Articles Posted in Medical Malpractice

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).