1 Journal of Health & Biomedical Law, Vol. 11. No. 2 (2007): Journal of Health & Biomedical Law Suffolk Universioy Law School Differentiating Medical Malpractice and Personal Injury Claims in the Context of Statutory Protections: LaCoste v. Pendleton Methodist Hosp., L.L. C Felicia Scroggins* Many states have passed legislation to decrease the volume of medical malpractice lawsuits, and to protect the stability of the health care system.' Such legislation has not evolved without conflict as courts have struggled to distinguish medical malpractice claims from ordinary tort liability proceedings. 2 In LaCoste v. * Felicia Scroggins is a candidate for J.D., Suffolk University Law School, 2008; B.A. University of Texas at Austin, Ms. Scroggins may be reached at scrl I See Florence Yee, Note, Mandatogy Mediation: The Extra Dose Needed to Cure the Medical Maractice Crisis, 7 CARDoZo J. CONFLICT RESOL. 393, (2006) (describing alleged medical malpractice crisis and demonstrating repercussions to health care system); see also E. Scott Hackenberg, Comment, Puttering About in a Small Land: Louisiana Reised Statutes 9:5628 and Judicial Responses to the Plight of the Medical Maoractice llictim, 50 LA. L. REV. 815, (1990) (discussing problems associated with medical malpractice litigation); accord George L. Blum, Annotation, Medical Ma~oractice. Who are '"Health Care Providers," or the Like, Whose Actions Fall lfithin Statutes Specifically Governing Actions and Damages for Medical Malpractice, 12 A.L.R. 5TH 1 (2007) (characterizing medical malpractice crisis as resulting from frivolous malpractice actions and exorbitant damages). Many critics claim that there is a health care crisis because of rising health insurance premiums and increased litigation. See Kyle Miller, Note, Putting the Caps on Caps: Reconciling the Goal of Medical Maracice Reform with the Twin Objectives of Tort Law, 59 VAND. L. REV. 1457, (2006) (elucidating controversy over medical malpractice crisis). Legislators have attempted to devise legislation that satisfies the needs of patients, doctors, and insurance companies, such as: to ensure that insurance premiums be stabilized, to increase the quality of health care, and to assure that victims of negligence have a remedy. Miller, supra, at 1470 (considering arguments for and against reform). 2 See Holly Piehler Rock-well, Annotation, What Patient Claims Against Doctor, Hospital, or Similar Health Care Provider Are Not Subject to Statutes Specifical, Governing Actions and Damages for Medical Malpractice, 89 A.L.R. 4TH 887 (2007) (describing battle between plaintiffs and defendants in interpreting whether claims constitute medical malpractice). Intricate medical malpractice statutory provisions have lead to confusion and litigation, and there is little consistency among states because statutes are created by each state individually. See 2 STEVEN E, PEGALIS, Am. LAW
2 JOURNAL OF HEALTH & BIOMEDICAL LAW VOL. III NO. 2 Pendleton Methodist Hosp., LLC., 3 the Supreme Court of Louisiana addressed whether claims filed against a nursing home for allegedly negligent conduct during Hurricane Katrina constituted medical malpractice subject to regulation by the Louisiana Medical Malpractice Act ("the Act"). 4 The court held that the claims did not constitute medical malpractice and were not subject to regulation by the Act. 5 On August 28, 2005, during the midst of a hurricane, Althea LaCoste was admitted to Methodist Hospital suffering from pneumonia and requiring a ventilator. 6 Ms. LaCoste was not evacuated from the hospital during the storm, and she died at OF MED. IALPRACTICE 5 9:1 (3d ed. 2005) (exemplifying variations in statutory construction of medical malpractice among states). Medical malpractice victims must prove the same essential elements as required by negligence tort victims: a duty, breach of that duty, but-for causation, and proximate causation. See 70 C.J.S. Physicians and Sugeons 134 (2007) (summarizing elements and characteristics of medical malpractice). There are, however, other causes of action that may be raised in a medical malpractice action such as claims in contract and intentional tort. Id. A medical malpractice claim differs from an ordinary tort in that the plaintiff alleges that they have suffered injuries as a result of improper medical care or treatment by a licensed health care professional. See 40A AM. JUR. 2D Hospitals and Aluns 56 (2007) (observing attributes of medical malpractice claims). Statutory provisions have been passed in many jurisdictions to modify the common law medical malpractice requirements. See 61 AM. JUR. 2D Physidans, Surgeons, and Other Healers S 295 (2007) (according special importance to applicable medical malpractice statute for jurisdictional requirements) So. 2d 519 (La. 2007), re'g 947 So. 2d 150 (La. Ct. App. 2006), reh'g denied, (Nov. 2, 2007). 