Opinion
No. 07-CC-0127.
June 29, 2007.
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL THIRD CIRCUIT, PARISH OF LAFAYETTE.
I respectfully dissent.
I begin with the wording of the applicable statutes.
"Malpractice" is defined in LSA-R.S. 40:1299.41(A)(8), which provides, in pertinent part: "any unintentional tort or any breach of contract based on health care . . . rendered, or which should have been rendered, by a health care provider to a patient." (Emphasis provided.) In the instant case, it is undisputed that the defendant hospital is a health care provider. "Tort" is defined, in part, as: "any breach of duty or any negligent act or omission proximately causing injury or damage to another." LSA-R.S. 40:1299.41(A)(7). (Emphasis provided.) Further, "'Health care' means 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." (Emphasis provided.) These definitions are broadly drafted by the legislature, reflecting an intent to include many acts or omissions.
The definition of health care covers "any act or treatment." The definition is not limited to "treatment," but also encompasses "any act." A hospital does more than provide treatment for the patient; the hospital also acts during the patient's "medical care, treatment, [and] confinement" through its employees.
In the instant case, the plaintiff acknowledges seven of his ten allegations of negligence (listed in Blevins v. Hamilton Medical Center, Inc. d/b/a Southwest Medical Center-Lafayette, 07-1275, slip op. at 2-3 (La. __/__/07)) fall within medical malpractice and, as such, are subject to the medical malpractice act. Unlike the majority, I believe the plaintiff's three other allegations also fall within the medical malpractice act and that all the allegations are so intertwined with each other that the entire matter should be referred to a medical malpractice panel for review.
Failure to furnish the patient with equipment in proper working condition, failure to keep the bed in the lowest position with the wheels locked, and failure to instruct the patient on proper use of and safety with regard to his bed all implicate personnel at the hospital and specifically allege their failure to act.
The plaintiff's allegations at issue clearly implicate various acts performed or furnished, or which should have been performed or furnished, by a health care provider on behalf of a patient during the patient's medical care, treatment, or confinement. As such, these acts implicate health care. LSA-R.S. 40:1299.41(A)(9). "In general, any conduct by a hospital complained of by a patient is properly within the scope of the [Medical Malpractice Act] if it can reasonably be said that it comes within the definitions of the Act, even though there are alternative theories of liability." Richard v. Louisiana Extended Care Centers, Inc., 02-0978, pp. 11-12 (La. 1/14/03), 835 So.2d 460, 467-468, quoting Rogers v. Synthes, Ltd., 626 So.2d 775 (La.App. 2 Cir. 1993).
In Cashio v. Baton Rouge General Hospital, 378 So.2d 182, (La.App. 1 Cir. 1979), the court of appeal correctly rejected the plaintiff's contention that the hospital was being sued solely as a premises owner and not as a health care provider. The court stated:
A plaintiff cannot control the progress and procedure of his claim by semantically designating one capacity of two or more belonging to the defendant as the desired one when the statute requires a procedure if the claim fits within its definition. That the duty breached is owed by an owner does not prevent the claim from being one against a health care provider and so subject to the procedure in the Act. A contrary conclusion would permit plaintiffs to avoid the application of the Act by alleging ownership of the premises by the hospital, a practically universal situation. We do not ascribe that intent to the legislature.
Cashio, 378 So.2d at 184-185.
Cashio effectively required that when claims which fall within the Medical Malpractice Act are intertwined with claims allegedly outside the Act, the entire matter will be referred to the medical review panel. "[A]ny conduct complained of should be handled under the procedure of the Act if it can be reasonably said that it comes within the definitions of the Act even though there may be alternative theories for liability." Cashio, 378 So.2d at 185.
I distinguish this matter from Williamson v. Hospital Service Dist. No. 1 of Jefferson, 04-0451 (La. 12/1/04), 888 So.2d 782. Unlike Williamson, in which a wheelchair broke, the plaintiff's pleadings in the instant case do not allege the bed itself simply broke. Additionally, in Williamson the plaintiff had been discharged and was leaving the hospital. The patient's "medical care, treatment, [and] confinement" were concluded.
In Williamson, this court stated it did not necessarily disagree that the Medical Malpractice Act applied to the original unamended petition, which had included the allegations that the hospital employee failed to inspect the wheelchair and carelessly used the wheelchair to transport the plaintiff. However, as amended by the second supplemental petition, the plaintiff's claims were not covered by the Medical Malpractice Act because malpractice claims of the original petition were abandoned. In other words, had the petition, as amended, contained intertwined medical malpractice and non-medical malpractice allegations, the Medical Malpractice Act would have applied. The court observed that the transportation of the patient in the wheelchair was not treatment related, although it recognized that a different result could be reached under different facts:
We find that the particular wrong alleged here, that the hospital negligently failed to repair the wheelchair and failed to insure that it was in proper working condition before returning it to service, is neither "treatment related" nor caused by a dereliction of "professional skill" within the meaning of the Medical Malpractice Act. The court of appeal reasoned that the transportation of a patient in a wheelchair as the patient is being discharged from the facility is part of the overall treatment of the patient, and is therefore "treatment related. While that reasoning might apply in a different case, the wrong complained of here is that the hospital negligently failed to repair the wheelchair and placed it back into service without verifying that it was properly repaired. Those acts are not directly related to, nor do they involve, "treatment" of this patient. [Emphasis added.]
In contrast to Williamson, where the plaintiff already had been discharged from the hospital, plaintiff's injuries in the instant case were the result of use of the bed which was necessary to his on-going treatment at the hospital for his groin injury. Morever, plaintiff does not allege his injuries were caused by the hospital's failure to properly repair or maintain the bed or other equipment. Rather, he alleges the hospital failed to furnish him with the proper equipment and failed to instruct him in the proper use of the equipment. These allegations to relate to the type of treatment the hospital provided him rather than to any condition of the equipment itself.
It is also significant that unlike the plaintiff in Williamson, the plaintiff in the instant case has made allegations which clearly fall within the scope of the Medical Malpractice Act.
In Sewell v. Doctors Hospital, 600 So.2d 577 (La. 1992), a patient in a hospital was injured when his hospital bed collapsed. The patient specifically limited his action to strict liability for a defective thing under the defendant's custody. The patient did not allege any act or omission by the health care provider caused the bed to be defective or that the health care provider knew or should have known of the defects. In a footnote, the court stated:
Thus, a health care provider's liability may arguably be included under the Act when a patient is injured in a fall from the hospital bed because the provider's employee was negligent under the particular circumstances in failing to raise the sides, but the provider's liability may not be included under the Act when the patient is injured in a fall because the same bed collapsed from a metallurgical defect, unless the provider caused the defect or knew or should have known of the defect and neglected to repair it.
Sewell, 600 So.2d at 580 n. 6.