Dupuy v. NMC Operating Co., L.L.C.

• Court: Louisiana Supreme Court
• Writing for the Court: CRICHTON, Justice.
• Citation: Dupuy v. NMC Operating Co., L.L.C., 187 So. 3d 436 (La. 2016)
• Decision Date: 15 March 2016
• Docket Number: No. 2015–CC–1754.,2015–CC–1754.
• Parties: Richard DUPUY and his Wife, Melissa Dupuy v. NMC OPERATING COMPANY, L.L.C. d/b/a the Spine Hospital of Louisiana, Formerly, the Neuromedical Center Hospital.

187 So.3d 436

Richard DUPUY and his Wife, Melissa Dupuy

v.NMC OPERATING COMPANY, L.L.C. d/b/a the Spine Hospital of Louisiana, Formerly, the Neuromedical Center Hospital.

No. 2015–CC–1754.

Supreme Court of Louisiana.

March 15, 2016.

CRICHTON, Justice.

This case concerns injuries plaintiff Richard Dupuy sustained post-operatively based on a hospital's alleged failure to properly maintain and service equipment utilized in the sterilization of surgical instruments. The issue before the Court is whether the plaintiffs' claims that the hospital failed to properly maintain and service equipment utilized in the sterilization of surgical instruments fall within the Louisiana Medical Malpractice Act ("MMA"). For the reasons set forth below, we find the claims do fall within the MMA and reverse the ruling of the district court.

FACTS

Plaintiffs Richard and Melissa Dupuy (the wife of Richard Dupuy) filed suit against NMC Operating Co., L.L.C., d/b/a The Spine Hospital of Louisiana ("Hospital").¹ They allege that Mr. Dupuy developed a post-operative infection, osteomyelitis, following spine surgery, and the infecting organism was mycobacterium fortuitum. The plaintiffs filed a petition alleging, inter alia, that the Hospital "fail[ed] to properly sterilize and/or clean surgical instrumentation" used in the surgical procedure, and/or that "the nursing staff and/or employees" of the Hospital failed to use proper aseptic technique before surgery. They sought damages for Richard Dupuy's medical expenses, pain and suffering, mental anguish, loss of earnings capacity, disability, and loss of enjoyment of life, and for Melissa Dupuy's loss of society, support, and companionship.

The Hospital filed an exception of prematurity, arguing that the Hospital is a "qualified health care provider" under the MMA and the plaintiffs' claims had not first been presented to a medical review panel as required by La. R.S. 40:1231.8.² Before a hearing on that exception, the parties took the deposition of an infectious disease specialist that treated Mr. Dupuy following his surgery. The specialist testified that she was unable to pinpoint a specific cause of Mr. Dupuy's infection, noting that multiple "materials" could be the source.³

Shortly thereafter, the plaintiffs filed a first supplemental and amended petition, in which they added the following allegation in paragraph 2A:

The defendant, NMC Operating Company, LLC, d/b/a The Spine Hospital of Louisiana, formerly, The NeuroMedical Center Surgical Hospital, failed to properly maintain and service all equipment utilized in the sterilization process including but not limited to, the washers and sterilizers used to sterilize the equipment used in Richard Dupuy's surgery of April 14, 2014.

In response, the Hospital filed a second exception of prematurity on the same grounds. The plaintiffs then filed a second supplemental and amended petition, alleging that, "in the absence of contamination from surgical instrumentation, materials or the surgical suite," the "likely source" of the infection was Floseal, a hemostatic matrix used in the procedure, which was manufactured by Baxter Healthcare Corporation, a manufacturer as defined in La. R.S. 9:2800.53.

After a hearing, the district court granted the exception of prematurity as to the original petition in its entirety. With respect to the first supplemental and amended petition, however, the district court granted the exception in part and denied it in part, dismissing the petition except for the allegations contained in paragraph 2A.⁴ The Court of Appeal, First Circuit, denied the Hospital's writ without comment.⁵ We granted the writ on October 30, 2015. Dupuy v. NMC Operating Co., L.L.C. d/b/a The Spine Hospital of La., 2015–1754 (La.10/30/15), 179 So.3d 611.

According to the Hospital, the district court misapplied the factors in Coleman v. Deno, 01–1517 (La.1/25/02), 813 So.2d 303, and failed to follow jurisprudence holding that one of the obligations a hospital owes a patient is to provide clean and sterile facilities. Plaintiffs, on the other hand, maintain that coverage under the MMA must be strictly construed, and argue that the Coleman factors point in favor of tort liability and against coverage under the MMA.

