Negligence lawsuits may be an alternative to malpractice claims

Families of the children who died from an outbreak of a fungal infection at the New Orleans Children’s Hospital in 2008 and 2009 may have found a way to seek compensation for the loss of their loved ones, despite being barred by Louisiana medical malpractice law from filing lawsuits.

At issue are two restrictions Louisiana law imposes on potential medical malpractice claimants:

• A statute of limitations bars the filing of medical malpractice lawsuits related to improper medical care after three years; and
• The law limits medical malpractice awards to $500,000.

It might seem that the three-year medical malpractice statute of limitations bars the families of the five children who died from the fungal infection from initiating lawsuits. Indeed, in at least some of the litigation that has arisen from the deaths, this is one of the defenses that the hospital has raised.

Louisiana general negligence law however, can be more favorable to claimants. In addition to not being limited to a $500,000 maximum, it also has two triggers to start the running of its one-year statute of limitations: either the date of the alleged act of negligence, or the date that the plaintiff learned of the negligence.

The latter of those two starting points may be the key to the fungal infection cases because it was only in April of this year that the hospital acknowledged it had failed at the time of the fungal outbreak to notify the families that it had happened.

One of the plaintiffs alleges that she did not learn about what caused the death of her child until reading a newspaper account of the hospital’s recent admission.

To date, in two of the general negligence lawsuits that have been filed, the plaintiffs have prevailed in their theory of liability. A third case alleging general negligence was filed within the last two weeks. These lawsuits do not name any of the hospital doctors or nurses as defendants, but were instead filed against the hospital itself, a linen supplier and a management services contractor that the hospital had used

Source: NOLA.com, “Lawsuits over Children’s Hospital fungal outbreak bring up debate over medical malpractice,” Rebecca Catalanello, April 25, 2014