Louisiana Personal Injury Lawyer Blog
Medical malpractice claims and recovery based on those claims are regulated by Louisiana statute. As such, the law places limits on the time an injured party has to file a claim. Once a claim is filed, the review process is subject to intermediate deadlines. As the following case demonstrates, a misstep in either the overall time limit or one of these intermediate points can be hazardous to a malpractice claim.
The case of Carter v. Ochsner Clinic Foundation, 978 So.2d 562 (La. Ct. App. 2008), involved a plaintiff, Janet Carter, whose mother died because of an improperly placed catheter. Ms. Carter sued both the doctor and the clinic involved in her mother’s treatment. Unfortunately for Ms. Carter, her attorneys’ work also proved to be a little sloppy.
Ms. Carter’s mother passed away on July 14, 2005. Under Louisiana law, a claim for a wrongful death resulting from medical malpractice must be filed within one year of the death (La. Rev. Stat. Ann. § 9:5628). Technically, the law requires a plaintiff to file a claim within one year of the malpractice or one year of discovering malpractice. However, the Louisiana courts have reasoned that when a person dies, the potential malpractice is readily evident. Thus, the statute of limitations begins to run on the date of death.
Ms. Carter’s attorneys lodged a complaint with the appropriate authorities on April 17, 2006, well within a year from the alleged malpractice. However, they failed to pay fees that the panel (called the Patient’s Compensation Fund Oversight Board, or the PCF) requires plaintiffs to submit. Because those fees were not paid, the PCF ruled the April complaint was invalid.
Later, in September of 2006, Ms. Carter’s attorneys submitted the claim again, this time with the required fees. However, the defendants – the doctor and the clinic – argued that the one year time period to file the claim had elapsed. They cited the rule mentioned in the third paragraph above, that the time period begins when a patient dies. Thus, Ms. Carter’s claim was now barred by another missed deadline.
Carter’s attorneys attempted to recover, but the court remained unconvinced. The attorneys argued, among other things, that it was not until March of 2006 that they received a report indicating that medical malpractice led to Carter’s mother’s death. They contended that the statute allows them one year from that point to file a claim. However, the court reiterated the rule established in Louisiana case law – when a person dies as a result of malpractice, “the damage resulting from the alleged malpractice is readily apparent” upon the victim’s death. Because that time period had elapsed, the court dismissed Ms. Carter’s claim.
Unfortunately for Ms. Carter, these missed deadlines eliminated her malpractice claim. This case illustrates the importance of finding a qualified attorney whom you trust to help protect your rights. It also demonstrates that time is of the essence. If you believe you or a loved one has been the victim of medical malpractice, do not wait! Contact an attorney so they can help you proceed in a timely manner.
The attorneys at The Berniard Law Firm are available to assist you in protecting your rights and the rights of your loved ones.