MEGAN THOMAS, ET AL.
THE REGIONAL HEALTH SYSTEM OF ACADIANA, LLC, ET AL.
FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF
LAFAYETTE, NO. 2016-2452-E HONORABLE MICHELLE M. BREAUX,
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
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
E. Hellmers, HI Halley S. Carter Frilot L.L.C. COUNSEL FOR
AMICUS CURIAE: Ochsner Clinic Foundation
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
composed of John D. Saunders, Shannon J. Gremillon, Phyllis
M. Keaty, D. Kent Savoie, and Van H. Kyzar, Judges.
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.
OF THE RECORD
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; 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). 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.
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),  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.
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
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.
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]
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
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
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.
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.
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."
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.
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, ...