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2024- LA Legislature Tort Reform Bills
Posted on 3/13/24 at 9:40 am
Posted on 3/13/24 at 9:40 am
Going through the proposed bills, these are the ones that would qualify as "tort reform." My thoughts are in the first comment.
Extending the Prescriptive Period:
HB 229 – Requires a three-year prescription on torts
Proposed law removes present law and enacts Civil Code Articles 3496.3 and 3496.4 providing that tort actions have a liberative prescription of three years.
See also HB 315 (2-year prescription for torts); SB 334 (2-year prescription for torts)
HB 315 – Extends prescription on tort actions
Proposed law removes present law and provides that the tort actions have a liberative prescription of two years.
See also HB 229 (3-year prescription for torts); SB 334 (2-year prescription for torts)
Collateral Source:
HB 423 – Provides for payment of recoverable medical expenses from collateral sources
Proposed law retains present law but deletes the requirement that the court shall award the claimant 40% of the difference between the amount billed and the amount actually paid to the contracted medical provider by a health insurance issuer or Medicare.
SB 18 – Provides for collateral sources in civil actions
Proposed law provides that during trial, all evidence related to the limitations of recoverable past medical expenses provided for in proposed law shall be admissible and considered by the jury.
SB 266 – Provides for reversionary medical trust
Proposed law requires the use of a reversionary medical trust for the payment of future medical and related expenses in the amount of $50,000 or greater. Proposed law defines "reversionary medical trust".
Proposed law requires that the liable party establish the trust and the claimant shall submit original invoices, which the trustee shall review for payment. The trustee shall also prepare vouchers or warrants and evaluate and settle claims related to the payment of future medical care and related benefits. The trustee shall have the same fiduciary duties as imposed upon a trustee by the La. Trust Code.
Attorneys' Fees:
SB 84 – Provides for motion for judgment on offer of judgment
Proposed law provides that if the final judgment obtained by the plaintiff-offeree is at least 25% less than the amount of the offer of judgment made by the defendant-offeror or if the final judgment is in favor of the defendant, the offeree must pay the offeror's costs and attorney fees incurred after the offer was made, as fixed by the court.
SB 330 – Provides for liability for judgment of dismissal
Proposed law provides that any defendant, against whom all causes of action are dismissed by the granting of any dispositive motion or exception prior to trial, shall be granted judgment against every plaintiff filing such action in an amount equal to the costs and attorney fees incurred in defense of the action.
Here are all of the other random ones:
HB 53 – Provides a limitation of actions by passengers of motor vehicles
Proposed law provides that a person who is a voluntary passenger in a vehicle shall not have a cause of action against the operator for any injury, loss, or damage resulting from the operator transporting the passenger.
Proposed law provides an exception for cases in which the operator was intoxicated or his willful or wanton misconduct caused the injuries.
HB 88 – Provides for venue for actions involving certain insurers
Present law (C.C.P. Art. 42(7)) requires that actions against foreign or alien insurers be brought in the parish of East Baton Rouge.
Proposed law repeals present law (C.C.P. Art. 42(7)) and requires that proper venue for foreign or alien insurers be determined by the general venue rules (C.C.P. Art. 42) and its exceptions.
SB 19 – Provides for jury bonds in civil actions
Proposed law removes the requirement that a party requesting a jury trial in a tort action where the amount in controversy is between $10,000 and $50,000 shall provide a cash deposit in the amount of $5,000.
SB 25 – Provides for limitation of damages for compulsory motor vehicle liability security
Proposed law increases the amount for no recovery for first bodily injury from $15,000 to $100,000 and increases the amount for no recovery of property damages from $25,000 to $100,000 in connection to a motor vehicle accident occasioned by an owner or operator of a motor vehicle who fails to own or maintain compulsory motor vehicle liability security.
Ones that will never pass:
SB 172 – Provides for limitation of recovery for soft tissue injury claims
Proposed law provides that the total liability in general damages of a tortfeasor for a negligent act that occurs on and after August 1, 2024, that causes of soft tissue injury to a person shall not exceed $25,000, including all claims and derivative claims, and regardless of the number of suits filed or claims made for the personal injury to that person.
SB 303 – Provides for a limitation on general damages
Proposed law provides for a $500,000 limitation for general damages, excluding special or economic damages, in civil suits.
