Matherne v. Jeferson Parish Hosp. Dist. No. 1

• Decision Date: 05 June 2012
• Docket Number: No. 11–CA–1147.,11–CA–1147.
• Citation: 90 So.3d 534
• Parties: Mitzi N. MATHERNE and Malcolm Matherne v. JEFFERSON PARISH HOSPITAL DISTRICT NO. 1 d/b/a West Jefferson Medical Center.
• Court: Court of Appeal of Louisiana — District of US

90 So.3d 534

Mitzi N. MATHERNE and Malcolm Matherne

v.JEFFERSON PARISH HOSPITAL DISTRICT NO. 1 d/b/a West Jefferson Medical Center.

No. 11–CA–1147.

Court of Appeal of Louisiana, Fifth Circuit.

May 8, 2012.

Rehearing Denied June 5, 2012.

R. Justin Garon, Michael Hingle, Attorneys at Law, New Orleans, LA, for Plaintiff/Appellant.

Carl T. Conrad, Attorney at Law, Metairie, LA, for Defendant/Appellee.

Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.

FREDERICKA HOMBERG WICKER, Judge.

[5 Cir. 2]The plaintiffs/appellants, Mr. Malcolm Matherne and Mrs. Mitzi Matherne, filed suit in the 24th Judicial District Court of Jefferson Parish, Louisiana on June 23, 2011, against the defendant/appellee, Jefferson Parish Hospital No. 1 d/b/a West Jefferson Medical Center (“West Jefferson”). The Mathernes sought damages for an injury Mrs. Matherne sustained when she fell as she was being transported, by West Jefferson's employee, to her hospital bed. West Jefferson excepted to the petition on July 28, 2011, on the grounds of prematurity. West Jefferson alleged that Mrs. Matherne's petition was premature because she failed to first present her claim to the medical review panel pursuant to La. R.S. 40:1299.41 of the Louisiana Medical Malpractice Act (“LMMA”). The court sustained the exception on September 20, 2011, and dismissed the plaintiffs' [5 Cir. 3]petition. The Mathernes appeal the trial court's ruling arguing that it erred in granting the exception of prematurity and dismissing their claim.

Discussion

The LMMA is set forth in La. R.S. 40:1299.41 et seq. The LMMA defines “malpractice” as

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,.... (Emphasis Added).

La. R.S. 40:1299.41(13)

A medical malpractice claim against a private qualified health care provider is subject to dismissal on an exception of prematurity if the claim has not first been presented to a medical review panel. La. R.S. 40:1299.47(A)(1)(a); LaCoste v. Pendleton Methodist Hosp., L.L.C., 07–0008, 07–0016, p. 6 (La.9/5/07), 966 So.2d 519, 523. The dilatory exception of prematurity questions whether the cause of action has matured to the point where it is ripe for judicial determination. Williamson v. Hosp. Serv. Dist. No. 1 of Jefferson, 04–0451, p. 4 (La.12/1/04), 888 So.2d 782, 785,citing,La. C.C.P. art. 926. The burden of proving prematurity is on the mover. Id. Therefore, West Jefferson must show that it is entitled to a medical review panel. Thus, the question before this Court is whether the Mathernes' claim falls within the statutory definition of malpractice.

The Louisiana Supreme Court has repeatedly emphasized that the LMMA and its limitations on tort liability for a qualified health care provider apply only 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. LaCoste, supra, at 524. We, therefore, conduct a de novo review of the trial court's grant of [5 Cir. 4]the dilatory exception of prematurity because the issue of whether a claim sounds in medical malpractice involves a question of law. Hernandez v. Diversified Healthcare–Abbeville, LLC, 09–0546, pp. 1–2 (La.App. 3 Cir. 11/4/09), 24 So.3d 284, 285,writ denied,09–2629 (La.2/12/10), 27 So.3d 849.

In Coleman v. Deno, 01–1517, (La.1/25/02), 813 So.2d 303, the Louisiana Supreme Court set forth a six-part test to determine whether a negligent act is covered by the LMMA. The Coleman factors include: 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 that patient had not sought treatment, and 6) whether the tort alleged was intentional. Id. at 315–16.

Applying the Coleman factors to the case before us, we find that the alleged negligent acts complained of are covered under the LMMA.

The first Coleman factor considers whether the particular wrong is “treatment related” or caused by a dereliction of professional skill. The record reflects that West Jefferson has an organizational-wide “Fall Assessment and Prevention” program, which focuses on assessing and identifying patients at risk for falls and on educating staff on fall prevention. The program mandates that West Jefferson employ a scoring system—the Morse Risk Fall Assessment—to determine all patients' risk for falls. Some factors that comprise the risk assessment include fall history, ambulatory aid, and gait, which is the manner of [5 Cir. 5]movement. Once all factors are considered, patients are then assigned a score which is indicative of their risk for falls. Patients scoring 45 or higher are considered high risk.

In this case, West Jefferson performed a risk assessment on Mrs. Matherne on September 2, 2010, at 7:30 A.M.—approximately five hours before the fall occurred. The assessment indicated that Mrs. Matherne had a history of falls and a weakened gait. Her overall fall-risk score at that...