4 LaCoste, 966 So. 2d at 521 (reviewing plaintiffs' claims). The plaintiffs alleged that the defendants failed to take the proper measures to protect its patients during Hurricane Katrina, a catastrophic Category 4 hurricane that was one of the strongest hurricanes to hit the United States. See id.; see also Joseph B. Treaster & N.R. Kleinfield, Hurricane Katfina: The Oivniew; New Orleans is Intndated as Two Lerees Fail,; Mich of Golf Coast is Crippled; Toll Rises, N.Y. TIMES, Aug. 31, 2005, at Al (describing conditions in New Orleans during Hurricane Katrina and its residual effects). What made the disaster more devastating was the fact that the protective levees, built to keep floodwaters out, broke and caused water to seep into New Orleans. See Aaron Lucchetti et al., Katrina's I "ake: Stomi Leaves Gulf Coast Devastated-New Orleans Fights Floods After Breaks in Levees; High Deatl Toll Seen-'The Alagnitude is Untenable', WALL ST. J., Aug. 31, 2005, at Al (examining state of disaster in New Orleans following landfall of Hurricane Katrina). - LaCoste, 966 So. 2d at 525 (explaining daims asserted not within purview of Act because applicable factors not met). 6 Id. at 521. The Court of Appeal noted that the record did not indicate whether Ms. LaCoste was in the hospital to treat these illnesses or some other condition. LaCoste v. Pendleton Methodist Hosp., L.L.C., 947 So. 2d 150, 152 (La. Ct. App. 2006) (laying out facts on appeal), re,' d, 966 So. 2d 519 (La. 2007). The Court of Appeal took judicial notice of the fact that a mandatory evacuation order was not issued in New Orleans until 20 hours before Hurricane Katrina arrived, and that the mandatory evacuation order did not include hospital patients. Id. at 152, n.3.
3 2007 JOURNAL OF HEALTH & BIOMEDICAL LAW Methodist Hospital after the power went out and the emergency generators failed. 7 Ms. LaCoste's family brought wrongful death claims against Pendleton Methodist Hospital, L.L.C. ("Pendleton") and Universal Health Services, Inc., alleging that the defendants engaged in negligent and intentional conduct. 8 The plaintiffs' complaint alleged that the defendants: designed, constructed, or maintained a facility without adequate backup emergency power to sustain ventilators; designed, constructed, and maintained a facility that could not retain storm floodwaters; failed to create an emergency evacuation plan; failed to maintain a facility for the transfer of patients in an emergency; and failed to create a plan for the transfer of patients in an emergency. 9 After the plaintiffs filed a petition for damages, Pendleton brought a dilatory exception alleging that the plaintiffs' claims were premature because they constituted medical malpractice under the Act. 10 The district court found that the plaintiffs' claims did not fall within the Act because they related to the design and accommodations of the hospital as opposed to a failure to provide medical treatment." The Louisiana Court of Appeal reversed the District I Id at 152 (describing conditions surrounding Ms. LaCoste's stay at Methodist Hospital). The Court of Appeal took judicial notice of the fact that the power went out in the city where Methodist Hospital was located, and that many patients were evacuated from the hospital after the storm. Id. 8 LaCoste, 966 So. 2d at (laying out plaintiffs' claims). The plaintiffs did not add Universal Health Services, Inc. as a defendant or assert the last two counts of negligence until May 8, Id. 9 Id. The Court of Appeal recognized that the plaintiffs alleged that Ms. LaCoste's ventilator became inoperable when the power went out which supposedly caused her death. Id. at o LaCoste, 966 So. 2d at 522 (describing procedural history); see LA. CODE CIV. PRoC. ANN. art. 926 (2007) (setting forth bases for dilatory exception). Pendleton alleged that the Act compelled the plaintiffs to submit their claims to a medical review panel as a precursor to asserting a petition for damages. LaCoste, 966 So. 2d at 522; see