Edna Gordon, Lillie Davis, Arthur Laneheart, Mary Williams, John B. Williams, Robert Williams, Lester Williams, Ernest Laneheart, Helen Williams, Patrice Dixon, Kevin Dixon, Benny Ray Dixon on Behalf of Their Deceased Mother, Patricia Dixon and Ann Lacey, VS Pointe Coupee Health Service District One d/b/a Pointe Coupee General Hospital

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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2009 CA 2202 EDNA GORDON LILLIE DAVIS ARTHUR LANEHEART MARY WILLIAMS JOHN B WILLIAMS ROBERT WILLIAMS LESTER WILLIAMS ERNEST LANEHEART HELEN WILLIAMS AND PATRICE DIXON KEVIN DIXON AND BENNY RAY DIXON ON BEHALF OF THEIR DECEASED MOTHER PATRICIA DIXON AND ANN LACEY KATHLEEN HOLLINS ARLENE SCOTT CAROLYN DIXON IDELLA DIXON GLORIA JOHNSON RUFUS DIXON JR AND MICHAEL DIXON ON BEHALF OF THEIR DECEASED MOTHER PEARL DIXON THE CHILDREN AND REPRESENTATIVES OF THE DECEASED CHILDREN OF HELEN WILLIAMS VERSUS n J POINTE COUPEE HEALTH SERVICE DISTRICT ONE d ba POINTE COUPEE GENERAL HOSPITAL Judgment rendered AUG 1 1 2010 Appealed from the 18th Judicial District Court in and for the Parish of Pointe Coupee Louisiana Trial Court No 42 115 Honorable Doug Moreau Judge Ad Hoc MARK D PLAISANCE ATTORNEYS FOR BAKER LA PLAINTIFFS APPELLANTS AND EDNA GORDON ET AL KEELUS MILES BATON ROUGE LA ADRIEN G BUSEKIST ATTORNEYS FOR KEVIN P RICHE DEFENDANT APPELLEE BATON ROUGE LA POINTE COUPEE HEALTH SERVICE DISTRICT ONE d ba POINTE COUPEE GENERAL HOSPITAL BEFORE CARTER C GUIDRY AND PETTIGREW 33 J PETTIGREW 7 In this survival and wrongful death action plaintiffs contend their decedent while a patient at the defendant hospital died following an evacuation of said hospital and eventual transfer to another facility Plaintiffs further contend decedent an oxygen recipient allegedly died due to the hospital negligent failure to properly provide oxygen s during and following the evacuation of its facility The hospital a qualified health care provider responded with the filing of a dilatory exception raising the objection of prematurity and asserted that plaintiffs were required by law to submit their claims to a medical review panel From a judgment maintaining the exception plaintiffs have appealed FACTS On February 17 2008 Helen Williams was a non ambulatory patient receiving oxygen at Pointe Coupee General Hospital PCGH in New Roads Louisiana At approximately 6 a a nurse at PCGH smelled smoke and upon going to investigate m noticed smoke emanating from a piece of equipment in the radiology department located on the hospital ground floor Sprinkler systems were activated and the fire department s was summoned When the fire department arrived at approximately 6 a the hospital 15 m s sprinkler system had already extinguished the fire The fire was confined to the radiology department and never reached the second floor patient area however in the minutes following the discovery of the fire nurses in an abundance of caution decided to move patients to the east side of the hospital behind the fire doors After the fire had been extinguished the decision was made to evacuate the hospital patients to an adjacent building pending an inspection by the Fire Marshall At this point physicians discussed which patients could be discharged and which patients required care at a local nursing home Ms Williams was ultimately transported to Lakeview Nursing Home in New Roads Louisiana where she died later that day 2 ACTION OF THE TRIAL COURT Following Ms Williams death her children and grandchildren hereinafter plaintiffs filed the instant litigation in the 18 Judicial District Court alleging 1 that but for the negligence of PCGH in failing to properly provide oxygen to Ms Williams she would not have died 2 that PCGH should have provided oxygen for Ms Williams as she waited in the hallway once she was removed from the hospital and certainly well before she was transported to the nursing home and 3 that plaintiffs claim is grounded in general negligence tort and not medical malpractice and therefore submission of the matter to a medical review panel is unnecessary In response to plaintiffs claim PCGH filed a dilatory exception raising the objection of prematurity asserting that the claims set forth in plaintiffs petition are allegations of medical malpractice that must be submitted to a Medical Review Panel prior to the filing of a lawsuit in accordance with the Louisiana Medical Malpractice Act La R 40 S 1299 41 etseq I LMMA Thereafter plaintiffs filed their First Supplement Petition wherein they added three additional allegations 1 that the proximate cause of Ms Williams death was PCGH s failure to formulate and implement a quick and efficient plan for the evacuation of patients particularly those on oxygen 2 that PCGH failed to have a facility available for the transfer of patients in the event of a mandatory evacuation and 3 that PCGH failed to design construct or maintain a facility in such a manner as to provide oxygen to patients being evacuated during an emergency On August 11 2009 a hearing was conducted on the exception filed by PCGH At the hearing PCGH called Elaine Hurme director