Extending the Prescriptive Period:
HB 229 – Requires a three-year prescription on torts
Proposed law removes present law and enacts Civil Code Articles 3496.3 and 3496.4 providing that tort actions have a liberative prescription of three years.
See also HB 315 (2-year prescription for torts); SB 334 (2-year prescription for torts)
HB 315 – Extends prescription on tort actions
Proposed law removes present law and provides that the tort actions have a liberative prescription of two years.
See also HB 229 (3-year prescription for torts); SB 334 (2-year prescription for torts)
Collateral Source:
HB 423 – Provides for payment of recoverable medical expenses from collateral sources
Proposed law retains present law but deletes the requirement that the court shall award the claimant 40% of the difference between the amount billed and the amount actually paid to the contracted medical provider by a health insurance issuer or Medicare.
SB 18 – Provides for collateral sources in civil actions
Proposed law provides that during trial, all evidence related to the limitations of recoverable past medical expenses provided for in proposed law shall be admissible and considered by the jury.
SB 266 – Provides for reversionary medical trust
Proposed law requires the use of a reversionary medical trust for the payment of future medical and related expenses in the amount of $50,000 or greater. Proposed law defines "reversionary medical trust".
Proposed law requires that the liable party establish the trust and the claimant shall submit original invoices, which the trustee shall review for payment. The trustee shall also prepare vouchers or warrants and evaluate and settle claims related to the payment of future medical care and related benefits. The trustee shall have the same fiduciary duties as imposed upon a trustee by the La. Trust Code.
Attorneys' Fees:
SB 84 – Provides for motion for judgment on offer of judgment
Proposed law provides that if the final judgment obtained by the plaintiff-offeree is at least 25% less than the amount of the offer of judgment made by the defendant-offeror or if the final judgment is in favor of the defendant, the offeree must pay the offeror's costs and attorney fees incurred after the offer was made, as fixed by the court.
SB 330 – Provides for liability for judgment of dismissal
Proposed law provides that any defendant, against whom all causes of action are dismissed by the granting of any dispositive motion or exception prior to trial, shall be granted judgment against every plaintiff filing such action in an amount equal to the costs and attorney fees incurred in defense of the action.
Here are all of the other random ones:
HB 53 – Provides a limitation of actions by passengers of motor vehicles
Proposed law provides that a person who is a voluntary passenger in a vehicle shall not have a cause of action against the operator for any injury, loss, or damage resulting from the operator transporting the passenger.
Proposed law provides an exception for cases in which the operator was intoxicated or his willful or wanton misconduct caused the injuries.
HB 88 – Provides for venue for actions involving certain insurers
Present law (C.C.P. Art. 42(7)) requires that actions against foreign or alien insurers be brought in the parish of East Baton Rouge.
Proposed law repeals present law (C.C.P. Art. 42(7)) and requires that proper venue for foreign or alien insurers be determined by the general venue rules (C.C.P. Art. 42) and its exceptions.
SB 19 – Provides for jury bonds in civil actions
Proposed law removes the requirement that a party requesting a jury trial in a tort action where the amount in controversy is between $10,000 and $50,000 shall provide a cash deposit in the amount of $5,000.
SB 25 – Provides for limitation of damages for compulsory motor vehicle liability security
Proposed law increases the amount for no recovery for first bodily injury from $15,000 to $100,000 and increases the amount for no recovery of property damages from $25,000 to $100,000 in connection to a motor vehicle accident occasioned by an owner or operator of a motor vehicle who fails to own or maintain compulsory motor vehicle liability security.
Ones that will never pass:
SB 172 – Provides for limitation of recovery for soft tissue injury claims
Proposed law provides that the total liability in general damages of a tortfeasor for a negligent act that occurs on and after August 1, 2024, that causes of soft tissue injury to a person shall not exceed $25,000, including all claims and derivative claims, and regardless of the number of suits filed or claims made for the personal injury to that person.
SB 303 – Provides for a limitation on general damages
Proposed law provides for a $500,000 limitation for general damages, excluding special or economic damages, in civil suits.
