La.10/17/94), 643 So.2d 1228, 1234, the Louisiana Supreme Court recognized that expert testimony is not always required for a plaintiff to meet his/her burden of proof required by La.R.S. 9:2794 in a Lousisiana medical malpractice action where there is an "obvious act of malpractice", but noted that, in most cases, the plaintiff will be unable to sustain his/her burden of proof without such evidence:

We hold that expert testimony is not always necessary in order for a plaintiff to meet his burden of proof in establishing a medical malpractice claim. Though in most cases, because of the complex medical and factual issues involved, a plaintiff will likely fail to sustain his burden of proving his claim under LSA-R.S. 9:2794's requirements without medical experts, there are instances in which the medical and factual issues are such that a lay jury can perceive negligence in the charged physician's conduct as well as any expert can, or in which the defendant/physician testifies as to the standard of care, and there is objective evidence, including the testimony of the defendant/physician which demonstrates a breach thereof. Even so, the plaintiff must also demonstrate by a preponderance of the evidence a causal nexus between the defendant's fault and the injury alleged.

As examples of obvious negligence that could be inferred by a lay person, the Pfiffner court cited instances "where the physician does an obviously careless act, such as fracturing a leg during examination, amputating the wrong arm, dropping a knife, scalpel, or acid on a patient, or leaving a sponge in a patient's body...." 643 So.2d at 1233-34. Other examples posited by the Pfiffner court include "[f]ailure to attend a patient when the circumstances demonstrate the serious consequences of this failure, and failure of an on-call physician to respond to an emergency when he knows or should know that his presence is necessary...." Id.

Where the malpractice is not so obvious, the plaintiff is cautioned that upon the defendant's prima facie showing in a motion for summary judgment, the plaintiff is required to produce expert medical evidence sufficient to establish that he/she will be able to satisfy his/her evidentiary burden of proof at trial, i.e. competent expert witness evidence of the breach of the applicable standard of care and that the breach caused the injuries. Schultz v. Guoth, 2010-0343 (La.1/19/11), 57 So.3d 1002, 1009-10.

La. R.S. 9:2794(A)(3) requires the Louisiana medical malpractice plaintiff to prove that as a "proximate result" of the defendant's failure to use the required degree of care, "the plaintiff suffered injuries that would not otherwise have been incurred." In a situation where the patient dies, the Louisiana Supreme Court has held that the plaintiff does not have to shoulder the "unreasonable burden" of proving that the patient would have lived had proper treatment been given. Hastings v. Baton Rouge General Hospital, 498 So.2d 713, 721 (La.1986). Instead, the plaintiff must prove "only that there would have been a chance of survival," and that the patient was denied this chance of survival because of the defendant's negligence. Id. at 720. See also Smith v. State through Dept. of Health and Human Resources Admin., 523 So.2d 815, 822 (La.1988).

In Turner v. Massiah, 94-2548 (La.8/30/95), 656 So.2d 636, the Louisiana Supreme Court stated: "If the damage, or injury, could have been divided into two parts, one part caused by one defendant and the other part caused by the other there would have been, in effect, two injuries," 656 So.2d at 640, and suggested "the question of two caps [under La. R.S. 40:1299.42B(1), Louisiana Medical Malpractice Act] might have been present." The Turner court then concluded, "[f]or one patient and one injury there is but one cap." 656 So.2d at 641.

In Batson v. South Louisiana Medical Center, 99-0232 (La.11/19/99) 750 So.2d 949, the Louisiana Supreme Court held that three separate caps applied to three separate acts of medical negligence under the Malpractice Liability for State Services Act (MLSSA), La.R.S. 40:1299.39, et seq., where the damages were divisible into three different injuries, each traceable to a separate act of medical negligence.

It is important to note the differences in the language used in the MLSSA and the MMA. The MLSSA limits recovery to $500,00 for "the injury " for " an alleged act of malpractice." See La. R.S. 40:1299.39(F). The use of singular nouns in the MLSSA contrasts with the use of plural nouns in the MMA, which limits to $500,000 the amount recoverable "for all malpractice claims for injuries to or death of a patient..." La. R.S. 40:1299.42 B(1).

