La. Public Health and Safety § 40:1237.1

Current with changes from the 2024 Legislative Session

Section 40:1237.1 - Definitions and general application

A. As used in this Part:

(1) "Ambulance service" means an entity which operates either ground or air ambulances, using a minimum of two persons on each ground ambulance, at least one of whom is trained and registered at the level of certified medical technician-basic, or at the intermediate or paramedic levels, or one who is a registered nurse, and using a minimum on any air ambulance of one person trained and registered at the paramedic level or a person who is a registered nurse or any officer, employee, or agent thereof acting in the course and scope of his employment.

(2) "Future medical care and related benefits" for the purposes of this Section, means all reasonable medical, surgical, hospitalization, physical rehabilitation, and custodial services, including drugs, prosthetic devices, and other similar materials reasonably necessary in the provision of such services, to which the injured patient is entitled under the provisions of this Section and which each injured patient needs after the date of the injury. "Future medical care and related benefits" as used in this Section shall not be construed to mean nonessential specialty items, or devices of convenience.

(3) "Health care" means any act or treatment which was performed or furnished or which should have been performed or furnished by any person covered by this Part for, to, or on behalf of, a patient during the medical care, treatment or confinement of the patient.

(4) "Malpractice" means the failure to exercise the reasonable standard of care specified and required by Subsection B of this Section, in the provision of health care, when such failure proximately causes injury to a patient, as provided in Subsection B of this Section.

(5) "Patient" means a natural person who receives, or should have received, health care from a person covered by this Part, or a donor or prospective donor of an organ or tissue, and any other natural person or persons who would or may have a claim or claims for damages under applicable law arising out of, or directly related to, the claim or claims of the natural person who receives, or should have received, health care from a person covered by this Part.

(6) "Physician" means a person with a license or permit to practice medicine in this state.

(7) "Representative" means a person who is a parent, tutor, curator, spouse, trustee, attorney, or other legal agent of the patient and who is authorized, by and on behalf of the patient, to exercise any of the patient's rights, privileges, or immunities granted by this Section or to fulfill any of the patient's obligations, duties, or forbearances imposed under this Section, because the patient has executed a written authorization and mandate to that effect or because the law operates to that effect due to the status of that patient and his relationship to such person, as when the patient is a minor child and his parent must act for him. After the death of the patient, "representative" shall also mean and include the executor of a patient's will, the administrator of his estate, the surviving spouse of the patient, the patient's children, or, if they are minors, their legal representatives, any of the patient's heirs, successors, legatees, or assigns, and/or any other person who may have any interest in any recovery arising out of the death of the patient or in the bringing of any action or the making of any demands or claims with regard to such patient.

(8) "Right to recover losses due to malpractice" means the substantive right in favor of a patient or his representative to receive, subject to the fiscal legislative discretion of appropriation, some measure of compensation in money or services or both from the state, as and to the extent allowed by this Section, toward repairing any injury or losses proximately caused to him by an act of malpractice committed by a state health care provider as defined in this Section.

(9)

(a) "State health care provider" or "person covered by this Part" means:

(i) The state or any of its departments, offices, agencies, boards, commissions, institutions, universities, facilities, hospitals, clinics, laboratories, health care units, ambulances, ambulance services, university health centers, and other state entities which may provide any kind of health care whatsoever, and the officers, officials, and employees thereof when acting within the course and scope of their duties in providing health care in connection with such state entity; or

(ii) A person acting in a professional capacity in providing health care services, by or on behalf of the state, including but not limited to a physician, psychologist, coroner, and assistant coroner who is a licensed physician when acting solely in accordance with the Behavioral Health Law as provided in R.S. 28:50 et seq., provided that the premium costs of such malpractice coverage shall be the responsibility of the coroner's office, dentist, a licensed dietician or licensed nutritionist employed by, referred by, or performing work under contract for, a state health care provider or other person already covered by this Part, registered nurse, licensed practical nurse, nurse practitioner, clinical nurse specialist, pharmacist, optometrist, podiatrist, physical therapist, occupational therapist, licensed respiratory therapist, licensed radiologic technologist, licensed clinical laboratory scientist, social worker, hospital administrator, or licensed professional counselor, who is either:

(aa) Acting within the course and scope of his employment pursuant to a contract with the state, which contract specially names that health care provider and designates him to render such health care services, pursuant to a staff appointment to a state hospital or other state health care facility, or pursuant to an assignment to render such health care services for or on behalf of the state, without regard to where the services are performed, whether or not he is paid for such services.

