2011 Louisiana Laws
TITLE 40 — Public health and safety
RS 40:1299.41 — Definitions and general applications
PART XXIII. MEDICAL MALPRACTICE
§1299.41. Definitions and general applications
A. As used in this Part:
(1) "Ambulance service" means an entity under circumstances in which the provisions of R.S. 40:1299.39 are not applicable 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 emergency 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, including any student enrolled in a qualified emergency medical services educational program under the direct supervision of a licensed health care provider.
(2) "Authority" means the Residual Malpractice Insurance Authority established under Section 1299.46.
(3) "Board" means the Patient's Compensation Fund Oversight Board created in R.S. 40:1299.44(D).
(4) "Claimant" means a patient or representative or any person, including a decedent's estate, seeking or who has sought recovery of damages or future medical care and related benefits under this Part. All persons claiming to have sustained damages as a result of injuries to or death of any one patient are considered a single claimant.
(5) "Claims manager" means the claims manager appointed and employed by the board pursuant to R.S. 1299.44(D)(2)(g).
(6) "Community blood center" means any independent nonprofit nonhospital based facility which collects blood and blood products from donors primarily to supply blood and blood components to other health care facilities.
(7) "Court" means a court of competent jurisdiction and proper venue over the parties.
(8) "Executive director" means the executive director of the board, appointed and employed pursuant to R.S. 40:1299.44(D)(2)(f).
(9) "Health care" means any act or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient's medical care, treatment, or confinement, or during or relating to or in connection with the procurement of human blood or blood components.
(10) "Health care provider" means a person, partnership, limited liability partnership, limited liability company, corporation, facility, or institution licensed or certified by this state to provide health care or professional services as a physician, hospital, nursing home, community blood center, tissue bank, dentist, registered or licensed practical nurse or certified nurse assistant, offshore health service provider, ambulance service under circumstances in which the provisions of R.S. 40:1299.39 are not applicable, certified registered nurse anesthetist, nurse midwife, licensed midwife, nurse practitioner, clinical nurse specialist, pharmacist, optometrist, podiatrist, chiropractor, physical therapist, occupational therapist, psychologist, social worker, licensed professional counselor, licensed perfusionist, licensed respiratory therapist, licensed radiologic technologist, licensed clinical laboratory scientist, or any nonprofit facility considered tax-exempt under Section 501(c)(3), Internal Revenue Code, pursuant to 26 U.S.C. 501(c)(3), for the diagnosis and treatment of cancer or cancer-related diseases, whether or not such a facility is required to be licensed by this state, or any professional corporation a health care provider is authorized to form under the provisions of Title 12 of the Louisiana Revised Statutes of 1950, or any partnership, limited liability partnership, limited liability company, management company, or corporation whose business is conducted principally by health care providers, or an officer, employee, partner, member, shareholder, or agent thereof acting in the course and scope of his employment.
(11) "Hospital" means any hospital as defined in R.S. 40:2102; any "nursing home" or "home" as defined in R.S. 40:2009.2; or any physician's or dentist's offices or clinics containing facilities for the examination, diagnosis, treatment or care of human illnesses.
(12) "Insurer" means the authority or the entity chosen to manage the authority or an insurer writing policies of malpractice insurance.
(13) "Malpractice" means any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely and the handling of a patient, including loading and unloading of a patient, and also includes all legal responsibility of a health care provider arising from acts or omissions during the procurement of blood or blood components, in the training or supervision of health care providers, or from defects in blood, tissue, transplants, drugs, and medicines, or from defects in or failures of prosthetic devices implanted in or used on or in the person of a patient.
(14) "Offshore health service provider" means any individual or entity which provides any health care service rendered by an emergency medical technician-basic, or at the intermediate or paramedic levels, or one who is a registered nurse, when such medical care is rendered on a fixed platform in Louisiana territorial waters or on the Outer Continental Shelf, adjacent to Louisiana territorial waters, or any instance on the Outer Continental Shelf where the applicable law, under the Outer Continental Shelf Lands Act, 43 U.S.C. 1331 et seq., would be the laws of the state of Louisiana.
(15) "Patient" means a natural person, including a donor of human blood or blood components and a nursing home resident who receives or should have received health care from a licensed health care provider, under contract, expressed or implied.
(16) "Physician" means a person with an unlimited license to practice medicine in this state.
(17) "Proof of financial responsibility" as provided for in this Part shall be determined by the board in accordance with regulations promulgated under the Administrative Procedure Act.
(18) "Representative" means the spouse, parent, guardian, trustee, attorney or other legal agent of the patient.
(19) "Risk" means any health care provider which shall apply for malpractice liability insurance coverage under the provisions of Section 1299.46.
(20) "Risk manager" means an insurance company with no less than an "A" rating according to the then current annual edition of Best's Insurance Reports or a domestic insurance company with assets in excess of ten million dollars chosen by the commissioner according to the public bid laws of the state, to manage the authority.