LA. REV. STAT. ANN. 40: (B)(1)(a)(i) (2006). Louisiana's Civil Code cites eight objections that may be made through a dilatory exception. See LA. CIv. CODE ANN. art. 926 (2007); see also 1 FRANK L. MARAIST, LA. CIVIL LAW TREATISE, CIVIL PROCEDURE 6.6 (2006) (explaining elements of dilatory exception and instances where appropriate). The Act provides that a claim is subject to dismissal pursuant to a dilatory exception if litigation is initiated before review of the claim by a medical review panel. See LA. REV. STAT. ANN. 40: (a) (2006) (declaring medical malpractice review panel requirement); see also Spradlin v. Acadia-St. Landry Med. Found., 758 So. 2d 116, 119 (La. 2000) (establishing claim premature under Act if not heard by medical review panel). The burden of proof is on the party asserting the prematurity exception. Williamson v. Hosp. Serv. Dist. No. 1 of Jefferson d/b/a West Jefferson Med. Ctr., 888 So. 2d 782, 785 (La. 2004) (explaining procedural requirements for dilatory exception); Blakely v. Powers, 590 So. 2d 1286, 1290 (La. Ct. App. 1991) (stating standard requires review of all facts asserted at trial). It is important to note that if a dilatory exception is allowed then the claim will be dismissed, but a respondent is not precluded from bringing the claim again when it ripens. Maraist, supra, at 6.6 (articulating procedure for bringing dilatory exception). " LaCoste, 966 So. 2d at 522. After the District Court made a ruling, the case was reviewed by
4 JOURNAL OF HEALTH & BIOMEDICAL LAW VOL. III NO. 2 Court, and the Supreme Court of Louisiana granted the plaintiffs' request for review. 12 Medical malpractice legislation generally creates favorable protections for health care providers and/or practitioners.1 3 For example, many medical malpractice statutes shorten the statute of limitations for filing a claim; require that a medical malpractice hearing be completed before commencement of litigation; and provide for a statutory cap on plaintiffs' damages. 1 4 Applicability of medical malpractice statutes depend on the the Louisiana Division of Administrators that administers the Louisiana Patient Compensation Fund (PCF). LaCoste, 947 So. 2d at (La. Ct. App. 2006). Upon review of the claim by the PCF, it was established that the claims were not within the ambit of the Act. LaCoste, 966 So. 2d at 522. As a result of its findings, the PCF intervened as a party in favor of the plaintiffs. Id. The Court of Appeal recognized that the plaintiffs acted appropriately when they filed suit in trial court before seeking a medical review panel. See LaCoste, 947 So. 2d at 153. Referencing LeBreton r. Rabito, the court explained that the claim against a health care provider is not necessarily destroyed if filed prior to hearing by a medical review panel. See LeBreton v. Rabito, 714 So. 2d 1226, (La. 1998); see also LaCoste, 947 So. 2d at 153 (stating fling of claim prematurely does not interrupt claim). 12 LaCoste, 966 So. 2d at (explaining procedural history). The Court of Appeal reasoned that the claims were medical malpractice because the underlying claims dealt with the hospital's adequacy in rendering patient care and treatment. LaCoste, 947 So. 2d at (emphasizing claims were medical malpractice within Act's scope). Specifically, the court found that the complaint was framed to avoid inclusion within the Act, and that the allegations of negligence all related back to the care and treatment of the patient. Id. The plaintiffs appealed the judgment of the Court of Appeal by filing a writ of certiorari with the Louisiana Supreme Court. LaCoste r. Pendleton Methodist Hosp., LL C, 948 So. 2d 184, 185 (La. 2007). 13 See Franklin D. Clecklev & Govind Hariharan, A Free Market Inalsis of the Effects of Medical Mapractice Damage Cap Statutes: Can 11 e Afford to Lire W1-ith Inefficient Doctors?, 94 X.VA. L. REV. 11, (1991) (summarizing circumstances leading up to medical malpractice reform). Medical malpractice reform began in the 1970's in response to concerns that medical malpractice litigation was the cause of escalating insurance costs. See id.; see also Rockwell, supra note 2 (describing perceived medical malpractice crisis and resulting statutory reform). Insurance costs continued to skyrocket in the 1980's and 90's which perpetuated medical malpractice reform in a large number of the states. See Clecklev & Hariharan, supra, at (evaluating reasons for medical malpractice legislation). 