of nurses at PCGH who testified regarding procedures at PCGH as well as the events on the day of the fire Ms Hurme did not testify regarding Ms Williams medical condition other than to confirm that Ms Williams was non ambulatory bed bound and was transported out of the hospital during the evacuation process After listening to Ms Hurme and the arguments put forth by counsel the trial court maintained PCGH exception as to prematurity and dismissed plaintiffs suit without s 3 prejudice finding that the LMMA requires that this matter be considered by a medical review panel before suit is filed From this judgment plaintiffs have appealed ISSUE PRESENTED ON APPEAL In connection with their appeal in this matter plaintiffs put forth the following issue for consideration by this court 1 Whether a hospital salleged inability during a fire to properly and quickly evacuate a patient and failure to provide oxygen to a patient who requires oxygen constitutes medical malpractice and falls within the provisions of the LMMA STANDARD OF REVIEW As the facts are not disputed with respect to this appeal the issue before this court is whether the trial court correctly interpreted and applied the law Appellate review of questions of law is simply review of whether the trial court was legally correct or legally incorrect Dunn v Bryant 96 1765 p 4 La App 1 Cir 9 701 S0 696 698 97 19 2d 699 writ denied 97 3046 La 2 709 So 752 98 13 2d LAW AND ANALYSIS Louisiana Code of Civil Procedure article 926 provides for the dilatory 1 A exception raising the objection of prematurity Such an objection is intended to retard the progress of the action rather than defeat it La Code Civ P arts 923 and 926 A suit is premature if it is brought before the right to enforce the claim sued on has accrued La Code Civ P art 423 Prematurity is determined by the facts existing at the time suit is filed Houghton v Our Lady of the Lake Hosp Inc 030135 p 5 La App 1 Cir 03 16 7 859 So 103 106 Evidence may be introduced to support or controvert the 2d exception when the grounds do not appear from the petition La Code Civ P art 930 The objection of prematurity raises the issue of whether the juridical cause of action has yet come into existence because some prerequisite condition has not been fulfilled Bridges v Smith 01 2166 p 4 La App 1 Cir 9 832 So 307 310 writ 02 27 2d denied 022951 La 2 836 So 121 03 14 2d The objection contemplates that the action was brought prior to some procedure or assigned time and is usually utilized in 4 cases where the applicable law or contract has provided a procedure for one aggrieved of a decision to seek relief before resorting to judicial action Plaisance v Davis 03 0767 p 6 La App 1 Cir 11 868 So 711 716 writ denied 033362 La 2 03 7 2d 04 13 867 So 699 2d Pursuant to the LMMA all medical malpractice claims against qualified health care providers must be submitted to a medical review panel for consideration See La R S 1 A 47 1299 40 No civil action against a qualified health care provider or its insurer may be commenced in any court before the claimant proposed complaint has been s presented to a medical review panel established pursuant to the LMMA See La R S 47 a 1299 1 40 13 A request for a medical review panel is a prerequisite to and not i the equivalent of a suit for medical malpractice Boone v State through the Dept of Health and Hosp 97 321 p 2 La App 3 Cir 3 709 So 300 300 writ 98 6 2d denied 98 0945 La 5 719 So 468 98 15 2d The dilatory exception of prematurity is the proper procedural mechanism for a qualified health care provider to invoke when a medical malpractice plaintiff has failed to submit the claim for an opinion by a medical review panel before filing suit against the provider See Spradlin v AcadiaSt Landry Medical Foundation 981977 p 4 La 00 29 2 758 So 116 119 If a lawsuit against a health care provider covered by the 2d LMMA has been commenced in a court and the complaint has not been first presented to a medical review panel the exception of prematurity must be sustained and the ssuit must be dismissed Dunn 96 1765 at 5 701 So at 699 The burden claimant 2d of proving prematurity is on the exceptor in this case PCGH who must show that it is entitled to a medical review panel because the allegations fall within the LMMA In its opinion in LaCoste v Pendleton Methodist Hospital L 07 0008 p C 6 La 9 966 So 519 524 our supreme court citing Coleman v Deno 01 07 5 2d 1517 pp 15 16 La 1 813 So 303 315 emphasized again that the LMMA and 02 25 2d its limitations on tort liability for a qualified health care provider apply only to claims arising from medical malpractice and that all other tort liability on the part of the qualified health care provider is governed by general tort law In LaCoste the supreme 5 court repeated its oft stated precept that the LMMA limitations on the liability of health s care providers for medical malpractice were created by special legislation in derogation of the rights of tort victims LaCoste 07 0008 at 7 966 at 524 Accordingly any ambiguity should be resolved in favor of the victim and against finding that the tort alleged sounds in