Patricia Phoenix v. David A. Beary, M.D. and Abc Insurance Company

PATRICIA PHOENIX * NO. 2021-C-0497

VERSUS *
COURT OF APPEAL
DAVID A. BEARY, M.D. AND *
ABC INSURANCE COMPANY FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

APPLICATION FOR WRITS DIRECTED TO
ST. BERNARD 34TH JUDICIAL DISTRICT COURT
NO. 20-1503, DIVISION “E”
Honorable Eric A. Bopp,
******
Judge Regina Bartholomew-Woods
******
(Court composed of Judge Terri F. Love, Judge Regina Bartholomew-Woods,
Judge Paula A. Brown)

Thomas J. Eppling
Michael W. Maldonado
Staines, Eppling, & Kenney
3500 North Causeway Boulevard, Ste. 820
Metairie, LA 70002

COUNSEL FOR RELATOR/DEFENDANT

Randy Joseph Dukes
Law Office of Randy J. Dukes, LLC
701 Loyola Avenue, Ste. 58816
New Orleans, LA 70158

COUNSEL FOR RESPONDENT/PLAINTIFF

WRIT GRANTED; RELIEF DENIED
October 13, 2021

RBW

TFL

PAB

This Court is in receipt of a supervisory writ filed by Relator-Defendant,

David Beary, M.D. The issue before this Court is whether a slip and fall personal

injury case which occurs in a medical office needs to be submitted to the medical

review panel in compliance with the Louisiana Medical Malpractice Act or lies in

general tort.

For the reasons that follow, we grant the writ, but deny relief.

Factual & Procedural History

On December 26, 2019, Plaintiff-Respondent, Patricia Phoenix

(“Respondent”), visited, for the first time, Defendant-Relator, David A Beary’s,

M.D. (“Relator”) office for a gastrointestinal examination and consultation. During

the visit, but prior to examination, Relator instructed Respondent to climb onto the

examination table using the stepstool that was attached to the table. As Relator

attempted to climb onto the table, she fell backwards off of the stepstool. As a

result of the fall, Relator claims that she sustained a closed fracture to the right

tibial plateau of her leg.

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On December 4, 2020, Respondent filed with the 34th Judicial District Court,

a Petition for Damages and Personal Injuries against Relator and an unnamed

insurance company. Respondent claimed that “the sole and proximate cause of her

injuries was the negligence” of Defendant-Relator, and that he breached his duty

and standard of care in the following ways:

 Breaching his duty and standard of care by failing to take sufficient care and
precaution to ensure that [Relator] would be safe from injury while visiting
his office;
 Breaching his duty and standard of care by failing to inquire whether
Plaintiff required assistance in climbing onto the examination table;
 Breaching his duty and standard of care by failing to provide handrails or
any other support structure, to assist [Relator] in climbing onto the
examination table thus preventing a fell from occurring;
 Breaching his duty and standard of care by falling to have his support staff
assist Plaintiff onto the examination table, thus preventing her from falling:
 Breaching his duty and standard of care by failing to professionally train his
staff to assist patients onto the examination table, thus preventing injuries;
and
 Any and all other acts of negligence and/or imprudence and/or lack of care,
which may be proven during the litigation process and/or trial of this matter.

On April 16, 2021, Relator filed an Exception of Prematurity asserting that

Respondent’s claim arose strictly from medical malpractice and should have been

submitted to a medical review panel, as required by the Louisiana Medical

Malpractice Act.

On July 23, 2021, following a hearing on Relator’s exception, the trial court

denied the exception, reasoning that Respondent’s petition was sufficient to

establish that the allegations fell outside of the scope of the Louisiana Medical

Malpractice Act.

This writ timely followed.

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Discussion

Assignment of Error and Issues for Review

Relator asserts the following assignments for error:

1. The trial court erred when it held that Respondent’s allegations in the
Petition for Damages and Personal Injuries did not assert a medical
malpractice claim;
2. The trial court erred when it denied Relator’s Dilatory Exception of
Prematurity finding that Respondent’s Petition for Damages and Personal
Injuries was not premature.
Relator presents the following issues for review:

1. Whether Respondent’s allegations in her Petition for Damages and
Personal Injuries assert a medical malpractice claim against Relator,
requiring she file with a medical review panel under the Louisiana
Medical Malpractice Act;
2. Whether Respondent’s Petition for Damages and Personal Injuries is
premature.
Standard of Review

The dilatory exception of prematurity contends a cause of action has not yet

matured to the point where it is ripe for judicial determination. LaCoste v.