14 See Blum, supra note 1 (describing medical malpractice legislation); see also Rockvell, sapra note 2 (explaining steps taken by various states to limit adverse effects of medical malpractice). Medical review panels have been established to filter out frivolous claims and encourage settlements. See 2 STEVEN E. PEGALIS, AM. LA\v MEDICAL \LRLPRkCTICE \ 9:4 (3d. ed. 2007) (offering opinion for implementation of medical review panels); see also Everett v. Goldman, 359 So. 2d 1256, 1267 (La. 1978) (describing purpose and constitutionality of medical review panels). States differ in the methods used to limit damages, but some tactics include creating a ceiling on recovery or limiting health care providers' liability. See 2 STEVEN E. PEGAIS, A M. LXW MEDICAL MALPRACTICE 9:3 (3d ed. 2007) (showing differences among jurisdictions in limiting damages). Additional medical malpractice reform measures include provisions that prevent minors from asserting medical malpractice claims, modifi joint and several liability, create excess insurance
5 2007 JOURNAL OF HEALTH & BIOMEDICAL LAW characterization of the claim and the nature of the involvement of the defendant.1 5 Many health care providers seek to pull plaintiffs' claims within the context of medical malpractice statutes to take advantage of statutory protections. 16 funds, abolish addendum clauses, limit contingency fees, and require periodic payment of large verdicts. See Cleckey & Hariharan, supra note 13, at (evaluating effectiveness of various reform measures). Plaintiffs have asserted that some limitations on medical malpractice litigation may be unconstitutional, but these efforts have generally been unsuccessful. See Laura Hunter Dietz, et al., 61 AM. JUR. 2D Physidans, Surgeons, and Other Healers 346 (2007) (observing plaintiffs' arguments regarding unconstitutionality of medical panel requirement generally unsuccessful); see also Ronald B. Keiser, Comment, "Does This Hurt?" Constitutional Challenges of Damage Caps and the Review Panel Process in Medical Maoractice Actions in Louisiana, 51 LA. L. REV. 1233, 1233 (1991) (discussing constitutional concerns of statutory caps and medical review panels); 16C C.J.S. Constitutional Law (2007) (summarizing instances where medical malpractice statutes held unconstitutional). An Illinois court, however, found that the medical panel requirement was unconstitutional because the State Constitution required that all rulings of law be made by judges, and members of the medical review panels included physicians and lawyers. Wright v. Central Du Page Hosp. Assoc., 347 N.E.2d 736, (Ill. 1976) (discussing constitutionality of medical malpractice statutory provisions). The court also held that limiting damages to $500,000 was an arbitrary limitation on judgments that was constitutionally impermissible. See id. at 743 (reviewing damages limitations provisions); see also Kristine Cordier Karnezis, Annotation, Vaidily and Construction of State Statutogy Provisions Relating to Limitations on Amount of Recovery in Medical Maractice Claim and Submission of Such Claim to Pretrial Panel, 80 A.L.R.3D 583 (1977) (analyzing constitutionality of medical malpractice statutory provisions). There have also been numerous attacks on medical malpractice minority provisions which prevent underage individuals from bringing suit after a specific length of time, regardless of the age of discovery. See Natalie H. Mantell, Note, Limitations on a Minor's Right to Sue for Medical Maoractic. A Constitutional Analysis, 10 SUFFOLK J. TRIAL & App. ADvoc. 97, (2005) (analyzing arguments regarding constitutionality of minority statutes). '5 See 70 C.J.S. Physidans and Surgeons 134 (2007) (explaining general characteristics of medical malpractice); see also Bryant v. Oakpointe Villa Nursing Ctr., 684 N.W.2d 864, 871 (Mich. 2004) (elucidating questions must ask to determine whether medical malpractice or general negligence). To evaluate whether a claim is medical malpractice as opposed to general negligence, the court must consider whether the alleged negligence occurred in the context of a professional relationship, and whether the claim involves a question of medical judgment. Bryant v. Oakpointe Villa Nursing Ctr., 684 N.W.2d 864, 871 (Mich. 2004) (laying out requirements for medical malpractice). Next, courts must interpret statutory language to ascertain whether the claims are categorized as medical malpractice and subject to legislative requirements. See Rockwell, supra note 2 (highlighting judiciary's role in ascertaining characterization of medical malpractice claims). In most jurisdictions, the characterization as medical malpractice often depends on the type of claim brought. See Rockwell, supra note 2 (establishing factors for distinguishing medical malpractice claims from tort claims). 