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Medical Malpractice in Louisiana

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@lsu.edu http://biotech.law.lsu.edu. Prescription/Statutes of Limitation.

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Medical Malpractice in Louisiana

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  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@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.

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