HLS 18RS-868 ORIGINAL
2018 Regular Session
HOUSE BILL NO. 586
BY REPRESENTATIVE JIMMY HARRIS
MALPRACTICE/MEDICAL: Amends the Medical Malpractice Act
1 AN ACT
2To amend and reenact R.S. 40:1231.2(B)(1) and (2) and (D)(5), 1231.3(A)(1), (2), and (3),
3 and 1231.8(A)(1)(a) and (B)(1)(a)(i), to enact R.S. 40:1231.3(B)(3) and (4), and to
4 repeal R.S. 40:1231.3(G) and (H), relative to medical malpractice; to provide for
5 limitation of liability for medical malpractice; to provide relative to the amount of
6 recovery; to provide for future medical care and related benefits; to provide relative
7 to the patient's compensation fund and medical review panel; to provide for
8 procedures; to provide relative to prescription; and to provide for related matters.
9Be it enacted by the Legislature of Louisiana:
10 Section 1. R.S. 40:1231.2(B)(1) and (2) and (D)(5), 1231.3(A)(1), (2), and (3), and
111231.8(A)(1)(a) and (B)(1)(a)(i) are hereby amended and reenacted and R.S.
1240:1231.3(B)(3) and (4) are hereby enacted to read as follows:
13 §1231.2. Limitation of recovery
14 * * *
15 B.(1) The total amount recoverable for all malpractice claims for injuries to
16 or death of a patient, exclusive of economic loss including loss of income or earning
17 capacity and past or future medical expenses, future medical care and related benefits
18 as provided in R.S. 40:1231.3, shall not exceed one million five hundred thousand
19 dollars plus interest and cost. This limitation shall be adjusted annually for inflation
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1 by a percentage increase equal to the change in the Consumer Price Index published
2 by the United States Bureau of Labor Statistics for the preceding year.
3 (2) A health care healthcare provider qualified under this Part is not liable
4 for an amount in excess of two hundred fifty one hundred thousand dollars plus
5 interest thereon accruing after April 1, 1991, and costs specifically provided for by
6 this Paragraph for all malpractice claims because of injuries to or death of any one
7 patient. The sole cost for which a health care provider qualified under this Part may
8 be assessed by a trial court shall be limited to the cost incurred prior to the rendering
9 of a final judgment against the health care provider, not as a nominal defendant, after
10 a trial on a malpractice claim, including but not limited to, costs assessed pursuant
11 to Code of Civil Procedure Article 970 in any instance where the board was not the
12 offeror or offeree of the proposed settlement amount. The health care provider shall
13 not be assessed costs in any action in which the fund intervenes or the health care
14 provider is a nominal defendant after there has been a settlement between the health
15 care provider and the claimant. This limitation shall be adjusted annually for
16 inflation by a percentage increase equal to the change in the Consumer Price Index
17 published by the United States Bureau of Labor Statistics for the preceding year.
18 * * *
19 D.
20 * * *
21 (5) In the event that a partial settlement is executed between the defendant
22 and/or his insurer with a plaintiff for the sum equal to the limitation provided by
23 Paragraph (B)(2) of this Section of one hundred thousand dollars or less, written
24 notice of such settlement shall promptly be sent to the board by the defendant or his
25 insurer. Such settlement shall not bar the continuation of the action against the
26 patient's compensation fund for damages in excess of the partial settlement, but any
27 subsequent judgment awarded to the claimant shall be reduced by the court in an
28 amount equivalent to the partial settlement. excess sums in which event the court
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1 sha1l reduce any judgment to the plaintiff in the amount of malpractice liability
2 insurance in force as provided for in R.S. 40:1231.2(B)(2).
3 * * *
4 §1231.3. Future medical care and related benefits
5 A.(1) In all malpractice claims filed with the board which proceed to trial,
6 the court or jury shall be required to make a specific finding of fact regarding the
7 amount, if any, of future medical expenses and related benefits that are due the
8 claimant after the date of the conclusion of the trial, and if so, given a special
9 interrogatory asking if the patient is in need of future medical care and related
10 benefits that will be incurred after the date of the response to the special
11 interrogatory, and the amount thereof.
12 (2) In actions upon malpractice claims tried by the court, the court's finding
13 shall include a recitation that the patient is or is not in need of future medical care
14 and related benefits that will be incurred after the date of the court's finding and the
15 amount thereof If the award pursuant to Paragraph (1) of this Subsection, together
16 with all other recoverable elements of damage awarded, does not exceed one million
17 dollars, as adjusted for inflation as provided by R.S. 40:1231.2(B)(1), the full amount
18 awarded shall be due and payable to the patient without regard to this Section as any
19 other element of damage.
20 (3)(a) If the total amount is for the maximum amount recoverable, exclusive
21 of the value of future medical care and related benefits that will be incurred after the
22 date of the response to the special interrogatory by the jury or the court's finding, the
23 cost of all future medical care and related benefits that will be incurred after the date
24 of the response to the special interrogatory by the jury or the court's finding shall be
25 paid in accordance with R.S. 40:1231.3(C). If the court or jury award pursuant to
26 Paragraph (1) of this Subsection, together with all other recoverable elements of
27 damage awarded, exceeds one million dollars, as adjusted for inflation as provided
28 by R.S. 40:1231.2(B)(1), the court shall make a determination whether it is in the
29 best interest of the patient for the excess of the award to be payable to the claimant
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1 by the Patient's Compensation Fund without regard to this Section as any other
2 element of damage, or should be held in trust with the Patient's Compensation Fund
3 to be paid as reimbursement to the patient for future medical expenses and related
4 benefits as incurred, or by direct payment to the provider, at the option of the patient.