16 See Blum, supra note 1 (acknowledging courts often required to interpret medical malpractice statutes); see also Rockwell, supra note 2 (highlighting incentives of defendants to pull claim within context of medical malpractice statutes). Most statutes, however, specifically identify, categories of health care providers that are entitled to legislative protection. See Blum, supra note 1
6 JOURNAL OF HEALTH & BIOMEDICAL LAW VOL. III NO. 2 The Louisiana legislature passed the Act in 1975 to regulate medical malpractice claims in an attempt to reduce insurance rates. l " The Act protects qualified "health care providers" in "malpractice" actions as defined by the Act.l8 The Act created a statutory cap on damages, mandated that claims be submitted to a medical review panel prior to litigation, and imposed a strict statute of limitations. 19 Louisiana courts have made it clear that the Act is only applicable to medical malpractice claims, and that all other claims (analyzing types of entities given statutory protection from medical malpractice litigation). "7 See William P. Wynne, Casenote, In Re Medical Review Pand for the Claim of Maria Moses: The Supreme Court Parts a Sea of Red Questions-the Doctrine of Continued Tort Applied to Medical Malpractice Claims, 47 Loy. L. REv. 1605, 1605 (2001) (explaining origins of Louisiana medical malpractice legislation); see also LA. REVN. STAT. ANN. 9:5628 (2001) (developing statute of limitations); LA. REV. STAT. ANN. 40: (2006) (defining statutory terms); LA. REV. STAT. ANN. 40: (2001) (creating damages limitations); LA. REV. STAT. ANN. 40: (2004) (ascertaining damages for future medical care); LA. REv. STAT. ANN. 40: (2007) (creating and regulating Patient's Compensation Fund); LA. RENT. STAT. ANN. 5 40: (2004) (requiring health care providers have malpractice coverage); LA. REV. STAT. ANN. 40: (2001) (allowing malpractice coverage for qualified risks); Lx. REV. STAT. ANN. 40: (2006) (requiring medical panel review); LA. RENT. STAT. ANN. 40: (2001) (imposing duty to report claims); L-,. RENT. STAT. ANN. 5 40: (2004) (implementing standards for medical review panel when brought against both state and private providers); Sewell v. Doctors Hosp., 600 So. 2d 577, 578 (La. 1992) (characterizing purpose of legislature as attempt to reduce insurance costs); accordspradlin v. Acadia-St. Landry Med. Found., 758 So. 2d 116, 120 (La. 2000) (stating Medical Malpractice Act adopted in 1975 in response to perceived medical malpractice crisis). 1' See Lx. REV. STAT. ANN. 40: (A)(1),(8) (2006) (defining "health care provider" and "malpractice"). The Act specifically indicates what types of health care professionals or entities may be categorized as "health care providers" under the Act. See LAk. REv. STAT. ANN. 40: (A)(1) (2006) (allowing categorization of specific entities as qualified health care providers). In addition to fitting one of the categories listed by the statute, a health care provider must comply with additional requirements such as proper filing and enrollment in malpractice insurance. See LA. REv. STAT. ANN. 40: (2004) (imposing requirements upon qualified health care providers). 19 See Lk. REv. STAT. ANN. 40: (2001) (limiting damage awards in medical malpractice actions against qualified health care providers); see also LA. RE\. STAT. ANN. 5 40: (2006) (providing for medical malpractice review panel); id. LA. RE'. STAT. ANN. 9:5628 (2001) (imposing statute of limitations on medical malpractice actions). Additionally, Louisiana enacted a Patient Compensation Fund used to pay for medical malpractice judgments that exceed the statutory maximum limit. See L.. REv. STAT. ANN. 40: (2007) (creating patient's compensation fund using funds from qualified health care providers); see also Ruben James Reyes, Comment, Capping Your Rights. The Texas Statute of Non-Economic Damage Caps In MledicalMalpractice Cases and its Assault on the Rights of the Inured and the Power of the Courts, 6 SCHOLAR 347, 367 (2004) (defining patient's compensation fund and recommending use in Texas).