11
Posted on 3/13/24 at 9:41 am to The Johnny Lawrence
Prescriptive Period:
I think everyone agrees that this would reduce the number of lawsuits filed, but it will not reduce the amount of overall claims. Judicial efficiency and backlog would be helped by both of these Bills. However, the amount of savings an insurance company will gain from not having to pay an attorney to resolve a lawsuit that was filed because the prescriptive period was expiring will be dwarfed by the increase damages on lawsuits where the plaintiffs’ bar gets 2 or 3 years to work up the file without the defendants being able to conduct any discovery.
Also, there isn’t anything that requires the insurance company to pay a large legal bill simply because the prescriptive period expired. If an insurance company is close to settlement at the 1 year mark, the plaintiff can file a suit to interrupt prescription, give an indefinite extension, and the parties can continue negotiating. Or, the insurance company can assign it to an attorney who can file an Answer and resolve the case quickly before incurring exorbitant fees. Cases that would have settled at the 13-14 month mark can still settle at the 13-14 month with limited expenses and fees from the attorney.
Extending the prescriptive period helps the court system and helps the plaintiffs’ bar. On the whole, it hurts the insurance companies.
Collateral Source:
They attempted to fix the collateral source rule in 2020, and only made it worse. The current law is poorly written, complicated, and does not provide either side with a definitive way of determining the medical specials. These three Bills actually clean it up and make it simple. The plaintiff is awarded what was paid for their expenses, the jury gets to hear evidence of how much was actually paid/written off, and the future medical expenses go into a trust.
However, these bills fail to address two issues:
(1) What about letters of guarantee where the attorney pays less after settlement. This either needs to be outlawed or addressed more clearly in the law.
(2) Because the money goes into a trust, the plaintiff does not have the incentive to work up a frivolous future medicals claim. However, the plaintiff attorney still has an incentive to work up that aspect of the claim, because they get 40% of the future medicals award. The money placed into the trust should be exempt from attorneys’ fees (or awarded at a 10% rate or some other reduced amount). This would preclude the plaintiff and the plaintiffs’ bar from working up bogus life care plans for windfalls.
Attorneys’ Fees:
As I’ve said before, this is only beneficial for the plaintiff. If the insurance company is taxed with $50,000 in attorneys’ fees, they will have to pay $50,000 in attorneys’ fees. If the plaintiff is responsible for the defense attorneys’ bills, there is a less than .0001% chance that the plaintiff can pay this bill. They are essentially judgment proof. This law sounds good, but it only serves to increase the plaintiff’s awards. This Bill does not need to be passed, and if it passes, the plaintiff’s attorney should be responsible for the defense attorneys’ bill. That is the only way to make it equitable.
I think everyone agrees that this would reduce the number of lawsuits filed, but it will not reduce the amount of overall claims. Judicial efficiency and backlog would be helped by both of these Bills. However, the amount of savings an insurance company will gain from not having to pay an attorney to resolve a lawsuit that was filed because the prescriptive period was expiring will be dwarfed by the increase damages on lawsuits where the plaintiffs’ bar gets 2 or 3 years to work up the file without the defendants being able to conduct any discovery.
Also, there isn’t anything that requires the insurance company to pay a large legal bill simply because the prescriptive period expired. If an insurance company is close to settlement at the 1 year mark, the plaintiff can file a suit to interrupt prescription, give an indefinite extension, and the parties can continue negotiating. Or, the insurance company can assign it to an attorney who can file an Answer and resolve the case quickly before incurring exorbitant fees. Cases that would have settled at the 13-14 month mark can still settle at the 13-14 month with limited expenses and fees from the attorney.
Extending the prescriptive period helps the court system and helps the plaintiffs’ bar. On the whole, it hurts the insurance companies.
Collateral Source:
They attempted to fix the collateral source rule in 2020, and only made it worse. The current law is poorly written, complicated, and does not provide either side with a definitive way of determining the medical specials. These three Bills actually clean it up and make it simple. The plaintiff is awarded what was paid for their expenses, the jury gets to hear evidence of how much was actually paid/written off, and the future medical expenses go into a trust.
However, these bills fail to address two issues:
(1) What about letters of guarantee where the attorney pays less after settlement. This either needs to be outlawed or addressed more clearly in the law.
(2) Because the money goes into a trust, the plaintiff does not have the incentive to work up a frivolous future medicals claim. However, the plaintiff attorney still has an incentive to work up that aspect of the claim, because they get 40% of the future medicals award. The money placed into the trust should be exempt from attorneys’ fees (or awarded at a 10% rate or some other reduced amount). This would preclude the plaintiff and the plaintiffs’ bar from working up bogus life care plans for windfalls.
