Tebault v. E. Jefferson Gen. Hosp., 18-C-539

• Decision Date: 25 March 2019
• Docket Number: NO. 18-C-539,18-C-539
• Parties: PHYLLIS TEBAULT, PATRICIA DELAVALLADE, ALMERIA WILLIAMS, ANTHONY JACKSON, EILEEN JONES, ZAKIYA JACKSON, AND DORIS MONCONDUIT, INDIVIDUALLY AND AS HEIRS OF THELMA JACKSON v. EAST JEFFERSON GENERAL HOSPITAL, DR. ARZU HATIPOGLUGREEN, DR. RENE DEBOISBLANC, AND DR. CHRISTIAN SCHEUERMANN
• Court: Court of Appeal of Louisiana — District of US

PHYLLIS TEBAULT, PATRICIA DELAVALLADE,
ALMERIA WILLIAMS, ANTHONY JACKSON,
EILEEN JONES, ZAKIYA JACKSON, AND DORIS MONCONDUIT,
INDIVIDUALLY AND AS HEIRS OF THELMA JACKSON
v.
EAST JEFFERSON GENERAL HOSPITAL, DR. ARZU HATIPOGLUGREEN,
DR. RENE DEBOISBLANC, AND DR. CHRISTIAN SCHEUERMANN

NO. 18-C-539

FIFTH CIRCUIT COURT OF APPEAL STATE OF LOUISIANA

March 25, 2019

Susan Buchholz First Deputy Clerk

IN RE EAST JEFFERSON GENERAL HOSPITAL

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE MICHAEL E. KIRBY, AD HOC, DIVISION "E", NUMBER 708-607

Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Stephen J. Windhorst

WRIT GRANTED; RELIEF DENIED

This matter comes before us on supervisory review of the district court's August 31, 2018 judgment denying relator's, East Jefferson General Hospital's, "Motion for Summary Judgment Regarding Immunity." As the issue reviewed here presents to the Court a question of law res nova, this writ is granted. However, for the reasons fully discussed below, we find no error in the district court's judgment and deny relief.

This matter arises from the August 31, 2007 death of Thelma Jackson which occurred while she was a patient at East Jefferson General Hospital (EJGH). Her heirs timely filed a petition for damages on November 18, 2011, stating claims against EJGH, Dr. Christian Scheuermann, and two other physicians arising out of malpractice. In an amended petition, plaintiffs asserted, in relevant part, an additional cause of action against EJGH for negligently credentialing Dr. Christian Scheuermann.¹

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After filing its answer and affirmative defense, EJGH filed a "Motion for Summary Judgment Regarding Immunity," arguing that in this case, in which the plaintiffs seeking redress are the children of a deceased patient, defendant hospital and physician are immunized from damages as to the negligent credentialing claim under La. R.S. 13:3715.3(C) and 42 U.S.C. § 11101, the federal Health Care Quality Improvement Act (HCQIA). On August 22, 2018, the district court heard argument on the motion, denying it based on the Louisiana Supreme Court's Gauthreaux v. Frank, 95-1033 (La. 6/16/95) decision cautioning against reading privileges afforded hospitals in La. R.S. 13:3715.3 too broadly,² specifically stating, "the Motion for Summary Judgment is denied on the basis of the Gauthreaux decision that I just read." It is from this ruling relator seeks supervisory review.

In this writ application, EJGH asserts that, as La. R.S. 13:3715.3 and 42 U.S.C. § 11101 et. seq. (HCQIA) provide EJGH immunity from damages for plaintiffs' claims against it arising from negligent credentialing, the district court committed an error of law when it denied EJGH's current motion for summary judgment as to those specific claims. EJGH argues that the credentialing process is defined by the statutes and jurisprudence as "peer review" and that both statutes grant immunity to the hospital and others for peer review, which, by statute includes credentialing. Thus, EJGH argues the hospital is entitled to have the negligent credentialing cause of action against it dismissed with prejudice.

While summary judgment is favored, movant bears the burden of proving at the outset not only that there are no genuine issues of material fact, but also that it is entitled to judgment as a matter of law. La. C.C.P. art. 966(D)(1). The party seeking immunity pursuant to statute, here relator, also bears the burden of proving that the statutory immunity in question applies to the particular set of facts currently at issue. See generally, Champagne v. American Alternative Insurance Corporation, 12-1697 (La. 3/19/13), 112 So.3d 179, 183.

The question before us is simply, does either the 1986 HCQIA or La. R.S. 13:3715.3 immunize hospitals from suits brought by or on behalf of patients alleging negligent credentialing, i.e., that the hospital negligently afforded the opportunity to the health care professional to engage in patient care within the hospital. As the issue comes before us as a matter of first impression, we are called upon to engage in the statutory interpretation of the HCQIA and La. R.S. 13:3715.3.

