Medical Malpractice

Louisiana law requires health care providers to exercise the same level of skill that would typically be used by other competent and qualified providers under similar circumstances. Medical malpractice refers to a health care provider’s breach of duty or negligent conduct while delivering care or services to a patient, which causes injury to that patient. If a health care provider’s conduct falls below this standard of care, he could be liable for damages suffered by his patient as a result of the inferior treatment.

To get to the heart of the matter, determining whether medical malpractice occurred is both a legal and medical question that is difficult to define without a thorough review of the medical records. We have helped a range of clients, including those whose treating physicians missed a heart attack diagnosis, failed to follow proper stroke protocols, and failed to adequately remove malignant cancer cells during surgery, but pinpointing the malpractice in each of these cases took much more investigation than merely reading through the definitions in Louisiana statutes. Therefore, if you believe that a person or facility treating you made a mistake or gave inadequate care, we recommend you schedule an appointment with an attorney with experience in medical malpractice.

Many of our clients received either a delayed diagnosis or a misdiagnosis that led to delays in receiving crucial treatment. For instance, a health care provider failed to recognize one of our clients was exhibiting clear symptoms of a stroke, and the ensuing delay in treatment caused permanent damage to the client. Another client whose physician failed to promptly diagnose him with cancer was left untreated for over a year, which ultimately resulted in his death.

We have also assisted clients whose treating physicians committed procedural errors during the course of treatment, such as incorrectly placing PEG tubes, inadequately performing biopsies and cancer removal surgery, and failing to implement standard stroke and heart attack protocols.

While you can find a long list of health care providers that can be sued for malpractice in La. Revised Statutes 40:1231.1.A.(10), some of the most common providers include physicians, surgeons, nurses, dentists, and pharmacists.

Certain private health care entities, such as hospitals, clinics, nursing homes, and pharmaceutical companies, can be sued as well.

Unfortunately, we have had clients whose loved ones were severely incapacitated or tragically died as a result of medical malpractice. In that event, Louisiana law provides a list of relatives who have a year from the date of death to file a wrongful death suit.

First Priority
If the deceased has a surviving spouse or children, they are the only family that can file suit.

Second Priority
If the deceased has no spouse or children, then his parents may file.

Third Priority
If the deceased has no surviving spouse, children, or parents, then his siblings may file suit.

Fourth Priority
Finally, if none of the above-listed relatives are alive, the deceased’s grandparents may file.

Survival Action
Wrongful death and survival actions are separate claims that are often mixed up. Wrongful death claims are focused on the damage suffered by the surviving family members. Survival action claims are focused on the damages suffered by the deceased before his death.

The list of relatives who may file a survival action suit are nearly identical to the list for wrongful death suits, with one exception:

If the deceased had no surviving relatives in the categories listed above, then his succession representative may file the survival action. This, however, is not allowed in wrongful death suits.

In Louisiana, a patient generally has one year from the date of the malpractice to file suit. However, if the malpractice is not discovered right away, the patient has one year from the date he should have reasonably discovered it to file. Unfortunately, the patient cannot file suit under any circumstances if it has been more than three years since the date of malpractice. You will often hear lawyers refer to this as the prescription date.

Because it takes a significant amount of time to file a medical malpractice complaint, including gathering all necessary records, thoroughly researching the claim, and drafting the documents that must be filed, it is crucial that you consult with an attorney about your potential medical malpractice case as soon as possible to ensure that you do not lose your right to recover any damages your suffered.

Though we have actually recommended that some potential clients not waste money on an attorney for simpler areas of law, medical malpractice is not one of them.

Medical malpractice requires an in-depth understanding of both law and medicine that many lawyers don’t even want to touch. Additionally, the damages suffered as a consequence of malpractice are often devastating for patients and their families. Therefore, you should work with an experienced attorney to make sure your case is handled properly.

Medical malpractice lawyers generally charge a “contingency fee,” meaning their payment is based on the outcome of the case. This means that if the case is lost, then the lawyer doesn’t get paid. This is where the typical “we don’t get paid if you don’t” catchphrase used by attorneys comes from.

However, if the case is won or settled, the lawyer receives a percentage of the final award. The standard contingency fee for medical malpractice lawyers in Louisiana is 40% of the total damages.

This is the most common question we are asked by potential clients, but because the facts always vary between cases, it is impossible to answer this question without an initial consultation. However, in all cases, there must be a duty of care, a breach of that duty, and damage caused by that breach.

Simply put, we need to determine

1. whether a healthcare provider was providing or overseeing your medical treatment,

2. whether that treatment fell below the standard of care, and

3. whether the error in treatment caused or worsened your injury.

If you or a loved one have a case that you would like to discuss, we can help you by reviewing the medical records, researching the standard of care required under the circumstances, and meeting with you about the specific hardships suffered as a consequence of the potential negligence.