Medical Malpractice in Louisiana

1
Medical Malpractice in Louisiana

• Edward P. Richards
• Director, Program in Law, Science, and Public
  Health
• Harvey A. Peltier Professor of Law
• Louisiana State University
• richards_at_lsu.edu
• http//biotech.law.lsu.edu

2
Prescription/Statutes of Limitation

• Louisiana uses the term prescription for what
  other states call a statue of limitations
• Prescription is a limit on who long a plaintiff
  has to file a cause of action
• When does it start to run?
• What can toll it?
• Is there a discovery rule?

3
Peremption/Statutes of Repose

• Peremption Statues / Statutes of repose are an
  absolute limit, with no exceptions
• Peremption
• Peremption differs from prescription in several
  respects. Although prescription prevents the
  enforcement of a right by legal action, it does
  not terminate the natural obligation (La.Civ.Code
  art. 1762 (1)) FN12 peremption, however,
  extinguishes or destroys the right (La.Civ.Code
  art. 3458).
• Hebert v. Doctors Memorial Hospital, 486 So.2d
  717 (La. 1986)

4
La Tort Reform

• 1 year primary period of prescription
• 3 year peremption
• No exceptions provided in the statute
• Applies to minors as well as adults
• They are usually excepted until age 18
• Does this violate the LA constitution?

5
Crier v. Whitecloud, 496 So.2d 305 (La.1986)

• Reviews the prescription limitations
• Has a good review of previous cases
• What are the facts?
• How long between the injury and lawsuit?
• What was there a delay?

6
Hebert v. Doctors Memorial Hospital, 486 So.2d
717 (La. 1986)

• Companion case to Crier
• Dealt with a joint torfeaser situation - solidary
  obligors
• Held that filing against one solidary obligator
  tolls prescription against other solidary
  obligors
• Depend on plaintiff proving joint negligence,
  otherwise jurisdiction will fail
• The court in Hebert found that the 3 year limit
  was not meant to be peremption, just an
  elimination of the discovery rule after 3 years

7
Does Hebert Affect the Crier Plaintiff?

• The Crier court found that Hebert depended on
  there being a lawsuit filed against at least one
  of the defendant's within the 3 year period, and
  within one year of the discovery of the cause of
  the plaintiff's injuries
• Since there were no claims filed within 3 years
  in Crier, the court ruled that the 3 year period
  controlled and plaintiff was prescribed

8
What is the Crier Court's Constitutional Analysis?

• Is this the same as for previous cases?

9
What are the implications of Crier?

• What if plaintiff's problem - perhaps a slow
  growing cancer - does not cause symptoms until
  after 3 years?
• What if the consequences of the negligence will
  not be detectible until later, perhaps during
  pregnancy?

10
Is Prescription a Factual Issue?

• Plaintiff who is within the 3 year limit but past
  the 1 year limit is entitled to go forward and
  discover facts which could support a discovery
  exception
• Campo v. Correa, 828 So.2d 502, 2001-2707 (La.
  6/21/02)
• Plaintiff who is outside the 3 year limit is
  presumed to be prescribed unless he can plead
  special facts that would toll prescription
• Whitnell v. Menville, 540 So.2d 304 (La.1989)

11
What are the Standards for the Discovery Rule?

• Notice can be constructive, the plaintiff need
  not actually know if there are enough facts.
• Ledet v. Miller, 459 So.2d 202 (La.App. 3
  Cir.1984), writ denied, 463 So.2d 603 (La.1985)
• Just knowing something is wrong is not enough.
• The ultimate issue is the reasonableness of the
  patient's action or inaction, in light of his
  education, intelligence, the severity of the
  symptoms, and the nature of the defendant's
  conduct.
• Griffin v. Kinberger, 507 So.2d 821 (La.1987)

12
What Happens While You Wait for the Medical
Review Panel?

• When plaintiff requests a medical review panel,
  prescription is suspended until 90 days after the
  plaintiff receives notice of the panel's ruling.
• LeBreton v. Rabito, 714 So.2d 1226 (La. 7/8/98)
• This means you get 90 days to file, not that the
  prescription clock begins to run from where it
  left off.

13
What if You Skip the Medical Review Panel?

• A suit filed before the medical review panel
  rules is premature, and has no effect on
  prescription
• If you file and get dismissed after the year has
  run, you cannot refile
• LeBreton v. Rabito, 714 So.2d 1226 (La. 1998)

14
What if You File with the Wrong Agency?

• If you do not file your request for a review
  panel with the Department of Administration
  Patient's Compensation Fund, prescription
  continues to run.
• Metropolitan Development Center v. Liner, 891
  So.2d 62 (La.App. 4 Cir. 2004)

15
What if Your Client could not have known about
the Negligence before Prescription?

• It does not matter. You are still out of luck.
• David v. Our Lady of the Lake Hospital, Inc., 849
  So.2d 38 (La. 2003)

16
What about the Continuing Relationship/Continuing
Tort Exception?

• Stay tuned - this is the subject of the cases for
  next class.