7 2007 JOURNAL OF HEALTH & BIOMEDICAL LAW are governed by general tort law. 2 0 Medical malpractice is defined by the Act as: 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, including failure to render services timely and the handling of a patient, including loading and unloading of a patient, and also includes all legal responsibility of a health care provider arising from acts or omissions during the procurement of blood or blood components, in the training or supervision of health care providers, or 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. 21 Many Louisiana courts have struggled to distinguish medical malpractice from personal injury claims despite legislative guidance. 22 The Act does provide a definition of medical malpractice, but fails to entertain how to distinguish medical malpractice 20 See Sewell v. Doctors Hosp., 600 So. 2d 577, 579 (La. 1992) (finding Act applicable only to malpractice claims); accord Blevins v. Hamilton Med. Ctr., Inc. d/b/a Southwest Med. Ctr.- Lafayette, 959 So. 2d 440, 445 (La. 2007) (applying malpractice statutes only to claims of medical malpractice); see also Williamson v. Hosp. Serv. Dist. No. 1 of Jefferson d/b/a West Jefferson Med. Ctr., 888 So. 2d 782, 786 (La. 2004) (emphasizing Act only applicable to medical malpractice claims); Spradlin v. Acadia-St. Landry Med. Found., 758 So. 2d 116, 120 (La. 2000) (laying out provisions of Act as medical malpractice statute). 21 LA. REv. STAT. ANN. S 40: (A)(8) (2006) (defining key statutory term). Other important statutory definitions include the term "health care provider" and "tort". See id. 5 40: (A) (1),(7) (2006) (implementing definitions of tort and health care provider); see also id. S 40: (A)(1) (categorizing entities as qualified health care providers); supra text accompanying note 18 (laying out statutory requirements for creation of qualified health care providers). 22 See 1 RUSS HERMAN, LA. PRACTICE PERS. INJURY 5 4:294 (2007) (stating definition malpractice ambiguous requiting court intervention); see also Rockwell, supra note 2 (exemplifying difficulties interpreting various medical malpractice statutes). Many courts have attempted to construe the Act through basic statutory interpretation. See, e.g., Coleman v. Deno, 832 So. 2d 303, (La. 2002) (construing malpractice within Act's definition and imposing six factors courts must consider when interpreting Act); Spradlin v. Acadia-St. Landry Med. Found., 758 So. 2d 116, 120 (La. 2000) (analyzing whether wrongful claims against hospital for "patient dumping" fell within Act's provisions); Hutchinson v. Patel, 637 So. 2d 415, 419 (La. 1994) (hearing arguments whether medical malpractice in context of psychiatrist's duty to warn). Courts have construed ambiguities against coverage, because the Act is a derogation of tort victims' rights. Williamson v. Hosp. Serv. Dist No. 1 of Jefferson d/b/a West Jefferson Med. Ctr., 888 So. 2d 782, 788 (La. 2004) (according deference to victims when ambiguities arise); accord Muse v. Lane Mem'l Hosp. Found., 916 So. 2d 231 (La. Ct. App. 2005) (emphasizing need to construe ambiguities in victim's favor).
8 JOURNAL OF HEALTH & BIOMEDICAL LAW VOL. 11I NO. 2 claims from those in tort. 23 In light of interpretation difficulties, the Supreme Court of Louisiana developed the Coleman factors to ascertain whether a claim constitutes medical malpractice. 2 4 Applicability of the Act depends on the characterization of the following factors: whether the alleged negligent act was "treatment related"; whether the case requires expert medical testimony and analysis; whether the alleged negligent act necessitated evaluation of the patient's condition; whether the alleged negligence occurred in the context of a doctor-patient relationship; whether the alleged injury would have occurred had there not been treatment; and whether the alleged negligence was an intentional act. 2 5 Even after the development of the Coleman factors, courts have continued to have trouble distinguishing medical malpractice claims from general negligence and no court has indicated the weight to be applied to each factor. 26 In the present case, the court affirmed the district court's decision that the plaintiffs' claims were not medical malpractice subject to regulation by the Act. 27 Applying the Coleman factors, the court reasoned that the plaintiffs' claims dealt with 23 See LA. REV. STAT. ANN. 40: (2006) (defining "malpractice" within meaning of Act). 24 See Coleman v. Deno, 813 So. 2d 303, (La. 2002) (developing standard for ascertaining applicability of Act). These factors are only applicable when construing the application of the Act to tort claims. See Muse v. Lane Mem'l Hosp. Found., 916 So. 2d 231, 237 (La. Ct. App. 2005) (indicating Coleman factors not applicable to medical malpractice claims in contract). 25 Coleman v. Deno, 813 So. 2d 303, (La. 2002) (choosing six factors as standard for ascertaining whether medical malpractice). The Coleman court developed the six factors from the Sewell case and an American Law Report. Id.; Sewell v. Doctors Hospital, 600 So. 2d 577, 579 n.3 (La. 1992) (setting forth several factors considered by other states); Rockwell, supra note 2 (describing factors considered in analyzing whether medical malpractice claim). In Coleman, the court struggled over the applicability of the Act to a claim within the context of "patient dumping" legislation. Coleman v. Deno, 813 So. 2d 303, (La. 2002) (analyzing applicability of Act to "'patient dumping" claims). After devising and applying a new medical malpractice standard, the court concluded that the claim was medical malpractice as defined by the Act. Id at In two partially dissenting opinions, however, Justice Johnson and Justice Knoll concluded that the nature of "patient dumping" legislation lead to the inescapable conclusion that these kinds of claims were considered intentional torts which are not within the bounds of the Act. Id. at See, e.g., Blevins v. Hamilton Med. Ctr., Inc. d/b/a Southwest Med. Ctr. - Lafayette, 959 So. 2d 440, (La. 2007) (demonstrating contrasting application of Coleman factors in majority and dissenting opinions); Bickham v. Inphynet, Inc., 899 So. 2d 15, (La. Ct. App. 2004) (summarizing alternate result in dissenting opinion when applying Coleman factors); Jordan v. Stonebridge, L.L.C., 862 So. 2d 181, (La. Ct. App. 2003) (indicating varying results in majority and dissent when applying Coleman factors). It is ultimately within the court's discretion to determine whether the claim falls within the purview of the Act. See Blevins v. Hamilton Med. Ctr., Inc., d/b/a Southwest Med. Ctr. - Lafayette, 959 So. 2d 440, 444 (La. 2007) (dismissing argument medical review panel decides whether medical malpractice). 27 LaCoste, 966 So. 2d at 529.
