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Regular Session, 2012
SENATE BILL NO. 246
BY SENATOR MILLS
MALPRACTICE. Provides relative to limitation of liability regarding medical malpractice.
(8/1/12)
AN ACT1
To amend and reenact R.S. 40:1299.42, relative to medical malpractice; to provide relative2
to limitation of recovery; to provide certain procedures, terms, conditions,3
requirements, and effects; 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 self-insured health care providers, initial qualification the14
purposes of this Part, initial qualification of self-insured health care providers15
shall be effective upon acceptance of proof of financial responsibility by and16
payment of the surcharge to the board. Initial qualification shall be effective for all17 SB NO. 246
SLS 12RS-322 ORIGINAL
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other health care providers at the time the malpractice insurer accepts payment of the1
surcharge.2
B.(1) The total amount recoverable for all malpractice claims for injuries to3
or death of a patient, exclusive of future medical care and related benefits as4
provided in R.S. 40:1299.43, shall not exceed five hundred thousand dollars plus5
interest and cost.6
(2) A health care provider qualified under this Part is not liable shall not be7
liable for an amount in excess of one hundred thousand dollars plus interest thereon8
accruing after April 1, 1991, and costs specifically provided for by this Paragraph for9
all malpractice claims because of injuries to or death of any one patient. The sole10
cost for which a health care provider qualified under this Part may be assessed by a11
trial court shall be limited to the cost incurred prior to the rendering of a final12
judgment against the health care provider, not as a nominal defendant, after a trial13
on a malpractice claim, including but not limited to, costs assessed pursuant to Code14
of Civil Procedure Article 970 in any instance where the board was not the offeror15
or offeree of the proposed settlement amount. The health care provider shall not be16
assessed costs in any action in which the fund intervenes or the health care provider17
is a nominal defendant after there has been a settlement between the health care18
provider and the claimant.19
(3)(a) Any amount due from a judgment or settlement judgment, settlement,20
or from a final award in an arbitration proceeding which is in excess of the total21
liability of all liable health care providers, as provided in Paragraph (2) of this22
Subsection, shall be paid from the patient's compensation fund pursuant to the23
provisions of R.S. 40:1299.44(C).24
(b) The total amounts paid in accordance with Paragraphs (2) and (3) of this25
Subsection shall not exceed the limitation as provided set forth in Paragraph (1) of26
this Subsection.27
C. Except as provided in R.S. 40:1299.44(C), any advance payment made by28
the defendant health care provider or his insurer to or for the plaintiff, or any other29 SB NO. 246
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person, may not be construed as an admission of liability for injuries or damages1
suffered by the plaintiff or anyone else any other person in an action brought for2
medical malpractice.3
D.(1) Evidence of an advance payment is not admissible until there is a final4
judgment in favor of the plaintiff, in which event the court shall reduce the judgment5
to the plaintiff to the extent of by an amount equal to the amount of the advance6
payment.7
(2) The advance payment shall inure to the exclusive benefit of the defendant8
or his insurer making the payment.9
(3) In the event the advance payment exceeds the liability of the defendant10
or the insurer making it, the court shall promptly order any adjustment necessary to11
equalize the amount which each defendant is obligated to pay, exclusive of costs.12
(4) In no case shall an advance payment in excess of an award be repayable13
by the person receiving it.14
(5) In the event that a partial settlement is executed between the defendant15
and/or his insurer with a plaintiff for the sum of one hundred thousand dollars or less,16
written notice of such settlement shall be sent to the board within ten days. Such17
settlement shall not bar the continuation of the action against the patient's18
compensation fund for excess sums in which event the court sha1l reduce any19
judgment to the plaintiff in the amount of malpractice liability insurance in force as20
provided for in R.S. 40:1299.42(B)(2).21
E.(1) Financial responsibility of a health care provider under this Section may22
be established only by filing with the board sufficient proof that the health care23
provider is insured by a policy of malpractice liability insurance in the amount of at24
least one hundred thousand dollars per claim with qualification under this Section25
taking effect and following the same form as the policy of malpractice liability26
insurance of the health care provider, or in the event the health care provider is self-27
insured, proof of financial responsibility by depositing with the board one hundred28
twenty-five thousand dollars in money or represented by irrevocable letters of credit,29 SB NO. 246
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federally insured certificates of deposit, bonds, securities, cash values of insurance,1
or any other security approved by the board. In the event any portion of said amount2
is seized pursuant to the judicial process, the self-insured health care provider shall3
have five days to deposit with the board the amounts so seized. The health care4
provider's failure to timely post said amounts with the board shall terminate his5
enrollment in the Patient's Compensation Fund.6
(2) For the purposes of this Subsection, any group of self-insured health care7
providers organized to and actually practicing together or otherwise related by8
ownership, whether as a partnership, professional corporation or otherwise, shall be9
deemed a single health care provider and shall not be required to post more than one10
deposit. In the event any portion of the deposit of such a group is seized pursuant to11
judicial process, such group shall have five days to deposit with the board the12
amounts amount so seized. The group's failure to timely post said amounts with the13
board will terminate its enrollment and the enrollment of its members in the Patient's14
Compensation Fund.15
The original instrument and the following digest, which constitutes no part
of the legislative instrument, were prepared by Jerry G. Jones.
DIGEST
Present law provides relative to limitation of liability for medical malpractice.
Present law provides that a qualified health care provider is not liable for an amount in
excess of $100K plus interest thereon accruing after April 1, 1991, and certain costs for all
malpractice claims because of injuries to or death of any one patient. Proposed law changes
"is not liable" to "shall not be liable".
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 changes "to the extent of
" to "by an amount equal to the amount of" the advance payment.
Present law provides that in the event the advance payment exceeds the liability of the
defendant or the insurer making it, the court shall order any adjustment necessary to equalize
the amount which each defendant is obligated to pay, exclusive of costs. Proposed law
changes "shall order" to "shall promptly order".
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 $100K or less, written notice of
such settlement shall be sent to the board. Proposed law provides that such notice shall be
sent within 10 days. SB NO. 246
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words in boldface type and underscored are additions.
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 meets certain
criteria and requirements. Proposed law adds that such proof must be "sufficient".
Effective August 1, 2012.
(Amends R.S. 40:1299.42)