Medical Malpractice is a very specialized area of the law. In Louisiana before an attorney can file a medical malpractice law suit he must first make a claim with the Louisiana Patients Compensation Fund. (PCF) The PCF will appoint an attorney chair who will contact the parties and request their selection of a doctor to be on the medical review panel. The doctor you chose must be qualified in the same field of specialty as the doctor you are filing a claim against. The attorney chair will contact the doctors and the doctors will decide on a third doctor which makes up the medical review panel. The parties will than submit their evidence to the three doctor panel and the panel will decide if the doctor or health care provider breached the standard of care. After the panel makes a decision whether favorable to you or not you may file a lawsuit in a court of law. This additional step of having to file with the PCF naturally increases the time it takes to handle a medical malpractice claim to completion.
The fact that a medical procedure is unsuccessful or harms a patient does not automatically mean that medical malpractice took place. No medical procedure is guaranteed and there are risks of every medical procedure that your doctor or healthcare provider should disclose to you before any medical procedure. In order to prevail in a medical malpractice claim you must prove that the doctor or healthcare provider deviated from the standard of care. That means that the doctor or medical provider did something or failed to do something that is the generally accepted method or methods used by other medical professionals in the same area of specialty and care for patients under the same or similar circumstances. In addition to proving that the doctor or health care provider committed medical malpractice you must also prove that the medical malpractice caused you injury or damage.
Injury or Damage
It’s not enough that your doctor made some sort of mistake that constitutes medical malpractice. You have to be able to prove that the malpractice caused you damage or further harm. The amputation of the wrong limb, brain damage after an operation, a medical condition or disease that worsened after treatment, or even death are good examples of injuries or damage. In short, unless you’ve been harmed, there’s no medical malpractice case.
As a general rule, you’ll need at least one medical expert witness, who is qualified in the same specialty as the doctor you have made a claim against, to explain the standard of care that applies to your case and how your doctor breached that standard of care and how the malpractice caused your injury. These expert witnesses are almost always other doctors or medical professionals.
Prescription Period or “Statute of Limitations”
The statute of limitations or what is called the prescription Period in Louisiana is the time period in which you have to file your claim. In Louisiana you generally have one year from the date of the malpractice or one year from the date you discovered the malpractice but no longer than three years from the date of the malpractice. For example if you discover that a doctor or health care provider committed medical malpractice after the three year preemptive period than it is too late to bring a claim and you lose all your rights to bring a claim.
Many nursing home neglect or abuse cases must be brought under the medical malpractice laws. If your case involves a nursing home see our section on Nursing Homes.