medical malpractice The limitations of the LMMA therefore apply strictly to cases of malpractice as defined in the LMMA Id Pursuant to the LMMA malpractice is defined as any unintentional tort or any breach of contract based on health care or professional services rendered or which should have been rendered by a health care provider to a patient including failure to render services timely and the handling of a patient including loading and unloading of a patient and also includes all legal responsibility of a health care provider arising from acts or omissions during the procurement of blood or blood components in the training or supervision of health care providers or from defects in blood tissue transplants drugs and medicines or from defects in or failures of prosthetic devices implanted in or used on or in the person of a patient La R 40 S 1299 13 A 41 The LMMA further defines tort and health care as follows Tort means any breach of duty or any negligent act or omission proximately causing injury or damage to another The standard of care required of every health care provider except a hospital in rendering professional services or health care to a patient shall be to exercise that degree of skill ordinarily employed under similar circumstances by the members of his profession in good standing in the same community or locality and to use reasonable care and diligence along with his best judgment in the application of his skill La R 40 emphasis supplied S 1299 22 A 41 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 medical care s treatment or confinement or during or relating to or in connection with the procurement of human blood or blood components La R 40 S 1299 9 A 41 In its opinion in Coleman 01 1517 at 17 18 813 So at 315 316 our supreme 2d court set forth six 6 factors to assist a court in determining whether a claim sounds in medical malpractice and must first be presented to a medical review panel The supreme court utilized these factors again in its opinion in LaCoste 070008 at 8 966 So at 2d 524 525 Said factors are 1 whether the particular wrong is treatment related or caused by a dereliction of professional skill ri 2 whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached 3 whether the pertinent act or omission involved assessment of the scondition patient 4 whether an incident occurred in the context of a physician patient relationship or was within the scope of activities which a hospital is licensed to perform 5 whether the injury would have occurred if the patient had not sought treatment and 6 whether the tort alleged was intentional In the instant case PCGH has the burden of proof as the exceptor PCGH relies on the allegations as set forth in the plaintiffs original and first supplemental petition the testimony of Ms Elaine Hurme director of nurses at PCGH and a certified copy of PCGH s certificate of enrollment in the Patient Compensation Fund Accordingly we must apply s the Coleman factors to the evidence before us and upon doing so we conclude that the claims as asserted in the plaintiffs original and supplemental petition fall within the purview of the LMMA and thus the trial court properly sustained PCGH exception as to s prematurity and dismissed plaintiffs lawsuit i Whether the particular wrong is treatment related or caused by a dereliction of professional skill Plaintiffs have alleged seven 7 negligent acts by PCGH namely 1 that as a result of a fire when personnel at PCGH removed Ms Williams from her room and placed her in the hallway to await evacuation it failed to provide her with oxygen although she was shortwinded and in distress 2 that after Ms Williams was moved from the hospital to an outside building to await transportation PCGH personnel again failed to provide Ms Williams with oxygen 3 that when PCGH personnel finally located an oxygen tank for Ms Williams said tank was empty 4 that the cause of Ms Williams death was PCGH s failure to have in place and implement an efficient evacuation plan particularly for those persons who required oxygen 5 that PCGH failed to have a facility on site or a facility available in which to transfer patients in the event of a mandatory evacuation 6 that PCGH failed to have a protocol for evacuating patients and 7 that PCGH failed to design construct or maintain a facility in such a manner to have oxygen readily available for patients being evacuated during an emergency 7 In their brief to this court plaintiffs claim the aforementioned acts do not result from the dereliction of any professional skill that is treatment related and as such do not require expert medical evidence to determine whether the appropriate standard of care was breached Plaintiffs further claim no professional skill or licensing is required of a hospital to implement evacuation procedures that include the availability of oxygen PCGH responds with the argument the plaintiffs petition for damages undeniably alleges that Ms Williams death was caused by a failure to render medical treatment as the result of a deficiency in medical skill namely the failure to properly provide oxygen PCGH further asserts csense indicates