Harrison v. Slidell Specialty Hosp., LP
| Decision Date | 27 December 2013 |
| Docket Number | NUMBER 2013 CA 0691 |
| Parties | PHILLIP HARRISON v. SLIDELL SPECIALTY HOSPITAL, LP D/B/A SOUTHERN SURGICAL HOSPITAL |
| Court | Court of Appeal of Louisiana — District of US |
Appealed from the
22nd Judicial District Court
In and for the Parish of St. Tammany, Louisiana
The plaintiff, Phillip Harrison, appeals a judgment sustaining the peremptory exception raising the objection of no cause of action filed by the defendant, Slidell Specialty Hospital, L.P. d/b/a Southern Surgical Hospital ("SSH") and dismissing his action for damages against SSH. For reasons that follow, we reverse in part and affirm in part.
On November 21, 2008, Mr. Harrison underwent a total hip replacement performed by Dr. Deryck Jones at SSH. During this procedure, a hip prosthesis, known as the DePuy ASR (the "ASR hip") was implanted into Mr. Harrison's hip. An ASR hip consists of a metal acetabular cup with a porous coating implanted in the pelvic joint, and a metal ball and metal stem implanted in the femur, which together, replace the natural hip joint. The ASR hip was manufactured, designed, marketed, and sold by DePuy Orthopaedics, Inc. ("DePuy") and Mark Starring & Associates, Inc. ("Starring") was the exclusive distributor of the ASR hip for DePuy in Louisiana. DePuy and/or Starring sold the ASR hip to SSH, who in turn, sold the ASR hip to Mr. Harrison when it was implanted into him by Dr. Jones.
Following the implant, Mr. Harrison suffered severe pain and discomfort. In November 2010, Mr. Harrison went for follow up treatment with Dr. Jones and it was discovered that Mr. Harrison had abnormal levels of cobalt and chromium in his blood. Based on the abnormal blood test results and Mr. Harrison's complaints of pain, it was determined that the ASR hip had loosened, dislocated, and migrated. On January 19, 2011, Mr. Harrison underwent surgical revision of the previously implanted ASR hip at Ochsner Baptist Medical Center in New Orleans, Louisiana.
According to the plaintiff, prior to his implant, undisclosed studies had demonstrated numerous problems with ASR hips, including, but not limited to failure of the metal acetabular cup to achieve proper fixation, significant metaldebris formation in patients' tissues, formation of pseudotumors in patients, hip fractures, and a higher rate of necessary revision surgery. He also claimed that SSH knew or should have known of the complications, failures, lack of safety and effectiveness, and excessive revision rate associated with the ASR hip that it sold to patients.
On August 24, 2010, due to complications, premature failures, lack of safety and effectiveness, and excessive revision rate associated with ASR hips, DePuy issued a recall notice advising clinicians that DePuy was issuing a recall of all ASR products because new data demonstrated that the reasons for revision surgery were consistent with those previously reported for ASR hips, including component loosening, component malalignment, infection, fracture of the bone, dislocation, metal sensitivity and pain.1 That same date, DePuy issued a letter to its customers, including SSH, advising them of the recall of the ASR hip and advising them that additional testing and monitoring may be necessary to ensure that their patients' hips were functioning well.2 The plaintiff claimed that these previously reported problems (referenced in the recall notice) existed and were known to SSH prior to his implant in November 2008, but were never communicated to the public.
On September 14, 2012, Mr. Harrison filed a petition for damages against SSH, asserting claims in redhibition, fraud, and detrimental reliance.3 In response,SSH filed a peremptory exception raising the objection of no cause of action. Essentially, SSH claimed in its exception that the plaintiff failed to allege any breach of the standard of care or negligence by SSH, a qualified health care provider; that SSH neither manufactured nor sold the ASR hip; and that Mr. Harrison's claims, while falling exclusively under the express provisions of the Louisiana Medical Malpractice Act ("MMA"), La. R.S. 40:1299.41, et seq., were also barred under its provisions, i.e., La. R.S. 40:1299.41(C). As such, SSH claimed that Mr. Harrison's petition failed to state a cause of action against SSH in redhibition, fraud, or detrimental reliance. After a hearing and by judgment read, rendered and signed on February 13, 2013, the trial court sustained SSH's exception and dismissed Mr. Harrison's suit with prejudice. From this judgment, Mr. Harrison appeals, asserting that the trial court erred in dismissing his claims in redhibition and detrimental reliance.4
A cause of action, for purposes of the peremptory exception, is defined as the operative facts that give rise to the plaintiff's right to judicially assert the action against the defendant. Ramey v. DeCaire, 2003-1299 (La. 3/19/04), 869 So.2d 114, 118. The function of the peremptory exception raising the objection of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the petition. Id.
