MEDICAL MALPRACTICE
Koederitz Law Firm accepts meritorious claims for medical malpractice, provided the injuries sustained are serious enough to warrant litigation. Gary P. Koederitz has represented patients with medical malpractice claims throughout his career, and he has experience in medical malpractice in both the trial and appellate courts. Over the years, Mr. Koederitz has represented patients injured by hospitals, nursing homes, physicians, surgeons, radiologists, nurses, chiropractors, and others. We render services on all medical malpractice cases on a contingency fee basis. We are paid only from any recovery our clients make from the defendants.
While most healthcare providers are dedicated and competent, thousands of Americans are injured or die every year due to medical malpractice. Negligence in the healthcare setting can be the result of errors or carelessness on the part of hospitals, surgeons, radiologists, physicians, chiropractors, therapists, nurses, and others. Sometimes the negligence is obvious, such as an operation performed on the wrong arm or leg. Similarly, sponges and surgical instruments are sometimes left in the patient’s body following surgery. Other cases of malpractice are more difficult to detect and to prove, such as the proper choice and dosage of medications, the response to an emergency during surgery, or the appropriate testing needed for particular symptoms.
If you believe that you are the victim of medical malpractice, contact us for a free consultation. Remember that the statute of limitations for medical malpractice is relatively short in Louisiana, so it is very important that you allow an attorney sufficient time to obtain information, locate a qualified expert to review the information, and properly prepare and file any appropriate claims.
LOUISIANA AND THE MEDICAL REVIEW PANEL SYSTEM
Louisiana, like many states, has passed special laws which effectively provide additional protections to healthcare providers who are guilty of committing malpractice. In Louisiana, most healthcare providers take advantage of what is commonly referred to as the “Medical Review Panel” procedure. The Panel system allows a healthcare provider to have a claim of medical malpractice reviewed by three other healthcare providers before a lawsuit can be filed by the patient. Almost invariably, the three fellow healthcare providers on the Medical Review Panel reach the conclusion that no medical malpractice has occurred. By our estimate, approximately 95% of medical review panels in Louisiana vote in favor of the healthcare provider and against the patient. This is not particularly surprising, since a doctor serving on a panel may himself be judged in another case by the same doctor he is voting for or against.
The ability to have medical malpractice claims reviewed by a panel of three other healthcare providers provides a significant legal advantage to the medical profession, since those three panel members can be called to trial by the defendant to testify to a jury that they “independently” reviewed all of the evidence in the case, and found no negligence or no malpractice on the fault of the defendant. In fact, the written report of the Medical Review Panel is admissible as evidence in any suit the patient later files in a court of law. Thus, the jury can be handed an exhibit which appears to be an official finding that the defendant healthcare provider did nothing wrong.
The option to have medical malpractice claims reviewed by a panel is available to almost any type of healthcare provider. Louisiana’s law establishing this special protection for healthcare providers is available to almost any kind of healthcare provider. The statute specifically names hospitals, nursing homes, physicians, dentists, ambulance services, midwifes, pharmacists, optometrists, podiatrists, chiropractors, physical therapists, occupational therapists, psychologists, social workers, licensed professional counselors, licensed perfusionists, and any entity (such as a corporation), licensed to provide services as a physician, hospital, nursing home, community blood center, tissue bank, etc. Louisiana Revised Statute 40:1299.41 A (10).
In most medical malpractice claims, the patient must first wait for the Medical Review Panel to vote on his or her claim before the patient can file suit. Once a lawsuit can be filed, the malpractice case proceeds like any other civil suit, except that the report and/or testimony of the Medical Review Panel maybe admitted into evidence in the lawsuit. In the typical medical malpractice case, the plaintiff retains an expert witness to testify as to what the applicable standard of care is, that the standard of care was breached by the defendant, and that harm was caused to the patient because of that breach. The defendant doctor, an expert witness he selects, and the three panel members typically all testify for the defendant that there was no breach of the standard of care, or that if there was a breach, no harm was caused to the patient. Malpractice cases are very difficult because of this “usual scenario” which results in one medical expert testifying in favor of the plaintiff, followed by five experts testifying for the defendant. A high percentage of medical malpractice cases go through the jury trial process, rather than being closed by settlement. By contrast, most other types of injury claims, including automobile accidents, can be resolved by settlement, without trial.
Doctors who are expert witnesses willing to testify against negligent doctors are a key component of almost any medical malpractice claim. Over the years, Mr. Koederitz has developed methods of locating particular types of specialists willing to speak for injured patients and thus allow them to have their day in court.
Standard of Proof for Medical Malpractice Claims
Louisiana also provides statutes which specifically list the evidence a patient must have to prove a medical malpractice claim. Louisiana Revised Statute 9:2794 provides, in part, that in such claims the plaintiff (patient) has the burden of proving the following:
“(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, dentists, optometrists, or chiropractic physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians, dentists, optometrists, or chiropractic physicians within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with its best judgement in the application of that skill.
(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.”
This same statute requires the trial judge to tell the jury that the plaintiff (patient) has the burden of proving, by a preponderance of the evidence, the negligence of the physician, dentist, optometrist, or chiropractic physician. The jury must further be instructed that injury alone does not raise a presumption of the physician’s, dentist’s, optometrist’s, or chiropractic physician’s negligence. This rule is only applicable if the case is within the legal doctrine of res ipsa loquitor. The doctrine of res ipsa loquitor literally means “the thing speaks for itself.” In practice, this means a case where the mere happening of an event allows a jury to infer negligence. An example would be an amputation of the wrong limb by a surgeon.
STATUTE OF LIMITATIONS, OR “PRESCRIPTION”
Medical malpractice claims also have their own statute of limitations. Louisiana Revised Statute 9:5628 provides that such claims must be brought within one year of the date of the alleged act, omission, or neglect, or within one year from the date of the discovery of the alleged act, omission, or neglect. However, even as to claims that are filed within one year from the date that the malpractice is discovered, such claims must be filed at the latest within a period of three years from the date of the malpractice. Thus, if a sponge is left in a patient’s stomach, and it is not discovered until more than three years later, the patient has no remedy for medical malpractice, even though it was impossible for the patient to know that a claim should be filed. This unfair and arbitrary rule is typically described as a “peremption” rather than as a prescription.
Meet Louisiana Medical Malpractice Attorney Gary Koederitz
