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Regular Session, 2010
HOUSE BILL NO. 175
BY REPRESENTATIVE EDWARDS
MALPRACTICE/MEDICAL: Provides for the medical malpractice cap
AN ACT1
To amend and reenact R.S. 40:1299.39(F)(introductory paragraph), (2), (3), (6), and (7),2
1299.42(B)(1) and (2), (D)(5), and (E)(1), 1299.43(D), 1299.44(B)(2)(a), (b), and3
(c), (C)(5)(d) and (e) and (E) and to enact R.S. 40:1299.39(F)(13) and (14) and4
1299.42(B)(4) and (5), relative to medical malpractice; to provide for limitations of5
recovery, annual adjustments of the limits of liability, and proper advertising,6
pursuant to the Malpractice Liability For State Services Act and the Medical7
Malpractice Act; and to provide for related matters.8
Be it enacted by the Legislature of Louisiana:9
Section 1. R.S. 40:1299.39(F)(introductory paragraph), (2), (3), (6), and (7),10
1299.42(B)(1) and (2), (D)(5), and (E)(1), 1299.43(D), 1299.44(B)(2)(a), (b), and (c),11
(C)(5)(d) and (e) and (E) are hereby amended and reenacted to read as follows: 12
§1299.39. Definitions and general application13
* * *14
F. Notwithstanding any other provision of the law to the contrary, no15
judgment shall be rendered and no settlement or compromise shall be entered into16
for the injury or death of any patient in any action or claim for an alleged act of17
malpractice in excess of five hundred seven hundred fifty thousand dollars plus18
interest and costs, exclusive of future medical care and related benefits and exclusive19
of economic losses, including loss of earnings, loss of earning capacity, and loss of20
support and services valued in excess of such five hundred seven hundred fifty21 HLS 10RS-321 ORIGINAL
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thousand dollars. In claims which may include future medical care and related1
benefits, the following procedures shall apply:2
* * *3
(2) If the total amount of the value of the judgment or settlement or4
compromise is for five hundred seven hundred fifty thousand dollars, plus interest5
and costs, exclusive of the value of future medical care and related benefits and6
economic losses, all future medical care and related benefits shall be paid in7
accordance herewith.8
(3) If the total amount of recovery, excluding interest and costs but including9
the amount of future medical care and related benefits and economic losses does not10
exceed five hundred seven hundred fifty thousand dollars, judgment may be rendered11
for the total amount and paid by the state as provided by Subsection I of this Section.12
* * *13
(6) If the total amount of recovery awarded against the state, excluding14
interest and costs but including the amount of future medical care and related15
benefits and economic losses, exceeds five hundred seven hundred fifty thousand16
dollars, the claimant may make a claim to the office of risk management for all17
future medical care and related benefits.18
(7) Payments for medical care and related benefits shall be paid by the office19
of risk management pursuant to Subsection L of this Section, without regard to the20
five hundred seven hundred fifty thousand dollar limitation imposed in this21
Subsection.22
* * *23
§1299.42. Limitation of recovery 24
* * *25
B.(1) The total amount recoverable for all malpractice claims for injuries to26
or death of a patient, exclusive of future medical care and related benefits as27
provided in R.S. 40:1299.43, and exclusive of economic losses, including loss of28 HLS 10RS-321 ORIGINAL
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earnings, loss of earning capacity, and loss of support and services shall not exceed1
five hundred seven hundred fifty thousand dollars plus interest and cost costs.2
(2) A health care provider qualified under this Part is not liable for an3
amount in excess of one hundred fifty thousand dollars plus interest thereon accruing4
after April 1, 1991, and costs specifically provided for by this Paragraph for all5
malpractice claims because of injuries to or death of any one patient. The sole cost6
for which a health care provider qualified under this Part may be assessed by a trial7
court shall be limited to the cost incurred prior to the rendering of a final judgment8
against the health care provider, not as a nominal defendant, after a trial on a9
malpractice claim, including but not limited to costs assessed pursuant to Code of10
Civil Procedure Article 970 in any instance where the board was not the offeror or11
offeree of the proposed settlement amount. The health care provider shall not be12
assessed costs in any action in which the fund intervenes or the health care provider13
is a nominal defendant after there has been a settlement between the health care14
provider and the claimant.15
* * *16
D.17
* * *18
(5) In the event that a partial settlement is executed between the defendant19
and/or or his insurer with a plaintiff for the sum of one hundred fifty thousand dollars20
or less, written notice of such settlement shall be sent to the board. Such settlement21
shall not bar the continuation of the action against the patient's compensation fund22
for excess sums in which event the court shall reduce any judgment to the plaintiff23
in the amount of malpractice liability insurance in force as provided for in R.S.24
40:1299.42 Subparagraph (B)(2) of this Section.25