Pendleton Methodist Hosp., L.L.C., 2007-0008, p. 6 (La. 9/5/07), 966 So. 2d 519,

523. Generally, a trial court’s ruling on an exception of prematurity is reviewed

under the manifest error standard. Landis Const. Co., LLC v. Reg'l Transit Auth.,

2015-0854, p. 6 (La. App. 4 Cir. 5/25/16), 195 So. 3d 598, 602. However, when

resolution involves a question of law, the ruling is reviewed de novo. Id.

The issue before this Court centers on whether Respondent’s case

constituted a medical malpractice case requiring the application of the Louisiana

Medical Malpractice Act.1 Whether a claim should be considered medical

malpractice or general tort is a question of law; therefore, the de novo review is

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At this juncture in the lawsuit, the facts are not in dispute.

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appropriate. Burandt v. Pendleton Mem’l Methodist Hosp., 2013-0049, p. 6 (La.

App. 4 Cir. 8/7/13), 123 So. 3d 236, 241.

Analysis

Pursuant to the Louisiana Medical Malpractice Act (“LMMA”), when a

medical malpractice claim is brought against a private qualified health care

provider, it is subject to dismissal on a timely filed exception of prematurity, if the

claim has not first been reviewed by a pre-suit medical review panel. La. R. S.

40:1299.47(A). The burden of proving prematurity falls upon the party seeking the

exception. Williamson v. Hosp. Serv. Dist. No. 1 of Jefferson, 2004-0451, p. 4 (La.

12/1/04), 888 So. 2d 782, 785. The LMMA is strictly applied to claims arising out

of medical malpractice. Id. at 786. All other claims are subject to general tort law.

Id.

Relator avers that because all of Respondent’s claims relate to how Relator

breached his duty of care rather than addressing the defective stool this is a

medical malpractice case. Notwithstanding Relator’s reasoning this Court is not

swayed by this argument because not every tort occurring in the medical field is

subject to the LMMA. Richard v. Louisiana Extended Care Centers, Inc., 2002-

0978, p. 13 (La. 1/14/03), 835 So. 2d 460, 468.

Louisiana jurisprudence weighs six (6) factors when determining whether

certain conduct by a qualified health care provider constitutes “malpractice” as

defined under the LMMA:

1. Whether the particular wrong is treatment related or caused by a dereliction
of professional skill,
2. Whether the wrong requires expert medical evidence to determine whether
the appropriate standard of care was breached, and
3. Whether the pertinent act or omission involved assessment of the patient's
condition.

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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.

Coleman v. Deno, 2001-1517, p. 17-18 (La. 1/25/02), 813 So. 2d 303, 315–16

(citations omitted). Accordingly, each factor shall be weighed to determine

whether the LMMA is applicable for the instant case.

1. Whether the Particular Wrong is Treatment Related or Caused by a
Dereliction of Professional Skill.

To determine whether the particular wrong, in this case an unsecured

stepstool, was treatment related or the result of a dereliction of skill; the Louisiana

Supreme Court considers:

 Whether the furnished equipment was related to the condition being treated,
and
 Whether the action results from any dereliction of professional skill that is
treatment-related for the patient.

See Blevins v. Hamilton Med. Ctr., Inc., 2007-127, 8-9 (La. 6/29/07), 959 So. 2d

440, 446. In Blevins a patient brought suit after sustaining injuries when an

unsecured hospital bed moved causing the patient to lose balance and fall. The

Court found that even though the patient was required to use the bed as part of the

hospital stay, the bed was not a necessary part of the patient’s treatment for a groin

infection. Id. The Court further found that properly securing a bed was not the

result of a dereliction of a treatment-related professional skill. Id.

Similarly, this Court when considering the same factors interpreted

“treatment related” and “professional skill” to refer to whether the act was part of

the medical treatment sought and whether the alleged negligent act or omission

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required professional skill or specialized medical training. Watson v. Woldenberg

Vill., Inc., 2016-0159, p. 8 (La. App. 4 Cir. 10/5/16), 203 So. 3d 317, 322–23.

In Watson, this Court ruled that injuries sustained by a nursing home patient

who fell from a wheelchair was not a medical malpractice claim. Id. at 319. When

weighing the first Coleman factor, this Court reasoned that the staff’s failure to

properly secure a monitor which provided an alarm when a patient fell was not a

dereliction of skill because the monitor could easily be attached by “[m]any non-

medical persons” without the need for special training. Id. at 323. This Court

further explained, “a failure in executing a task which is routinely performed by

nurse’s aides or other low-level employees cannot be said to be the result of a

dereliction of medical skill that is treatment-related.” Id. citing Blevins, 959 So.2d

at 446.

