Louisiana Law Blog

By Deborah Juneau

The Louisiana Supreme Court issued its new opinion after a rehearing in Borel v. Young, again affirming the Third Circuit’s ruling and dismissing the lawsuit against late-added physician defendants, but on different grounds. The supreme court’s decision on rehearing solved an apparent dilemma for the plaintiffs created by the original opinion: the plaintiffs were precluded from filing suit until after the medical review panel had rendered an opinion but, in any case, were required to file suit within three years of the alleged medical malpractice. Since the three year period could not be suspended during the pendency of the medical review panel, the plaintiffs faced the possibility that their claims would be barred by the three-year peremptive period before the panel convened to consider their claims.

By Deborah Juneau

The Louisiana Supreme Court recently held in Borel v. Young that La. R. S. 9:5826(A) provided for both a one year prescriptive period and a three year peremptive period to file a claim for medical malpractice. The decision in Borel made it clear that a plaintiff had to file suit against a health care provider no later than three years from the date of the alleged act, omission, or negligence giving rise to the claim. Otherwise, the plaintiff’s action would be extinguished, and all rights to pursue the action would be lost. This ruling was favorable to health care providers, as it protected them from stale claims being brought years after the date of the alleged malpractice. However, the Louisiana Supreme Court granted a rehearing of the Borel v. Young case on May 21, and it remains to be seen whether the current ruling will stand or whether it will be modified or vacated.

La. R. S. 9:5826(A) governs the time limitations in which a party may bring a medical malpractice action against a health care provider. To understand the significance of the Borel ruling, one must understand the crucial difference between a prescriptive period and a peremptive period. A prescriptive period designates the deadline by which an action must be brought. However, prescriptive periods can be suspended, interrupted, or renounced by a variety of occurrences. Peremption is defined as a period of time fixed by law for the existence of a right. Unlike a prescriptive period, a peremptive period cannot be renounced, interrupted or suspended. Therefore, the right to bring an action against a health care provider would cease to exist if not timely exercised within three years after the date of the alleged act, omission or negligence.

by Randy R. Cangelosi

On February 2, 2007, the Louisiana Supreme Court vacated [Footnote] two decisions out of the Louisiana Third Circuit (Lake Charles), Taylor v. Clement and Arrington v. Galen-Med., Inc. et al. Taylor/Arrington garnered much attention in September 2006 when the Third Circuit declared Louisiana's medical malpractice cap, La. R.S. 40:1299.42(B) (a statute that has survived countless constitutional challenges since its enactment in the mid-1970s), unconstitutional. The Third Circuit reasoned that the $500,000 cap on damages did not provide the plaintiffs with "an adequate remedy" when considering the purported diminution of the cap over time due to inflation. The adequate remedy challenge to the constitutionality of a statute is derived from Article I, Section 22 of the Louisiana Constitution. Under current law, the $500,000 cap does not include future medical care costs and related expenses; it does, however, include pain and suffering, lost wages and other damages. 

by Jason R. Cashio

As most are aware, the Third Circuit Court of Appeal in Lake Charles recently ruled the medical malpractice cap unconstitutional.  The decision will be reviewed by the Louisiana Supreme Court, a process that could take anywhere from three to twelve months.  In the meantime, the cap is still applicable.

By comparison, the majority of states have some form of cap on noneconomic damages according to the National Conference of State Legislatures as of 2005.  Louisiana is one of those states.  Ten states cap nonecomomic damages for medical malpractice claims with caps ranging from $150,000 to $1 million.  Twenty-two states have some form of cap on noneconomic damages, although not specifically limited to medical malpractice claims.  Out of these 32 states, 11 also have a form of cap on punitive damages.

A minority of states either constitutionally prohibit limits on damage awards, have state supreme court decisions finding such caps unconstitutional, prohibit caps on damages by statute, or simply have no limitations.  Whether Louisiana joins the minority of states depends on the ruling of the Louisiana Supreme Court.  We will continue to monitor the proceedings with the Louisiana Supreme Court and report any future ruling as soon as it is available.

By: Clay J. Countryman

          The Centers for Medicare and Medicaid Services (“CMS”) recently issued an advisory opinion on November 6, 2006 regarding the physician recruitment exception in the federal physician self-referral law, commonly know as the Stark Law. CMS specifically addressed whether a physician who would spend up to 20% of their time practicing outside of the recruiting hospital’s geographic service area would meet the relocation requirement of the physician recruitment exception to the Stark Law.

          Under the proposed recruitment arrangement, the recruiting hospital would provide the following loans to the physician directly:

                     (1)      A loan for the payment of the physicians moving and relocation expenses, which would be forgiven after 1 year;

                     (2)      A loan equal to the physicians first year medical malpractice premium not to exceed $10,000.00, which would be forgivable over 3 years; and

                     (3)      A loan to repay the physicians medical school loans, which would be forgivable over a 3 year period.

          The recruiting hospital would provide no other compensation that either the practice to the physician is joining or to the physician in connection with the proposed recruitment arrangement. In addition, the forgiveness of the loans would be based on the physician meeting certain service and other commitments.