Articles Posted in Medical Malpractice

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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, La. R.S. 40:1237.1, et seq., or after notice of dissolution of the panel or after dismissal of the complaint for failure to appoint an attorney chairman.

The request for review, often entitled Request for the Formation of a Medical Review Panel or Petition to Empanel Medical Review Panel, must be filed with the Division of Administration with a copy submitted to the office of risk management, and shall contain, at a minimum:

1) request for the formation of a medical review panel

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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:

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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).

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There is a one year prescriptive period for survival action claims in Louisiana. The right to recover survival action damages for injuries sustained by a deceased person prior to their death may be brought only by the following exclusive class of beneficiary (including by adoption):

(1) The surviving spouse and child or children of the deceased, or either the spouse or the child or children.

(2) The surviving father and mother of the deceased, or either of them if he left no spouse or child surviving. However, a father or mother who has abandoned the deceased during his minority is deemed not to have survived him.

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There is a one year prescriptive period for wrongful death claims in Louisiana. If a person dies due to the fault of another, suit may be brought only by the following exclusive class of beneficiary (including by adoption) to recover wrongful death damages which they sustained as a result of the death:

(1) The surviving spouse and child or children of the deceased, or either the spouse or the child or children.

(2) The surviving father and mother of the deceased, or either of them if he left no spouse or child surviving. However, a father or mother who has abandoned the deceased during his minority is deemed not to have survived him.

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In any action (or claim for recovery of damages for injury, death, or loss asserted under any law or legal doctrine or theory of liability, regardless of the basis of liability) for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss (including victim fault) shall be determined, regardless of whether the person is a party to the action or a nonparty, and regardless of the person’s insolvency, ability to pay, immunity by statute, including but not limited to the provisions of R.S. 23:1032 (employer Worker’s Compensation immunity), or that the other person’s identity is not known or reasonably ascertainable (phantom tortfeasors).

If a person suffers injury, death, or loss as a result partly of his own negligence and partly as a result of the fault of an intentional tortfeasor, his claim for recovery of damages shall not be reduced.

He who conspires with another person to commit an intentional or willful act is answerable, in solido, with that person, for the damage caused by such act. If liability is not solidary then liability for damages caused by two or more persons shall be a joint and divisible obligation. A joint tortfeasor shall not be liable for more than his degree of fault and shall not be solidarily liable with any other person for damages attributable to the fault of such other person, including the victim regardless of such other person’s insolvency, ability to pay, degree of fault, immunity by statute or otherwise, including but not limited to immunity as provided in R.S. 23:1032 (employer Worker’s Compensation immunity), or that the other person’s identity is not known or reasonably ascertainable (phantom tortfeasors).

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Generally, no person shall be liable for damages for injury, death, or loss of the operator of a motor vehicle, aircraft, watercraft, or vessel who is found to be in excess of 25% negligent as a contributing factor in causing his damages as a result of operating a motor vehicle, aircraft, watercraft, or vessel while his blood alcohol concentration was 0.08, or who was operating while he was under the influence of any controlled dangerous substance unless prescribed or provided by a health care provider.

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As recognized by the Louisiana Supreme Court in Dumas v. State, DCRT, 2002-0563 (La. 10/15/02), 828 So.2d 530, 537, prior to the 1996 tort reform amendments to La. C.C. arts. 2323 and 2324(B), the policy behind Louisiana’s tort law was ensuring that innocent victims received full compensation for their injuries. With the 1996 amendments, the Louisiana Legislature shifted Louisiana’s policy so that each tortfeasor pays only for that portion of the damage he has caused and the tortfeasor shall not be solidarily liable with any other person for damages attributable to the fault of that other person. With the advent of this new policy, the right of contribution among solidary tortfeasors also disappeared since it is no longer necessary in light of the abolishment of solidarity. The Louisiana Legislature struck a new balance in favor of known, present and solvent tortfeasors instead of the previous priority that fully compensated injured victims.

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The Louisiana Supreme Court, in Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967, 974 (La. 1985), adopted the following factors (now known as the Watson factors) for determining the percentages of fault to be assigned to culpable tortfeasors, the trier of fact shall consider both the nature of the conduct of each party at fault and the extent of the causal relation between the conduct and the damages claimed. In assessing the nature of the conduct of the parties, various factors may influence the degree of fault assigned, including:

(1) whether the conduct resulted from inadvertence or involved an awareness of the danger;

(2) how great a risk was created by the conduct;

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Posecai v. Wal-Mart Stores, Inc., 99-1222 (La.11/30/99), 752 So.2d 762, 766-68, held that while Louisiana business owners generally have no duty to protect others from the criminal acts of third persons, they do have a duty to implement reasonable measures to protect their patrons from criminal acts when those acts are foreseeable. Determining when a crime is foreseeable is a critical inquiry in the duty equation. This inquiry is answered employing a balancing test. The foreseeability of the crime risk on the defendant’s property and the gravity of the risk determine the existence and the extent of the defendant’s duty. The greater the foreseeability and gravity of the harm, the greater the duty of care that will be imposed on the business. A very high degree of foreseeability is required to give rise to a duty to post security guards, but a lower degree of foreseeability may support a duty to implement lesser security measures such as using surveillance cameras, installing improved lighting or fencing, or trimming shrubbery. The plaintiff has the burden of establishing the duty the defendant owed under the circumstances. The foreseeability and gravity of the harm are to be determined by the facts and circumstances of the case. The most important factor to be considered is the existence, frequency and similarity of prior incidents of crime on the premises, but the location, nature and condition of the property should also be taken into account. It is highly unlikely that a crime risk will be sufficiently foreseeable for the imposition of a duty to provide security guards if there have not been previous instances of crime on the business’ premises.