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2016 Regular Session
SENATE BILL NO. 36
BY SENATOR GATTI
MALPRACTICE. Provides exclusion from coverage for medical malpractice by doctor
practicing outside his specialty or hospital privileges. (8/1/16)
1 AN ACT
2 To amend and reenact R.S. 40:1231.1(A)(13), 1231.2(B)(2), and 1231.8(A)(1)(b), (G), and
3 (N)(6), relative to medical malpractice claims; to provide with respect to exemptions
4 from medical malpractice application; to provide definitions; to provide for an
5 effective date; and to provide for related matters.
6 Be it enacted by the Legislature of Louisiana:
7 Section 1. R.S. 40:1231.1(A)(13), 1231.2(B)(2), and 1231.8(A)(1)(b), (G), and
8 (N)(6) are hereby amended and reenacted to read as follows:
9 §1231.1. Definitions and general applications
10 A. As used in this Part:
11 * * *
12 (13) "Malpractice" means any unintentional tort or any breach of contract
13 based on health care or professional services rendered, or which should have been
14 rendered, by a health care provider, to a patient, including failure to render services
15 timely and the handling of a patient, including loading and unloading of a patient,
16 and also includes all legal responsibility of a health care provider arising from acts
17 or omissions during the procurement of blood or blood components, in the training
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1 or supervision of health care providers, or from defects in blood, tissue, transplants,
2 drugs, and medicines, or from defects in or failures of prosthetic devices implanted
3 in or used on or in the person of a patient. It shall also be considered
4 "malpractice" if a health care provider misrepresents his education, training
5 or experience in a particular specialty of medicine or with a particular surgery
6 or procedure.
7 * * *
8 §1231.2. Limitation of recovery
9 * * *
10 B. * * *
11 (2)(a) A health care provider qualified under this Part is not liable for an
12 amount in excess of one hundred thousand dollars plus interest thereon accruing after
13 April 1, 1991, and costs specifically provided for by this Paragraph for all
14 malpractice claims because of injuries to or death of any one patient. The sole cost
15 for which a health care provider qualified under this Part may be assessed by a trial
16 court shall be limited to the cost incurred prior to the rendering of a final judgment
17 against the health care provider, not as a nominal defendant, after a trial on a
18 malpractice claim, including but not limited to, costs assessed pursuant to Code of
19 Civil Procedure Article 970 in any instance where the board was not the offeror or
20 offeree of the proposed settlement amount. The health care provider shall not be
21 assessed costs in any action in which the fund intervenes or the health care provider
22 is a nominal defendant after there has been a settlement between the health care
23 provider and the claimant.
24 (b) Any health care provider qualified under this Part who is found to
25 have misrepresented his education, training or experience in a particular
26 specialty of medicine or with a particular surgery or procedure shall be liable
27 for all sums awarded above the limitation of recovery provided for in
28 Paragraph (B)(1) of this Section without limitation.
29 (c) Any health care provider who negligently or knowingly grants
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1 privileges to, advertises for or profits from another health care provider’s
2 misrepresentation of his education, training or experience in a particular
3 specialty of medicine or with a particular surgery or procedure shall be
4 solidarily liable with the health care provider for all sums awarded above the
5 limitation of recovery provided for in Paragraph (B)(1) of this Section without
6 limitation.
7 * * *
8 §1231.8. Medical review panel
9 A.(1) * * *
10 (b) A request for review of a malpractice claim or a malpractice complaint
11 shall contain, at a minimum, all of the following:
12 (i) A request for the formation of a medical review panel.
13 (ii) The name of only one patient for whom, or on whose behalf, the request
14 for review is being filed; however, if the claim involves the care of a pregnant
15 mother and her unborn child, then naming the mother as the patient shall be
16 sufficient.
17 (iii) The names of the claimants.
18 (iv) The names of the defendant health care providers.
19 (v) The dates of the alleged malpractice.
20 (vi) A brief description of the alleged malpractice as to each named defendant
21 health care provider.
22 (vii) A brief description of the alleged injuries.
23 (viii) If applicable, an allegation that the defendant health care provider
24 misrepresented his education, training or experience in a particular specialty
25 of medicine or with a particular surgery or procedure.
26 * * *
27 G. The panel shall have the sole duty to express its expert opinion as to
28 whether or not the evidence supports the conclusion that the defendant or defendants
29 acted or failed to act within the appropriate standards of care. After reviewing all
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1 evidence and after any examination of the panel by counsel representing either party,
2 the panel shall, within thirty days, render one or more of the following expert
3 opinions, which shall be in writing and signed by the panelists, together with written
4 reasons for their conclusions:
5 (1) The evidence supports the conclusion that the defendant or defendants
6 failed to comply with the appropriate standard of care as charged in the complaint.