(21) "Tissue bank" means any independent nonprofit facility procuring and processing human organs or tissues for transplantation, medical education, research, or therapy.
(22) "Tort" means any breach of duty or any negligent act or omission proximately causing injury or damage to another. The standard of care required of every health care provider, except a hospital, in rendering professional services or health care to a patient, shall be to exercise that degree of skill ordinarily employed, under similar circumstances, by the members of his profession in good standing in the same community or locality, and to use reasonable care and diligence, along with his best judgment, in the application of his skill.
B. Wherever necessary to the context of this Part the masculine shall mean and include the feminine and the singular shall mean and include the plural.
C. No liability shall be imposed upon any health care provider on the basis of an alleged breach of contract, whether by express or implied warranty, assuring results to be obtained from any procedure undertaken in the course of health care, unless such contract is expressly set forth in writing and signed by such health care provider or by an authorized agent of such health care provider.
D. A health care provider who fails to qualify under this Part is not covered by the provisions of this Part and is subject to liability under the 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 hereinafter provided 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.
E.(1) Subject to R.S. 40:1299.47, a claimant having a claim under this Part for bodily injuries to or death of a patient on account of malpractice may file a complaint in any court of competent jurisdiction and proper venue. Upon filing the complaint in court for bodily injuries to or death of a patient on account of malpractice, said claimant shall send, by certified mail, return receipt requested, a copy of the complaint, and any amendments thereto, to the board. The claimant shall also promptly provide written notice to the board of the trial date upon receiving notice from the court scheduling a trial in such proceeding.
(2) No dollar amount or figure shall be included in the demand in any malpractice complaint, but the prayer shall be for such damages as are reasonable in the premises.
(3) This Section shall not prevent a person from alleging a requisite jurisdictional amount in a malpractice claim filed in a court requiring such an allegation.
(4) 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. The provisions of this Part do not apply to any act of malpractice which occurred before September 1, 1975. The provisions of this Part that provide for the suspension and the running of prescription with respect to a health care provider who has not qualified under this Part, but against whom a claim has been filed under this Part, do not apply to any act of malpractice which occurred before September 1, 1981.
G. Notwithstanding the provisions of Subsection D, the running of prescription against a health care provider who is answerable in solido with a qualified 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. 40:1299.47(A)(2)(a).
H. The provisions of this Part do not apply to any act of malpractice which occurred before September 1, 1975. The provisions of this Part that provide for the suspension of the running of prescription with respect to a health care provider who is answerable in solido with another health care provider apply to an act of malpractice which has been duly submitted for review prior to September 1, 1981 but in which the third health care provider panelist has not been selected. The provision for the suspension of the running of prescription does not apply to any act of malpractice which has not been duly submitted for review and which has prescribed on September 1, 1981.
I. Nothing in this Part shall be construed to make the patient's compensation fund liable for any sums except for 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 not apply to medical malpractice actions against the state or any political subdivision thereof with the exception of a hospital service district and a municipally owned hospital and any entities, organizations, or subsidiary owned, operated, or controlled by such a hospital service district or municipally owned hospital. However, this Part shall apply to any certified emergency medical technician-basic, or at the intermediate or paramedic level, employed by any political subdivision of the state, and to any medical advisor or registered nurse performing emergency medical services under contract with any political subdivision of the state.
J. The board shall appoint legal counsel for the Patient's Compensation Fund. It shall be the responsibility of the board to establish minimum qualifications and standards for lawyers who may be appointed to defend professional liability cases. The minimum qualifications and the appointments procedure shall be published at least annually in the Louisiana Bar Journal or such other publication as will reasonably assure dissemination to the membership of the Louisiana State Bar Association. The primary counsel may be permitted by the board to continue the professional liability litigation on behalf of the Patient's Compensation Fund where no conflict of interest exists or where there is no potential conflict of interest. The function of establishing reserves shall be carried out by the board.
K. The provisions of this Part shall not apply to any health care provider when performing the elective termination of an uncomplicated viable pregnancy.
Amended by Acts 1991, No. 661, §1; Acts 1991, No. 825, §1; Acts 1992, No. 824, §1; Acts 1992, No. 908, §1; Acts 1997, No. 646, §1; Acts 1999, No. 1309, §8, eff. Jan. 1, 2000; Acts 2001, No. 108, §1; Acts 2001, No. 486, §4, eff. June 21, 2001; Acts 2001, No. 697, §1; Acts 2002, 1st Ex. Sess., No. 86, §1; Acts 2003, No. 431, §1, eff. June 18, 2003; Acts 2003, No. 479, §1; Acts 2003, No. 585, §1; Acts 2003, No. 747, §1; Acts 2004, No. 182, §1; Acts 2006, No. 694, §1; Acts 2008, No. 558, §1; Acts 2009, No. 14, §1; Acts 2010, No. 568, §1; Acts 2010, No. 950, §1.
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