(bb) Performing voluntary professional or telehealth services in a health care facility or institution for or on behalf of the state.

(iii) A resident, intern, or student of, or any person who is otherwise qualified in, any discipline, including but not limited to, the disciplines listed in this Subsection when he is acting within the course and scope of the training or staff appointment in and under the supervision of a state hospital or other health care facility to which he is assigned as a part of his prescribed training in such discipline, without regard to where the services are performed.

(iv)

(aa) A physician, surgeon, dentist, or hospital, and any employee of a physician, surgeon, dentist, or hospital not otherwise included in Item (i), (ii), or (iii) of this Subparagraph who gratuitously treats or provides services to any patient referred to him from a state hospital or other state facility without compensation or reimbursement from Medicaid or from any type of state or federal public assistance program, who gratuitously treats or provides services to any patient eligible for admission from a state hospital or other state facility without compensation or reimbursement from Medicaid or from any type of state or federal public assistance program, when the patient is certified by the state hospital or other state facility, to be eligible for admission to the state hospital or other state facility, only as it relates to services provided to that patient, or who gratuitously treats or provides services to a student in a public school health clinic without compensation or reimbursement from Medicaid or from any type of state or federal public assistance program.

(bb) Any provider referenced in this Item, in order to be covered by the provisions of this Part, shall signify in writing, by the end of the next business day after the patient presents himself for treatment, that all fees for professional medical or hospital health care services and all rights to reimbursement under Medicaid or any other federal or state public assistance or entitlement program are waived. For the purpose of this Item, a referred patient or the term "any patient referred" "from a state hospital or other state facility" shall mean a patient who presents himself for treatment to any health care provider enumerated in this item after prior arrangements have been made between such a provider and a state hospital or other state facility where that patient has been receiving or has attempted to receive health care and medical services or in circumstances when no prior arrangements have been made or a patient who has attempted to reach or was in transit to such state hospital or facility to receive health care and medical services but was diverted from that intended destination by such hospital or facility because of lack of specialty medical services, treatment availability, or bed capacity, or any combination thereof.

(cc) However, no person or entity referenced in this Item shall be considered a "state health care provider" or "person covered by this Part" for any injury to or death of the patient resulting from any act or omission of gross negligence or any willful or wanton act or omission.

(dd) However, no person or entity referenced in this Part shall be considered a "state health care provider" or "person covered by this Part" when performing the elective termination of an uncomplicated viable pregnancy.

(b) "State health care provider" or "person covered by this Part" shall not mean and shall not include a political subdivision of the state nor any hospital, hospital service district, or any other health care facility of a political subdivision, nor shall it mean or include any individual acting in a professional capacity in providing health care services not by or on behalf of the state.

B.

(1) The standard of reasonable care specified and required by this Section is as follows: The standard of care specified and required by this Section for licensed physicians and dentists shall be the same as that required to be proven with respect to them under the provisions of R.S. 9:2794.

(2) No breach of the standard of reasonable care required under the provisions of this Section shall constitute malpractice within the meaning of this Section, nor shall it give grounds for any recovery or liability, without its also being the proximate cause of each injury for which a recovery in damages is sought. A patient injured must fall within the specific class of persons legislatively intended, by the purpose and design of this Section, to be protected against such breaches of the standard of reasonable care set forth in this Subsection, the resulting injury must be of the kind specifically intended and designed by this Section to be prevented by the standard of reasonable care set forth in this Subsection, and the resulting injury and the damages sought therefor must fall within the type of injury and damages for which a recovery is allowable by the purpose and intent of this Section in light of the particular legislative provisions, findings, and purposes expressed in this Section.

C. Since the Louisiana Civil Code was enacted only in the domain of the private law, governs only the legal relationships of private persons among themselves alone, and is inapplicable to public entities and their legal relationships, there is no right nor legal basis ex delicto, or ex quasi-delicto, for an action by a patient or his representative to recover damages or any other losses, including those for the death of the patient, from the state or a state health care provider as defined in this Section as a result of malpractice in connection with state-provided or state-related health care; however, a patient, his representative properly acting for him, or his after-death representative shall have a right to recover from the state certain losses to the extent and within the limitations defined and allowed by this Section of public law due to malpractice as defined in this Section, in the circumstances and within the parameters provided by this Section, on the sole basis of this Section as a special substantive sui generis statutory grant in the domain of public law. This Section shall not be construed to limit, waive, or prohibit claims for lack of informed consent or breach of contract as defined by statutes or otherwise provided by law.

