Louisiana Medical Malpractice Act (LMMA): A Concise Overview of the Med-Mal Process

1. Louisiana Medical Malpractice Act (LMMA): A Concise Overview of the Med-Mal Process February 13, 2019

2. Louisiana Medical Malpractice Act (LMMA): A Concise Overview of the Med-Mal Process Presented by René Pfefferle Partner at

3. The Medical Malpractice ActR.S. 40:1231.1, et seq. Enacted in 1975 in part to avert a potential insurance crisis. Provides a cap/limit on recoverable damages. $100,000/$500,000 limit, plus future medicals. Claim must arise out of care and treatment of a patient. Extensive litigation related to this issue.

4. THE MEDICAL REVIEW PANELR.S. 40:1231.8 Filing the Complaint • Filed with Division of Administration • Filing fee $100 per healthcare provider PRESCRIPTION PERIOD—R.S. 9:5628 Claim must be filed within 1 year of the date of alleged malpractice or within 1 year of the discovery of the alleged malpractice but in no event greater than 3 years from the date of alleged malpractice. Necessary Components • Patient Name/Claimant • Healthcare Provider/Defendant • Date of Treatment • Basic Facts/Allegations of Treatment

5. Filing a Complaint: • A Plaintiff cannot immediately file suit in the court system. • Instead, the LMMA requires a Medical Review Panel as a condition prior to filing a lawsuit

6. Notice of the Complaint: How will you find out that someone has filed a medical malpractice complaint against you? You will receive a letter from the Division of Administration. Notify your insurance company and your attorney when you receive this letter. All of this was likely preceded by some treatment related event that happened in the last year.

7. Notice of the Complaint:

8. What Happens Next? • Once your attorney has been notified, he will begin moving the process along. This includes: • Initiating the Medical Review Panel, which includes: • Having an attorney chairman appointed • Plaintiff and Defense counsel will each appoint a physician to be a member of the panel • The two physicians will choose a third panelist-physician. • Gathering facts and investigating the claim • May or may not have had some investigation already.

9. What Happens Next?-Continued Your attorney will reach out to you and ask you what, if anything, you recall about the patient and the situation. Work together with your attorney in moving the process forward during the course of claim investigation. Your attorney may request a narrative report.

10. Physicians: What am I supposed to do? Begin thinking about suggestions for a panel member. A good choice would be someone you respect in a similar medical specialty as yourself. This person should not be someone you have a financial or personal relationship with. Meet or speak with your attorney and ask questions if you have any. Your attorney can go over the Medical Review Panel process with you.

11. Risk Managers: What am I supposed to do? Get a certified copy of the records prepared by the medical records/HIM department to provide to the attorney assigned the case. Meet or speak with your attorney and ask questions if you have any. The attorney will likely instruct you regarding what information is needed moving forward and how you can assist in his investigation of the claim. Your attorney can go over the Medical Review Panel process with you.

12. Nurses: What am I supposed to do? Nurses are (generally) employees of the Hospital and fall under the coverage of the hospital. Nurses are (generally) not named individually in the MRP complaint. However, nurses can and sometimes are named. Cooperate with your attorney and follow his instructions as more details regarding the case come to light. If you are named in a complaint, be sure the risk manager and administrator are aware of it. If involved in the treatment at issue, you may be asked to meet with risk management, the attorney, and the insurance adjuster.

13. A Word of Caution: Do not access the records at the healthcare facility—wait until you are provided a copy of the records by your attorney. Do not speak to anyone else about the case without first consulting with risk management or the administrator. Do not suggest a panel member on your behalf that you have a personal or financial relationship with. Do not reach out to a panel member or potential panel member—this action will create a conflict of interest and immediately disqualify them from participating in the panel

14. A Word of Caution—Continued: Risk Managers: Collaborate with assigned attorney in developing the case. However, do not take any actions without first discussing this with the attorney. Generally, consult with the assigned attorney before taking any actions related to the case. This applies to all parties involved, including physicians, mid-level practitioners, the risk management team, and any other staff members involved.

15. Composition of the Medical Review Panel: R.S. 40:1231.8 (j) If there is only one party defendant which is not a hospital, community blood center, tissue bank, or ambulance service, all panelists except the attorney shall be from the same class and specialty of practice of health care provider as the defendant. If there is only one party defendant which is a hospital, community blood center, tissue bank, or ambulance service, all panelists except the attorney shall be physicians. If there are claims against multiple defendants, one or more of whom are health care providers other than a hospital, community blood center, tissue bank, or ambulance service, the panelists selected in accordance with this Subsection may also be selected from health care providers who are from the same class and specialty of practice of health care providers as are any of the defendants other than a hospital, community blood center, tissue bank, or ambulance service.

