Billeaudeau v. Opelousas Gen. Hosp. Auth.

Citation218 So.3d 513
Decision Date19 October 2016
Docket NumberNO. 2016-C-0846,2016-C-0846
Parties Brandi BILLEAUDEAU, Veronica Billeaudeau, and Joseph Billeaudeau v. OPELOUSAS GENERAL HOSPITAL AUTHORITY, Dr. Kondilo Skirlis-Zavala, and The Shumacher Group of Louisiana, Inc.
CourtSupreme Court of Louisiana


This civil case presents the singular, res nova issue of whether a claim for negligent credentialing falls within the purview of the Louisiana Medical Malpractice Act (LMMA) and is, therefore, subject to its statutory cap on damages. After completion of the medical review process, plaintiffs, Brandi, Veronica, and Joseph Billeaudeau (collectively plaintiffs), proceeded in their suit against Opelousas General Hospital Authority (OGH), among other defendants, for injuries sustained by Brandi allegedly arising from the medical malpractice of Dr. Kondilo Skirlis-Zavala, an independent contractor working in the OGH's emergency department (ED). Along with their medical malpractice claims, plaintiffs specifically alleged OGH was negligent in credentialing Dr. Zavala and subsequently moved for partial summary judgment, seeking a determination that their negligent credentialing claim was not subject to the LMMA's cap on damages.

The District Court granted the motion and ultimately certified the judgment as final. After writ practice, the Court of Appeal, Third Circuit, affirmed on appeal. We granted writ to determine the correctness vel non of the lower courts' finding claims of negligent credentialing are not claims of malpractice under the LMMA. Billeaudeau v. Opelousas General Hosp. Auth. , 16–0846 (La. 6/28/16), 192 So.3d 781. For the following reasons, we find plaintiffs' negligent credentialing claim sounds in general negligence and affirm the judgment of the Court of Appeal.


On June 20, 2010, Brandi, a woman thirty-four years of age with Down syndrome

, was taken to OGH by her parents, Veronica and Joseph Billeaudeau, after she collapsed at home. Upon arrival at the ED, Dr. Zavala diagnosed Brandi with focal motor seizure. Dr. Zavala ordered the administration of anti-seizure medication and a CT scan, which was reported as normal.

The Billeaudeaus disagreed with the doctor's diagnosis. Thinking their daughter had suffered a stroke

, they asked that Brandi be given tPA (t-plasminogen activator), a treatment for stroke victims. However, according to plaintiffs' allegations, Dr. Zavala informed them their daughter was not a candidate for tPA. The Billeaudeaus then requested Brandi be transferred to Our Lady of Lourdes (OLOL) in Lafayette. Dr. Zavala arranged for Brandi's transfer to OLOL, where she was given tPA over four hours after she suffered what was ultimately determined to be a stroke.1 Brandi survived the stroke but unfortunately suffered severe, irreversible brain damage.

Veronica, individually and as Brandi's curatrix, along with Joseph pursued a claim under the LMMA and brought suit against OGH, among other defendants, specifically alleging:

Defendant, Opelousas General Hospital, is liable unto Petitioners because Ms. Billeaudeau's injuries and damages, which will be specified hereinafter, were proximately and legally caused by the fault, including negligence, of Opelousas General Hospital and its officers, agents, employees, and those for whom it is legally responsible, including the following negligent acts of omission and commission, among others, which may be shown during the trial:
a. Failure to develop and/or implement adequate policies and procedures to competently address stroke and/or administration of tPA;
b. Failure to distribute its written stroke

and/or tPA protocol to Dr. Kondilo Skirlis-Zavala, a physician working in the hospital's emergency department;

c. Failure to ensure that Dr. Zavala had reviewed and accepted the hospital's written stroke and/or tPA protocol;

d. Failure to supervise Dr. Zavala, a physician working in Opelousas General's emergency department; and

e. Negligent credentialing of Dr. Zavala.

