Louisiana Medical Malpractice Laws​

Compared with other injury-related legal claims, a medical malpractice lawsuit is usually a fairly complex undertaking. That's true in every state, not just Louisiana. For one thing, legal issues and medical evidence can get very complicated very quickly in these cases, and the plaintiff (the injured patient, or his or her legal representative) needs to understand special proof requirements. Then there's the lawsuit-filing deadline to contend with, and statutory compensation limits (the "damages" cap) to keep in mind. In this article, we'll look at a number of Louisiana laws that could have a big effect on a medical malpractice lawsuit.   Louisiana's Medical Malpractice Statute of Limitations A statute of limitations is a state law that sets a limit on the amount of time you have to file a lawsuit after you have suffered some type of loss or injury. There are different deadlines depending on the kind of lawsuit you want to file. Like a lot of states, Louisiana has a dedicated statute of limitations for a medical malpractice lawsuit, and it specifies that the injured patient must file their claim within one year of the health care provider's harmful action (or failure to act) that forms of the basis of the case. Or, if the malpractice is not known of right away, the case must be filed within one year of the date on which it is actually (or could reasonably have been) discovered by the plaintiff. Keep in mind that if you are relying on this so-called "discovery rule," as the plaintiff you have the burden of proving that you did not discover, and you could not have reasonably discovered, the occurrence of the malpractice until the time when you finally took action. You can read the full text of Louisiana's medical malpractice statute of limitations online at Louisiana Revised Statutes section 9:5628. The Louisiana law goes on to mandate that every medical malpractice lawsuit "be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect." This is known as a "statute of repose," and it means that no lawsuit can be filed if more than three years have passed since the malpractice occurred, no matter how serious the medical error might have been, and regardless of whether the patient had a reasonable opportunity to discover that he or she was harmed by it. Having read all of this, you may be wondering what happens if Louisiana's statute of limitations deadline has passed, but you try to file your medical malpractice lawsuit anyway. In that scenario, it’s a safe bet that the doctor or health care facility you're trying to sue will ask the court to dismiss the case, and the court will grant the request. If that happens, that will be the end of your lawsuit. That’s why it’s so important to understand the medical malpractice statute of limitations. Proving Medical Malpractice in Louisiana Louisiana Revised Statutes section 9:2794 sets out the elements of a medical malpractice lawsuit in Louisiana, in terms of establishing liability. The plaintiff has the burden of proving the defendant health care provider's legal liability "by a preponderance of the evidence" -- meaning the plaintiff must show that it's "more likely than not" that the defendant committed malpractice. In order to do this, the plaintiff must typically: establish the medical standard of care that it was appropriate for the defendant health care provider to follow under the circumstances that led to the alleged medical error (usually through the testimony of one or more medical experts)show that the defendant health care provider lacked the requisite degree of knowledge or skill -- or failed to use reasonable care, diligence, and/or the best judgment in applying that degree of knowledge or skill, andshow exactly how, as a result of the health care provider's shortcomings, the plaintiff suffered harm that would not have occurred without medical negligence. Louisiana's Medical Malpractice Damages Cap Like a lot of states, Louisiana has a law on the books that limits (or "caps") medical malpractice damages, effectively limiting the amount of money that a successful plaintiff can receive, even after a jury has heard all the evidence at trial and found the defendant liable for medical malpractice. And Louisiana is pretty unique among states in that it has enacted a cap on the total amount of compensation available to a plaintiff, not just a limit on certain categories of damages (like those related to the patient's pain and suffering). Specifically, according to Louisiana Revised Statutes section 40:1231.2, the state limits total damages awards to $500,000 in medical malpractice cases, with the exception that costs of future medical care are not subject to the cap. The Louisiana Supreme Court has reviewed the constitutionality of this cap -- and upheld it in the face of challenges by medical malpractice plaintiffs -- as recently as 2012. One twist to this cap is that any amount over $100,000 will be paid out through the Louisiana Patient’s Compensation Fund, an insurance-type fund that automatically covers all state health care providers (public hospitals and associated physicians), and includes private doctors and other health care providers who have met certain eligibility requirements. If you're looking for more specifics on Louisiana's medical malpractice laws and how they apply to your potential case, it may be time to discuss your situation with an experienced medical malpractice attorney in your area. Link to original article

