Campbell v. Seaside Behavioral Healthcare, LLC

• Decision Date: 09 June 2021
• Docket Number: 20-C-341,NO. 21-CA-29,21-CA-29
• Citation: 325 So.3d 572
• Parties: Barbara CAMPBELL v. SEASIDE BEHAVIORAL HEALTHCARE, LLC, Seaside Healthcare, LLC, Seaside Health System, LLC, Jane Doe, and Markel Insurance Company
• Court: Court of Appeal of Louisiana — District of US

325 So.3d 572

Barbara CAMPBELL

v.SEASIDE BEHAVIORAL HEALTHCARE, LLC, Seaside Healthcare, LLC, Seaside Health System, LLC, Jane Doe, and Markel Insurance Company

NO. 21-CA-29

20-C-341

Court of Appeal of Louisiana, Fifth Circuit.

June 09, 2021

COUNSEL FOR PLAINTIFF/APPELLEE, BARBARA CAMPBELL, Roderick Alvendia, New Orleans, John B. Kelly, III, Jeanne K. Demarest, Kurt A. Offner, Kenner

COUNSEL FOR DEFENDANT/APPELLANT, SEASIDE BEHAVIORAL HEALTHCARE, LLC, SEASIDE HEALTHCARE, LLC, SEASIDE HEALTH SYSTEM, LLC AND MARKEL INSURANCE COMPANY, Lisa A. McLachlan, New Orleans

Panel composed of Judges Fredericka Homberg Wicker, Robert A. Chaisson, and John J. Molaison, Jr.

CHAISSON, J.

In this personal injury case arising from Barbara Campbell's purported fall and subsequent injuries while boarding a van to be transported from her home to the Seaside Behavioral Healthcare facility, defendants appeal the trial court's September 2, 2020 judgment denying their exception of prematurity.¹ For the following reasons, we find that Ms. Campbell's claims, as alleged in her petition, do not sound in medical malpractice as defined in the Louisiana Medical Malpractice Act, and therefore affirm the judgment of the trial court denying the exception of prematurity.

FACTS AND PROCEDURAL HISTORY

According to her Petition for Damages, on or about September 5, 2018, Ms. Campbell entered a transportation van owned by Seaside Behavioral Healthcare, LLC, Seaside Healthcare, LLC, and Seaside Health System, LLC (collectively "Seaside"), and operated by one of their employees. Her petition alleges that "suddenly and without warning due to the negligence of [defendants’ employee], [Ms. Campbell] was severely injured to include a fracture of her right leg." Her petition also alleges that the employee failed to use due diligence by not assisting Ms. Campbell to safely enter onto the transportation van. Ms. Campbell makes additional allegations against Seaside for negligent hiring and supervision of, and negligent entrustment of the van to, their driver. She alleges no other facts in the petition detailing the location or circumstances of the incident.

In response to the petition, defendants filed a dilatory exception of prematurity wherein they argue that, as qualified healthcare providers, they are entitled to the protections of the Louisiana Medical Malpractice Act ("LMMA"), La. R.S. 40:1231.1, et seq ., including review of Ms. Campbell's claim by a medical review panel. In support of their exception of prematurity, defendants attached to their memoranda exhibits which included: certified copies of Certificates of Enrollment of defendants with the Louisiana Patient Compensation Fund, an affidavit of Crystal Foley, the Seaside employee assisting Ms. Campbell, and a contemporaneous Incident Report Log prepared by Ms. Foley on the date of the incident. Following a hearing on defendants’ exception of prematurity, the trial court rendered judgment denying the exception.

On appeal, defendants argue that the trial court erred in denying the exception of prematurity because Ms. Campbell "was a mental health care patient of Seaside Behavioral Health/Psychiatric facility on the date of the incident ... which incident occurred while [Ms. Campbell] was assisted by a Mental Health Tech to transfer from her home health caregiving agency at her apartment to Seaside, when Ms. Campbell engaged with an imaginary friend Ernie as Ms. Foley was assisting [Ms. Campbell] into a facility van."