The Louisiana Supreme Court decision of Coleman v. Deno, 01-1517 (La.1/25/02), 813 So.2d 303, 315-16, sets forth the following six factors for determining whether a claim sounds in medical malpractice and must first be presented to a medical review panel:

(1) whether the particular wrong is "treatment related" or caused by a dereliction of professional skill;

(2) whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached;

(3) whether the pertinent act or omission involved assessment of the patient's condition;

(4) whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital is licensed to perform;

(5) whether the injury would have occurred if the patient had not sought treatment; and

(6) whether the tort alleged was intentional.

See Lacoste v. Pendleton Methodist Hospital, L.L.C., 2007-0008 (La.9/5/07), 966 So.2d 519, 525-529, for a detailed analysis of the Coleman factors in relation to a Hurricane Katrina death case caused by failure to implement a proper evacuation claim and to equip the hospital with adequate emergency power, which allegations fell outside the protection of the Medical Malpractice Act.

Louisiana's Uniform Consent Law, La. R.S. 40:1299.40, requires disclosure of the nature and purpose of a medical or surgical procedure, together with the known risks, if any, of death, brain damage, quadriplegia, paraplegia, the loss or loss of function of any organ or limb, or disfiguring scars. Thus, a competent person contemplating treatment must be advised of the known serious complications which might result. This enables the patient to make an informed decision. Written consent shall be presumed to be valid and effective, in the absence of proof that execution of the consent was induced by misrepresentation of material facts.

A doctor has a duty to disclose all risks which are "material". To overcome the statutory presumption of informed consent where the patient has signed a consent form, the patient must first prove that a material risk existed. An adverse result does not establish a material risk. In broad outline, a risk is material when a reasonable person in what the doctor knows or should know to be the patient's position, would be likely to attach significance to the risk or cluster of risks in deciding whether or not to forego the proposed therapy. The factors contributing significance to a medical risk are the incidence of injury and the degree of the harm threatened. If the harm threatened is great, the risk may be significant even though the statistical possibility of its taking effect is very small. But if the chance of harm is slight enough, and the potential benefits of the therapy or the detriments of the existing malady great enough, the risk involved may not be significant even though the harm threatened is very great.

The determination of materiality is a two-step process. The first step is to define the existence and nature of the risk and the likelihood of its occurrence. "Some" expert testimony is necessary to establish this aspect of materiality because only a physician or other qualified expert is capable of judging what risk exists and the likelihood of occurrence. The second prong of the materiality test is for the trier of fact to decide whether the probability of that type harm is a risk which a reasonable patient would consider in deciding on treatment. The focus is on whether a reasonable person in the patient's position probably would attach significance to the specific risk. This determination of materiality does not require expert testimony.

The plaintiff in a lack of informed consent case must prove not only that the physician failed to disclose all material information, but also that there was a causal relationship between the doctor's failure and the damages claimed by the patient. Otherwise, the doctor's conduct, however wrongful, is legally inconsequential.

There are two aspects to the proof of causation in a lack of informed consent case. First, the plaintiff must prove, as in any other tort action, that the defendant's breach of duty was a cause-in-fact of the claimed damages or, viewed conversely, that the defendant's proper performance of his or her duty would have prevented the damages. Second, the plaintiff must further prove that a reasonable patient in the plaintiff's position would not have consented to the treatment or procedure, had the material information and risks been disclosed. Causation is established only if adequate disclosure reasonably would be expected to have caused a reasonable person to decline treatment because of the disclosure of the risk or danger that resulted in the injury. Although the patient has the absolute right, for whatever reason, to prevent unauthorized intrusions and treatments, he or she can only recover damages for those intrusions in which consent would have been reasonably withheld if the patient had been adequately informed.

See Hondroulis v. Schuhmacher, 553 So.2d 398 (La.1988), and Lugenbuhl v. Dowling, 96-1575 (La.10/10/97), 701 So.2d 447, 454.

