 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Ginn v. Woman's Hospital Foundation9/22/2000
rden of showing that an administrative remedy or procedure applies, by reason of which the judicial action is premature. Girouard, 96-1076 at p. 5, 694 So. 2d at 1155; Jones, 633 So. 2d at 249. Once the existence of an administrative remedy is established, the burden shifts to the plaintiff to show that the specified administrative remedies or procedures have been exhausted or that the present situation is one of the exceptional situations where the plaintiff is entitled to judicial relief because any administrative remedy is irreparably inadequate. Girouard, 96-1076 at p. 5, 694 So. 2d at 1155; Jones, 633 So. 2d at 249.
MEDICAL MALPRACTICE ACT
The Louisiana Medical Malpractice Act ("the Act") was codified as LSA-R.S. 40:1299.41, et seq., and became effective September 1, 1975. The Act includes such an administrative procedure in that it requires that all medical malpractice claims against covered health care providers be submitted to a medical review panel prior to filing suit in district court. LSA-R.S. 40:1299.41(E); LSA-R.S. 40:1299.47(A) and (B); Hidalgo, 94- 1322 at p.5, 676 So. 2d at 116-117. This administrative procedure affords the medical review panel an opportunity to render its expert opinion on the merits of a complaint. Hutchinson v. Patel, 93-2156, p. 4 (La. 5/23/94), 637 So. 2d 415, 419.
As originally enacted in 1975, "malpractice" was defined as follows:
(8) "Malpractice" means any tort or 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.
Effective August 5, 1976, the definition of malpractice was amended to encompass, among other things, claims "arising from defects in blood" and to provide as follows:
(8) "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, and also includes all legal responsibility of a health care provider arising 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. (Emphasis added). Acts 1976, No. 183 ยง1.
Defendant contends that the 1976 amendment to the Act indicates a clear legislative intent for the Act to apply to any act of malpractice raised after September 1, 1975, the date on which the original act took effect. Contending that " he Legislature intended to have one body of medical malpractice law that was effective on one date, September 1, 1975," defendant, in essence, argues that the Act applies to any claim involving malpractice, whether defined as such originally, or later added, if asserted from September 1, 1975 onward. In support, defendant refers to LSA-R.S. 40:1299.41(F), which provides in part:
F. The provisions of this Part do not apply to any act of malpractice which occurred before September 1, 1975. According to defendant:
The Legislature in 1976 clearly expressed its intent that the amendments to the definition section, including section 1299.41(A)(8), applied to the entire Act as it was enacted on September 1, 1975. This intent was expressed in Section 1299.41 (F) that specifically indicated that the definition changes did not apply to any act of malpractice that occurred before September 1, 1975 -- the exact effective date of the entire Medical Malpractice Act.
In response, plaintiff contends that the transfusions from which she contracted hepatitis C were administered by defendant in February of 1976. Plaintiff argues that at the time of the transfusions,
Page 1 2 3 4 Louisiana Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
By using the system, you agree to TERMS OF SERVICE
|