DISCUSSION

The burden of proving prematurity is on the exceptors to show that they are entitled to a medical review panel. Bonilla v. Jefferson Par. Hosp. Serv. Dist. #2 , 16-0234 (La. App. 5 Cir. 12/28/16), 210 So.3d 540, 545, writ denied , 17-0187 (La. 4/7/17), 215 So.3d 235 ; Perry v. State Farm Mut. Auto. Ins. Co. , 16-418 (La. App. 5 Cir. 12/14/16), 209 So.3d 308, 311. The LMMA and its limitations on tort liability for a qualified health care provider apply strictly to claims arising from medical malpractice, and all other tort liability on the part of the qualified health care provider is governed by general tort law. Williamson v. Hosp. Serv. Dist. No. 1 of Jefferson , 04-0451 (La. 12/1/04), 888 So.2d 782, 786. Coverage under the LMMA must be strictly construed because the limitations on the liability of a health care provider are special legislation in derogation of the rights of tort victims. Id . (citing Sewell v. Doctors Hosp. , 600 So.2d 577, 578 (La. 1992) ). The issue of whether a claim sounds in medical malpractice is a question of law conducted under a de novo standard of review. Bonilla , supra .

In Coleman v. Deno , 01-1517 (La. 1/25/02), 813 So.2d 303, 315-316, the Louisiana Supreme Court identified the following factors to be considered when determining whether the conduct of a qualified health care provider constitutes "malpractice" as defined under the LMMA:

[1] whether the particular wrong is ‘treatment related’ or caused by a dereliction of professional skill,

[2] whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached,

[3] whether the pertinent act or omission involved assessment of the patient's condition.

[4] whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital is licensed to perform,

[5] whether the injury would have occurred if the patient had not sought treatment, and

[6] whether the tort alleged was intentional.

Before applying the Coleman factors to the pleadings and evidence contained in the record, we first note the challenge of doing so in this particular case based upon the extremely limited and vague allegations made in Ms. Campbell's petition, as well as the scant evidence supplied in Ms. Foley's affidavit and incident report in support of defendants’ exception of prematurity.² Ms. Campbell's petition makes no allegations regarding her medical status, her relationship or connection to the defendant entities, or the reason that she was being transported by defendants to their facility or the location from which she was being transported. Regarding Ms. Foley's conduct, the petition only alleges that Ms. Foley failed to assist Ms. Campbell with entering the van, which caused Ms. Campbell to fall.

On the other hand, although Ms. Foley's affidavit maintains that Ms. Campbell was Seaside's "patient," it provides no additional information regarding the nature of Ms. Campbell's condition or the reason that she was being transported from the "patient's [Ms. Campbell's] home" to Seaside's facility. Additionally, Ms. Foley's affidavit and report alleges that Ms. Campbell was "engaged with her imaginary friend Ernie" when Ms. Campbell "jumped backwards from the bottom step of the van," claiming that Ernie "pushed her down." However, as to her own conduct, Ms. Foley merely alleges that she was generally assisting Ms. Campbell with a footstool to get on the van.³

Consequently, it is these vague allegations and limited evidence to which we now apply the Coleman factors. Defendants argue under the first Coleman factor that the alleged negligence of Ms. Foley, a certified mental health technician, is treatment related. The defendants assert, correctly, that nothing in the plain language of the LMMA limits its application to direct treatment by a physician. Dupuy v. NMC Operating Co. , 15-1754 (La. 3/15/16), 187 So.3d 436, 443. The LMMA provides the following definition of malpractice:

"Malpractice" means any unintentional tort ... 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 ... in the training or supervision of healthcare providers...

La. R.S. § 40:1231.1(A)(13)

The use of the term "health care provider" rather than simply "physician" or "medical doctor" necessarily includes actions which are treatment related and undertaken by a hospital in its capacity as a health care provider - even if those actions are not performed directly by a medical professional. Dupuy , 187 So.3d at 443.

However, the Supreme Court has also instructed that an allegation may involve "handling of a patient" and still not constitute malpractice if the alleged act or omission does not occur during the patient's medical care, treatment or confinement. Richard v. Louisiana Extended Care Centers, Inc. , 02-0978 (La. 1/14/03), 835 So.2d 460, 468 ; Porter v. S. Oaks Nursing & Rehab. Ctr., LLC , 49,807 (La. App. 2 Cir. 5/20/15), 165 So.3d 1197, 1202, writ denied , 15-1228 (La. 9/25/15), 182 So.3d 935. The parties do not dispute that Ms. Campbell was not receiving medical treatment at the time of the incident. The transportation service provided by Seaside is not an ambulance service as that term is defined in La. R.S. 40:1231.1 or La. R.S. 40:1237.1, staffed with a paramedic or registered nurse.

Additionally, while defendants characterize Ms. Foley as a trained "mental health technician" and introduced evidence of her training in crisis prevention,⁴ there is no dispute that Ms. Foley is not licensed to practice medicine or provide medical treatment in the State of Louisiana. "Mental health technician" is not one of the medical professions recognized under La. R.S. 40:1231.1, and as such her...