Smith v. Touro Infirmary

• Decision Date: 08 May 2019
• Docket Number: NO. 2018-CA-1028,2018-CA-1028
• Parties: ANTHONY SMITH, AS FATHER AND NATURAL TUTOR OF THE MINOR CHILD THERION WEST, AS WRONGFUL DEATH AND SURVIVAL BENIFICIARY OF FELICIA WEST, DECEASED v. TOURO INFIRMARY, ET AL
• Court: Court of Appeal of Louisiana — District of US

ANTHONY SMITH, AS FATHER AND NATURAL TUTOR OF THE MINOR CHILD THERION WEST,
AS WRONGFUL DEATH AND SURVIVAL BENIFICIARY OF FELICIA WEST, DECEASED
v.
TOURO INFIRMARY, ET AL

NO. 2018-CA-1028

COURT OF APPEAL FOURTH CIRCUIT STATE OF LOUISIANA

May 8, 2019

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2016-02043, DIVISION "G-11"
Honorable Robin M. Giarrusso, Judge

Judge Terri F. Love

(Court composed of Chief Judge James F. McKay III, Judge Terri F. Love, Judge Dale N. Atkins)

ATKINS, J., CONCURS IN RESULT

David A. Bowling
THE BOWLING LAW FIRM, APLC
1615 Poydras Street, Suite 1050
New Orleans, LA 70112

COUNSEL FOR PLAINTIFF/APPELLANT, ANTHONY SMITH, AS FATHER AND NATURAL TUTOR OF THE MINOR CHILD THERION WEST, AS WRONGFUL DEATH AND SURVIVAL BENEFICIARY OF FELICIA WEST, DECEASED

Jeff Landry
Attorney General
Victoria J. Cvitanovic
Assistant Attorney General
LOUISIANA DEPARTMENT OF JUSTICE
1450 Poydras Street, Suite 900
New Orleans, LA 70112

COUNSEL FOR DEFENDANTS/APPELLEES, STATE OF LOUISIANA THROUGH THE BOARD OF SUPERVISORS OF LSU AND AGRICULATURAL AND MECHANICAL COLLEGE ON BEHALF OF LSU HEALTH SCIENCES CENTER AT NEW ORLEANS, LSU HEALTH CARE SERVICES DIVISION, AND MEDICAL CENTER OF LOUISIANA AT NEW ORLEANS - UNIVERSITY HOSPITAL, CAROLINE BURTON, M.D., AND STEPHEN A. MORSE, M.D.

REVERSED AND REMANDED

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This appeal arises from the death of a hospital patient and the resulting medical malpractice action, wherein the private healthcare defendants settled prior to trial. The remaining State health care defendants filed a motion for summary judgment contending that plaintiff could no longer prove the damages element of his claim because the settlement exhausted the $500,000.00 medical malpractice cap illuminated in La. R.S. 40:1231.2 and La. R.S. 40:1237.1. The trial court agreed, granted the motion for summary judgment, and dismissed all of the State health care defendants.

Plaintiff appeals, alleging that the cap on medical malpractice recovery was not intended to divest defendants of liability or a plaintiff's right to a trial on the merits. We find that one medical malpractice cap applies to singular acts of negligence resulting in a singular, indivisible injury. Further, employing the tenets of statutory interpretation and applying the reasoning of previous jurisprudence, we find that the medical malpractice cap is placed on the amount recoverable/judgment rendered as opposed to the amount of damages sustained or proven. Therefore, we find that medical malpractice plaintiffs are entitled to

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proceed to a trial on the merits against the remaining defendants following a partial settlement that met the medical malpractice cap. The judgment of the trial court is reversed and the matter remanded for further proceedings consistent with this opinion.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

In September 2012, Felicia West was approximately twenty-seven weeks pregnant and was admitted to Touro Infirmary after suffering a fall at her residence. Ms. West subsequently underwent an emergency Caesarean section, birthing Therion West. Ms. West was then transferred to the Intensive Care Unit, where she was diagnosed with thrombotic thrombocytopenic purpura ("TTP") by Dr. Milton Seiler. Dr. Seiler ordered treatment based on his diagnosis. On October 10, 2012, "Ms. West suffered a seizure which was later attributed to a large intracranial hemorrhage." She passed away following the seizure.¹

Anthony Smith, the father and tutor of Therion West, filed a Complaint and Request for Formation of Medical Review Panel, alleging that Ms. West's death was caused by the negligence of Touro Infirmary; Milton Seiler, M.D.; Efrain Reisen, M.D.; Stephen Morris, M.D.; Caroline Burton, M.D.; and Janet Ross, M.D. The MRP found that all of the named defendants performed according to the applicable standard of care, with the exception of Dr. Seiler. The MRP determined that Dr. Seiler "deviated from the standard of care in his misdiagnosis and treatment of TTP," which "led to the ultimate demise of" Ms. West.