Thereafter, plaintiffs filed a motion for partial summary judgment asking the District Court to declare their claim against OGH for negligent credentialing was not subject to the terms of the LMMA, including the cap on damages found in La. Rev. Stat. § 40:1231.2(B)(1).2 OGH opposed the motion. At the hearing, plaintiffs presented their claim under La. Rev. Stat. § 40:2114(E), which mandates hospitals "establish rules, regulations, and procedures setting forth the nature, extent, and type of staff membership and clinical privileges, as well as the limitations placed by the hospital on said staff membership and clinical privileges for all health care providers practicing therein." Pursuant thereto, plaintiffs argued OGH was negligent because Dr. Zavala "should not have been credentialed and ... given full active privileges at [OGH]." Simply put, she should not have been working in the ED, and thus, they argued this matter is one of "corporate malfeasance in the hiring process":

... This is about whether this doctor, this particular doctor, based on her particular CV, and her particular CME [continuing medical education], and her particular experience and training, was qualified to be in the emergency room by that hospital....
...There's a statutory obligation that the hospital has to not only establish by-laws and rules for the credentialing of its physicians, but also to follow them. And that statutory obligation is where the hospital's duty that we're alleging ... was breached ... [is] found. It's not in the medical malpractice act. It's 40:2114.

In opposition, OGH argued this case is based "upon a simple act of medical judgment":

...The plaintiff wants to make it about ten thousand (10,000) other things, but this case is about a doctor, Dr. Zavala, getting a patient in with an ongoing stroke and making a medical judgment and determination whether or not that patient was eligible for tPA administration. That is it! The medical decision and medical judgment is at the heart of this case.

After taking the matter under advisement, the District Court granted plaintiffs' motion. In its reasons for judgment, the District Court first examined the legislative history of the LMMA and its evolving definition of "malpractice," particularly focusing on the Legislature's failure to include "negligent hiring" within that definition despite four separate amendment attempts to do so:

In 2001, the Louisiana Legislature amended the definition of "malpractice" to include "training and supervision of health care providers." The Legislative history indicates that the original version of Senate Bill 713 sought to add negligent hiring and negligent retention to the definition of "malpractice" found under La. R.S. 40:1299.41.[3] However, the bill was amended to change "hiring" to "training" and inserted the phrase "or supervision of staff."
In 2005, House Bill No. 257 (HB 257) sought to revise the definition of "malpractice" under the LMMA to specifically include "acts or omissions in a peer review process or the credentialing of a health care provider." HB 257 failed to be passed by the Legislature.
In 2006, House Bill No. 260 (HB 260) sought to amend the definition of malpractice to again specifically include "acts or omissions in a peer review process or the credentialing of a health care provider." HB 260 failed to be passed by the Legislature.
In 2008, Senate Bill No. 509 (SB 509), Senate Bill No. 668 (SB 668), and House Bill No. 70 (HB 70) each sought to amend the definition of malpractice to specifically include "acts or omissions in the credentialing or re-credentialing of a health care provider." None of these bills made it through the Legislature.
At this point, the doctrine of statutory construction Expressio Unius est Exclusio Alterius , would seem to apply. This maxim dictates that "when the legislature specifically enumerates a series of things, the legislature's omission of other items, which could have easily been included in the statute, is deemed intentional." While it is tempting to infer that the legislature intentionally and repeatedly omitted negligent hiring/credentialing from the definition of malpractice, La. R.S. 24:177[4] prevents the undersigned from making such an inference.
Simply stated, those words and phrases in legislative bills that are amended out of legislative bills and those bills that do not make it into law are not competent evidence, proof or indicia of legislative intent under La. R.S. 24:177. Apparently the Legislature only wants courts to consider what it actually passes and not to infer legislative intent from those things that fail to become law. (Footnote added)

The District Court then applied the six factor test set forth by this Court in Coleman v. Deno , 01–1517 (La. 1/25/02), 813 So.2d 303, to determine whether negligent credentialing falls within the definition of "malpractice" as enacted under the LMMA, concluding:

As stated above, the undersigned considers this case to be a "close call." It is hard for this court to overlook the fact that the LMMA's definition of "malpractice" does not specifically include negligent credentialing of a healthcare provider. The statute is clear and unambiguous. It is also difficult for this court to overlook the fact that the Legislature has tried to amend the definition of malpractice to include negligent credentialing or negligent hiring on at least four (4) occasions—and all attempts were unsuccessful. "[I]t is not the function of the judicial branch in a civilian legal system to legislate by inserting ... provisions into statutes where the legislature has chosen not to do so."
On the other hand, this court is apparently bound to apply the Coleman v. Deno factors. In this court's opinion, the Coleman v. Deno factors can be convincingly argued to suit either party's purpose in any given case. Further it is not clear whether all of the factors need to be met in order to constitute "malpractice." If it is not necessary that all of the factors be met, then how many factors

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