In Louisiana, a person who wishes to institute a claim of medical malpractice is not allowed to file a lawsuit against a health care provider until after a medical review panel has been convened and reviewed the case.
The process of instituting a claim for medical malpractice begins with the patient filing a request for review. A request for review can be in petition form or letter form and it asks that a medical review panel be convened to review the actions of a health care provider that qualifies under the Louisiana Medical Malpractice Act.
In order to qualify under the medical malpractice act and receive the benefit of the $500,000 cap on damages, a physician or hospital must pay a surcharge or premium to the Louisiana Patient's Compensation Fund, (the "PCF").
After a patient requests the formation of a medical review panel, the PCF will notify the physicians and the patient that they need to pick an attorney chairman to run the medical review panel. The attorney chairman is responsible for setting the deadlines to submit evidence to the review panel, to convene the review panel and to instruct the physician members of the review panel on the law.
A medical review panel is made up of three physicians who generally practice in the same specialty as the accused physician. One member is chosen by the patient, another is chosen by the defendant doctor and the third is picked by the first two physician members of the medical review panel.
Once formed, the medical review will remain intact for one year, unless the period is extended by the court to accomodate ongoing depositions or other discovery.
The parties are allowed to submit evidence in the form of medical records, depositions, affidavits, expert reports and a position paper setting forth their respective claims. The medical review panel meets at the attorney chairman's office to discuss and decide the case. The attorney chairman does not get to decide the case. Following the decision the attorney chairman reduces the decision to writing and forwards it by certified mail to the parties.
The law provides for three possible decisions of the medical review panel: (i) that the defendant health care provider failed to comply with the appropriate standard of care, (ii) that the defendant health care provider did not breach the standard of care , or (iii) that a question of fact bearing on liability exists which does not require an expert opinion.
After receipt of the opinion the patient has 90 days to file suit in state district court.