Following the MRP opinion, Mr. Smith filed a Petition for Damages against Touro Infirmary, Dr. Ross, Dr. Seiler, Dr. Burton, Dr. Reisin, Dr. Morse, the State

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of Louisiana through Board of Supervisors of Louisiana State University Agricultural and Mechanical College ("LSU"), and DaVita entity d/b/a DaVita New Orleans Uptown Dialysis based on the wrongful death of Ms. West. The First Supplemental and Amended Petition added Total Renal Care, Inc. as a subsidiary of DaVita. While the matter was pending, Dr. Ross, Dr. Seiler, Touro Infirmary, and Dr. Reisin were dismissed. Mr. Smith entered into a confidential settlement agreement with Touro Infirmary and Dr. Seiler.

After confecting the partial settlement, the State defendants (LSU, Dr. Burton, and Dr. Morse) filed a Motion for Summary Judgment contending that the settlement exhausted the State medical malpractice cap contained in La. R.S. 40:1237.1. The trial court agreed, granted the Motion for Summary Judgment, and dismissed all of the State defendants with prejudice, finding that only one medical malpractice cap existed. Mr. Smith's devolutive appeal followed.

SUMMARY JUDGMENT

"The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action." La. C.C.P. art. 966(A)(2). "The procedure is favored and shall be construed to accomplish these ends." Id. "[A] motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." La. C.C.P. art. 966(A)(3).

The burden of proof on a motion for summary judgment begins with the mover. La. C.C.P. art. 966(D)(1). However, if the mover does not bear the burden of proof at trial and demonstrates "the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense," then the burden

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shifts. Id. The adverse party must then "produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law." Id.

Appellate courts review the granting of a motion for summary judgment using the de novo standard of review. Mason v. T & M Boat Rentals, LLC, 13-1048, p. 3 (La. App. 4 Cir. 3/19/14), 137 So. 3d 741, 743. We utilize "the same criteria governing the trial court's consideration of whether summary judgment is appropriate." Wilson v. Calamia Const. Co., 11-0639, p. 3 (La. App. 4 Cir. 9/28/11), 74 So. 3d 1198, 1200.

MEDICAL MALPRACTICE CAP

Mr. Smith appealed, contending that the trial court erred by granting the State defendants' Motion for Summary Judgment and effectually granting the State defendants a credit for Mr. Smith's partial settlement with private defendants.

The Louisiana Medical Malpractice Act ("LMMA") provides that "[t]he total amount recoverable for all malpractice claims for injuries to or death of a patient, exclusive of future medical care and related benefits as provided in R.S. 40:1231.3, shall not exceed five hundred thousand dollars plus interest and cost." La. R.S. 40:1231.2(B)(1). Likewise, the Medical Liability for State Services Act ("MLSSA") provides that

no judgment shall be rendered and no settlement or compromise shall be entered into for the injury or death of any patient in any action or claim for an alleged act of malpractice in excess of five hundred thousand dollars plus interest and costs, exclusive of future medical care and related benefits valued in excess of such five hundred thousand dollars.

La. R.S. 40:1237.1(F).

This Court previously examined the res nova

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issue of whether plaintiffs in a medical malpractice action may recover damages up to the amount of two medical malpractice "caps" when their damages were caused both by the negligence of a health care provider qualified under the Medical Malpractice Act ("MMA"), LSA-R.S. 40:1299.40 et seq., and by a health care provider whose liability falls under the provisions of the Medical Liability for State Services Act ("MLSSA"), LSA-R.S. 40:1299.39.

Williams v. O'Neill, 99-2575, p. 1 (La. App. 4 Cir. 3/13/02), 813 So. 2d 548, 552. This Court stated that the issue involved "two competing policy considerations." Id., 99-2575, p. 8, 813 So. 2d at 555. The policies were enumerated as follows

[f]irst, we are cognizant of the vast body of jurisprudence relative to the fact that Louisiana's medical malpractice acts "must be strictly

...