Attorneys’ Fees:
As I’ve said before, this is only beneficial for the plaintiff. If the insurance company is taxed with $50,000 in attorneys’ fees, they will have to pay $50,000 in attorneys’ fees. If the plaintiff is responsible for the defense attorneys’ bills, there is a less than .0001% chance that the plaintiff can pay this bill. They are essentially judgment proof. This law sounds good, but it only serves to increase the plaintiff’s awards. This Bill does not need to be passed, and if it passes, the plaintiff’s attorney should be responsible for the defense attorneys’ bill. That is the only way to make it equitable.
Posted on 3/13/24 at 9:45 am to The Johnny Lawrence
I think 3 years is the best part of any of that.
The provider can just sue the attorney on the guarantee. Could even build attorneys fees into the agreement.
I think the spirit of the collateral source rule should stay the same. I think anyone who has privately paid for insurance, if they think about it, would agree.
quote:
What about letters of guarantee where the attorney pays less after settlement. This either needs to be outlawed or addressed more clearly in the law.
The provider can just sue the attorney on the guarantee. Could even build attorneys fees into the agreement.
I think the spirit of the collateral source rule should stay the same. I think anyone who has privately paid for insurance, if they think about it, would agree.
This post was edited on 3/13/24 at 9:47 am
Posted on 3/13/24 at 9:45 am to The Johnny Lawrence
quote:
HB 53 – Provides a limitation of actions by passengers of motor vehicles
Proposed law provides that a person who is a voluntary passenger in a vehicle shall not have a cause of action against the operator for any injury, loss, or damage resulting from the operator transporting the passenger.
Proposed law provides an exception for cases in which the operator was intoxicated or his willful or wanton misconduct caused the injuries.
This is completely insane.
Posted on 3/13/24 at 9:48 am to The Johnny Lawrence
quote:
SB 330 – Provides for liability for judgment of dismissal
Proposed law provides that any defendant, against whom all causes of action are dismissed by the granting of any dispositive motion or exception prior to trial, shall be granted judgment against every plaintiff filing such action in an amount equal to the costs and attorney fees incurred in defense of the action.
this is also pretty wild And go figure it’s Alan Seabaugh
This post was edited on 3/13/24 at 9:49 am
Posted on 3/13/24 at 9:53 am to rmc
My point is more from the insurance company perspective where the plaintiff says the bill is $10k, the jury awards $10k, then the plaintiff and the doctor agree that the doctor will accept $5k.
Posted on 3/13/24 at 9:55 am to The Johnny Lawrence
quote:
My point is more from the insurance company perspective where the plaintiff says the bill is $10k, the jury awards $10k, then the plaintiff and the doctor agree that the doctor will accept $5k.
Yes. I understand that. That’s on the doctor for agreeing is it not? We can’t hold the doctor’s hand here. He could refuse to take anything less than 10k. If the attorney scoffs, sue him.
Posted on 3/13/24 at 9:57 am to The Johnny Lawrence
Isn't there a good-faith bill (probably a couple)?
Posted on 3/13/24 at 9:58 am to boosiebadazz
I'm not shocked that some of these sound good if you ONLY look at MVA civil actions.
For non-MVA cases, yes, a lot of these are utterly insane.
For non-MVA cases, yes, a lot of these are utterly insane.
Posted on 3/13/24 at 10:02 am to rmc
What if the doctor and the plaintiff's attorney are best friends. And the doctor gets 100% of his business from the plaintiff's attorney and his buddies. Hypothetically speaking, because the plaintiffs' bar in Louisiana is far too ethical for such practices, what if the doctor and the plaintiff's attorney reach an informal agreement where the doctor over charges for the treatment he provides with an understanding that the doctor will accept less after the case settles.
That's the setup I'm saying isn't addressed in the current bills/law.
That's the setup I'm saying isn't addressed in the current bills/law.
This post was edited on 3/13/24 at 10:04 am
Posted on 3/13/24 at 10:08 am to The Johnny Lawrence
The legislature is going to pass a law that allows for a TWO year prescriptive period (not 3).
