HLS 10RS-960 ORIGINAL
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CODING: Words in struck through type are deletions from existing law; words underscored
are additions.
Regular Session, 2010
HOUSE BILL NO. 427
BY REPRESENTATIVE MILLS
MALPRACTICE/MEDICAL: Provides relative to medical malpractice
AN ACT1
To enact R.S. 9:2794.1, relative to medical malpractice; to provide procedures for2
emergency medical care claims; to provide for the standard of care; to provide for3
the burden of proof; to provide jury instructions; to provide for applicability; to4
provide a limitation of liability; and to provide for related matters.5
Be it enacted by the Legislature of Louisiana:6
Section 1. R.S. 9:2794.1 is hereby enacted to read as follows: 7
ยง2794.1. Emergency health care services; malpractice; standard of care; burden of8
proof; jury instructions; expert witness9
A. Notwithstanding any law to the contrary, including the provisions of R.S.10
2794, in a malpractice action based on the negligence of a health care provider as11
defined in R.S. 40:1299.41 and any physician assistant for any injury, death, loss,12
civil penalty, or damage to a patient arising out of emergency medical care or13
services, regardless of the location of the provision of services, the plaintiff shall14
have the burden of proving by clear and convincing evidence all of the following:15
(1) The degree of knowledge or skill possessed or the degree of care16
ordinarily exercised by a health care provider licensed to practice in the state of17
Louisiana and actively practicing in a similar community or locale and under similar18
circumstances.19
(2) The degree of care ordinarily practiced by a health care provider within20
a particular medical specialty, when the defendant practices in a specialty and the21
alleged acts of negligence raise issues particular to that specialty.22 HLS 10RS-960 ORIGINAL
HB NO. 427
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(3) The defendant lacked the degree of knowledge or skill or failed to use it1
and his best judgment and diligence.2
(4) The plaintiff suffered injuries that would not otherwise have been3
incurred as a proximate result of a lack of knowledge or skill or the failure to4
exercise this degree of care.5
(5) The health care provider with willful and wanton misconduct departed6
from accepted standards of emergency medical care reasonably expected of an7
ordinarily prudent health care provider in the same or similar circumstances.8
B. In a malpractice action in accordance with Subsection A of this Section,9
the court shall instruct the jury to consider all of the following and all other relevant10
matters:11
(1) Whether the health care provider was unable to obtain any medical12
history of the patient, including the knowledge of preexisting medical conditions,13
allergies, and medications.14
(2) Whether there was a preexisting health care provider-patient relationship.15
(3) The circumstances constituting the emergency and the emergent medical16
condition of the patient.17
(4) The circumstances surrounding the delivery of emergency medical care18
or services.19
C. In a malpractice action in accordance with Subsection A of this Section,20
the court shall only admit expert testimony from practicing health care providers21
with substantial professional experience within the last five years in the same field22
or specialty and at a similar facility. For the purposes of this Subsection, "substantial23
professional experience" shall be determined in accordance with the custom and24
practice in which emergency medical coverage is provided in similar localities where25
the alleged negligence occurred.26
D. For the purposes of this Section, "emergency medical care" and27
"emergency medical services" means medical services rendered in accordance with28
the Federal Emergency Medical Treatment and Active Labor Act.29 HLS 10RS-960 ORIGINAL
HB NO. 427
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are additions.
E. Any health care provider or physician assistant providing emergency1
services pursuant to the Federal Emergency Medical Treatment and Active Labor2
Act shall not be liable for any injury, death, loss, civil penalty, or damages arising3
from any act or omission in rendering services prior to the patient being stabilized4
and capable of receiving medical treatment as a nonemergency patient, and for any5
services related to the original medical emergency, unless the injury or damage was6
caused by gross negligence or willful and wanton misconduct.7
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)]
Mills HB No. 427
Abstract: Provides for procedures and a limitation of liability for health care providers
providing services in accordance with the Federal Emergency Medical Treatment
and Active Labor Act.
Proposed law provides that in a medical malpractice action based on services provided in
an emergency, the plaintiff shall have the burden of proving, by clear and convincing
evidence, the degree of knowledge or skill possessed or ordinarily exercised by a health care
provider practicing in a similar community, the defendant lacked the knowledge or skill or
failed to use it and his best judgment, the plaintiff suffered injuries as a result of the lack of
knowledge or skill and health care provider willfully and wantonly departed from the
accepted standards of emergency medical services.
Proposed law provides that the court shall instruct the jury to consider if the health care
provider had access to the plaintiff's medical history, a pre-existing doctor/patient
relationship, the circumstances constituting the emergency and the delivery of medical care.
Proposed law provides that the court shall only admit expert witness testimony from
practicing health care providers with substantial professional experience within the last five
years in the same field and at a similar facility.
Proposed law defines "substantial professional experience", "emergency medical care", and
"emergency medical services".
Proposed law provides that any health care provider providing these services shall not be
liable for damages as a result of any act or omission in rendering the services, unless the
damages were caused by gross negligence or willful and wanton misconduct.
(Adds R.S. 9:2794.1)