LEGAL BACKGROUND

The dilatory exception of prematurity provided for in La. C.C.P. art. 926(1) questions whether the cause of action has matured to the point where it is ripe for judicial determination. Williamson v. Hospital Service Dist. No. 1 of Jefferson, 04–0451, p. 4 (La.12/1/04), 888 So.2d 782, 785. See also Frank L. Maraist, 1 La. Civ. Law Treatise, Civ. Proc. § 6:6 (2d ed.) (updated Nov. 2015). Under the MMA, a medical malpractice claim against a qualified health care provider is subject to dismissal on a timely exception of prematurity if such claim has not first been reviewed by a pre-suit medical review panel. La. R.S. 40:1231.8. See also Williamson, 04–0451, p. 4, 888 So.2d at 785 ; Spradlin v. Acadia–St. Landry Med. Found., 98–1977, p. 4 (La.2/29/00), 758 So.2d 116, 119. In such situations, a defendant's exception of prematurity neither challenges nor attempts to defeat any of the elements of the plaintiff's cause of action, but instead asserts that the plaintiff has failed to take some preliminary step necessary to make the controversy ripe for judicial involvement. Id. The burden of proving prematurity is on the moving party, in this case the Hospital, which must show that it is entitled to a medical review panel, because the allegations fall within the MMA. Williamson, 04–0451, p. 4, 888 So.2d at 785.

This Court has, on numerous occasions, observed that the MMA was enacted by the Legislature in response to a "perceived medical malpractice insurance ‘crisis.’ " Williamson, 04–0451, p. 4, 888 So.2d at 785 (citations omitted). The legislature intended the MMA to reduce or stabilize medical malpractice insurance rates and to assure the availability of affordable medical services to the public. Id. To achieve those goals, the MMA gives qualified health care providers two advantages in actions against them for malpractice, namely, a limit on the amount of damages and the requirement that the claim first be reviewed by a medical review panel before commencing suit in a court of law. Id. See also La. R.S. 40:1231.2(B) ; La. R.S. 40:1231.8.

This Court has also emphasized that the MMA and its limitations on tort liability for a qualified health care provider apply strictly to claims "arising from medical malpractice," and that all other tort liability on the part of the qualified health care provider is governed by general tort law. Williamson, 04–0451, p. 5, 888 So.2d at 786. See also Blevins v. Hamilton Med. Ctr., Inc. 07–0127, p. 6 (La.6/19/07), 959 So.2d 440, 444. Because the MMA's limitations on the liability of health care providers are in derogation of the rights of tort victims, the MMA is to be strictly construed. Williamson, 04–0451 at p. 5, 888 So.2d at 786 ; Blevins, 07–0127, p. 6, 959 So.2d at 444.

In this case, the Hospital argues that Mr. Dupuy's infection falls within the definition of malpractice set forth in the MMA. The MMA defines malpractice as follows:

"Malpractice" means 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.

La. R.S. 40:1231.1(A)(13). "Health care, " in turn, is defined in the MMA as "any act or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient's medical care, treatment, or confinement...." La. R.S. 40:1231.1(A)(9).

Cognizant of these principles, in Coleman v. Deno, 01–1517 (La.1/25/02), 813 So.2d 303, we set forth six factors to assist a court in determining whether certain conduct by a qualified health care provider constitutes "malpractice" as defined under the MMA:

(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.

01–1517, p. 17, 813 So.2d at 315–16. See also Williamson, 04–0451, p. 6, 888 So.2d at 786–87 ; Blevins, 07–0127, p. 7, 959 So.2d at 445.

As explained by this Court in Williamson, Blevins, and other cases, in a trial of the exception of prematurity, a court analyzes the allegations of the petition under the Coleman factors to determine whether the allegations sound in medical malpractice. If the allegations sound in medical malpractice, the case must proceed in accordance with the protocol set forth in the MMA. If, on the other hand, the allegations sound in general negligence, the case should proceed under general tort law. Williamson, 04–0451, p. 11, 888 So.2d at 789 ; Blevins, 07–0127, pp. 7–8, 959 So.2d at 445.

ANALYSIS

We first turn to the question of whether the Hospital is a "health care provider" under the MMA, as required by the definition of "malpractice." La. R.S. 40:1231.1(A)(10), La. R.S....