On August 22, 2019, a New Orleans medical malpractice jury returned its verdict in the amount of $10 million in favor of the plaintiff who suffered a serious permanent arm injury as a result of negligent medical treatment for an arm fracture he suffered at a party in 2002 when he was two-years-old and playing on a trampoline. Because the Michigan doctor who placed his arm in a cast was participating in a training rotation at the time and was not properly registered under the Louisiana Medical Malpractice Act, the verdict may not be subject to the Act’s cap on damages in the amount of $500,000 that has existed since the mid-1970s.
The plaintiff’s parents brought him back to the hospital 19 hours after discharge due to swelling of the arm in the cast but they were sent back home without proper treatment. The improper cast was not removed until after two visits to the emergency room and five days after the cast was applied. By then, the muscle injury and nerve damage had already become permanent. The plaintiff has suffered permanent injury to his dominant arm due to uncontrolled swelling while in the cast that prevents him from making a fist.
Louisiana Medical Malpractice Act
The Louisiana Medical Malpractice Act (“Act”) defines “health care provider” as “a person, partnership, limited liability partnership, limited liability company, corporation, facility, or institution licensed or certified by this state to provide health care or professional services as a physician, hospital, … ”
§1231.2 (“Limitation of recovery”) provides: “A. To be qualified under the provisions of this Part, a health care provider shall: (1) Cause to be filed with the board proof of financial responsibility as provided by Subsection E of this Section. (2) Pay the surcharge assessed by this Part on all health care providers according to R.S. 40:1131.4. (3) For self-insured health care providers, initial qualification shall be effective upon acceptance of proof of financial responsibility by and payment of the surcharge to the board. Initial qualification shall be effective for all other health care providers at the time the malpractice insurer accepts payment of the surcharge.”
The Act further provides: “B. (1) The total amount recoverable for all malpractice claims for injuries to or death of a patient, exclusive of future medical care and related benefits as provided in R.S. 40:1231.3, shall not exceed five hundred thousand dollars plus interest and cost. (2) A health care provider qualified under this Part is not liable for an amount in excess of one hundred thousand dollars plus interest thereon accruing after April 1, 1991 … E. (1) Financial responsibility of a health care provider under this Section 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 one hundred thousand dollars per claim with qualification under this Section taking effect and following the same form as the policy of malpractice liability insurance of the health care provider, … ”
The Act provides: “A health care provider who fails to qualify under this Part is not covered by the provisions of this Part and is subject to liability under the law without regard to the provisions of this Part. If a health care provider does not so qualify, the patient’s remedy will not be affected by the terms and provisions of this Part, except as hereinafter provided with respect to the suspension and the running of prescription of actions against a health care provider who has not qualified under this Part when a claim has been filed against the health care provider for review under this Part.”
In the Louisiana medical malpractice case mentioned above, the physician who treated the plaintiff by placing him in a cast was not properly registered under the Louisiana Medical Malpractice Act, and therefore the damages cap may not apply to the $10 million Louisiana medical malpractice verdict against him.
If you or a loved one suffered harm as a result of medical negligence in Louisiana or in another U.S. state, you should promptly find a medical malpractice lawyer in Louisiana or in your state who may investigate your medical malpractice claim for you and represent you or your loved one in a medical malpractice case, if appropriate.
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