In Hall v. Brookshire Brothers, Ltd., 02-2404 (La.6/27/03), 848 So.2d 559, the Louisiana Supreme Court held that the proper method for applying the comparative fault scheme is to apply the jury's comparative fault finding prior to reducing the damages award to the cap on damages under La. R.S. 40:1299.42(B)(1). The Court based its holding on three primary grounds, finding that comparative fault percentages should be allocated prior to application of the statutory damages cap under the Medical Malpractice Act because: (1) the use of different language in the comparative fault article and statutory damages cap provision dictates this result; (2) the comparative fault and Medical Malpractice Act damages cap provisions are in derogation of established rights and must be strictly construed; and (3) a contrary rule would lead to absurd consequences.

See also Miller v. LAMMICO, 2007-1352 (La.1/16/08), 973 So.2d 693, 702-03, 705, confirming that the Hall holding is not limited to circumstances in which the plaintiff is comparatively at fault.

Since 1976, medical malpractice claims against the State of Louisiana have been governed by the Malpractice Liability for State Services Act (MLSSA), sometimes referred to as the Public Act, found at La. R.S. 40:1299.39, et seq. The MLSSA generally provides for the limitation of liability and damages for medical malpractice committed by health care providers employed or contracted by the State of Louisiana or who are working at a state hospital or who are treating a patient referred by a state hospital without compensation or reimbursement. The MLSSA does not cover political subdivisions of the state or hospital service districts established by the Legislature. 40:1299.39(A)(1)(b) and 40:1299.39(M). Malpractice is defined as the failure to exercise the reasonable standard of care, when such failure proximately causes injury to a patient.

The MLSSA or Public Act excepts from the definition of a covered person, any healthcare provider who causes injury or death of a patient as a result of any act or omission of gross negligence or any willful or wanton act or omission, 40:1299.39(A)(1)(a)(iv)(cc), or any healthcare provider when performing the elective termination of an uncomplicated viable pregnancy, 40:1299.39(A)(1)(a)(iv)(dd).

The MLSSA or Public Act provides a limitation or cap on recoverable damages for the injury or death of any patient of $500,000 plus interest and costs, exclusive of future medical care and related benefits (defined as all medical from date of injury) valued in excess of $500,000. 40:1299.39(F). The $500,000 cap on damages includes lost wages, or loss of earning capacity, or loss of support. All judgments or settlement shall include a recitation that the patient is or is not in need of future medical care and related benefits and the amount thereof. If the total amount of the recovery, less interest and costs, but including future medical is less than $500,000, judgment may be rendered and the claim paid. If the total amount of the recovery is greater than $500,000, exclusive of interest and costs, the claimant may make a claim to the office of risk management for ALL future medical care and related benefits without regard to the $500,000 limitation. The office of risk management is liable for reasonable attorneys fees to the claimant for unreasonable failure to pay for medical care within 60 days after submission of a properly substantiated claim. 40:1299.39(F)(8). Legal interest on a judgment will accrue as determined by R.S. 13:5112(C), from the date of filing the request for review. 40:1299.39.1(K).

The filing of a request for review with the Division of Administration shall suspend the time within which suit must be instituted against a state healthcare provider and all joint or solidary obligors until 90 days following notification by certified mail to the claimant or his attorney of the issuance of the opinion by the state medical review panel, or notification that the defendant healthcare providers is not covered by the MLSSA or after notice of dissolution of the panel or after dismissal of the complaint for failure to appoint an attorney chairman. 40:1299.39.1(A)(1)(d) & (A)(2)(a) & &(A)(2)(c) & (B)(3). The request for review, often entitled Petition to Empanel Medical Review Panel, must be filed with the Division of Administration with a copy submitted to the office of risk management, 40:1299.39(H), and shall contain, at a minimum:

1) request for the formation of a medical review panel
2) name of the patient
3) names of the claimants
4) names of defendant state healthcare providers
5) dates of the alleged malpractice
6) brief description of the alleged malpractice as to each named defendant state healthcare provider
7) brief description of the alleged injuries

40:1299.39.1(A)(1)(b). All claims and complaints submitted to a medical review panel shall also conform at a minimum to the requirements of Rules 8, 9, and 10 of the Federal Rules of Civil Procedure. 40:1299.39(E)(2).

Except for court approved paupers, either an affidavit of a physician attesting to the malpractice of each defendant healthcare provider must be filed, or a $100 filing fee per defendant state healthcare providers must be paid to the commissioner of administration within 45 days of the mailing of the confirmation of receipt of the request for review, or the request is invalid and without effect (also meaning that prescription is not suspended). 40:1299.39.1(A)(1)(c) & (d).