Maritime Lawsuit​

If you’re a seaman who was injured on the job and you’re thinking of filing a maritime lawsuit, it’s important to understand everything that’s involved in the process. Maritime laws and regulations are different from other types of lawsuits and come with their own set of specific rules, from the length of the process, the proof and evidence needed,  the costs, and more. Who Can File a Maritime Lawsuit? While the Jones Act was written into law to protect maritime workers who are injured on the job, it doesn’t apply to everyone who works in the maritime industry. In order to file a maritime lawsuit under the Jones Act, maritime workers must have spent at least 30% of their work time on a vessel. The vessel must be used on navigable waters or least capable of moving on navigable waters. This means that the vessel doesn’t necessarily have to be moving; it can be tied to a dock. However, it must be capable of movement on the water. For more in-depth information on qualification requirements, including what constitutes a seaman and more in-depth resources about qualifying vessels, see our article, “Who Qualifies as a Seaman in Maritime Lawsuits?” Common Reasons For Filing a Maritime Lawsuit In addition to being a qualified maritime worker, you’ll need to have a case that’s covered under the Jones Act and general maritime law. The most common qualifying reasons for maritime lawsuits include: Denial of maintenance and cure rightsAssault by another co-worker or crew memberEmployers failing to provide adequate trainingInjuries due to oil and/or grease on the trackFaulty and poorly-maintained equipment that led to injuries Proof Needed When Filing a Maritime lawsuit in order to have a maritime lawsuit, you’ll need to have proof that your injuries occurred while at work. Consequently, most insurance mandate that you report any injuries and accidents within seven days. It’s advisable, however, to report the injuries as soon as possible after the incident happened. Additionally, if an insurance company or adjuster decide to fight your claim, you’ll need proof established for your lawsuit. Injuries should be reported to your company of employment and/or immediate supervisor. In addition to your injuries, you’ll need to fill out an accident report. Exercise extreme caution when filling an accident form out, and make sure to clearly clarify everything that happened. If you are too ill to fully comprehend the form or are under medication, do not fill it out. If you have any questions that you feel aren’t being answered beforehand, consult with a maritime attorney. You’ll also need to seek medical care, regardless if you think the injury is minor. This will back up your claim and provide proof of your claim. It’s up to you to seek medical treatment if you are capable, so make sure to go to all follow-up medical appointments. Missing even one appointment may result in the insurance adjuster claiming that you are fully recovered. Hiring a Maritime Attorney A maritime attorney will not only help you gather evidence and fill out the necessary paperwork, but will also help if you’re having trouble obtaining maintenance and cure benefits or medical help. Also, as mentioned earlier, if you need assistance in understanding your obligations in order to file a claim, it’s recommended to hire an attorney before signing anything. Keep in mind that there are instances in which an employer, insurance company, or another party may deny your claim or refuse to pay out what they are legally obligated to. An experienced maritime attorney understands these types of issues and will fight to ensure that your legal rights are met. Link to original article

Motorcycle Accident Attorneys:How They Can Help Your Case​

Motorcycle accidents generally result in very serious injuries, and getting the recovery you deserve may depend on whether or not you have hired an experienced motorcycle injury attorney.  A lawyer familiar with motorcycle accident claims will be able to pursue a lawsuit, identify the parties to sue, calculate damages owed, and work with insurance companies or opposing attorneys.  If you have been seriously injured in a motorcycle accident, consult with a motorcycle claims attorney before taking any action.    There are several motorcycle accident attorneys on the market, and choosing one can be difficult.  While shopping for an attorney, consider the following: Reputation:  Results are not the only factor that builds an attorney's reputation.  Speak with friends or associates who have experience with the attorney, consult the internet for reviews, and take some time to get a sense of whether or not the attorney is right for you.  Ask about the way the attorney works with clients, how regularly he keeps clients informed, how easy he is to talk to, and whether or not he is willing to fight for your case or is inclined to take easy settlement offers. Results: Ultimately, results are the most significant factor, particularly if you have suffered a serious injury.  It is not always easy to find information about an attorney's results without asking them, so make sure you bring it up with each attorney you consult before making a final decision.   When you consult with a motorcycle accident attorney, you are not obligated to hire on the spot.  You are free to shop around before and after your consultation, and should take the time to do so in order to make sure you have an attorney that is right for you. Presenting Your Case to a Motorcycle Accident Attorney If you bring your case to an attorney, you will need to be prepared to give them as much information as you can.  Attorneys are not obligated to take every case that walks through their door and will need to hear all of the details before they can commit to representing you.  You can help a lawyer decide to take the case by taking some simple steps: Understand the accident:  Take some time to review the facts of the accident in order to better explain what happened and who was at fault. Identify the evidence:  Every motorcycle accident will result in physical evidence that attorneys will need to evaluate.  Getting together police reports, witness statements, photos of the accident scene, and any other physical evidence will assist a motorcycle accident attorney to evaluate the case.  Know your insurance policy:  If you are consulting with an attorney during the motorcycle insurance claim process, know what your policy says and connect it to the damages you suffered. A motorcycle accident attorney will need to develop a basic understanding of the case and the strength of the evidence before committing to a client, so anything you can do to demonstrate a sound legal position will help you.  This is not to say you need to conduct a thorough investigation on your own, but compiling easy to obtain evidence is important before speaking with a lawyer. Working with a Motorcycle Accident Attorney After hiring a motorcycle accident attorney, you still need to stay active and involved in your case.  While the attorney will make strategic decisions and handle the process of presenting your injury claim or lawsuit, the ultimate decisions in the case are yours to make.  After hiring an attorney, work with them to develop a case strategy, take the time to understand what direction your case is headed, ask them to contact you before each action they take, provide them with any additional information required, and contact them regularly (although not excessively) for updates. Throughout the process, you need to stay informed about the lawsuit in order to ensure your lawyer can get the most out of your case.   Paying a Motorcycle Accident Attorney You can find motorcycle accident attorneys who are willing to work on a contingency fee, which means they do not get paid unless they are successful in the case.  Some attorneys bill by the hour, some have higher contingency fees than others, and some require retainer payments to cover the costs of litigation.  Be sure to cover those issues prior to making a hiring decision, and go with an attorney who has the most to offer considering the fee they charge.   Hiring a motorcycle accident attorney is a critical decision, and should not be done without time and effort.  Motorcycle injuries can be serious and have expensive long term consequences, so speak with an experienced professional before taking any legal action.  If you or a loved one has been injured in a motorcycle or bicycle accident, contact an attorney whose practice focuses in this area of law. Click here, for a free consultation with a motorcycle accident attorney. Link to original article  ​

