Jane Doe v. Univ. Healthcare Sys., L.L.C.

Decision Date28 July 2014
Docket Number2013–CA–1459,2013–CA–1458,Nos. 2013–CA–1457,2013–CA–1466.,2013–CA–1461,2013–CA–1465,2013–CA–1464,2013–CA–1463,2013–CA–1462,2013–CA–1460,s. 2013–CA–1457
Citation145 So.3d 557
PartiesJohn DOE and Jane Doe v. UNIVERSITY HEALTHCARE SYSTEMS, L.L.C., d/b/a Tulane University Medical Center and Clinic and Indemnity Clinic. Jane Doe, Anne Doe and Mary Doe, individually and on behalf of all others similarly situated v. University Healthcare System, L.L.C. d/b/a Tulane University Medical Center and Clinic. Elaine Doe v. University Healthcare System, L.L.C. d/b/a Tulane University Medical Center and Indemnity Clinic. Robert Doe and Betty Doe v. University Healthcare System, L.L.C. d/b/a Tulane University Hospital and Clinic and Tulane Medical Center and Healthcare Indemnity, Inc. John Smith v. University Healthcare System, L.L.C. d/b/a Tulane University Hospital and Clinic and Healthcare Indemnity, Inc. Jane Doe v. University Healthcare System, L.L.C. d/b/a Tulane University Hospital and Clinic and Healthcare Indemnity, Inc. Jane Doe, individually and on behalf of all others similarly situated v. University Healthcare System, L.L.C. d/b/a Tulane University Medical Center and Clinic and Healthcare Indemnity, Inc. Anthony Jones, Jr. v. University Healthcare System, L.L.C. d/b/a Tulane University Medical Center and Clinic and Indemnity Clinic. Carol Domio, individually and on behalf of the estate of her husband, Clifford Domio v. University Healthcare System, L.L.C., d/b/a Tulane University Medical Center and Clinic, and Indemnity Clinic. Dianne R. Stewart, individually and on behalf of the Estate of Norman Stewart v. University Healthcare System, L.L.C. d/b/a Tulane University Medical Center and Clinic, and Indemnity Clinic.
CourtCourt of Appeal of Louisiana — District of US

OPINION TEXT STARTS HERE

Ron A. Austin, Austin & Associates, L.L.C., Harvey, LA, Joseph M. Bruno, Bruno & Bruno, Kara Hadican Samuels, Sangisetty & Samuels, LLC, Anthony D. Irpino, Irpino Law Firm, New Orleans, LA, for Plaintiffs/Appellants.

Byron D. Kitchens, Charles H. Abbott, Ryan C. Wallis, Cotton Schmidt & Abbott, L.L.P., New Orleans, LA, Lee M. Hollis (Pro Hac Vice), M. Christian King (Pro Hac Vice), Lightfoot, Franklin & White, LLC, Birmingham, AL, for General Electric.

Peter E. Sperling, Nairda T. Colon, James P. Waldron, Frilot L.L.C., New Orleans, LA, for University Healthcare System, L.C. d/b/a Tulane University Hospital and Clinic.

(Court composed of Judge MAX N. TOBIAS, JR., Judge ROLAND L. BELSOME, Judge ROSEMARY LEDET).

MAX N. TOBIAS, JR., Judge.

In this consolidated action, the plaintiffs 1 appeal the judgment of the trial court rendered in favor of the defendants, University Healthcare System, LC. d/b/a Tulane University Hospital and Clinic (“Tulane”) and General Electric Company (“GE”), denying the plaintiffs' motion for class certification on the ground that the plaintiffs failed to carry their burden of proving that class certification, under La. C.C.P. art. 591 et seq., is the proper procedural vehicle for maintaining this action. Finding no manifest error or abuse of discretion by the trial court, for the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

This proposed class action involves claims against the defendants, Tulane and GE, for their alleged negligent failure to properly calibrate Tulane's automated endoscope reprocessors (“AERs”) to the requisite sterilization temperature, exposing numerous hospital and clinic patients to the possibility of contracting infectious diseases. The plaintiffs assert claims pursuant to La. C.C. arts. 2315 and 2316 seeking compensation for injuries and damages due to the negligent infliction of emotional distress associated with their purported exposure to infectious disease.2 Additionally, the plaintiffs seek relief under La. C.C. art. 2317 on the ground that, at all times pertinent, Tulane and/or GE had custody, control, or garde of the AERs that purportedly caused their alleged damages.