When interpreting a statute, the paramount consideration is ascertainment of the legislative intent and the reason or reasons which prompted the legislature to enact the law. Wiltz v. Bros. Petroleum, L.L.C., 13-332 (La. App. 5 Cir. 4/23/14), 140 So.3d 758, 784, citing State v. Johnson, 03-2993 (La. 10/19/04), 884 So.2d 568, 575. As a general rule, statutory interpretation begins with the language of the statute itself. David v. Our Lady of the Lake Hosp., Inc., 02-2675 (La. 7/2/03), 849 So.2d 38, 46. La. R.S. 1:3 directs that words and phrases in a statute "shall be read with their context and shall be construed according to the common and approved usage of the language. Technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning."

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When the wording of a statute is clear and free of ambiguity, the letter of it shall not be disregarded under the pretext of pursuing its spirit. La. R.S. 1:4. Nevertheless, the legislative history of an act and contemporaneous circumstances may be helpful guides in ascertaining legislative intent. Billeaudeau v. Opelousas Gen. Hosp. Auth., 16-0846 (La. 10/19/16), 218 So.3d 513, 516.

Common sense is also a permissible consideration in statutory interpretation, even when the statute is penal in nature or requires a strict construction for other reasons. See and compare U.S. v. Picquet, 963 F.2d 54, 56 (5^th Cir. 1992), cert. denied, 506 U.S. 902, 113 S.Ct. 290, 121 L.Ed.2d 215 (1992) (criminal statute) and Haynes v. Mangham, 375 So.2d 103, 105 (La. 1979) (adoption statute). When interpreting a law that must be strictly construed, courts should not interpret it in a way that makes it meaningless and ineffective. Haynes, 375 So.2d at 106, citing In re Ackenhausen, 244 La. 730, 154 So.2d 380 (1963).

As a general rule, statutes granting immunities or advantages to a special class in derogation of the general rights available to tort victims must be strictly construed against limiting the tort claimants' rights against the wrongdoer. Williams v. Jackson Parish Hosp., 00-3170 (La. 10/16/2001), 798 So.2d 921, 926 citing Branch v. Willis-Knighton Medical Center, 92-3086 (La. 4/28/94), 636 So.2d 211, 215, 217. Immunity statutes, therefore, are strictly construed against the party claiming immunity. Weber v. State, 635 So.2d 188, 193 (La. 1994). Any doubts as to the application must be construed against the application to a specific set of facts.

The federal qualified immunity provision was approved on November 14, 1986 and enacted as part of the 1986 Health Care Quality Improvement Act (HCQIA), providing states the opportunity to enact their own statutes which could be broader in scope. The HCQIA did not become effective in Louisiana until July 15, 1988. See La. Acts. No. 690 of 1988.

The purpose of both the federal and Louisiana statutes is to incentivize and protect physicians engaging in effective professional peer review thereby reducing medical malpractice, improving the quality of medical care, and preventing incompetent physicians' movements from state to state without disclosure of previous incompetent performance. 42 U.S.C. § 11101; Granger v. Christus Health Central Louisiana, 12-1892 (La. 6/28/13), 144 So.3d 736. The United States Supreme Court, in Patrick v. Burget, described the effects of the federal statute as it relates to the actions of peer-review bodies.³ The Court stated that the federal statute "essentially immunizes peer-review action from liability if the action was taken 'in the reasonable belief that [it] was in the furtherance of quality health care.'" Patrick v. Burget, 486 U.S. 94, 106, 108 S.Ct. 1658, 1665, 100 L.Ed.2d 83, 95 n. 8 (1988). The Court pointed out that states are free to expand the scope of the state immunity statutes beyond the scope of the federal statute. Id.

Louisiana jurisprudence addressing the breadth of HCQIA and La. R.S. 13:3715.3(C) has been confined to physician filed suits against a credentialing

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institution or body in instances in which the institution has refused to credential or has suspended or revoked the physician's credentials or privileges.⁴

In Smith v. Our Lady of the Lake Hospital, 93-2512 (La. 7/5/1994), 639 So.2d 730, 742, a case in which a disciplined physician brought suit against the members of the medical peer review board and hospital which terminated his staff privileges, the Louisiana Supreme Court was called upon for the first time to address the breadth of La. R.S. 13:3715.3(C). The Court granted certiorari on the res nova issue presented to construe La. R.S 13:3715.3(C), and to enunciate an analytical framework to facilitate the pre-trial disposition of the applicability of the statutory immunity from liability it provides peer review committee members.⁵ In that case, applying the rules of statutory interpretation and construction and applying conditional privilege analysis, the Court arrived at a narrow or restricted interpretation of the breadth of the state statute.

Evaluating the protections afforded by the state immunity statute, the Court recognized the statute's shared common purpose with the HCQIA to encourage the medical profession to police its own ranks, and honed in on the conflict between disgruntled disciplined doctors and peer review bodies, seeking to achieve balance between the need for effectiveness of peer review bodies in carrying out their task of protecting patients from less than competent physicians while protecting the rights of the disciplined doctor. Id. at 743.

As the Court explained, both the federal and state statutes were enacted because:

The

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