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)

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).

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.

The loss of a less-than-even chance of survival is a distinct injury compensable as general damages which cannot be calculated with mathematical certainty. The jury should make a subjective determination of the value of that loss, fixing the amount of money that would adequately compensate the survivor for that particular loss. In awarding damages for loss of a chance of survival, the jury is to focus on the chance of survival lost on account of the medical negligence as a distinct compensable injury and to value the lost chance as a lump sum award based on all the evidence in the record. In considering an award for loss of a chance of survival, the jury may consider evidence of percentages of chance of survival, loss of support, loss of love and affection, and other wrongful death damages. Smith v. State, 95-0038, (La. 6/25/96), 676 So.2d 543, 547-49.

Even if the negligence of a doctor did not cause the patient's death, because he was likely to have died anyway, damages can still be awarded if the doctor's negligence caused the patient to lose a less-than-even chance of survival. A loss of a chance of survival in any degree is compensable in damages. To establish causation in a situation when the patient dies, the survivor need only prove that the defendant's medical negligence resulted in the patient's loss of a chance of survival. The survivor does not have to prove that the patient would have survived if properly treated. Martin v. East Jefferson General Hosp., 582 So.2d 1272, 1278 (La. 1991); Hastings v. Baton Rouge General Hosp., 498 So.2d 713, 720 (La. 1986); and Smith v. State, 95-0038 (La. 6/25/96); 676 So.2d 543, 547.

There is no presumption that a doctor possesses the required skill and knowledge required of him by the controlling medical standards and that in treating his patients, that he applies that knowledge and skill. Williams v. Golden, 95-2712 (La. App. 4 Cir. 7/23/97), 699 So.2d 102, 106-07, writ denied, 1997-2788 (La. 1/30/98), 709 So.2d 708.

Where medical disciplines overlap, a specialist in one field may give expert testimony as to the standard of care applicable to areas of the practice of medicine common to both disciplines. Corley v. State, DHH, 32,613 (La.App. 2 Cir. 12/30/99), 749 So.2d 926, 931-32, citing Leyva v. Iberia General Hospital, 94-0795 (La.10/17/94), 643 So.2d 1236; Richardson v. State, 98-918 (La.App. 3 Cir.12/09/98), 726 So.2d 417; Kippers v. Corcoran, 97-870 (La.App. 5 Cir.01/27/98), 707 So.2d 463; Smith v. Juneau, 95-0724 (La.App. 4 Cir.04/09/97), 692 So.2d 1365; and Ricker v. Hebert, 94-1743 (La.App. 1 Cir.05/05/95), 655 So.2d 493.

In a medical negligence claim against a Louisiana doctor practicing in a specific specialty, the plaintiff has the burden of proving, by a preponderance of the evidence: (1) the degree of knowledge or skill possessed, or the degree of care ordinarily exercised by physicians licensed to practice and actively practicing in the same medical specialty as the defendant doctor; (2) that the defendant doctor either lacked this degree of knowledge or skill or failed to use reasonable care or diligence, along with his best judgment in the exercise of that skill; and (3) that, as a proximate result of this lack of knowledge or skill, or failure to exercise this degree of care, the patient suffered injuries which would not otherwise have been incurred. La.R.S. 9:2794.

A plaintiff in a medical negligence case must present his claim first to a medical review panel of physicians of the same specialty as the defendant physician and licensed to practice in Louisiana. Physicians from other states or from different specialties can not be appointed to a medical review panel. The panel evaluates the evidence submitted and renders a non-binding opinion. The opinion of the panel has been admitted into evidence in this case. The jury may consider it along with all of the other evidence in the case on this issue, but its findings are not binding on the parties or on the jury. Like any other evidence, it may be evaluated for bias when you determine the weight you may give, if any, to the opinion. La. R.S. 40:1299.47(C) & (H); and Derouen v. Kolb, 397 So.2d 791, 794 (La. 1981).

The Louisiana legislature has created an extensive statutory scheme governing medical negligence claims brought against doctors who qualify as "health care providers" under the statute. Two primary features of this scheme are: (1) the mandatory submission of all claims to a medical review panel prior to any suit being filed, and (2) a limitation of $500,000 on the total amount of general damages and lost wages that can be recovered. LaMark v. NME Hospitals, Inc., 522 So.2d 634, 635 (La.App. 4th Cir.), writ denied, 526 So.2d 803 (La.1988).

The jury is not required to disregard testimony merely because the witness may be interested or biased. It is within the province of the trier of fact to place more probative value on the testimony of an interested witness than that of a disinterested witness. Rosell v. ESCO, 549 So.2d 840, 848 (La.1989).