E.(1) Financial responsibility of a health care provider under this Section26
may be established only by filing with the board proof that the health care provider27
is insured by a policy of malpractice liability insurance in the amount of at least one28
hundred fifty thousand dollars per claim with qualification under this Section taking29 HLS 10RS-321 ORIGINAL
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effect and following the same form as the policy of malpractice liability insurance1
of the health care provider, or in the event the health care provider is self-insured,2
proof of financial responsibility by depositing with the board one hundred twenty-3
five seventy-five thousand dollars in money or represented by irrevocable letters of4
credit, federally insured certificates of deposit, bonds, securities, cash values of5
insurance, or any other security approved by the board. In the event any portion of6
said amount is seized pursuant to the judicial process, the self-insured health care7
provider shall have five days to deposit with the board the amounts so seized. The8
health care provider's failure to timely post said amounts with the board shall9
terminate his enrollment in the Patient's Compensation Fund.10
* * *11
§1299.43. Future medical care and related benefits12
* * *13
D. Payments for medical care and related benefits shall be paid by the14
patient's compensation fund without regard to the five hundred seven hundred fifty15
thousand dollar limitation imposed in R.S. 40:1299.42.16
* * *17
§1299.44. Patient's Compensation Fund18
* * *19
B.20
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(2) The only claim against the fund shall be a voucher or other appropriate22
request by the board after it receives:23
(a) A certified copy of a final judgment in excess of one hundred fifty24
thousand dollars against a health care provider.25
(b) A certified copy of a court approved settlement in excess of one hundred26
fifty thousand dollars against a health care provider.27 HLS 10RS-321 ORIGINAL
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(c) A certified copy of a final award in excess of one hundred fifty thousand1
dollars in an arbitration proceeding against a health care provider.2
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C.4
* * *5
(5)6
* * *7
(d) Except where the sum of one hundred fifty thousand dollars has been8
paid by, in the name of, or on behalf of the qualified health care provider whose9
percentage of fault the board seeks to allocate, in any case in which the board is10
entitled pursuant to the provisions of Civil Code Article 2323 or 2324, or both, to11
assert a credit or offset for the allocated percentage of negligence or fault of a12
qualified health care provider, the board shall have the burden of proving the13
negligence or fault of the qualified health care provider whose percentage of fault the14
board seeks to allocate.15
(e) In approving a settlement or determining the amount, if any, to be paid16
from the patient's compensation fund, the trier of fact shall consider the liability of17
the health care provider as admitted and established where the insurer has paid its18
policy limits of one hundred fifty thousand dollars, or where the self-insured health19
care provider has paid one hundred fifty thousand dollars.20
* * *21
E. In any instance in which a complaint for bodily injuries to or death of a22
patient on account of malpractice has been filed in court and the parties enter into a23
stipulation prior to trial as to the amount of past medical expenses and related24
benefits and the amount exceeds one hundred fifty thousand dollars, the parties shall25
also stipulate to the admissibility of the documents supporting the stipulated amount26
and shall introduce these documents into evidence at the trial for which the27
stipulation was entered into.28 HLS 10RS-321 ORIGINAL
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Section 2. R.S. 40:1299.39(F)(13) and (14) and 1299.42(B)(4) and (5) are hereby1
enacted to read as follows: 2
§1299.39. Definitions and general application3
* * *4
F.5
* * *6
(13)(a) The limitations of this Subsection shall be adjusted annually based7
upon the United States Consumer Price Index, but no adjustment shall be increased8
or decreased by more than four percent. This provision shall become effective on9
January 1, 2012, and be adjusted on January first of every subsequent year. This10
adjustment shall be carried out in the following manner:11
(b) On October first of each year, the commissioner of financial institutions12
shall determine the percentage increase or decrease in the Consumer Price Index-U13
for the previous twelve-month period. The limits of liability as provided in this14
Subsection shall be increased or decreased, as applicable, by a percentage equal to15
the percentage change in the Consumer Price Index-U during the preceding twelve-16
month period. The limit of liability for the calendar year following the calculation17
date shall be published in the December issue of the Louisiana Bar Journal, the18
December issue of the Louisiana Register, and in one daily newspaper of general19
circulation in each of the cities of Alexandria, Baton Rouge, Lake Charles, Lafayette,20
Monroe, New Orleans, and Shreveport. The notice in the daily newspapers shall be21
