HLS 12RS-635 ORIGINAL
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Regular Session, 2012
HOUSE BILL NO. 102
BY REPRESENTATIVE LORUSSO
MALPRACTICE: Provides with respect to medical malpractice claims
AN ACT1
To amend and reenact R.S. 40:1299.42, relative to medical malpractice; to provide for a2
limitation of recovery; to provide for qualifications of health care providers; to3
provide for advance payments; and to provide for related matters.4
Be it enacted by the Legislature of Louisiana:5
Section 1. R.S. 40:1299.42 is hereby amended and reenacted to read as follows: 6
ยง1299.42. Limitation of recovery 7
A.(1) To be qualified under the provisions of this Part, a health care provider8
shall: 9
(1)(a) Cause to be filed with the board proof of financial responsibility as10
provided by Subsection E of this Section.11
(2)(b) Pay the surcharge assessed by this Part on all health care providers12
according to R.S. 40:1299.44.13
(3)(2) For the purposes of this Part, initial qualification of self-insured health14
care providers, initial qualification shall be effective upon acceptance of proof of15
financial responsibility by and payment of the surcharge to the board. Initial16
qualification shall be effective for all other health care providers at the time the17
malpractice insurer accepts payment of the surcharge.18
B.(1) The total amount recoverable for all malpractice claims for injuries to19
or death of a patient, exclusive of future medical care and related benefits as20 HLS 12RS-635 ORIGINAL
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provided set forth in R.S. 40:1299.43, shall not exceed five hundred thousand dollars1
plus interest and cost.2
(2) A health care provider qualified under this Part is not shall not be liable3
for an amount in excess of one hundred thousand dollars plus interest thereon4
accruing after April 1, 1991, and costs specifically provided for by this Paragraph for5
all malpractice claims because of injuries to or death of any one patient. The sole6
cost for which a health care provider qualified under this Part may be assessed by a7
trial court shall be limited to the cost incurred prior to the rendering of a final8
judgment against the health care provider, not as a nominal defendant, after a trial9
on a malpractice claim, including but not limited to, costs assessed pursuant to Code10
of Civil Procedure Article 970 in any instance where the board was not the offeror11
or 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
(3)(a) Any amount due from a judgment, or settlement, or from a final award16
in an arbitration proceeding which is in excess of the total liability of all liable health17
care providers, as provided in Paragraph (2) of this Subsection, shall be paid from18
the patient's compensation fund Patient's Compensation Fund pursuant to the19
provisions of R.S. 40:1299.44(C).20
(b) The total amounts paid in accordance with Paragraphs (2) and (3) of this21
Subsection shall not exceed the limitation as provided set forth in Paragraph (1) of22
this Subsection.23
C. Except as provided in R.S. 40:1299.44(C), any advance payment made24
by the defendant health care provider or his insurer to or for the plaintiff, or any25
other person, may not be construed as an admission of liability for injuries or26
damages suffered by the plaintiff or anyone else any other person in an action27
brought for medical malpractice.28 HLS 12RS-635 ORIGINAL
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D.(1) Evidence of an advance payment is not admissible until there is a final1
judgment in favor of the plaintiff, in which event the court shall reduce the judgment2
to the plaintiff to the extent by an amount equal to the amount of the advance3
payment. 4
(2) The advance payment shall inure to the exclusive benefit of the defendant5
or his insurer who is making the payment.6
(3) In the event the advance payment exceeds the liability of the defendant7
or the insurer making it, the court shall promptly order any adjustment necessary to8
equalize the amount which each defendant is obligated to pay, exclusive of costs.9
(4) In no case shall an advance payment in excess of which exceeds an award10
be repayable by the person receiving it.11
(5) In the event that a partial settlement is executed between the defendant12
and/or or his insurer with a plaintiff for the sum of one hundred thousand dollars or13
less, written notice of such settlement shall be sent to the board within ten days.14
Such settlement shall not bar the continuation of the action against the patient's15
compensation fund Patient's Compensation Fund for excess sums in which event the16
court shall reduce any judgment to the plaintiff in the amount of malpractice liability17
insurance in force as provided for in R.S. 40:1299.42(B)(2).18
E.(1) Financial responsibility of a health care provider under this Section19
may be established only by filing with the board sufficient proof that the health care20
provider is insured by a policy of malpractice liability insurance in the amount of at21
least one hundred thousand dollars per claim with qualification under this Section22
taking effect and following the same form as the policy of malpractice liability23
insurance of the health care provider, or in the event the health care provider is self-24
insured, proof of financial responsibility by depositing with the board one hundred25
twenty-five thousand dollars in money or represented by irrevocable letters of credit,26
federally insured certificates of deposit, bonds, securities, cash values of insurance,27
or any other security approved by the board. In the event any portion of said amount28
is seized pursuant to the judicial process, the self-insured health care provider shall29 HLS 12RS-635 ORIGINAL
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have five days to deposit with the board the amounts so seized. The health care1
provider's failure to timely post said amounts with the board shall terminate his2
enrollment in the Patient's Compensation Fund.3
(2) For the purposes of this Subsection, any group of self-insured health care4
providers organized to and actually practicing together or otherwise related by5
ownership, whether as a partnership, professional corporation, or otherwise, shall be6
deemed a single health care provider and shall not be required to post more than one7
deposit. In the event any portion of the deposit of such a group is seized pursuant to8
judicial process, such group shall have five days to deposit with the board the9
amounts so seized. The group's failure to timely post said amounts amount with the10
board will terminate its enrollment and the enrollment of its members in the Patient's11
Compensation Fund.12
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)]
Lorusso HB No. 102
Abstract: Provides relative to limitations of liability under the Medical Malpractice Act.
Present law provides that in order to be qualified under the Medical Malpractice Act
(MMA), a health care provider shall file proof of financial responsibility and pay the
assessed surcharges according to R.S. 40:1299.44, and provided that a self-insured health
care provider is initially qualified upon acceptance of proof of financial responsibility and
payment of the surcharge.
Proposed law retains present law and specifies that for purpose of the MMA, initial
qualification shall be effective upon acceptance of proof of financial responsibility by and
payment of the surcharge to the board.
Proposed law specifies that a health care provider qualified under the MMA shall not be
liable for an amount in excess of $100,000 plus interest thereon accruing after April 1, 1991,
and costs specifically provided for by present law for all malpractice claims because of
injuries to or death of any one patient.
Present law provides that evidence of an advance payment is not admissible until there is a
final judgment in favor of the plaintiff, in which event the court shall reduce the judgment
to the plaintiff to the extent of the advance payment.
Proposed law specifies that the court shall reduce the judgment by an amount equal to the
amount of the advance payment, and provides that the court shall promptly order any
adjustment necessary to equalize the amount which each defendant is obligated to pay, HLS 12RS-635 ORIGINAL
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exclusive of costs, but that in no case shall an advance payment which exceeds an award be
repayable by the person receiving it.
Present law provides that in the event that a partial settlement is executed between the
defendant and/or his insurer with a plaintiff for the sum of $100,000 or less, written notice
of such settlement shall be sent to the board.
Proposed law retains present law but requires notice to be sent within 10 days.
Present law provides that financial responsibility of a health care provider may be
established only by filing with the board proof that the health care provider is insured by a
policy of malpractice liability insurance in the amount of at least $100,000 per claim.
Proposed law requires proof of insurance to be sufficient proof that the provider is insured
by a malpractice liability policy in the amount of at least $100,000 per claim.
(Amends R.S. 40:1299.42)