Disastrous Results for Plaintiffs that Wait Too Long to File Suit

In Louisiana, there are certain steps that need to be taken in order to file a case for medical malpractice. In order to get a case to trial, a plaintiff must first submit a malpractice petition to a medical review board. The board reviews the facts surrounding a case and compares health care providers with a basic standard of care required for those practitioners in the locale in which they practice. If the board decides in favor of the defendants, the plaintiff can take the case to a judicial proceeding. A civil case in Louisiana must be filed or settled within a year.

This is the basic fall-back provision of how long a case can remain in effect. The legislature has the authority to add to this period for certain causes of action, in certain circumstances. For example, a medical malpractice claim must usually be filed within one year from the negligent treatment. However, if the plaintiff did not know that the medical malpractice occurred, the plaintiff can file within one year of discovering the malpractice. In any case, no claim can be filed more than three years after the alleged negligent treatment. Thus, even if the negligent treatment is not discoverable until four years have gone by, the plaintiff will be out of luck and the time for filing the suit will have expired.

The medical review board takes a great deal of time to make a decision. Thus, while the review board is making a determination, the one year prescription period is stopped to allow the board to make its decision without taking away the plaintiff’s time to bring a case. However, once the review board has made a decision, the plaintiff only has 90 days plus any additional time left over from the one year prescription period to file a claim.

In Beverley Blake v. Dr. Warren Maley, a Louisiana court discussed how these different time frames interlock. Mrs. Blake brought a suit on her behalf and on behalf of her two children due to alleged malpractice by Dr. Maley, when the doctor was treating her husband. As a result of alleged mismanagement of medical treatment, Mr. Blake suffered amputated fingers, feet, and hands. Mrs. Blake brought the matter before the board on June 2, 2004. The alleged malpractice occurred on June 22, 2003. At this point, Mrs. Blake brought the matter before the review board in a timely matter. The board made its decision on March 15, 2007, unanimously ruling in favor of all defendants. On November 3, 2009, Mrs. Blake filed suit against Dr. Maley in court. She stated that the review panel did not make an informed decision and that she was still entitled to file her case before court. She claimed that after her husband died, and after the board made its determination, she fell into an extreme depression and was unable to make determinations. She argued that she had three total years to file her suit. However, in Louisiana, in order to get three years to file a medical malpractice claim, a party must not know, and should not be able to know, that malpractice occurred until a later date than when the malpractice occurred. Mrs. Blake never alleged that she was unaware that malpractice occurred. In fact, her taking the case to the medical board showed that she believed that there had been negligence. Therefore, this argument did not work.

She further argued that since she was in a state of depression she had no idea what was going on. She argued that the one year time period should be stalled during the period when she had fallen into a state of depression. Louisiana law states,”Prescription runs against absent persons and incompetents, including minors and interdicts, unless exception is established by legislation.” There is no law in Louisiana that excuses a violation of the prescriptive period due to depression. The period continues to run regardless of the plaintiff’s mindset.

Mrs. Blake was unfortunate because she lost her legal representation right before she fell into a state of depression. She failed to hire new legal counsel and had thus let the prescriptive period expire without a fight. Acquiring legal counsel gives a party an objective non-emotional partner in a law suit. Even if the party is depressed, sad, or angry, competent legal counsel will remain objective and committed to finding a solution to a problem.

Call the Berniard Law Firm to speak to an attorney who can help you find an answer to your legal problem.