The plaintiff's bar is going to go to the mat on the collateral source issues. As you know, it originally wasn't a statutory rule, but a jurisprudential rule of evidence. The plaintiff's bar saw the rule being eroded by the LA Supreme Court (Medicaid, worker's comp payments) and tried to get out in front of it in the 2020 (maybe 2021) legislative session while they had Jon Bel as Governor to counter the whims of a Republican supermajority legislature. That's how we got the current collateral source compromise which is equal parts dumb and confusing.
However, I think this is where the Republican's apatite for actual "tort reform" will be tested, along with Jeff Landry's "conservative" bona-fides. My gut tells me there won't be as much movement on the collateral source rule as some strong tort reform advocates may want. I think Landry will try to quietly tiptoe around being put into a box to sign a full blown repudiation of the collateral source rule.
The plaintiff's bar is going to go to the mat on the collateral source issues. As you know, it originally wasn't a statutory rule, but a jurisprudential rule of evidence. The plaintiff's bar saw the rule being eroded by the LA Supreme Court (Medicaid, worker's comp payments) and tried to get out in front of it in the 2020 (maybe 2021) legislative session while they had Jon Bel as Governor to counter the whims of a Republican supermajority legislature. That's how we got the current collateral source compromise which is equal parts dumb and confusing.
However, I think this is where the Republican's apatite for actual "tort reform" will be tested, along with Jeff Landry's "conservative" bona-fides. My gut tells me there won't be as much movement on the collateral source rule as some strong tort reform advocates may want. I think Landry will try to quietly tiptoe around being put into a box to sign a full blown repudiation of the collateral source rule.
Posted on 3/13/24 at 11:28 am to Alt26
Getting rid of 42(7) venue and reversionary trust for future meds would be very helpful.
Posted on 3/13/24 at 11:31 am to The Johnny Lawrence
quote:
What if the doctor and the plaintiff's attorney are best friends. And the doctor gets 100% of his business from the plaintiff's attorney and his buddies. Hypothetically speaking, because the plaintiffs' bar in Louisiana is far too ethical for such practices, what if the doctor and the plaintiff's attorney reach an informal agreement where the doctor over charges for the treatment he provides with an understanding that the doctor will accept less after the case settles. That's the setup I'm saying isn't addressed in the current bills/law.
I see. I understand your issue now.
I would need to think about that. I guess currently there is an onus on the defense to hire its own medical experts to refute the cost. It’s certainly on them to hire medical experts to refute the plaintiff’s expert in terms of diagnoses, necessity of treatment and future medical outlook.
There are certainly “plaintiff’s” doctors just as there “defense” doctors. Doctors who will play ball with either side on a regular basis. I could rattle off a few names in this thread and all the BR area lawyers would know them and what side of things they are on.
This post was edited on 3/13/24 at 11:32 am
Posted on 3/13/24 at 11:34 am to SlowFlowPro
quote:
yes, a lot of these are utterly insane.
What took you so long?
Posted on 3/13/24 at 11:34 am to rmc
quote:
I would need to think about that. I guess currently there is an onus on the defense to hire its own medical experts to refute the cost
Under current jurisprudence, in the absence of outright fraud by the PLAINTIFF (not plaintiff's counsel) regarding medical treatment, if it is for a condition related to the tortious conduct, defendant has to pay for it, even if the charges are ridiculously unreasonable.
Posted on 3/13/24 at 11:38 am to mikeytig
quote:
What took you so long?
Getting attorney's fees for winning an early exception is insane, baw. It also won't do shite for MVA cases.
Posted on 3/13/24 at 11:49 am to udtiger
Yea. Fraudulent billing is only an issue if the plaintiff themselves is aware. As long as the plaintiff is in the dark, the attorney and the doctor can agree to whatever overcharging they want and the insurance company is on the hook for it.
Texas has "usual and customary," Louisiana does not.
Texas has "usual and customary," Louisiana does not.
Posted on 3/13/24 at 12:47 pm to The Johnny Lawrence
How do these proposed laws compare to states that do not have the giant tort mess that we have?
Posted on 3/13/24 at 1:14 pm to The Johnny Lawrence
The only way to neuter the climate across the country is damage caps. Other discovery wins through legislation can just be neutered by Plaintiff’s judges.
This post was edited on 3/13/24 at 1:15 pm
Posted on 3/13/24 at 3:34 pm to NIH
What is the best/easiest method to track these bills as they move forward?
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