The request is deemed filed, and thus suspending prescription, on the date stamped in at the Division of Administration or the date mailed if sent to the commissioner of administration by certified or registered mail.

The state medical review panel shall consist of three licensed Louisiana healthcare providers and an attorney chairman appointed by the parties, or through the Supreme Court's striking process if an agreement can not be made. 40:1299.39.1(C). However, if an attorney or representative for the defendant state healthcare provider has not made an appearance within 45 days of the receipt of notification of payment of the filing fee to the healthcare provider by the commissioner of administration, then the claimant may appoint an attorney chairman.

Notice of the appointment of an attorney-chairman of the medical review panel shall be sent to the commissioner of administration by the parties within one year from the date the claim is filed. If the appointment is not timely made, the commissioner will send notice of the dismissal of the claim to the parties by certified or registered mail. Prescription will remain suspended for ninety days after the claim has been dismissed. 40:1299.39.1(A)(2)(c).

The claimant must timely select one healthcare provider to serve on the panel and the defendant healthcare providers then timely selects one healthcare provider to serve on the panel. The two selected panel members select the third panel member. If a timely selection of a panel member is not made, the attorney chairman shall select the panel member. Notification of the formation of the panel is sent by the attorney chairman to the commissioner. The parties are supposed to make a full and adequate presentation of related facts and authorities within 90 days following selection of the panel. 40:1299.39.1(C)(2). The evidence submitted may consist of medical charts, x-rays, lab tests, excerpts of treatises, depositions of witnesses and parties, interrogatories, affidavits and reports of medical experts, and any other form of evidence allowable by the state medical review panel. 40:1299.39.1(D)(2).

Physicians selected to the panel must be engaged in the active practice of medicine or in the teaching profession. If there is only one defendant state healthcare provider, then the panel members must be from the same class or specialty as the defendant. If the only defendant is a hospital, then the panel members must be physicians from the same specialty as the hospital department at issue. If any one of the defendant state healthcare providers is a physician, then all panel members must be physicians. If none of the defendants are physicians or hospitals, but one defendant is a registered nurse, then the panel members must be registered nurses. If none of the defendants are physicians or registered nurses, then the panel members shall be from the same class or specialty as the defendant healthcare providers. 40:1299.39.1(C)(3)(f)(v).

The medical review panel shall have the sole duty to express its expert opinion as to whether or not the evidence supports the conclusion that the defendant or defendants acted or failed to act within the appropriate standards of care as charged in the complaint. After reviewing all evidence and after any examination of the panel by counsel representing either party, the panel shall, within thirty days, render one or more of the following expert opinions which shall be in writing and signed by the panelists, together with written reasons supporting each opinion, which shall constitute part of the report:

(1) The evidence does not support the conclusion that the defendant or defendants failed to comply with the appropriate standard of care as charged in the complaint.

(2) The evidence does support the conclusion that the defendant or defendants failed to meet the applicable standard of care as charged in the complaint. If such opinion is rendered, then an opinion on whether the conduct complained of was or was not, in fact, a medical cause of the resultant damages shall also be rendered. If an opinion is rendered that such conduct was, in fact, a medical cause of the resultant damages, then an opinion shall be rendered on whether the plaintiff suffered:

(a) Any disability and the extent and duration of the disability.

(b) Any permanent impairment and the percentage of the impairment.

(3) There is a material issue of fact, not requiring medical or health care expert opinion, bearing on liability for consideration by the court. 40:1299.39.1(G)

Any report of the expert opinion reached by the state medical review panel shall be admissible as evidence in any action subsequently brought by the claimant in a court of law, but such expert opinion shall not be conclusive. 40:1299.39.1(H).

The costs of the state medical review panel are to be paid by the party in whose favor the panel opines. If the panel finds a material issue of fact, the costs of the panel are split among the parties. 40:1299.39.1(I)(5). If the claimant proceeds to file suit despite a unanimous panel opinion in favor of the defendant state health care providers, the claimant must post a cash or surety bond, approved by the court, in the amount of all costs of the state medical review panel. 40:1299.39.1(I)(3)(b).