At Lamothe Law Firm, our malpractice attorneys focus their personal injury practice on representing those injured by medical malpractice and professional negligence, whether by a physician, doctor, nurse, hospital, emergency room or other medical provider.
WHAT ARE MEDICAL MALPRACTICE CLAIMS?
Medical malpractice or professional negligence is the failure of a health care provider to render care in keeping with good and accepted medical techniques and principles. In other words, a doctor, nurse or technician does something not in keeping with good practice or fails to do something necessary for a patient’s good care. This is called a violation of the standard of care. This can take the form of surgical errors, anesthesia errors, wrong diagnosis, late diagnosis, failure to diagnose, wrong treatment, wrong medication, failure to follow accepted protocols, failure to make use of available technology, and a host of other situations where the medical care given – or not given — caused damage to the patient.
Medical malpractice or medical negligence can exist in any situation; however, the following areas are especially prone to medical errors:
- Acute Abdomen/Surgical of Abdomen
- Surgery of Female Anatomy including hysterectomies
- Aspiration Pneumonitis/Mendelson’s Syndrome
- Beta Strep Testing for pregnant women
- Birth Injuries causing Fetal Damage or Death
- Failure to Diagnose and Treat Medical conditions
- Failure to Prevent and Treat Infections
- Fetal Anoxic Brain Injury/Faulty Fetal Heart Monitoring
- Gastric Bypass Surgery/ Roux-En-Y Procedure/Stomach Stapling
- Hypertensive Crisis/High Blood Pressure Crisis
- Non-Small Cell Carcinoma/Lung Cancer Rapid Assays
Who Can Bring a Medical Malpractice Claim?
When a patient is injured due to medical negligence, the patient may bring a personal injury lawsuit, and make a claim for pain and suffering, loss of wages and medical expenses. If the injuries are severe, permanent and disabling, members of the patient’s family – spouse, children or parents – might have a claim. If the patient dies as a result of medical malpractice, the patient’s family possibly could have a claim, depending upon many factors. When a claim is made, the recovery generally is based on pain and suffering, medical expenses and loss of estate.
Who Can Be Sued for Medical Malpractice?
Anyone who has caused injury to the patient because of professional negligence may be named as a defendant in a medical malpractice lawsuit. Governmental entities and health care professionals employed by them may stand in a different position in the eyes of the law. For example, a medical negligence suit against a hospital owned by a public entity will be handled differently than a private claim. A patient’s claim is much more restricted both in what must be proven in order to establish legal responsibility as well as in the amount of damages that may be recovered. When a patient is injured in a hospital owned by the federal government, such as a Veterans Administration hospital, the lawsuit must be brought under the Federal Tort Claims Act.
How Do I Pay for a Medical Malpractice Attorney?
Lawyers who handle medical malpractice cases should be working on a pure contingency fee basis. This means you should not pay any fees or costs unless you first recover. This helps to guarantee you have a legitimate case that should be pursued under the law.
How Do I Choose a Medical Malpractice Lawyer?
Most important, determine whether the attorneys you are considering focus their practice on handling medical malpractice cases, and whether they have a record of successfully litigating these type cases.
Medical malpractice cases are some of the most challenging types of personal injury lawsuits to win. Medicine is not generally an exact science, so proving what should have been done differently is not always easy. Finding doctors who will testify against their colleagues can also be challenging, but there are health care professionals who care more about the integrity of their profession and high standards of care than about camaraderie on the golf course and at medical conventions.
When the Lamothe Law Firm accepts a medical malpractice case, it is committed to achieving a successful outcome for the client. Additionally, the Lamothe Law Firm has an experienced nurse as part of our legal team to assist in case preparation.
CONTACT LAMOTHE LAW FIRM
IF YOU BELIEVE YOU HAVE A MEDICAL MALPRACTICE CLAIM
MEDICAL MALPRACTICE IN LOUISIANA
Background and Applicability of Louisiana Medical Malpractice Statutes
In 1975, Louisiana passed a comprehensive and sweeping law on medical malpractice. Louisiana medical malpractice claims are divided into two categories:
- Claims against private healthcare providers
- Claims against public or state healthcare providers
Claims against private healthcare providers are governed by the Medical Malpractice Act, (the “MMA”), La. R.S. 40:1299.41 et. seq, while claims against public or state healthcare providers are governed by the Malpractice Liability for State Services Act, (the “MLSSA”), which is found in La. R.S. 40:1299.37 et. seq. These laws, establish the substantive and procedural law relating to claims of medical malpractice.
Both laws provide that claims against “Qualified Healthcare Providers” are capped at $500,000, plus past and future medical expenses. This $500,000 cap applies not only to all non-economic damages like pain and suffering but also to claims for lost wages. The definition of Qualified Healthcare Provider is very broad to include virtually every type of individual or entity providing healthcare to people. To be considered as a “qualified” healthcare provider in the private sector, that provider generally needs to make premium payments into a fund called The Louisiana Patient’s Compensation Fund. If a healthcare provider chooses not to participate by paying such premiums, then that healthcare provider does not receive the benefits of the medical malpractice act, including the cap on damages. In other words, there would be no cap against that healthcare provider’s claims. The $500,000 cap is not tied to any increases for inflation. It is the same cap today as it was in 1975.
The Statute of Limitations (or prescriptive period as it is called in Louisiana) to request the formation of a medical review panel is one year from the date the patient knew or should have known of facts sufficient to alert them of a possible case of medical malpractice. However, in no event can a claim be brought more than three years from the date of the malpractice. For Wrongful Death Claims, the Statute of Limitations is one year from the date of death. Thus, if a sponge is left in a patient for three years and one day and the patient did not discover it before then, the claim is extinguished.
Since the rules about limitations are often changed by the legislature, and often modified by the appellate courts, you always should consult with a medical malpractice lawyer immediately if you think you or a family member could have possibly been injured by medical negligence.
In addition to placing a cap of $500,000 on damages, Louisiana law also requires that a person seeking to institute a claim for medical malpractice must first request that the matter be reviewed by a medical review panel. A medical review panel is made up of three physicians in the same specialty as the accused defendant doctor. One of the panelists is chosen by the defendant, one chosen by the patient and the third is chosen by the two doctors chosen by the defendant and patient. An attorney chairman is also chosen by the parties. His function is to run the medical review panel and provide them with any legal guidance. However, he has no vote on whether medical malpractice was committed. The parties are allowed to submit evidence to the medical review panel for their consideration. This evidence generally consists of the medical records, films, depositions and a position paper explaining each side’s contentions. The medical review panel meets to discuss the evidence and determine if medical malpractice has indeed occurred.
Regardless of how the medical review panel rules in the case, the patient has 90 days following receipt of the opinion of the medical review panel to file a lawsuit in State District Court. The party that lost the medical review panel may be required to post a bond for the costs of the medical review panel after suit is filed. At trial, the opinion of the medical review panel is admissible as evidence. Additionally, the members of the medical review panel may be called to testify as witnesses for either side.
WHY CONTACT LAMOTHE LAW FIRM?
Frank Lamothe has been consistently recognized as one of the leading trial attorneys in Louisiana and the nation.
- Listed in Best Lawyers in America
- Listed in Super Lawyers
- Invited member, American College of Trial Lawyers
- Invited member, American Board of Trial Advocates
- Member, The Litigation Counsel of America
- Member, The National Trial Lawyers: Top 100
- Listed as Nation’s Top 1% by the National Association of Distinguished Counsel
Lamothe Law Firm has won national accolades as well.
- Best Law Firms – U.S. News & World Report and Best Lawyers