Louisiana Personal Injury Lawyer Blog
As we have explored in several prior posts on this blog, claims brought against healthcare providers under the Louisiana Medical Malpractice Act must be examined by medical review panel before proceeding to court. Just over a year ago, the First Circuit Court of Appeal issued guidance to plaintiffs on the procedure they must follow if they should uncover new claims of negligence after the medical panel has completed its review of the original claims and issued an opinion.
On September 14, 1998 Doris Abel underwent surgery at the North Oaks Medical Center (“NOMC”) in Hammond. She died a short time later from complications arising from the surgery. Her family (the “Plaintiffs”) submitted a malpractice complaint against NOMC to the medical review panel in September of 2003, which rendered a decision in favor of NOMC. Plaintiffs then filed suit against NOMC that led to a protracted period of pre-trial discovery. During that time, Plaintiffs discovered new claims of negligence against NOMC and petitioned the court to amend their complaint to include these claims. NOMC objected on the grounds that the medical review panel had not examined these new claims and requested a new trial. The trial court denied NOMC’s request and instead remanded the matter to the original medical review panel for the sole purpose of reviewing Plaintiffs’ new allegations. NOMC sought review by the First Circuit, urging that the there is no procedure in the Louisiana Medical Malpractice Act (the “Act”) for remanding a case back to a review panel once it has rendered its opinion and a suit has been filed.
The First Circuit began its analysis by noting that the Act’s language “must be strictly construed.” The court, in reiterating that the Act requires that “all malpractice claims against health care providers covered under the Act shall be reviewed by a medical review panel,” concluded that the “use of the term ‘shall’ in these statutory provisions indicates that these procedures are mandatory.” And, although the Act does not specifically address late-discovered claims, the court concluded that “the procedures the legislature mandates for filing a request for review by a medical review panel also encompass malpractice claims that are discovered after the panel has rendered an opinion and suit has been filed.” The court found additional support for this conclusion in the statutory language that describes the review panel’s duty to “express its expert opinion as to whether or not the evidence supports the conclusion that the defendant or defendants acted or failed to act within the appropriate standards of care.” The panel must be presented with all evidence in order to discharge this duty. Further, the court decreed that once a panel renders an opinion, its duty has been discharged. “Therefore, if additional malpractice claims are discovered… these new claims must be presented for review by a new medical review panel.” Accordingly, the court found that the trial court erred by remanding the matter back to the original medical review panel. It reversed the judgment and remanded the case back to the trial court so it could arrange for a new panel to review the Plaintiffs’ late-discovered claims before trial.
This case makes clear that under the Louisiana Medical Malpractice Act, no claim can get to a jury unless it has first been reviewed by the medical panel. This is critically important for an injured plaintiff to bear in mind given the Act’s requirement for filing a petition for a panel review within one year from the negligent act or the date of its discovery. A plaintiff cannot rely on the proceedings of one malpractice claim to save another related, but later-found, claim from prescription. I
f you have been injured due to the negligence of a healthcare provider, call the Berniard Law Firm at 504-521-6000 and speak with an attorney who can help you get the recovery you deserve.