9 2007 JOURNAL OF HEALTH & BIOMEDICAL LAW issues of premises liability, not a failure to render appropriate medical treatment. 28 The court also concluded that expert testimony was not necessary to establish the plaintiffs' claims. 2 9 It was asserted that any decisions affecting Ms. LaCoste were made by engineers and administrators, and the decisions were not closely related to any specific wrongful medical acts. 30 In a dissenting opinion, Justice Knoll concluded that the claims were within the bounds of the Act because Ms. LaCoste died from the illness for which she was admitted resulting from errors in judgment by licensed medical professionals. 31 Justice Knoll concluded that the claims were treatment related and in the context of a physician-patient relationship because Ms. LaCoste's underlying claim was for failure of her ventilation system. 32 Contrary to the majority, Justice Knoll concluded that expert medical testimony was required to establish whether it was necessary or feasible to transfer Ms. LaCoste, the cause of Ms. LaCoste's injuries, and the breach of the standard care. 33 Justice Knoll stated that plaintiffs' allegations originated from a failure to 28 Id. at (reasoning allegations involved premises liability because not citing "dereliction of professional medical skill"). The court pointed out that the language used in the plaintiffs' complaint sounded in general negligence. Id. at 526 (citing language "designing. constructing.. maintaining. failing to implement'); see supra text accompanying note 15 (discussing how courts have differentiated between medical malpractice and general negligence). 29 LaCoste, 966 So. 2d at (declaring expert testimony not necessary for establishing liability). Although it was found that expert testimony may be necessary to establish causation, the court stated that expert testimony was not necessary to establish any wrongful conduct. Id. In support of its findings, the court emphasized that the plaintiffs had not alleged any failure to render proper medical care. Id. at See id. at Supporting the third factor, whether the pertinent act or omission involved an assessment of Ms. LaCoste's condition, the court reasoned that the plaintiffs' asserted errors in judgment by engineers and administrators as opposed to medical staff. See LaCoste, 566 So. 2d at Any information that was to be obtained dealt with how to equip the hospital in case of a hurricane, and not whether the patients should have been admitted to the hospital. Id. at 528. In support of the fourth Coleman factor, the court explained that plaintiffs' allegations did not point to wrongdoing in the context of a physician-patient relationship because the claims referenced decisions outside of the scope of the patient-physician scheme. See id. Alluding that it was overly broad, the court grazed over the fifth Coleman factor. See id at Whether the alleged tort was intentional was not considered, because there was no argument that the claim dealt with an unintentional tort. See LaCoste, 566 So. 2d at See id at (Knoll, J., dissenting). 32 Id at 530. Justice Knoll goes on to say that the majority decision oversimplified plaintiffs' claims and read them "in a vacuum." Id. at 530. To support the conclusion that the negligence occurred as a result of a physician-patient relationship, Justice Knoll emphasized that it was the role of medical professionals to admit, transfer, or discharge patients. LaCoste, 966 So. 2d at 532 (Knoll, J., dissenting). 33 Id at 531. justice Knoll agreed with the defendant's arguments that emergency preparedness
10 JOURNAL OF HEALTH & BIOMEDICAL LAW VOL. III NO. 2 appropriately assess Ms. LaCoste's ventilation needs and that the injuries were directly associated with the condition for which Ms. LaCoste sought treatment. 34 The present case exemplifies difficulties that have arisen from ambiguities in medical malpractice statutes. 35 Even though the court found that the case was not within the bounds of the Act, it appeared to struggle over how to support its conclusion 36 In applying the Coleman factors, the court was forced to graze over some issues to bring forth the final result. 37 Particularly alarming was the fact that the court ignored the fifth factor of the Coleman test because it did not fit within its final position.38 factor. 39 The court appeared confused as to what weight to put on each Coleman It was a very close call whether the claims in this case constituted medical malpractice. 40 The majority and dissent both used the Coleman factors in their favor, demonstrating that the Act and the Coleman factors may be used to support either position. 