7 (2) The evidence does not support the conclusion that the defendant or
8 defendants failed to meet the applicable standard of care as charged in the complaint.
9 (3) When the claimant makes an allegation of misrepresentation
10 pursuant to Item (A)(1)(b)(viii) of this Section, the evidence does or does not
11 support the conclusion that the defendant misrepresented his education,
12 training or experience in a particular specialty of medicine or with a particular
13 surgery or procedure.
14 (3)(4) That there is a material issue of fact, not requiring expert opinion,
15 bearing on liability for consideration by the court.
16 (4)(5) When Paragraph (1) or (3) of this Subsection is are answered in the
17 affirmative, that the conduct complained of was or was not a factor of the resultant
18 damages. If such conduct was a factor, whether the plaintiff suffered: (a) any
19 disability and the extent and duration of the disability, and (b) any permanent
20 impairment and the percentage of the impairment.
21 * * *
22 N.
23 * * *
24 (6) The panel shall have the sole duty to express its expert opinion as to
25 whether or not the evidence supports the conclusion that the defendant or defendants
26 acted or failed to act within the appropriate standards of care. After reviewing all
27 evidence and after any examination of the panel by counsel representing either party,
28 the panel shall, within thirty days, but in no event later than twelve months of the
29 date of notification of the selection of the attorney chairman pursuant to Paragraph
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1 (1) of Subsection C of this Section, render one or more of the following expert
2 opinions, which shall be in writing and signed by the panelists, together with written
3 reasons for their conclusions:
4 (a) The evidence supports the conclusion that the defendant or defendants
5 failed to comply with the appropriate standard of care as charged in the complaint.
6 (b) The evidence does not support the conclusion that the defendant or
7 defendants failed to meet the applicable standard of care as charged in the complaint.
8 (c) When the claimant makes an allegation of misrepresentation
9 pursuant to Item (A)(1)(b)(viii) of this Section, the evidence does or does not
10 support the conclusion that the defendant misrepresented his education,
11 training or experience in a particular specialty of medicine or with a particular
12 surgery or procedure.
13 (d) That there is a material issue of fact, not requiring expert opinion, bearing
14 on liability for consideration by the court.
15 * * *
16 Section 2. This Act shall become effective on August 1, 2016; if vetoed by the
17 governor and subsequently approved by the legislature, this Act shall become effective on
18 August 1, 2016, or on the day following such approval by the legislature, whichever is later.
The original instrument and the following digest, which constitutes no part
of the legislative instrument, were prepared by Christine Arbo Peck.
DIGEST
SB 36 Engrossed 2016 Regular Session Gatti
Proposed law provides that it in addition to the definition of malpractice in present law, it
shall also be considered malpractice if a health care provider misrepresents his education,
training or experience in a particular specialty of medicine or with a particular surgery or
procedure.
Proposed law adds provisions to the limitation of recovery section of present law to include
any health care provider who misrepresents his education training or experience in a
particular specialty of medicine or with a particular surgery or procedure is not subject to the
medical malpractice liability limitation.
Proposed law adds provisions to the limitation of recovery section of present law to include
any health care provider who knowingly grants privileges to, advertises for or profits from
another health care provider’s misrepresentation of his education, training or experience and
makes the two solidarily liable is not subject to the medical malpractice liability limitation.
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Proposed law establishes a process to present law for the medial review panel to review and
issue an opinion on a claimant’s allegation that a health care provider misrepresented his
education, training or experience in a particular specialty of medicine or with a particular
surgery or procedure.
Effective August 1, 2016.
(Amends R.S. 40:1231.1(A)(13), 1231.2(B)(2), and 1231.8(A)(1)(b), (G), and (N)(6))
Summary of Amendments Adopted by Senate
Committee Amendments Proposed by Senate Committee on Health and Welfare to
the original bill
1. Revises definition of "malpractice" to include when a health care provider
misrepresents his education, training or experience in a particular specialty
of medicine or with a particular surgery or procedure.
2. Includes provisions that when a health care provider misrepresents his
education training or experience in a particular specialty of medicine or with
a particular surgery or procedure he is not subject to the medical malpractice
liability limitation.
3. Includes provisions that any health care provider who knowingly grants
privileges to, advertises for or profits from another health care provider’s
misrepresentation of his education, training or experience is not subject to the
medical malpractice liability limitation and makes the two solidarily liable.
4. Includes process for the medical review panel to review and issue an opinion
on a claimant’s allegation that a health care provider misrepresented his
education, training or experience in a particular specialty of medicine or with
a particular surgery or procedure.
5. Makes technical corrections.
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words in boldface type and underscored are additions.