that a claim based on failure to provide ommon enough treatment is clearly linked to treatment 318 citino Coleman 01 1517 at 22 813 at PCGH argues that the allegations contained in the original and amended petitions filed by the plaintiffs fail to allege that the unavailability of oxygen resulted from structural or electrical flaws of the hospital or its evacuation procedures On the contrary PCGH asserts that plaintiffs original petition alleges that oxygen was available and that the staff at PCGH failed to administer it properly and timely ii Whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached In their brief to this court plaintiffs urge that the instant facts are sufficiently similar to those presented in Lacoste to support the conclusion that this case does not fall under the L In Lacoste our supreme court held that a hospital failure to MMA s provide life support to a patient who died following Hurricane Katrina was the result of structuralelectrical failure of the facility and or evacuation plan failures rather than a deficiency in professional medical skill Accordingly the supreme court concluded the claims as alleged in Lacoste did not fall within the provisions of the LMMA Lacoste 07 0008 at 16 966 So at 529 2d PCGH points out in response that in Lacoste the plaintiffs alleged a failure of the defendant hospital electrical supply The plaintiffs in the instant case do not allege a s failure of the oxygen supply to Ms Williams but rather that PCGH failed to properly provide oxygen to Ms Williams thereby causing her death PCGH avers such allegations N will require expert medical testimony as to whether oxygen was properly or improperly provided to Ms Williams as well as expert medical testimony regarding whether the alleged failure to properly provide oxygen caused Ms Williams death iii Whether the pertinent act or omission involved assessment of the scondition patient Plaintiffs contend the proper evacuation of individuals from a hospital involves a consideration of actions and inactions that are best testified to by experts in fire prevention and evacuation not by doctors and nurses Plaintiffs further contend a medical expert is not necessary to determine whether a hospital patient who is continually receiving oxygen should continue to require oxygen during an evacuation According to plaintiffs the failure of PCGH does not stem from the lack of an assessment of Ms Williams condition but rather from the lack of an efficient evacuation plan that insured patients who were on oxygen continued to receive oxygen during the evacuation In response PCGH relies upon the hearing testimony of Ms Elaine Hurme director of nurses at PCGH Ms Hurme testified that on the day of the fire patients at PCGH were evacuated and transferred based upon decisions made by medical personnel after consideration of the overall condition of the patient Patients who were ambulatory were evacuated first followed by non ambulatory bedbound patients such as Ms Williams iv Whether an incident occurred in the context of a physician patient relationship or was within the scope of activities which a hospital is licensed to perform In addressing the fourth criterion set forth in Coleman plaintiffs claim that the allegations set forth herein do not claim a breach of duty in the context of a physician patient relationship but rather a failure to provide oxygen during an evacuation a situation that plaintiffs claim is not part of normal medical care Conversely PCGH asserts that providing a patient with oxygen and evacuating said patient during an emergency clearly involves a patient health care provider relationship and is within the scope of foreseeable activities expected of a hospital 0 v Whether the injury would have occurred if the patient had not sought treatment Plaintiffs in this matter clearly allege that Ms Williams death was a direct result of improperly providing Ms Williams with oxygen during her evacuation from PCGH It cannot be disputed that the allegations made by the plaintiffs in this matter are directly related to the treatment of Ms Williams at PCGH vi Whether the tort alleged was intentional The parties do not address the final Coleman criterion as all allegations made by plaintiffs are of negligence including professional negligence Accordingly utilizing the factors set forth in Coleman we have applied the LMMA s definition of medical malpractice to the facts alleged and the evidence presented and conclude that plaintiffs claims fall within the LMMA and therefore must first be presented to a medical review panel pursuant to the procedures outlined by the LMMA Until such time as plaintiffs complaints are properly reviewed by a medical review panel the present litigation is premature The trial court correctly sustained PCGH dilatory exception s raising the objection of prematurity CONCLUSION For the above and foregoing reasons we affirm the judgment dismissing plaintiffs suit against Pointe Coupee General Hospital without prejudice All costs associated with this appeal are assessed against plaintiffs AFFIRMED 10

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