41 The dissent weakens the strength of the majority opinion, because it brings to light the fact that the claims may be viewed in an alternate way to fit within the in the field of medicine is unique from emergency preparedness in other fields. Id 34 Id. at The dissenting opinion asserted that this scenario was the inverse of Coleman v. Deno, in that it was a failure to transfer as opposed to a wrongful transfer. See LaCoste, 966 So. 2d at See LaCoste, 966 So. 2d at (showing divergent views in applicability of Act to wrongful death claim); see also Rockwell, supra note 2 (entertaining difficulties in variety of states in interpretation of medical malpractice statutes). 36 See LaCoste, 966 So. 2d at (applying Coleman factors to current claims); see also spra text accompanying note 30 (indicating difficult, applying Coleman factors). 31 See LaCoste, 966 So. 2d at (showing inability to apply fifth factor to present claims); see also supra text accompanying notes (discussing how majority applied Coleman factors). 38 See LaCoste, 966 So. 2d at 529 (ignoring fifth factor because allegedly overly broad); see also supra text accompanying note 30 (discussing majority's inability to apply fifth factor). 39 See LaCoste, 966 So. 2d at (attempting to apply Coleman factors); see also supra text accompanying notes 24-26, (observing development of Coleman factors and application of factors to present case). 411 See LaCoste, 966 So. 2d at (concluding claims were not within scope of Act); see also supra text accompanying notes (evaluating how majority concluded claims were within bounds of Act). But see LaCoste, 966 So. 2d at (deciding not within purview of Act because inapplicability of Coleman factors); see also supra text accompanying notes (laying out how dissenting justice applied Coleman factors). 41 See LaCoste, 966 So. 2d at (applying Coleman factors in favor of applicability of Act); see also supra text accompanying notes (noting majority opinion's method in applying Act). But see LaCoste, 966 So. 2d at (determining Act not applicable to present claims); see also supra text accompanying notes (discussing dissenting opinion's analysis of claims).
11 2007 JOURNAL OF HEALTH & BIOMEDICAL LAW 371 purview of the Act. 42 The majority opinion loses much of its muster when compared with the dissenting opinion, and because of this will likely not carry very much weight. 43 The struggle in the present case indicates that the Act should be amended or that a better test should be devised. 44 If the Coleman test is not modified, claimants may succeed in the future by framing their arguments to avoid application of the Act when the underlying issues really constitute medical malpractice. 45 The present case is proof of the rigidity and broadness of the Coleman factors, and indicates the need to come up with a stronger standard See LaCoste, 966 So. 2d at (bringing forth several valid arguments against application of Act); see also supra text accompanying notes (considering arguments of dissenting opinion). 13 Compare LaCoste, 966 So. 2d at (finding claims not within purview of Act), with LaCoste, 966 So. 2d at (opining majority opinion in error in determining claims within Act); compare supra text accompanying notes (analyzing arguments put forth by majority opinion), with supra text accompanying notes (comparing dissenting opinion with arguments laid out by majority). 4See LaCoste, 966 So. 2d at (indicating disharmony in how to apply Coleman factors); see also supra text accompanying notes (perceiving struggle in proper analysis of applicability of Act). 45 See, e.g., Blevins v. Hamilton Med. Ctr., Inc. d/b/a Southwest Med. Ctr. - Lafayette, 959 So. 2d 440, (La. 2007) (diverging in opinion on applicability of Coleman factors); Bickham v. Inphynet, Inc., 899 So. 2d 15, (La. Ct. App. 2004) (analyzing Coleman factors differently among majority and dissenting opinions); Jordan v. Stonebridge, L.L.C., 862 So. 2d 181, (La. Ct. App. 2003) (showing disharmony among majority and dissenting opinions); see Coleman v. Deno, 813 So. 2d 303, (La. 2002) (struggling to define proper test for applicability of Act); see also LaCoste, 966 So. 2d at (indicating opposite opinions of applicabiity of Coleman factors between majority and dissenting opinions); see also supra text accompanying note 15, (recognizing context of development of Coleman factors). 4", See LaCoste, 966 So. 2d at (attempting to evaluate claims in light of Coleman factors); see also Coleman v. Deno, 813 So. 2d 303, (La. 2002) (developing factors to aid inquiry as to relevance of Act); supra text accompanying notes 22-26, (considering various arguments evaluated in support and against application of Act).