D.

(1) Whenever in the same circumstances, but not more than to the same extent, that a patient would, under the private law, including the Louisiana Civil Code, which is applicable only to private persons among themselves alone, be allowed a recovery, due to malpractice, from a private person not employed by nor acting on behalf of a public entity, a patient, his representative properly acting for him, or his after-death representative shall have a right to recover, from the state, losses, including the death of said patient, but only to the degree and within the limits allowed by, and subject to the terms and conditions of, this Section of public law, when and insofar as such losses proximately result from malpractice as defined in this Section and not from victim fault, third party fault, acts of God, acts of third parties, or contributory negligence or fault and when there exist no breaches of duty by such patient or his agents or representatives with respect to the damages sued for, no assumption of risk by patient with respect thereto, nor any other circumstance which would otherwise provide a defense or a basis of nonrecovery in any action in contract or quasi-contract or in any action arising out of any offense or quasi-offense. Whenever victim fault, third party fault, acts of God, acts of third parties, contributory negligence, or contributory fault is a substantial factor in causing such losses, the amount of recovery available from the state under this Section shall be reduced by the same percentage or proportion as such losses were brought about or resulted from such victim fault, third party fault, acts of God, acts of third parties, contributory negligence, or contributory fault. Otherwise than as provided by this Section of public law, a patient shall not have a right to recover losses due to malpractice from the state or from a state health care provider as defined in this Section.

(2) In actions allowed and authorized by and brought pursuant to this Section, third party demands and other actions for indemnification and contribution shall be recoverable in the same circumstances and to the same extent as otherwise provided by law, but only insofar as such actions, demands, and/or recovery do not conflict with the provisions or intent of this Section. Judicial interest shall be allowed as otherwise provided by law, except that none shall be allowed on future medical care and related benefits.

(3) Any cause of action for an unintentional act or omission by an organ procurement organization to a donor or prospective donor of an anatomical gift, as defined in R.S. 17:2351, shall be governed by the provisions of this Section.

E.

(1) Unless the medical malpractice claim is first compromised and settled in accordance with Subsection H of this Section or unless the state, through the concurrence of the office of risk management and the legal counsel representing the state against such claim, waive the medical review panel procedure, all medical malpractice claims by their patients or their representatives arising from the right created and granted by Subsections C and D of this Section shall be submitted to administrative review in accordance with this Subsection before such right in individual claims can become sufficiently existent to be susceptible of judicial recognition or adjudication. The medical malpractice claims of prisoners relating to health care rendered in a correctional facility and arising under this Part shall be submitted to correctional administrative review procedures established for administrative hearings in the correctional environment or established in accordance with express law, including R.S. 15:1171 et seq., R.S. 49:978.1, and the administrative rules and regulations pertaining thereto. All other medical malpractice claims arising under this Part, including wrongful death and survival actions related to prisoners, shall be submitted to a medical review panel in accordance with R.S. 40:1237.2.

(2) All claims and complaints submitted to a medical review panel in accordance with R.S. 40:1237.2 shall conform at a minimum to the requirements of Rules 8, 9, and 10 of the Federal Rules of Civil Procedure.

(3) All claims and complaints submitted by a patient, claimant, or their representative, as a result of malpractice as defined in this Section, shall, once the parties have certified to the court that discovery is complete, be given priority on the court's docket, to the extent practicable, over any other civil action before the court, provided that the provisions of this Paragraph shall not supersede the provisions of Code of Civil Procedure Article 1573.

F. Notwithstanding any other provision of the law to the contrary, no judgment shall be rendered and no settlement or compromise shall be entered into for the injury or death of any patient in any action or claim for an alleged act of malpractice in excess of five hundred thousand dollars plus interest and costs, exclusive of future medical care and related benefits valued in excess of such five hundred thousand dollars. In claims which may include future medical care and related benefits, the following procedures shall apply:

(1) The court's judgment or the settlement or compromise shall include a recitation that the patient is or is not in need of future medical care and related benefits and the amount thereof.

