Mistakes are an unavoidable fact of life. This is also true for healthcare providers. Patients place their trust in healthcare providers to provide treatment in a professional manner.
When a doctor provides treatment negligently, patients can suffer severe and life-altering harms. The attorneys at the Johns Law Firm are dedicated to securing compensation for
Doctors and healthcare providers must provide medical treatment with the appropriate standard of care
If you feel that your medical malpractice claim is not being handled right, give us a call today or give us your information in the form at the bottom of this page.
We are available 24/7 to help.Contact The Johns Law Firm Today
How Common is Malpractice in Louisiana?
Medical malpractice is widespread in Louisiana and throughout the United States. While the medical community fights hard to pass legislation to protect its interests, the fact remains that most people with legitimate malpractice claims do not hire an attorney. Here are some eye-opening facts:
- An estimated 225,000 people die each year from some form of medical negligence.
- Medical negligence is the third most common cause of death in the United States.
- Around 2% of the victims of malpractice file a claim for compensation.
- Around 12,000 people die each year from surgery that is not necessary.
- Approximately 106,000 patients die each year from problems with their medication.
In short, malpractice is common in the medical community. While most physicians do a good job, there are still numerous mistakes that are made. The problem is that when a mistake occurs it often has life-changing consequences.
What is Medical Malpractice?
Malpractice is not a bad outcome. Malpractice occurs when a physician breaches the standard of care owed to his or her patients and causes damages. Malpractice cases are often complex and require the assistance of medical experts to build a case. Two issues that are often addressed in malpractice cases is the standard of care and side effects or accepted risks through informed consent.
What Is the Standard of Care?
A key issue in malpractice cases is defining the standard of care the health care provider is to be held to. There is no single resource, law, or rule that defines the standard of care. The standard of care is providing treatment in a safe, reasonable, and customary way for the area where the doctor practices.
Another way to look at it is doctors need to use the best practices when treating their patients. One of the complex features of medical malpractice law is that local physicians play a large role in defining the standard of care.
Medical review panels and courts look at how local physicians perform certain procedures or provide certain types of treatments to determine the standard of care. In a case, the physician’s actions will be compared with the standard of care to see if there is evidence of negligent treatment.
Malpractice cases require an experienced attorney to define the standard of care and then explain how the physician breached it. For example, if your doctor committed a surgical error by accidentally cutting a bile duct you will need to show:
- That the doctor owed a duty not to cut the bile duct and
- That the physician breached that duty.
If you are unable to define the standard of care or establish that the defendant in the case acted negligently you will not prevail in your case.
A good attorney will define the standard of care through the assistance of medical experts. For example, if there was a surgical mishap in your case the assistance of a privately retained surgeon would be essential to define the standard of care in your case.
If your case involves the failure to diagnose cancer, the assistance of an oncologist would be required to establish the standard of care for diagnosing cancer.
While you should never expect your attorney to have the medical expertise of a practicing physician, you should hire an attorney who understands the medical nuances of your case. Having an attorney that is versed in the medical concepts and jargon related to your case will make it that much likely the proper experts will be retained in your case and directed to help establish that the standard of care was breached by your physician.
How Do Known Risks or Side Effects Impact A Malpractice Case?
Most medical procedures have potential side effects. One common issue in malpractice cases is if the patient was properly informed of the potential side effects. Even if you were properly informed of a potential side effect, that does not prevent you from recovering damages for malpractice. The key issue is if the physician departed from the standard of care. For example, the risk of death is a common potential risk with most surgical procedures.
However, if the physician performed the surgery in a negligent manner, he or she may be legally responsible for the patient’s death. In other words, the main focus is on the physician’s actions. If the physician acted negligently you will then need to prove that your damages were caused by the malpractice.
Common Types of Malpractice
Malpractice can occur at every level of treatment and interaction with a medical provider. However, many cases follow similar patterns. The most common examples of medical malpractice are surgical errors, misdiagnosis, prescription drug errors, failure to warn, and childbirth errors.
Common surgical errors include:
- Improper use of surgical instrumentation
- Infections through improper sanitation
- Performing an unnecessary operation
- Leaving medical instruments or tools inside the patient
- Nerve damage
- Excessive or not controlling bleeding
- Not moving patients during surgery
- An improper dose of anesthesia
- Defective medical equipment
All surgical procedures have a risk of an error. Our law firm has handled cases where patients have died through common outpatient procedures with no real risk of death.
