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Courts continue to find new malpractice law interpretations

November 30th, 2015
On behalf of David Bowling of The Bowling Christiansen Law Firm, A Professional Law Corporation posted in Medical Malpractice on Monday, November 30, 2015.

Now more than ever, Louisiana medical malpractice cases that involve defendants who are not residents of this state have become commonplace. If, for example, you are harmed by an act of medical malpractice, the local physician is only one of the potential responsible parties you need to consider. That medical professional may have relied upon or acted in coordination with additional out-of-state parties, such as equipment providers or other vendors or even out-of-state specialists, all of who may have contributed to your avoidable injury.

What this means is that if non-Louisiana parties become part of your medical malpractice claim, this can become a battleground for whether your case should be tried in Louisiana state court or in federal district court. Out-of-state defendants frequently prefer to use federal courts based on a belief that they are not as plaintiff-friendly as the state courts are; thus, they will often attempt to remove to federal court a lawsuit filed in state court based on a concept referred to as “diversity jurisdiction.”

Although diversity jurisdiction is not new, and Louisiana medical malpractice law has been in place for many years, this does not mean that unanticipated legal issues cannot still occur with regard to how the Louisiana law can affect the availability of diversity jurisdiction for defendants. This is the lesson to be drawn from a recent United States Fifth Circuit Court of Appeals decision to reconsider its own ruling concerning a Louisiana medical malpractice lawsuit that the defendants had removed to the federal district court in the state.

The underlying issue is whether the requirement under Louisiana’s medical malpractice act that claims need to be submitted before a medical malpractice panel before proceeding to litigation affects cases, which involve both in-state and out-of-state defendants. The district court judge sided with the defendants; a three-judge panel of the court of appeals disagreed and sided with the plaintiff; and now the full court of appeals has decided to review the decision of the three-judge panel.

It is not the purpose of this post to go into detail about the specific legal arguments being raised in this case as much as to raise awareness that it is important for personal injury attorneys who practice in Louisiana medical malpractice law to understand not only the law itself but to stay abreast of how state and federal courts interpret and apply that law on an ongoing basis.

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