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Louisiana's Cap on Damages

In 1975, the Louisiana legislature passed the Louisiana Medical Malpractice Act. (the "Act"). This law is based upon a similar law which was enacted in Indiana. The Act places a cap of $500,000 on a victim's recovery for damages resulting from medical malpractice. This cap on damages includes all sums of money which may have been lost due to malpractice including pain and suffering, mental anguish and lost wages.

The only element of damages excluded from the cap are past and future medical expenses. A patient can recover past and future medical expenses in addition to the cap. The cap on damages applies even if there is more than one claimant who has suffered as a result of the same act of malpractice. This may occur when malpractice causes the death of a parent of several children or when a birth injury causes both parents to suffer.Even if the deceased victim is survived by ten children, there is only one cap of $500,000 which must be split between the heirs.

In cases not involving a state health care provider, the physician's insurance company is only responsible for paying the first $100,000 of the claim. The Louisiana Patient's Compensation Fund, (the "PCF"), is responsible for the next $400,000 for the total cap of $500,000.

If a physician pays $100,000 to a patient, he automatically admits fault for the malpractice. The physician's insurance company will represent the physician up until he either settles the case or the case goes to trial. If the doctor pays his $100,000 and admits fault, the PCF then hires its own lawyers to argue the fault of some other health care provider (usually one that was not ever sued), or to dispute causation between the admitted act of negligence and the damages sustained by the patient. If the doctor goes to trial, the PCF does not get involved until after a verdict is rendered in favor of the patient. They have the right to appeal any such decision.

When future medical care is involved, the PCF does not have to pay those future medical expenses in one lump sum as part of a verdict or settlement. The PCF has the right to pay future medical expenses as they are incurred. They set up an account for the health care providers to submit bills and they pay them monthly if they feel they are reasonable.

If they do not feel like the charges are reasonable, they will not pay them and the patient must go back to court to attempt to force the PCF to pay those expenses.

The $500,000 cap on damages has never been adjusted for inflation or increased in any respect. The original intent of choosing the number $500,000 was to compensate victims of medical malpractice at the highest level. However, without an inflationary adjustment, the $500,000 cap is only worth less than $167,000 in 2003 dollars. Each year a bill is introduced in the legislature to raise the cap, but those bills have never been successful. Only the legislature has the power to raise the cap.

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