5 (a)(b) The court shall make such determination at a post-trial hearing at
6 which time all affected parties shall have the opportunity to present evidence and to
7 be heard before the determination is made by the court. The court shall then render
8 a final judgment with written reasons.
9 (c) In support of the judgment, the court shall consider the competence of the
10 patient and his family in managing the medical care and related benefits of the
11 patient, including the creation of a special needs trust fund, annuities for future
12 maintenance and support and other means of structuring the award that assures the
13 patient or his family can manage the patient's future needs without the necessity of
14 the Patient's Compensation Fund.
15 * * *
16 B.
17 * * *
18 (3) "Future medical care and benefits" as used in this Section shall include
19 the payment of custodial care at fair and reasonable market value of such services
20 in the parish in which the patient customarily resides.
21 (4) The necessity of future medical care to be paid or reimbursed to the
22 patient under this Section, including the nature of any therapy to be afforded to the
23 patient, shall be deemed reasonable if it is prescribed by a duly licensed physician
24 in the state of Louisiana or of any other state where the patient customarily resides.
25 * * *
26 §1231.8. Medical review panel
27 A.(1)(a) All malpractice claims against health care providers covered by this
28 Part, other than claims validly agreed for submission to a lawfully binding arbitration
29 procedure, shall may be reviewed by a medical review panel established as
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1 hereinafter provided for in this Section. The filing of a request for review by a
2 medical review panel as provided for in this Section shall not be reportable by any
3 health care provider, the Louisiana Patient's Compensation Fund, or any other entity
4 to the Louisiana State Board of Medical Examiners, to any licensing authority,
5 committee, or board of any other state, or to any credentialing or similar agency,
6 committee, or board of any clinic, hospital, health insurer, or managed care
7 company.
8 * * *
9 B.(1)(a)(i) No action against a health care provider covered by this Part, or
10 his insurer, may be commenced in any court before the claimant's proposed
11 complaint has been presented to a medical review panel established pursuant to this
12 Section or, alternatively, an affidavit by a board certified medical doctor, holding a
13 valid and unrestricted license to practice in his specialty in the state in which he
14 resides or practices, certifies that (1) adequate medical records of the patient have
15 been provided and reviewed by him, (2) these records are sufficient for him to state
16 that the allegations of malpractice against each defendant health care provider named
17 in the petition constitute a breach of the standard of care, and (3) that the breach
18 caused or contributed to injury or death of the patient. Such affidavit must be
19 notarized by a suitable authority for the state in which the medical doctor resides or
20 practices and filed contemporaneously with the petition in the record of the district
21 court in which the action is filed. If subsequent to the filing of the petition, additional
22 healthcare providers are named as defendants, one of the alternative procedures
23 required by this subsection shall be followed for such new parties. The prescriptive
24 period for actions initiated by affidavit shall be provided by Civil Code Articles 2324
25 and 3492, provided that any action against a healthcare provider subject to this Part,
26 even as to claims filed within one year from the date of discovery, shall in all events
27 be filed at the latest within a period of three years from the date of the alleged act,
28 omission, or neglect.
29 * * *
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HB NO. 586
1 Section 2. R.S. 40:1231.3(G) and (H) are hereby repealed in their entirety.
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)]
HB 586 Original 2018 Regular Session Jimmy Harris
Abstract: Modifies the medical malpractice claims, and provides for alternative to the
medical review panel for complaints filed against a healthcare providers or insurers.
Present law provides that the maximum amount recoverable for a claim is $500,000 plus
interest and cost.
Proposed law raises the amount recoverable per claim to $1,000,000 plus interest and cost
and excludes economic damages.
Present law allows a qualified health care provider to be liable for up to $100,000 in
damages plus interest and costs.
Proposed law raises a qualified health care provider's potential liability from $100,000 plus
interest and costs to $250,000 plus interest and costs.
Proposed law requires a court or fact finder to find a specific amount of future medical
expenses and related benefits for a claimant.
Proposed law allows a court, after determining that a total award exceeds the $1,000,000
cap, to hold excess damages in a trust with the Patient Compensation Fund to be paid in
reimbursement to a patient or to his provider for future medical care.
Proposed law defines future medical care and benefits.
Proposed law changes the present law requirement that all medical malpractice claims
against health care providers be heard by a medical review panel, and offers a claimant an
alternative to initiate a claim through an affidavit by a board certified doctor. The affidavit
shall certify that the doctor has reviewed the necessary records and that there was a breach
of the standard of care which caused or contributed to the injury or death of a patient.
Proposed law provides a prescriptive period for actions initiated by the affidavit process.
(Amends R.S. 40:1231.2(B)(1) and (2) and (D)(5), 1231.3(A)(1), (2), and (3), and
1231.8(A)(1)(a) and (B)(1)(a)(i); Adds R.S. 40:1231.3(B)(3) and (4); Repeals R.S.
40:1231.3(G) and (H))
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