Medical Malpractice FAQs

Q. What is medical malpractice?

A. Medical malpractice involves the rendering of medical care below the appropriate standard by a health care provider - a doctor, nurse, hospital, hospital worker or dentist.

Q. Who can I sue for medical malpractice?

A. You can bring a lawsuit against any healthcare provider who was in any way involved in your care and treatment and whose negligence caused your injury or the death of a loved one. This includes doctors, nurses, hospitals, physical therapists, psychotherapists and even those workers you've never met such as radiologists.

Q. Are all medical bad results considered negligence?

A. No. Medical results cannot be guaranteed and bad results do occur, despite the best efforts of physicians, nurses and other hospital staff. Conduct is negligent when it fails to meet the "standard of care" of those with similar training and experience, and the patient is harmed as a result. The standard of care is determined by experts and constitutes what a reasonable health care provider would do under similar circumstances.

Q. What is meant by "a breach of the standard of care" in a medical malpractice case?

A. In order to win a medical malpractice case, a patient must prove that one or more of the healthcare providers breached the "standard of care." The standard of care in Louisiana requires that the healthcare provider exercise the skill and knowledge that are ordinarily possessed and exercised by other members of the profession acting under similar conditions and circumstances.

Q. If I can show that the health care provider didn't meet the standard of care, will I win my case?

A. Not necessarily. You must also prove that the failure to meet the requisite standard of care caused your injury. Often the defense will claim one of the following: that the injury is a natural progression of the condition for which the patient sought treatment; the condition was incurable; earlier diagnosis or treatment would not have altered the outcome, or that the injury suffered was independent of the defendant's actions.

In order to prevail in a medical malpractice case, you must prove that the acts of malpractice were a substantial factor in causing the injury.

Q. Can I sue a doctor for malpractice even though my case did not involve a surgery?

A. Yes. Some of the most common medical malpractice cases involve a failure to diagnose cancer and other serious illnesses. Further, a malpractice claim can be based on a doctor's failure to take an adequate history, monitor a patient's progress, failure to prescribe appropriate medicine, and many different acts that can occur in the course of a patient's treatment.

Q. What are some of the common allegations in malpractice cases involving surgery?

A. In elective surgery cases, whether the surgery should have been performed at all can be an issue.

When a surgery is non elective, the claim may be based on an undue delay in performing a surgery. Further, the surgery itself may have been improperly performed, and it is not at all uncommon to see cases involving inadequate post operative follow up and care even after a hospitalization.

Q. If my baby is born with birth defects, can I bring a malpractice case against the doctors and hospital?

A. Yes, as long as you can establish malpractice. These cases, known as "birth injury" cases, can be the most challenging and expensive cases to pursue. Defendants will often claim that the birth defects were unpreventable, caused either by genetic factors, the mother's misconduct during the pregnancy, or hidden problems which were undiscoverable despite the doctor's best efforts. In order to win, plaintiffs will usually have to hire an entire team of experts to establish that the birth defects were preventable and discoverable, and that the baby could have been born healthy if the doctors had acted properly during the pregnancy, delivery or post delivery.

Q. Does Louisiana have medical malpractice caps?

A. Yes. In most circumstances Louisiana law limits damages to $500,000 plus future medical costs.

Q. How long do I have to file a medical malpractice claim?

A. Typically one year. Pursuant to Louisiana law, a medical malpractice action must be filed within one year from the date of act, omission or neglect or discovery of the act, omission or neglect that caused that injury, but in no case after three years from the malpractice event.

Q. Do I need to hire an attorney?

A. It's a good idea to hire an attorney to help establish who may be at fault, and to conduct a full investigation into the facts and circumstances surrounding your case.

Q. Will my case settle?

A. Many cases settle out of court. Medical Malpractice cases settle less frequently than other cases for various reasons.

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