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Thomas v. The Regional Health System of Acadiana, LLC

Court of Appeals of Louisiana, Third Circuit

February 27, 2019



          David A. Hurlburt M. Blake Monrose George D. Ernest, HI Hurlburt, Monrose & Ernest P.O. COUNSEL FOR PLAINTIFF/APPELLANT: Megan Thomas individually and as natural tutrix of her minor daughter, Mariah Charles

          Aldric C. Poirier Jr. Elizabeth S. Sconzert Blue, Williams, L.L.P. COUNSEL FOR DEFENDANTS/APPELLEES: Regional Health System of Acadiana, LLC d/b/a Women's and Children's of Lafayette, HCA Holdings, Inc. Health Care Indemnity, Inc.

          Nicholas Gachassin, HI Julie Savoy Gachassin Law Firm Lafayette, LA COUNSEL FOR DEFENDANT/APPELLEE: Lafayette General Health Systems, Inc. d/b/a Lafayette General Medical Center

          Carl E. Hellmers, HI Halley S. Carter Frilot L.L.C. COUNSEL FOR AMICUS CURIAE: Ochsner Clinic Foundation

          Chris J. LeBlanc Watson, Blanche, Wilson & Posner COUNSEL FOR AMICUS CURIAE: LAMMICO, Louisiana Hospital Association, Louisiana Hospital Association Medical Malpractice and General, Liability Trust, Willis-Knighton Health System, Louisiana Ambulatory Surgery Center Association

          Court composed of John D. Saunders, Shannon J. Gremillon, Phyllis M. Keaty, D. Kent Savoie, and Van H. Kyzar, Judges.

          VAN H. KYZAR, JUDGE

         The plaintiff, Meghan Thomas, individually and on behalf of her minor daughter, Mariah Charles, appeals from a trial court judgment granting exceptions of prematurity in favor of the defendant hospitals, dismissing Ms. Thomas' claims without prejudice. For the reasons set forth, we reverse the judgment of the trial court and remand the matter for further proceedings.


         On May 6, 2016, Ms. Thomas filed a negligence action against the following defendants: the Regional Health System of Acadiana, LLC d/b/a Women's and Children's Hospital; Women's and Children's of Lafayette;[1] Health Care Indemnity, Inc.; HCA Holdings, Inc. (all referred to collectively as Women's and Children's); and Lafayette General Health Systems, Inc. d/b/a Lafayette General Medical Center (referred to as LGMC).[2] The facts leading to this suit stem from the premature birth of Ms. Thomas' daughter, Mariah Charles, on October 8, 2014, at LGMC. Following her birth, Mariah remained hospitalized at LGMC through March 2, 2015, under the care of Dr. Geeta Dalai, a non-board certified pediatric cardiologist, who was credentialed at both LGMC and Women's and Children's.

         Ms. Thomas alleged that during Mariah's hospitalization at LGMC, Dr. Dalai ordered and interpreted eight echocardiogram procedures, which revealed abnormal findings of a patent ductus arteriosus (PDA), [3] with a large left to right shunt, and an echogenicity, either a blood clot or an abnormal growth of tissue, on the atrial septum. She asserted that a "PDA in a premature baby such as Mariah Charles can cause pulmonary artery hypertension, a serious and life threatening condition." Despite these findings, she claimed that Dr. Dalai took no further action. On March 2, 2015, Mariah was transferred to Women's and Children's, where she remained under the care of Dr. Dalai. Ms. Thomas asserted that while Mariah was hospitalized at Women's and Children's, Dr. Dalai interpreted at least three more echocardiograms, again noting a large PDA with a large left to right shunt. She claimed that despite this finding, Dr. Dalai did nothing to treat this life-threatening condition.

         After Marian's discharge from Women's and Children's on April 1, 2015, she remained under Dr. Dalal's care on an outpatient basis. On April 15, 2015, Dr. Dalai performed an echocardiogram and again noted a moderate PDA, with left to right shunt, and the echogenicity. She concluded that Mariah was hemodynamically stable and scheduled a one-month follow-up appointment.

         Ms. Thomas alleged that Mariah was admitted to the pediatric intensive care unit at Women's and Children's on May 8, 2015, because of low oxygen saturation levels, despite being supplemented with oxygen. While there, she was examined by a board certified pediatric cardiologist, who immediately diagnosed pulmonary artery hypertension based on the results of an echocardiogram. Because she was experiencing a pulmonary hypertensive crisis, Mariah was transported via helicopter to the Children's Hospital of New Orleans, where the diagnosis of pulmonary artery hypertension was confirmed and a heart catheterization procedure was performed on May 13, 2015, to close the PDA.

