Cap on Damages
1975, the Louisiana legislature passed the Louisiana Medical
Malpractice Act. (the "Act"). This law is based
upon a similar law which was enacted in Indiana. The Act places
a cap of $500,000 on a victim's recovery for damages resulting
from medical malpractice. This cap on damages includes all
sums of money which may have been lost due to malpractice
including pain and suffering, mental anguish and lost wages.
The only element of
damages excluded from the cap are
past and future medical expenses.
A patient can recover past and future
medical expenses in addition to
the cap. The cap on damages applies
even if there is more than one claimant
who has suffered as a result of
the same act of malpractice. This
may occur when malpractice causes
the death of a parent of several
children or when a birth injury
causes both parents to suffer.Even
if the deceased victim is survived
by ten children, there is only one
cap of $500,000 which must be split
between the heirs.
In cases not involving
a state health care provider, the
physician's insurance company is
only responsible for paying the
first $100,000 of the claim. The
Louisiana Patient's Compensation
Fund, (the "PCF"), is
responsible for the next $400,000
for the total cap of $500,000.
If a physician pays
$100,000 to a patient, he automatically
admits fault for the malpractice.
The physician's insurance company
will represent the physician up
until he either settles the case
or the case goes to trial. If the
doctor pays his $100,000 and admits
fault, the PCF then hires its own
lawyers to argue the fault of some
other health care provider (usually
one that was not ever sued), or
to dispute causation between the
admitted act of negligence and the
damages sustained by the patient.
If the doctor goes to trial, the
PCF does not get involved until
after a verdict is rendered in favor
of the patient. They have the right
to appeal any such decision.
When future medical
care is involved, the PCF does not
have to pay those future medical
expenses in one lump sum as part
of a verdict or settlement. The
PCF has the right to pay future
medical expenses as they are incurred.
They set up an account for the health
care providers to submit bills and
they pay them monthly if they feel
they are reasonable.
If they do not feel
like the charges are reasonable,
they will not pay them and the patient
must go back to court to attempt
to force the PCF to pay those expenses.
The $500,000 cap on
damages has never been adjusted
for inflation or increased in any
respect. The original intent of
choosing the number $500,000 was
to compensate victims of medical
malpractice at the highest level.
However, without an inflationary
adjustment, the $500,000 cap is
only worth less than $167,000 in
2003 dollars. Each year a bill is
introduced in the legislature to
raise the cap, but those bills have
never been successful. Only the
legislature has the power to raise
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