The burden of demonstrating that no cause of action has been stated is on the party filing the exception. Adams v. Owens-Corning Fiberglas Corp., 2004-1296 (La. App. 1st Cir. 9/23/05), 921 So.2d 972, 975, writ denied, 2005-2501 (La.4/17/06), 926 So.2d 514. Generally, no evidence may be introduced to support or controvert the exception raising the objection of no cause of action. See La. C.C.P. art. 931; Ramey, 869 So.2d at 118. For the purpose of determining the issues raised by the exception, all facts pled in the petition must be accepted as true. Id. If the petition alleges sufficient facts to establish a cause of action cognizable in law, the exception raising the objection of no cause of action must fail. Rebardi v. Crewboats, Inc., 2004-0641 (La. App. 1st Cir. 2/11/05), 906 So.2d 455, 457. Any reasonable doubt concerning the sufficiency of the petition must be resolved in favor of finding that a cause of action has been stated. Belle Pass Terminal, Inc. v. Jolin, Inc., 92-1544, 92-1545 (La. App. 1st Cir. 3/11/94), 634 So.2d 466, 493, writ denied, 94-0906 (La. 6/17/94), 638 So.2d 1094. Appellate courts review a judgment sustaining a peremptory exception raising the objection of no cause of action de novo, because the exception raises a question of law, and the trial court's decision is based only on the sufficiency of the petition. Ramey, 869 So.2d at 119.
The parties do not dispute that the MMA covers all legal responsibility of SSH arising from alleged defects in or failures of the hip prosthesis implanted in Mr. Harrison. See Huffaker v. ABC Ins. Co., 94-2345 (La. App. 4th Cir. 7/26/95), 659 So.2d 544, 545-546; Rogers v. Synthes, Ltd., 626 So.2d 775, 776-777 (La. App. 2nd Cir. 1993). Malpractice is defined by La. R.S. 40:1299.41(A)(13) as follows:
(13) "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 provider5, 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, orfrom 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. (Emphasis added).
Mr. Harrison's claims against SSH are based on breach of contract arising from defects in and failures of the ASR hip implanted into him. SSH contends, and the trial court found, that Mr. Harrison's claims against SSH were barred by La. R.S. 40:1299.41(C), which provides:
C. No liability shall be imposed upon any health care provider on the basis of an alleged breach of contract, whether by express or implied warranty, assuring results to be obtained from any procedure undertaken in the course of health care, unless such contract is expressly set forth in writing and signed by such health care provider or by an authorized agent of such health care provider.
However, from our review of the petition, Mr. Harrison has not alleged or claimed that SSH assured particular results from the hip replacement. Rather, Mr. Harrison claims that SSH failed to provide a safe, effective, and defect-free prosthetic hip, which he expected to receive from SSH as part of the surgical procedure. Therefore, La. R.S. 40:1299.41(C) was not applicable to the plaintiff's claims against SSH and the trial court erred in finding that this provision barred the plaintiff's claims.
SSH also argued, and the trial court found, that Mr, Harrison's failure to plead or reference a "standard of care," in his petition warranted the dismissal of his claims against SSH. Specifically, the trial court found that the "standard of care" was a statutory standard for any liability under the MMA to attach to a health care provider. However, the "standard of care" is only an element of a plaintiff's malpractice claim when the alleged malpractice is based on the negligence of a physician, optometrist, or a chiropractic physician. See La. R.S. 9:2794; Pfiffner v. Correa, 94-0924 (La. 10/17/94), 643 So.2d 1228. We cannot find, nor have we been directed to, any statutory or...
To continue reading
Request your trial