The Value of Your Injury Claim vs. Available Insurance​

What if you are injured, and the person or company at fault has no liability insurance? What happens to your claim? How does the lack of liability insurance coverage affect the value of your personal injury claim? Read on to learn more. Motor Vehicle Accident Claims If you are hit by someone who has no car insurance, you would be able to file what is called an uninsured driver claim against your insurance company (assuming you have uninsured driver coverage). Drivers are required to have uninsured driver coverage in many states. You could make a claim against your own insurance company up to the limit of your uninsured driver coverage. So, in this type of case, the value of your injury claim is affected by the amount of your uninsured driver coverage. If, for example, you are seriously injured, you might theoretically have a case worth $100,000, or more. But if you only have $50,000 in uninsured driver coverage, then $50,000 is all that you would be able to recover. Thus, the value of your case is based on the amount of the available insurance. However, truly uninsured drivers are rare because drivers in almost every state are required to have automobile insurance. Slip and Fall Accidents If you slip and fall on someone else’s property, you can usually make a claim against the property owner’s homeowner’s insurance or, if the property owner is a business, against the owner’s business liability policy. However, if the property owner or business owner has no insurance, then what happens? If a property or business owner has no insurance, you can only recover on your claim if the property or business owner has some money available to compensate you for your injury or if there is equity in the property. Your own homeowner’s or renter’s insurance has no “uninsured property owner insurance” like automobile insurance does. So, in a  slip and fall case, the value of your claim is based on how much money the owner has to pay you damages. Unfortunately, most property or business owners who do not have liability insurance do not have much spare cash. This is just the way things work. People with a lot of money almost always have sufficient insurance coverage. If someone doesn’t have much money, or, if their property isn’t worth much, they may decide that it isn’t a good financial decision to purchase insurance or they just don’t bother to purchase insurance. If the property owner has no insurance and no available cash, you might be able to get something out of the value of the property itself. If, for example, the property owner is broke or in bankruptcy, then the only way that you can be compensated for your injury is to force the property owner to sell the property. Your lawyer would likely put a lien on the property in the meantime to ensure that you get your share of sale proceeds when the property is sold. So you can see how, in a slip and fall case, the value of your personal injury claim is directly affected by the availability of liability insurance. If there is no liability insurance, the value of your claim is directly based on the amount of money the potential defendant has or on the value of the property and its marketability. Products Liability Claims Another type of personal injury claim where insurance coverage is key is a  products liability claim. Products liability claims involve defective products. However, uninsured claims against product manufacturers and sellers are rare because product manufacturers generally have either liability insurance or large amounts of assets. In that case, they are often referred to as self-insured. But if you do have a claim against a product manufacturer or seller that has no liability insurance, your claim would proceed like the claim against a property owner, discussed above. The value of your claim would be limited by the number of assets that the product manufacturer has available to pay a judgment against it. What To Do When a Defendant is Uninsured If you have a personal injury claim against a truly uninsured defendant, your lawyer will want to figure out as soon as possible whether the defendant has any ability to pay you a settlement or a judgment. If the defendant has no assets or money whatsoever, then he/she/it is generally called "judgment proof," and there is rarely any reason to proceed with the claim. So your goal is always to go after a defendant that has some assets with which to compensate you for your injuries. This is called the "deep pockets" theory. The deep pocket theory says that it is better to pursue a weaker case against a defendant with some insurance or assets than a stronger case against a defendant with no money or assets. After all, even if you win a million dollar judgment against a defendant with no money or assets, you still won’t get any compensation for your injuries because the defendant has no money with which to pay the judgment. See our article on Injury Compensation Beyond Insurance Limits for some other options on collecting on your damages. Link to original article