         On May 6, 2016, Ms. Thomas mailed a request to convene a Medical Review Panel, alleging medical malpractice against Dr. Dalai, Regional Health System of Acadiana, Women's and Children's, and LGMC, based on the above stated facts. Her request was filed with the Louisiana Patient Compensation Fund on May 10, 2016. On May 6, 2016, Ms. Thomas also filed the instant suit against the defendant hospitals, LGMC and Women's and Children's, which repeated the medical facts alleged in her medical malpractice claim regarding Dr. Dalal's actions. However, the petition asserted that LGMC and Women's and Children's were liable under general tort law, rather than in medical malpractice, because they "negligently credentialed Dr. Dalai and negligently provided her with privileges to practice in [their] hospital[s]."

         Ms. Thomas claimed that Mariah suffered damages as a result of the defendants' negligence in granting medical privileges to Dr. Dalai, including injuries and damage to her heart, circulatory system, and nervous system; developmental delays; damage to her respiratory system; loss of physical capacity; past and future pain and suffering; mental anguish; emotional distress; embarrassment and humiliation; loss of enjoyment of life, including the ability to live independently; past medical expenses; future medical expenses, including accommodations for her disabilities; custodial care expenses; loss of earning capacity; and loss of the chance of a better medical outcome, thereby, entitling her to recover general and special past, present, and future damages.

         In response to the petition, both LGMC and Women's and Children's filed dilatory exceptions of prematurity, asserting that the negligent credentialing claims sounded in medical malpractice, which had not been submitted to a medical review panel, and were, thus, premature. As a result of the filing of the exceptions, the medical review panel proceeding was voluntarily stayed by agreement of all parties, pending a ruling from the trial court on the exceptions.

         In its exception of prematurity, LGMC asserted that it was a qualified health care provider pursuant to the Louisiana Medical Malpractice Act (LMMA) and was so qualified between October 2014 to May 2015, the date range of the incident that is the subject matter of Ms. Thomas' lawsuit. As a qualified health care provider, LGMC was entitled to have Ms. Thomas' claims presented first to a medical review panel in accordance with La.R.S. 40:1231.8, which provides, in part, that "[n]o action against a health care provider ... may be commenced in any court before the claimant's proposed complaint has been presented to a medical review panel[.]" La.R.S. 40:123L8(B)(1)(a)(i). Women's and Children's asserted essentially the same allegations in its exception of prematurity.

         LGMC introduced the affidavit of Kathleen Degeyter, its System Director of Medical Staff Services, who stated that Dr. Dalai was initially credentialed, granted clinical privileges, and appointed to its medical staff in June 1987. She further stated that Dr. Dalai was re-credentialed every two years via its recredentialing process, which included peer review of her patient care, on an ongoing basis, through March 2011. Ms. Degeyter stated that once Dr. Dalai reached sixty-five years of age, she was subject to yearly recredentialing through the date of her retirement in June 2017.

         At the conclusion of the hearing on November 9, 2017, the trial court granted the exceptions in favor of the hospitals. A formal judgment was rendered on December 18, 2017, and Ms. Thomas timely filed a petition for appeal on January 26, 2018. On appeal, Ms. Thomas argues that the trial court "erred as a matter of law in granting the exceptions of prematurity by apparently concluding that both credentialing and recredentialing of a physician falls under the Louisiana Medical Malpractice Act."


         The narrow question presented to this court is whether Ms. Thomas' claims for the alleged negligent recredentialing of Dr. Dalai against LGMC and Women's and Children's fall under the Louisiana Medical Malpractice Act (LMMA) or sound in general negligence under the holding of Billeaudeau v. Opelousas General Hospital Authority, 16-846 (La. 10/19/16), 218 So.3d 513');">218 So.3d 513. If the claim is controlled by the LMMA, the trial court's grant of the exception of prematurity must be affirmed. If the claim is governed by general negligence law, the trial court's decision must be reversed.

         At the outset, we note that the Louisiana Medical Malpractice Act (LMMA) "constitutes a special legislative provision in derogation of the general rights available to tort victims and, therefore, must be strictly construed." Keating v. Van Deventer, 14-157, p. 6 (La.App. 1 Cir. 9/19/14), 153 So.3d 1200, ...

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