16. Composition of the Medical Review Panel: • Selecting the Attorney Chairman • The attorneys select an impartial attorney chairman to moderate the case. • Selecting Members to serve on the Panel • Panel members are generally physicians. • However, it could be a practitioner from another field such as a nurse, physical therapist, etc. • The goal is to select a healthcare provider with a similar specialty or background as that of the defendant(s). • For example, if the case involves oncology, you wouldn’t want an ER physician to serve on the panel (because oncology is not his specialty).

17. Discovery Process • Obtain medical records of the claimant • Not limited to records of treatment at issue • Obtaining and reviewing records both before and after treatment at issue may be important • Interrogatories and Request for Production of Documents • Depositions • Preparation is critical

18. Critical Panel Deadlines • Must have the MRP Opinion within 1 year of the appointment of the chairman, unless a court ordered extension of the deadline is obtained. • Claimant can proceed to suit without obtaining a panel opinion if the deadline is allowed to expire Deadline to File Suit 90 days from receipt of MRP Opinion, plus whatever time remained in the original prescriptive period

19. PANEL SUBMISSION: • Position Paper • A summary of the care and treatment provided accompanied by a persuasive discussion in defense of the claim. • Exhibits • Medical Records • Possible Narrative Statement • Any Depositions • Copy of the Complaint • Any Other Documents/Evidence to Assist Panel’s Review

20. Medical Review Panel Meeting: The meeting generally occurs at the law office of the attorney chairman. Defendants do not participate in the Panel Meeting—only the attorneys, the attorney chairman and the panel members. The Panelists will deliberate outside of the presence of the attorneys for the parties and review the medical evidence presented to them on behalf of the parties involved. The attorney chair will assist the Panelists with any questions of law in making their decision. The Panelists will decide if there has been a breach in the standard of care and will assign reasons for their decision. The opinion will be executed in writing and sent to the attorneys on behalf of the parties.

21. Medical Review Panel Opinion: Guiding Legal principles and standards that assist the panelists in formulating their opinion. The attorney chairman advises panelists if they have any questions. Tasks of the Panel

22. TASKS OF THE PANEL The act governing the duties of the doctors on the Medical Review Panel (LSA- R.S. 40:1231.8, Paragraph (G) calls for one of the following findings, based on the evidence submitted to the Panel: 1. The evidence supports the conclusion that [Defendants #1 & 2] failed to comply with the appropriate standard of care as charged in the complaint; 2. The evidence does not support the conclusion that [Defendants #1 & 2] failed to meet the applicable standard of care as charged in the complaint; 3. That there is material issue of fact, not requiring expert opinion, bearing on liability for consideration by the Court; 4. Where Number 1 above is answered in the affirmative, that the conduct complained of was or was not a factor of the resultant damages. If such conduct was a factor, whether the claimant suffered: (a) any disability and the extent and duration of the disability; and (b) any permanent impairment and the percentage of the impairment. II.

24. Subsequent Lawsuit Litigation process continues and will culminate in a trial or settlement. Trial Testimony may be required by the defendant healthcare provider.

25. Law Applicable to Healthcare Providers

26. Physician Standard: A practitioner is only responsible for exercising his or her best judgment in administering reasonable care under the circumstances that face him or her at that time. Lindsey v. Michigan Mutual Liability Co., 156 So.2d 313 (La. App. 4th Cir. 1963), writ denied, 158 So.2d 612 (La. 1963) (emphasis added). Hindsight, of course, is said to be perfect. However, the physician’s care of a patient is not to be judged in retrospect. A physician is also not an insurer or guarantor of results. Phelps v. Donaldson, 150 So.2d 35 (La. 1963). A physician is not liable for a mistake in treatment unless that mistake is the result of a failure to exercise due care or ordinary skill and diligence in judgment. The claimant cannot satisfy his or her burden of proof by merely proving that the physician made an error. The claimant must also prove that the error was the result of the physician’s failure to exercise the necessary degree of care or skill. Myer v. St. Paul Mercury Ind. Co., 73 So.2d 781(La. 1978). In addition, Louisiana law clearly establishes the general legal principle that the mere occurrence of an unfortunate event, an injury, while a person is under the care of a healthcare provider, does not raise a presumption that a physician is negligent, and does not mean that the injured party is entitled to damages; it must be proven that the person or organization being sued caused the injury according to the rules of law. Simply put, an injury alone does not raise a presumption of negligence. The plaintiff must demonstrate that the treatment rendered by [Defendants #1 & 2] was not in accordance with the appropriate standard of care and, further, that if there was a breach of the standard of care by either health care provider, that the breach directly and proximately caused damages to [Patient] that s/he would not otherwise have suffered. It is the position of aforementioned defendants that at all times pertinent hereto it treated of [Patient] within the appropriate standard of care required under the circumstances.