published on two separate occasions, with at least one week between publications,22
during the month of December. The publication in the Louisiana Register shall not23
be considered rulemaking, within the intent of the Administrative Procedure Act,24
R.S. 49:950 et seq., and particularly R.S. 49:953.25
(14) The limitation of recovery provided in this Section shall be governed26
by the limitation in effect on the date a medical review panel is requested in27
accordance with R.S. 40:1299.39.1(A)(2)(b).28
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§1299.42. Limitation of recovery1
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B.3
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(4)(a) The limitations of Paragraphs (1) and (2) of this Subsection shall be5
adjusted annually based upon the United States Consumer Price Index, but no6
adjustment shall be increased or decreased by more than four percent. This provision7
shall become effective on January 1, 2012, and be adjusted on January first of every8
subsequent year. This adjustment shall be carried out in the following manner:9
(b) On October first of each year, the commissioner of financial institutions10
shall determine the percentage increase or decrease in the Consumer Price Index-U11
for the previous twelve-month period. The limits of liability as provided in12
Paragraphs (1) and (2) of this Subsection shall be increased or decreased, as13
applicable, by a percentage equal to the percentage change in the Consumer Price14
Index-U during the preceding twelve-month period. The limit of liability for the15
calendar year following the calculation date shall be published in the December issue16
of the Louisiana Bar Journal, the December issue of the Louisiana Register, and in17
one daily newspaper of general circulation in each of the cities of Alexandria, Baton18
Rouge, Lake Charles, Lafayette, Monroe, New Orleans, and Shreveport. The notice19
in the daily newspapers shall be published on two separate occasions, with at least20
one week between publications, during the month of December. The publication in21
the Louisiana Register shall not be considered rulemaking, within the intent of the22
Administrative Procedure Act, R.S. 49:950 et seq., and particularly R.S. 49:953.23
(5) The limitation of recovery provided in this Section shall be governed by24
the limitation in effect on the date a medical review panel is requested in accordance25
with R.S. 40:1299.47(A)(2)(b).26
Section 3. The provisions of Section 1 of this Act shall become effective January 1,27
2011.28 HLS 10RS-321 ORIGINAL
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Section 4. The provisions of Section 2 of this Act shall become effective January 1,1
2012.2
DIGEST
The digest printed below was prepared by House Legislative Services. It constitutes no part
of the legislative instrument. The keyword, one-liner, abstract, and digest do not constitute
part of the law or proof or indicia of legislative intent. [R.S. 1:13(B) and 24:177(E)]
Edwards HB No. 175
Abstract: Increases the medical malpractice cap to $750,000, exclusive of economic losses,
loss of earnings, and loss of earning capacity and provides that the cap shall be
adjusted annually. Increases the health care provider liability to $150,000.
Relative to the Medical Malpractice Liability For State Services Act and the Medical
Malpractice Act:
Present law provides that the total amount of recovery for the injury to or death of a patient
of qualified providers shall not exceed $500,000 plus interest and costs, exclusive of the
costs of future medical care.
Proposed law increases the amount of recovery from $500,000 to $750,000 and also makes
it exclusive of economic losses, including loss of earnings and loss of earning capacity,
effective Jan. 1, 2011.
Present law provides that a health care provider qualified under R.S. 40:1299.42 is not liable
for an amount in excess of $100,000 plus interest accrued since April 1, 1991, for all
malpractice claims because of injuries to or death of any one patient.
Proposed law increases the limitations provided for in present law from $100,000 to
$150,000, and it shall be adjusted annually based on the U.S. CPI but shall not be increased
or decreased more than 4%, effective Jan 1, 2011.
Proposed law provides that the percentage of the increase or decrease shall be determined
in Oct. of each year and shall change to the new percentage Jan. 1 of each year, beginning
on Jan. 1, 2012.
Proposed law provides that the change in percentage shall be determined by the change in
the CPI-U in the previous 12 months, effective Jan. 1, 2012.
Proposed law provides that these changes in limits of liability are effective Jan. 1, 2012, for
the calendar year following the calculation shall be published in the Dec. issues of the
Louisiana Bar Journal and the Louisiana Register, and shall be published on two separate
occasions, at least a week apart, during the month of Dec. in one daily newspaper of general
circulation in each of the following cities: Alexandria, Baton Rouge, Lake Charles,
Lafayette, Monroe, New Orleans, and Shreveport.
(Amends R.S. 40:1299.39(F)(intro. para.) (2), (3), (6), and (7), 1299.42(B)(1) and (2),
(D)(5), and (E)(1), 1299.43(D), 1299.44(B)(2)(a), (b), and (c), (C)(5)(d) and (e) and (E);
Adds R.S. 40:1299.39(F)(13) and (14) and 1299.42(B)(4) and (5))