An estimated 30% of malpractice cases stem from an improper diagnosis. Properly diagnosing a patient is not always easy. This is one of the reasons why doctors have protocols to perform tests on a patient to best ensure a proper diagnosis.
Unfortunately, some physicians take shortcuts that end up in the patient not being properly diagnosed. A misdiagnosis can end up costing patients big. Many conditions are treatable with few long-term problems if detected early.
Some of the most common types of misdiagnosed conditions include:
- Heart attack
- Celiac disease
- Pulmonary embolism (blood clot)
- Clogged arteries
- Cardiovascular disease
Prescription Drug Errors
You have likely heard about the opioid epidemic in the news. The truth is the medical profession has become increasingly reliant on prescription medications to treat patients. It is not surprising that with the increased reliance on pharmaceuticals that malpractice claims related to prescriptions will increase. Common examples of prescription drug errors include:
- Prescribing the wrong medication
- Failing to monitor the patient while on a medical regime
- Not properly dispensing the medication
- Prescribing a medication that is not suitable in light of the patient’s medical history
- Failing to notice a harmful drug interaction
- Prescribing the wrong dosage
- Failing to discuss potential side effects
Failure to Warn
Physicians have a duty to warn patients of the risks related to a medical procedure or course of treatment so the patient can make an informed decision. When physicians do not properly warn a patient about the pros and cons of treatment the physician has breached one of the fundamental duties owed to a patient. If you received treatment without having the risks fully explained to you, you may have a good malpractice claim.
How to File a Medical Malpractice Claim in Louisiana?
The Louisiana Medical Malpractice Act provides a specific process for making a medical malpractice claim. The first step to file a malpractice claim is to request a medical review panel to review your claim. To do this, you will need to file a medical malpractice claim with the Department of Administration for the State of Louisiana.
An attorney chairman will then be appointed to oversee the process. The medical review panel is comprised of three physicians from the same community that the defendant-physician practices.
The fact that a panel of local physicians will be tasked with deciding if their colleagues committed malpractice places a patient making the claim at a disadvantage. The panel will be responsible for reviewing evidence submitted by both the patient and the medical providers and deciding whether malpractice took place. In Louisiana, the medical review panel sides with the plaintiff-patient less than 7% of the time.
During the medical review process the parties can conduct discovery and take depositions similar to a regular court case. It is also not uncommon for the parties to retain medical experts to review the evidence and submit their findings to the panel. Indeed, in many cases, a medical expert will be an absolute requirement to establish malpractice.
After evidence is submitted, the panel will render a decision stating whether it believes the medical providers breached the standard of care owed to the patient. The panel’s decision not a final judgment; it is only an opinion about whether malpractice occurred.
However, it is very influential because the panel’s findings can be used at trial to help prove one’s case. Each panel member can testify at trial as an expert regarding their opinion.
A good medical malpractice lawyer will have a strategy aimed at winning the case before the medical review panel since a positive outcome at the stage will likely lead to a successful outcome for you. Be sure to ask any attorney you are considering hiring about their strategy to win the case at the panel stage.
Damages Available in Louisiana Medical Malpractice Cases
There are generally two types of damages that can be recovered in a malpractice action: economic and non-economic damages. Economic damages are not subject to any cap and include items such as:
- Medical bills
- Prescription costs
- Lost wages
- Loss of future wages
- Rehabilitation costs
Non-economic damages are left to the discretion of the jury and are often difficult to quantify. Examples include:
- Pain and suffering
- Mental anguish
- Loss of consortium
Economic damages are not subject to a cap or limitation on what can be recovered. The malpractice cases with the highest value tend to include people with significant long-term medical expenses or who are rendered permanently disabled and unable to return to work.
Non-economic damages are subject to a $500,000.00 cap that has been in place since 1975. This cap has repeatedly been upheld by the Louisiana Supreme Court.
Punitive damages are aimed at punishing the defendant in a case and are disfavored in Louisiana. The odds of recovering punitive damages are unlikely in a Louisiana malpractice lawsuit.
Helping You Recover?
The Johns Law Firm represents Louisiana patients and families who have been the victims of medical malpractice. We are committed to maximizing our clients’ recovery and prepare for each case as if it will go to trial.
If you would like to speak with one of our attorneys in a free no-obligation consultation, contact us today. We are available 24/7.