Comment by Brett Hager
Louisiana is in the minority of jurisdictions that imposes a cap on the general damages a medical malpractice plaintiff can recover. The cap, Louisiana Revised Statute 40:1299-42(B), is imposed “for all malpractice claims for injuries to or death of a patient . . . .” However, it is unclear under what circumstances a plaintiff may recover general damages in excess of the cap. Other jurisdictions, such as Texas, Indiana, and the Virgin Islands, which also impose damage caps, have concluded that in certain situations plaintiffs may indeed recover damages in excess of their statutory cap. Factors in the various analyses include: (1) the number of defendants, (2) the definition of “injury,” (3) the number of injuries, (4) the divisibility of injuries, and (5) the definition of an “occurrence” of medical malpractice. This Comment examines the situations under which a medical malpractice plaintiff in Louisiana could recover general damages in excess of the statutory cap. As a vehicle for this analysis, the author uses the Louisiana Supreme Court's recent decision in Turner v. Massiah, which held that, under its facts, the plaintiff could not recover multiple damage caps, but left open the possibility of another medical malpractice plaintiff doing so. The author concludes that, after the near-total abolition of solidary liability in Louisiana, it will become easier for plaintiffs to overcome the hurdles imposed by the supreme court in Turner, and to recover general damages in excess of the cap, as both law and equity should allow.
About the Author
Brett Hager. B.S. 1994, University of Illinois at Urbana-Champaign; J.D. 1997, Tulane Law School.
Citation
71 Tul. L. Rev. 1559 (1997)