United States District Court, W.D. Louisiana, Lake Charles Division
KATHLEEN KAY Judge
A. DOUGHTY UNITED STATES DISTRICT JUDGE
before the Court is a Motion to Remand [Doc. No. 7] filed by
Plaintiff Robert Courville (“Courville”).
Defendant Ethicon US, LLC (“Ethicon”) opposes the
motion. [Doc. No. 15]. Courville also filed a reply. [Doc.
August 29, 2018, Magistrate Judge Kathleen Kay issued a
Report and Recommendation [Doc. No. 21] in which she
recommended that the Motion to Remand be denied and the
claims against Defendant Christus Health Southwestern
Louisiana (“Christus”) be dismissed without
prejudice. Courville filed objections to the Report and
Recommendation. [Doc. No. 22]. Ethicon filed a response to
the objections. [Doc. No. 23].
conducted a de novo review of the record and finding
that Magistrate Judge Kay correctly stated and applied the
law, the Court hereby ADOPTS her Report and Recommendation.
The Court issues this Ruling solely to address
Courville's contention that one of his claims against
Christus does not arise under the Louisiana Medical
Malpractice Act (“LMMA”).
objections, Courville argues, in part, that his case should
be remanded because he alleged that Christus “did not
adequately educate and train its agents, employees, servants
or others for whom it is legally responsible in the use and
handling of the Ethicon 28 mm EEA stapler and of the Ethicon
25 mm EEA stapler.” [Doc. No. 22, p. 5]. He explains
that he specifically claims Christus acted negligently by
“credentialing its physician[, ] Dr. Kendrix Evans,
in the use and handling” of the subject staplers and
that this cause of action “sounds in general negligence
and falls outside the purview of the [LMMA].”
Id. He cites the Court to Billeaudeau v.
Opelousas Gen. Hosp. Auth., No. 2016-C-0846 (La.
10/19/16); 218 So.3d 513.
responds to this argument with the assertion that Courville
did not raise this claim in his Petition and that his
credentialing argument was raised for the first time in the
objections. Because jurisdiction is determined at the time of
removal, Ethicon urges the Court that this argument should
not be considered. Even if it is considered, however, Ethicon
argues that all of Courville's claims fall within the
purview of the LMMA under the statutory definition and the
Louisiana Supreme Court's Coleman factors.
while Courville did not use the words
“credential(s)” or “credentialing” or
list the name of Dr. Evans in his Petition, he did allege
that Christus “failed to properly train and educate its
agents, employees, servants, or others for whom it is legally
responsible in the proper use of the Ethicon 28 mm EEA
stapler and the Ethicon 25 mm stapler.” [Doc. No. 1-2,
Petition for Damages, ¶ 16]. Thus, to the extent, the
Court must consider his claim.
however, the Court finds that Courville's claim is within
the purview of the LMMA. The LMMA defines malpractice, in
as any unintentional tort . . . based on health care or
professional service rendered, or which should have been
rendered, by a health care provider, to a patient, including
. . . all legal responsibility of a health care provider
arising from acts or omissions . . . in the training or
supervision of health care providers.
La. Rev. Ann. § 40:1231.1(13). Courville is now
attempting to re-characterize or amend his claim from one
that squarely falls within the statutory definition of
malpractice to one sounding in general negligence and which
is not covered by the LMMA. Based on the factual allegations
in his Petition alone, which is the basis for determining
jurisdiction, all of Courville's claims arise under the
Courville's reliance on the Billeaudeau case is
misplaced. In Billeaudeau, the parents of a patient
of Opelousas General Hospital Authority brought negligence
action against hospital, asserting, in part, that the
hospital negligently credentialed the emergency room
physician, and the physician failed to provide a treatment
for stroke victims to patient, who was later diagnosed as
having suffered a stroke. In their petition, the parents
alleged that the hospital was legally responsible for the
negligence of its officers, agents, employees, and for those
whom it is legally responsible. However, the petition
specifically identified the hospital's negligence to
include “[n]egligent credentialing of Dr.
Zavala.” Id. at 515. Further, in a motion for
partial summary judgment, the parents/plaintiffs sought a
ruling that the negligent credentialing claim alone was
outside the LMMA and not subject to caps on medical
malpractice liability. They explained that the hospital was
negligent because Dr. Zavala “‘should not have
been credentialed and . . . given full active privileges[,
]'” at the hospital, that she should not have been
working the emergency room, and that the claim was about
“‘whether this doctor, this particular doctor,
based on her particular CV, and her particular . . .'
continuing medical education, ‘and her particular
experience and training, was qualified to be in the emergency
room by that hospital.'” Id.
on these factual allegations, the Louisiana Supreme Court
considered whether the LMMA's reference to the negligent
training and supervision of health care providers included
the negligent credentialing as alleged. Id. at 516.
Applying the Coleman factors, the Louisiana Supreme
Court held that the parents' negligent credentialing
claim sounded in general negligence and fell outside the
purview of LMMA. Therefore, the claim was not subject to the
malpractice cap on damages.
case, however, Courville's attempt in his motion to
characterize his claim of negligent credentialing fails. He
clearly alleged in his petition that Christus is liable for
its failure to “educate and train its agents,
employees, servants or others for whom it is legally
responsible in the use and handling of the [Ethicon
staplers].” [Doc. No. 1-2, Petition, ¶ 16]. This
claim goes to the very heart of the statutory definition
without any resort to the Coleman factors. Courville
as the master of his Petition asserted a claim which could be
fairly read to include Christus' liability for
negligently failing to ...