(2) If the total amount of the value of the judgment or settlement or compromise is for five hundred thousand dollars, plus interest and costs, exclusive of the value of future medical care and related benefits, all future medical care and related benefits shall be paid in accordance herewith.

(3) If the total amount of recovery, excluding interest and costs but including the amount of future medical care and related benefits does not exceed five hundred thousand dollars, judgment may be rendered for the total amount and paid by the state as provided by Subsection I of this Section.

(4) The district court from which final judgment issues shall have continuing jurisdiction in cases where future medical care and related benefits are determined to be necessary. Such continuing jurisdiction shall be limited to matters of future medical care and benefits as provided in this Subsection.

(5) Nothing in this Subsection shall be construed to prevent a claimant and the state from entering into a court-approved settlement or agreement whereby future medical care and related benefits shall be provided for a limited period of time or to a limited degree.

(6) If the total amount of recovery awarded against the state, excluding interest and costs but including the amount of future medical care and related benefits, exceeds five hundred thousand dollars, the claimant may make a claim to the office of risk management for all future medical care and related benefits.

(7) Payments for medical care and related benefits shall be paid by the office of risk management pursuant to Subsection L of this Section, without regard to the five hundred thousand dollar limitation imposed in this Subsection.

(8) The court shall award reasonable attorney fees to the claimant's attorney if the court finds that the office of risk management unreasonably fails to pay for medical care within sixty days after submission of a claim for payment of such benefits together with proper substantiation therefor.

(9) The office of risk management shall be entitled to have a physical examination of the claimant performed by a physician of the office of risk management's choice from time to time for the purpose of determining the validity of any claim submitted or the claimant's continued need of future medical care and related benefits, subject to the following requirements:

(a) Notice in writing shall be delivered to or served upon the claimant or the claimant's counsel of record at least ten days prior to an examination specifying the time and place of the intended examination. Delivery of the notice may be by certified mail.

(b) Such examination shall be by a licensed physician or chiropractic physician licensed under the laws of this state or of the state, parish, or county wherein the claimant resides.

(c) The place at which such examination is to be conducted shall not involve an unreasonable amount of travel for the claimant considering all circumstances. It shall not be necessary for a claimant who resides outside this state to come into this state for such an examination unless so ordered by the court.

(d) Within thirty days after the examination, the claimant shall be compensated by the office of risk management for all necessary and reasonable expenses incidental to submitting to the examination, including the reasonable costs of travel, meals, lodging, loss of pay, or other direct expenses.

(e) Examinations may not be required more frequently than at six-month intervals, except that, upon application to the court having jurisdiction of the claim and after reasonable cause shown therefor, examination within a shorter interval may be ordered. In considering such application, the court should exercise care to prevent harassment to the claimant.

(f) The claimant shall be entitled to have a physician or an attorney of his choice or both present at such examination. The patient shall pay such physician or attorney himself.

(g) The claimant shall be promptly furnished with a copy of the report of the examination made by the physician making the examination on behalf of the future medical benefits fund.

(10) If a claimant fails or refuses to submit to examination in accordance with a notice, and if the requirements of Paragraph (9) of this Subsection have been satisfied, then the claimant shall not be entitled to attorney fees in any action to enforce rights pursuant to Paragraph (8) of this Subsection and may be subject to denial of payment of any claim submitted for payment.

(11) Any physician selected by the office of risk management who shall make or be present at an examination of the claimant conducted in pursuance of this Subsection may be required to testify as to the conduct thereof and the findings made. Communications made by the claimant upon such examination by such physician or physicians shall not be considered privileged.

(12) All reasonable fees and costs of medical examinations and the costs and fees of the medical expert witnesses in any proceeding in which the termination of medical care and related benefits is sought shall be paid by the office of risk management.

G. Notwithstanding any other provision of the law to the contrary, the state shall pay any damages, interest, cost of investigation and defense, and any other costs in connection with any claim lodged against any state health care provider (person covered by this Part) for an alleged act of medical malpractice, resulting in the injury or death of a patient up to the limits set forth in this Part. The coverage provided herein shall apply only when the state health care provider (person covered by this Part) is acting within the terms of the definition of "state health care provider" or "person covered by this Part" as provided in Paragraph (1) of Subsection A of this Section.