The facts are largely undisputed. Between 7 October 2010 and 1 December 2010, the plaintiffs presented to Tulane and underwent various endoscopic procedures, including bronchoscopies, colonoscopies, sigmoidoscopies, gastroscopies, and other upper endoscopies of the stomach. These endoscopis procedures require utilization of a medical device known as an endoscope, which is a tubular instrument used to examine the interior surfaces of an organ or tissue. Because endoscopes enter body cavities and are repeatedly reused, the United States Center for Disease Control (“CDC”) mandates that they be subjected to high-level disinfection 3 using chemical disinfectants.

Tulane utilizes two Medivator DSD–201D AERs, referred to as Units “49” and “50,” manufactured by Minntech Corporation, which the hospital purchased on 16 June 2009 and installed in August 2009. Tulane entered into a “Services Agreement” with GE, under which GE was responsible for providing maintenance and repair services for clinical equipment at the hospital, including the two AERs Tulane purchased in June.

At all pertinent times, Tulane had in effect a policy regarding the “reprocessing” or sterilization of the Medivator AERs. The standard cleaning process for endoscopes involves a five-step process, with each step designed to thoroughly clean the endoscope. The last step involves soaking the endoscope inside the AER in a high level disinfectant solution for a specified period of time within a certain temperature range. Initially, Tulane programmed the endoscopic equipment to operate with a high-level disinfectant solution called Cidex OPA(“Cidex”). Pursuant to Minntech's instruction manual, high-level disinfection for the AER, when utilizing Cidex, is achieved upon five minutes of contact at 25°C (77°F). Tulane's internal policies and procedures require the reservoir temperature on the AERs to be set to at least 3°C higher than the disinfectant manufacturer's recommendations. Accordingly, when using Cidex, Tulane's AERs were required to be set at 28°C to properly perform disinfection.

On 7 October 2010, a GE employee, Thomas Steel, performed repairs to Unit 50, and was asked by a Tulane employee to change the high-level disinfectant in the endoscopic device from Cidex to a solution called Rapicide ™. While the solution was changed as requested, the reservoir temperature on the AER remained unchanged at 28°C. Subsequently, on 26 October 2010, Mr. Steel performed repairs on the second AER, Unit 49, and, at the direction of Tulane, also switched the high-level disinfectant in Unit 49 from Cidex to Rapicide without making any changes to the reservoir temperature. In November 2010, Tulane personnel replaced the Rapicide solution in both Units 49 and 50, without changing the reservoir temperature settings.

The manufacturer of Rapicide instructs that high-level disinfection occurs upon five minutes contact at 35°C (95°F), which is seven degrees higher than the recommended reservoir temperature for Cidex. Moreover, pursuant to Tulane's policies and procedures, Units 49 and 50 should have been set to reprocess the endoscopes three degrees higher than the manufacturer's recommendations, or at 38°C. The error in the reservoir temperature settings was discovered on 1 December 2010 by Joanne Harbaugh, the interim manager for Tulane's endoscopy department, at which time both AERs were immediately adjusted to sterilize the endoscopic equipment at the appropriate temperature, 38°C, in accordance with Tulane's policies and procedures.

On or about 3 January 2011, Tulane sent certified letters to approximately 366 patients who had undergone some type of endoscopic test at its facility between 7 October and 1 December 2010, and where scopes that were reprocessed with Rapicide at the lower temperature were utilized. The letter stated, in pertinent part:

Tulane Medical Center routinely follows a five-step procedure in processing endoscopes for use. Recently, during a routine maintenance inspection, we found that one of several steps used in disinfecting endoscopes for procedures conducted between October 7 and December 1, 2010 at our downtown facility was not being performed at the appropriate temperature as recommended by the manufacturer....

The letter further advised that, according to the Louisiana Department of Health's Infectious Disease Epidemiology Section and other leading authorities on infection control standards, the potential risk of exposure to infection was “minimal to non-existent.” Additionally, in order to reassure those patients whose procedures were impacted, the letter offered free screening for hepatitis B, hepatitis C, and HIV, as well as free post-test counseling and follow up.4

According to testimony in the record, some of the affected patients were actually notified of the temperature discrepancy by telephone and not as a result of reading the 3 January 2011 letter. Additionally, Tulane sent out subsequent letters at later dates to some of the patients. The record evidence indicates that some of the affected patients spoke to various Tulane employees both in person and by telephone after the letters were mailed. Moreover, evidence is present showing that some of the patients sought advice and screening from health care providers other than Tulane's, who concurred that the risk of potentially contracting infection as a result of their endoscopic procedures was low, while other patients were not given such reassurances. The record further suggests that still other patients were told by health care providers and family members that their risk for contracting an infectious disease was much higher. Some patients, who claimed to have experienced little or no reassurance after the first negative screening, took advantage of additional testing and were reassured after receiving a second negative result. Still other patients have insisted upon undergoing three or four blood tests and believe additional tests are warranted. The record testimony also...

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