Recent Developments: Louisiana Medical Malpractice Law

Author:Natalie J. Dekaris - Michael C. Mims
Position:Partner at Bradley, Murchison, Kelly & Shea LLC in New Orleans, Louisiana - Associate at Bradley, Murchison, Kelly & Shea LLC in New Orleans, Louisiana
Recent Developments: Louisiana Medical Malpractice
Natalie J. Dekaris*
Michael C. Mims∗∗
Medical malpractice remains one of the most heavily litigated
areas of the law in Louisiana.1 One of the biggest developments seen
in the field over the past few years is the Louisiana Supreme Court’s
recent decision in Oliver v. Magnolia Clinic, reaffirming the
constitutionality of the State’s statutory cap on damages in medical
malpractice cases.2 This Article discusses the holding of Oliver and
also explores recent developments in Louisiana medical malpractice
law related to prescription, expert witnesses and summary judgment,
damages, informed consent, medical review panels, the standard of
care, and the Patient’s Compensation Fund (PCF).
Louisiana’s cap on damages for medical malpractice actions is
set forth in the Medical Malpractice Act (MMA) at Louisiana
Revised Statutes section 40:1299.42.3 Louisiana’s cap was adopted
Copyright 2014, by NATALIE J. DEKARIS and MICHAEL C. MIMS.
* Partner at Bradley, Murchiso n, Kelly & Shea L LC in New Orleans,
∗∗ Associate at Bradle y, Murchison, Kelly & Shea LLC in New Orleans,
Louisiana. The authors wish to thank Pr ofessor Bill Corbett, who recommended
the topic for this Article and assisted with its placement in the Louisiana Law
Review. The authors also thank Jack Stanton, an incoming associate at Bradley
Murchison, who provided research assistance for this piece.
1. As of November 9, 2013, a Westlaw search of (MEDICAL HOSPITAL
“LA (State & Fed.)” for all dates after January 1, 2011 reveals 595 reported cases.
2. Oliver v. Magnolia Clinic, 85 So. 3d 39 (La. 2012). See also Arrington v.
ER Physician Grp., Inc., 110 So. 3d 193 (La. Ct. App. 3d 2013), cert. denied, 111
So. 3d 1011 (La. 2013); Taylor v. Clement, 110 So. 3d 199 (La. Ct. App. 3d
2013), cert. denied, 111 So. 3d 1011 (La. 2013).
3. Louisiana Revised Statutes section 40:1299.42(B) provides, in pertinent
part: “(1) The total amount recoverable for all malpractice claims for injuries to or
death of a patient, exclusive of future medical care and related benefits as provided
in R.S. 40:1299.43, shall not exceed five hundred thousand dollars plus interest
and cost.” LA. REV. STAT. ANN. § 40:1299.42(B).
in 1975 “and remains relatively unchanged since its inception.”4
Over the years, Louisiana’s cap has faced several constitutional
challenges.5 The Louisiana Supreme Court undertook one such
challenge in the recent case Oliver v. Magnolia Clinic.6
In Oliver, the plaintiffs alleged that a nurse practitioner failed to
correctly and timely diagnose a child’s neuroblastoma, resulting in
serious injuries.7 At trial, a jury found that the defendant was
negligent and awarded damages of approximatel y $10 million.8 The
plaintiffs requested a declaration that the MMA’s cap on damages
was unconstitutional, which the trial court denied.9 On appeal, the
Oliver plaintiffs argued that the cap: (1) deprived victims of their
right to an adequate remedy at law and (2) violated the Equal
Protection Clause by arbitrarily and capriciously discriminating on
the basis of physical condition.10 On remand from the Louisiana
Supreme Court, the Third Circuit Court of Appeal agreed with the
plaintiffs, reversed the trial court, and declared the cap
unconstitutional.11 After granting writs, the Louisiana Supreme
Court reversed the Third Circuit and reinstated the holding of the
trial court.12
In reaching this conclusion, the Court relied on its 1992 holding
in Butler v. Flint Goodridge Hospital of Dillard University, when it
last addressed the constitutionality of the cap.13 The Court explained
that the right of malpractice victims to sue for damages was not a
fundamental constitutional right, and therefore the State was
required only to demonstrate a legitimate state objective that would
4. Bradley R. Belsome, Cap Conundrum, PHYSICIAN INSURER, Fourth
Quarter 2012, at 22 n.2, available at
[] (archived Mar. 11, 2014) (“The act was amended
in 1984 to remove future medical care and related benefits from being within its
coverage.” (cit ing LA. REV. STAT. ANN. § 40:1299.43)).
5. See, e.g., Butler v. Flint Goodridge Hosp. of Dillard Univ., 607 So. 2d 517
(La. 1992).
6. Oliver, 85 So. 3d 39.
7. Id. at 41.
8. Id. (awarding $6 million in general damages, $629,728.24 in past medical
expenses, $3,358,828 in future medical expenses, and $33,000 to the patient’s
father and $200,000 to the patient’s mother for loss of consortium).
9. Id. at 42.
10. Id. at 43.
11. Oliver v. Magnolia Clinic, 71 So. 3d 1170 (La. Ct. App. 3d 2011). Three
judges dissented, opining that the cap was constitutional under the Louisiana
Supreme Court’s hold ing in Butler v. Flint Goodridge Hospital of Dillard
University, 607 So. 2d 517 (La. 1992).
12. Oliver, 85 So. 3d at 50.
13. 607 So. 2d 517.

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