Do You Need a Lawyer to Write an Injury Demand Letter?​

Whether you need a lawyer to write a demand letter in a personal injury case depends on the type of case that you have, and the size of the case (what's at stake, in other words). The general rule is that you do not need a lawyer to write a  personal injury demand letter  in a small and easy case. But, if your case is more complicated or involves larger damages, you probably need a lawyer. An insurance company is not going to take an unrepresented person seriously if that person is asking for a lot of money. Nor will an insurer pay a lot of attention to someone who is making a demand in a case where liability is not at all obvious. Basically, the only types of cases that an unrepresented person can credibly negotiate with the insurer are small car accident and slip and fall cases, and also some workers compensation settlements. Small and Straightforward Personal Injury Cases The key question is: What is a small case? More likely than not, if you do not have a lawyer, you are going to have difficulty getting an insurer to pay you more than about $20,000 to $25,000 to settle a personal injury case, unless you are willing to take very short money to settle the case. If, for example, you are willing to accept $50,000 to settle a $200,000 car accident case, most insurers would probably agree to that. But insurers will rarely pay that much money to an unrepresented person to settle a case if the unrepresented person is looking for top dollar. The next question is: What is a straightforward case? Rear end collision cases are pretty straightforward, but a liability in slip and fall cases, particularly staircase injuries, is often difficult to prove. An easy staircase liability case is someone who is walking down a staircase when the stairs collapse. But let’s say that you slip on the stairs, and you aren’t sure why you slipped. Proving liability in most staircase accidents generally requires an expert witness to measure all aspects of the stairs and review the building codes. If you fell on a staircase that was not obviously defective and do not have a lawyer, you will have very little chance of convincing an insurer to make a reasonable settlement offer. Workers’ Compensation Settlements Insurers are often willing to make settlement offers to unrepresented employees in workers’ compensation cases. In fact, they prefer dealing with people without lawyers in worker’s compensation cases. But, be careful. Although the insurers will be glad to discuss settlement with you, it is very unlikely that they will be willing to pay anywhere close to a top dollar to an unrepresented person. If you have a workers’ compensation case, do not have a lawyer, and are thinking about trying to settle the case, you should read this article on settling a workers compensation case. You should also contact a knowledgeable workers’ compensation lawyer so that you can be informed of your legal options in your particular situation. The content of the Demand Letter If you decide to try to settle your own case, what should your demand letter look like? It should be short, not more than two or two and a half pages, clear and concise, polite, and address the liability (responsibility for your injuries) and damages (your losses) in your case in an objective, non-argumentative way.  You should spend no more than a paragraph or two explaining the liability. If liability is very straightforward, you can address liability in about two sentences. If, for example, the defendant ran a red light and crashed into you, you would say something like, “This case involves a collision at Main and Market Sts. Liability, in this case, is very straightforward. Your insured was driving northbound on Main St. and negligently ran the red light, crashing into my vehicle.” If liability is more complicated, then, of course, it will take you longer to explain it. But you should always be able to explain why the defendant is negligent in two paragraphs or less. With respect to damages, you need to provide the following information: your employment situation, including employer’s name and current earningswhat physically happened to your body during the accident/collision/fallyour diagnosis/diagnosesa brief summary of your medical treatmenthow, if at all, the injury impaired or affected your ability to work and to do things around the house and in your personal lifehow long you were out of workyour pain and sufferingyour lost earningsyour medical bills. You should be able to provide all of this information in about a page and a half. Along with your demand letter, you should also send documentary proof of your lost earnings (copies of some recent pay stubs and/or a letter from your employer) and copies of all of your medical records and bills relating to your treatment from the injury. It is also a good idea to make a spreadsheet of your medical treatment and bills. That way, the adjuster will have a one page summary of all of your treatment and its cost. You'll also make the actual demand, which is a dollar amount you'd be willing to accept in order to settle the case. For more on how much to demand, see  How Much Should You Ask for in the Demand Letter? Then, send it all off to the adjuster and plan to follow up with the adjuster by phone in about 3 to 4 weeks if the adjuster hasn’t contacted you first. As always, if you run into problems dealing with an insurance company, you should contact a knowledgeable personal injury lawyer. Link to original article


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