27. Hospital Standard: The plaintiff in a medical malpractice claim against a hospital is required to prove (1) the applicable standard of care, (2) that the hospital, through its nurses or employees, breached the applicable standard of care, and (3) that injury was caused by the breach. See La. R.S. 9:2794(A); Pfiffner v. Correa, 94-0924, 94-0963, 94-0992 (La.10/17/94), 643 So.2d 1228. A hospital is bound to exercise care according to what a particular patient’s condition requires. A determination of whether or not a hospital has breached the duty of care owed to a patient depends upon the facts and circumstances of each case. Hunt v. Bogalusa Community Medical Center, 303 So.2d 745 (La. 1975). Nurses and attendants must exercise the degree of skill ordinarily exercised under similar circumstances by members of their profession in good standing and must use reasonable care and diligence, along with their best judgment, in applying their skill. Norton v. Argonaut Insurance Co., 144 So.2d 249 (La. App. 1st Cir. 1962); Danielle v. St. Francis Cabrini Hospital of Alexandria, Inc., 415 So.2d 586 (La. App. 3rd Cir. 1982). A hospital is not an insurer of a patient’s safety. Goudeaux v. Martin Hospital, Inc., 333 So.2d 717 (La. App. 1st Cir. 1976). A hospital’s duty to render the appropriate standard of care is modified by the rule that no one is required to take measures to avoid occurrences that would be unforeseeable to a reasonable person under like circumstances. Id. An unsuccessful course of treatment is not per se an indication of malpractice. The health care provider’s conduct is evaluated in terms of reasonableness under the circumstances existing when his professional judgment was exercised. Wainwright v. Leary, 623 So. 2d 233, 237 (La. Ct. App.), writ denied, 629 So. 2d 1127 (La. 1993). Ball v. Charter Forest Behavioral Health System., 41,329 (La.App.2d Cir.8/23/06), 938 So.2d 1092; Hinson v. The Glen Oak, 37,550 (La.App.2d Cir.8/20/03), 853 So.2d 726, writ denied, 03-2835 (La.12/19/03), 861 So.2d 572. Little v. Pou, 42,872 (La. App. 2 Cir. 1/30/08), 975 So. 2d 666, 675, writ denied, 2008- 0806 (La. 6/6/08), 983 So. 2d 920. Hindsight or subsequent events cannot be considered when determining, in a medical malpractice action, whether the actions of the nursing staff were reasonable and met the standard of care; instead, the professional judgment and conduct of the nurses are evaluated under the then existing circumstances, and not in terms of result or in light of subsequent events. Ball v. Charter Forest Behavioral Health System., 41,329 (La.App.2d Cir.8/23/06), 938 So.2d 1092; Hinson v. The Glen Oak, 37,550 (La.App.2d Cir.8/20/03), 853 So.2d 726, writ denied, 03-2835 (La.12/19/03), 861 So.2d 572. Little v. Pou, 42,872 (La. App. 2 Cir. 1/30/08), 975 So. 2d 666, 675, writ denied, 2008-0806 (La. 6/6/08), 983 So. 2d 920. It should be noted that diagnosing patients is one of the acts defined as the "practice of medicine." LSA-R.S. 37:1262(3). Hospitals, through their nurses, are not responsible for diagnostic acts under LSA-R.S. 37:913(13) which specifically states that the "practice of nursing...shall not be deemed to include acts of medical diagnosis."

28. Physician Standard Under Louisiana law, the claimant in a medical malpractice case alleging physician negligence must demonstrate the following: The degree of knowledge or skill possessed or the degree of care ordinarily exercised by a physician licensed to practice in the State of Louisiana and actively practicing in a similar community or locale and under similar circumstances. Where defendant practices in a particular medical specialty involved, then the claimant has the burden of proving the degree of care ordinarily practiced by physicians within the involved medical specialty. That the physician either lacked this degree of knowledge or skill, or the failure to use reasonable care and diligence, along with his best judgment in the application of that skill. That as a proximate result of this lack of knowledge or skill with a failure to exercise this degree of care the claimant suffered injuries that would not have otherwise occurred. See LA. R.S. 9:2794(A). (emphasis added) If the claimant fails to prove any one of these elements, medical malpractice is not established.

29. Post-Medical Review Panel Considerations • The litigation process can be long. • From beginning to end, cases can take anywhere from 2-10 years to resolve. • A case is not necessarily over just because panel opinion is favorable to the healthcare provider. • Depending on Panel Outcome • Defend v. Settle • Uses for Panel Opinion in Subsequent Litigation • Support Motion for Summary Judgment and Possible Dismissal of Suit • Expert Evidence at Trial • Opinion • Panelists as Experts • Patient’s Compensation Fund Participation

30. Practical Practice Tips: • The standard of care is not general—it is formulated based upon the facts and circumstances of the case. • Chart what you said and/or did with specificity. • Be objective when documenting in the medical records.

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33. LHA TRUST FUNDS CONSULTANTS Stacie Jenkins, RN, MSN Sr. Director of Quality & Patient Safety 225-368-3823 staciejenkins@lhatrustfunds.com