H. Internally within the state government of Louisiana, the office of risk management shall have the primary responsibility for the administrative management of medical malpractice claims against the state. Copies of all claims shall be submitted to the office of risk management by claimants or their attorneys. In the administration of such claims, the office of risk management shall cause a timely and thorough investigation of the circumstances surrounding each malpractice claim, assemble all data relevant thereto, and coordinate with legal counsel for the defense of such cases. With the approval of such legal counsel, and in accordance with R.S. 39:1535, the office of risk management may compromise and settle any suit or claim up to the limits set forth in this Part. All malpractice claims not subject to such compromise or settlement shall be reviewed by a state medical review panel pursuant to R.S. 40:1237.2. In any suit or claim brought pursuant to this Part, the office of risk management may pay all defense and investigative costs, costs as established by the state medical review panel law, and any other costs incurred in connection with the defense of these actions as said costs accrue.

I.

(1) An attorney appointed in accordance with R.S. 49:258 shall be designated as the attorney to defend medical malpractice claims filed under this Part.

(2) Any written compromise or settlement effected between the state and the claimant with the approval of legal counsel designated as provided above shall be binding upon the claimant and the state.

J. The office of risk management, with the concurrence of counsel designated as provided for in Subsection I of this Section, shall have the authority to compromise or settle, and pay any suit or claim brought pursuant to this Part up to twenty-five thousand dollars exclusive of interest and costs. The compromise or settlement, and payment of any suit or claim of twenty-five thousand dollars or more, exclusive of interest and costs, shall be governed by the provisions of R.S. 39:1535(B)(6) and (D)(1), as may be applicable.

K. Any person covered by this Part shall be considered as a named insured. A health care provider who fails to qualify as a state health care provider under this Part is not covered by the provisions of this Part and is subject to liability under the private law without regard to the provisions of this Part. If a health care provider does not so qualify, the patient's remedy will not be affected by the terms and provisions of this Part, except as provided in this Part with respect to the suspension and the running of prescription of actions against a health care provider who has not qualified under this Part when a claim has been filed against the health care provider for review under this Part. However, the running of prescription against a health care provider who is answerable in solido with a qualified state health care provider against whom a claim has been filed for review under this Part shall be suspended in accordance with the provisions of R.S. 40:1237.2(A)(2)(a).

L.

(1) All future medical care and related benefits shall be paid by the office of risk management as are awarded in final judgments, settlements, or compromises in accordance with this Section.

(2) The office of risk management shall review all invoices received for future medical care and related benefits, prepare vouchers or warrants, and evaluate and settle claims relating to the payments of future medical care and related benefits. In submitting requests for payment, the claimant shall submit the original invoices.

(3) The parties may agree that any amount due for future medical care and related benefits be paid through a reversionary medical trust fund, or the purchase of an annuity contract by the office of risk management for and on behalf of the claimant.

M. The state shall not be liable for any injuries arising from the medical malpractice of any officer, official, employee, representative, appointee, agent, agency, district, hospital, clinic, service, facility, institution, or any health care provider of a political subdivision.

N. Nothing in this Part shall be construed to make the state liable for any sums except those arising from medical malpractice. Notwithstanding any other law to the contrary, including but not limited to R.S. 13:5106, the provisions of this Part shall apply for medical malpractice actions against the state.

La. Public Health and Safety § 40:1237.1

Amended by Acts 1990, No. 697, §1; Acts 1990, No. 944, §1, eff. July 25, 1990; HCR No. 77, 1990 R.S.; Acts 1991, No. 661, §1; Acts 1997, No. 1267, §1, eff. July 15, 1997; Acts 1999, No. 1309, §8, eff. Jan. 1, 2000; Acts 2001, No. 486, §4, eff. June 21, 2001; Acts 2001, No. 697, §1; Acts 2001, No. 861, §1; Acts 2008, No. 717, §1; Acts 2009, No. 14, §1; Acts 2010, No. 398, §1; Acts 2010, No. 568, §1; Acts 2010, No. 950, §1; Redesignated from R.S. 40:1299.39 by HCR 84 of 2015 R.S.; Acts 2015, No. 323, §1; Acts 2017, No. 369, §4; Acts 2018, No. 206, §4; Acts 2020, No. 201, §1; Acts 2023, No. 322, §4, eff. Jan. 1, 2024.