Relator insists Respondent’s injury is treatment related because she was in

the examination room for medical treatment and was instructed to use the

stepstool. Relator relies on Harris v. Sternberg, wherein this Court ruled that a

patient’s fall when stepping onto a scale and subsequent injuries were medical

malpractice such that LMMA applied. 2001-1827, p. 6 (La. App. 4 Cir. 5/22/02),

819 So. 2d 1134, 1138. However, we find that Relator’s reliance on Harris is

misplaced. This Court specifically noted in Harris that the patient was seeking

treatment regarding weight management; therefore, stepping on a scale was a

necessary part of the treatment. Harris, 819 So. 2d. at 1138.

We find the Harris case distinguishable from the instant case in three (3)

ways: first, even though Respondent was in the examination room, treatment had

not begun; second, the stepstool was not a necessary tool needed for the treatment,

but merely a device to aid in rising onto the examination table; and third,

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Respondent was seeking treatment for gastrointestinal issues, for the first time,

with Relator and the stepstool was not a necessary instrument for her treatment.

Furthermore, there is no allegation that attachment and use of the stepstool

had to be accomplished or monitored by professionally trained medical staff. In

consideration of the above, this factor weighs in favor of not applying LMMA.

2. Whether the Wrong Requires Expert Medical Evidence to Determine
Whether the Appropriate Standard of Care Was Breached
Relator next asserts medical expert testimony may be necessary to establish

custom regarding how other local healthcare providers provide assistance for

climbing onto an examination table. In Blevins, the court reasoned that because

securing the bed was routinely part of the maintenance staff’s duties, there was no

need to consult a medical expert on whether failing to lock the bed was medical

malpractice or to determine proper maintenance procedures. 959 So. 2d at 446.

This Court, in Watson reasoned there was no reason to consult medical experts

regarding whether the fall monitor was properly secured because, “the conduct at

issue may be readily assessed on the basis of the common everyday experience of

the trier of fact.” 203 So. 3d at 323. The determination of whether equipment was

properly attached could be resolved by observation. Id.

In the current case, Respondent explained she was not provided aid in using

the stepstool and the stepstool did not have handrails or other supporting devices.

Respondent was allegedly not asked and did not volunteer if she needed assistance

getting onto the table. The type of equipment used to aid in climbing onto an

examination table and whether that equipment has adequate support devices may

need to be established by medical expert opinion regarding common practice and

the equipment used because the stepstool was allegedly attached to the

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examination table. In this case, however, there has been no allegation that the stool

used was unusual or different from common practice and claims regarding how it

should be assembled - on the surface - seems to be easily resolved by observation,

or even the attachment of the stool’s assembly instructions as evidence in the case.

Without factual support that this particular stool is medically necessary equipment

requiring assembly by trained medical personnel, to which there are none, this

factor weighs in favor of not applying LMMA.

3. Whether the Pertinent Act or Omission Involved Assessment of the
Patient's Condition
In considering this factor, the court must determine whether the harmful act

or omission was required as part of the assessment of the patient’s condition.

Blevins, 2007-127, p. 9-10 (La. 6/29/07), 959 So. 2d at 447. Relator asserts

Respondent’s use of the stool was a required step in the assessment because the

purpose of having Respondent climb onto the table was to perform the assessment.

However, Relator does not allege the stepstool is a necessary assessment tool and

fails to provide any facts evincing why using a stepstool in necessary for the

assessment of gastrointestinal problems. This factor weighs in favor of not

applying LMMA.

4. Whether the Incident Occurred in the Context of a Physician-Patient
Relationship, or Was Within the Scope of Activities Which A Hospital Is
Licensed To Perform
Respondent was in the process of seeking medical treatment for the first

time from Relator. Even though the examination had yet to begin, Respondent was

actively following Relator’s directions at the time of her injury in preparation for

an examination. “Nothing in the plain language of the [L]MMA limits its

application to direct treatment by a physician.” Blazio v. Ochsner Clinic Found.,

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2019-0753, p. 7 (La. App. 4 Cir. 3/4/20), 294 So. 3d 36, 42, writ denied, 2020-

00732 (La. 10/6/20), 302 So. 3d 530. (citing Dupuy v. NMC Operating Co., 15-

1754, p. 11 (La. 3/15/16), 187 So.3d 436, 443). In Blazio, this Court reasoned that

set-up and care for equipment, even if such acts are not performed by medical staff

falls within the definition of healthcare such that a physician-patient relationship

existed. Id. This factor differs from the first Coleman factor because the court does

not make a determination of whether the equipment was necessary for treatment

but rather looks to whether the healthcare provider offers the equipment in service

of medical care. See Id.

This Court has further reasoned that seeking out medical treatment and the

steps taken at the medical office in preparation of that treatment – even if treatment

has yet to or does not occur – establishes a physician-patient relationship. Talbert

v. Evans, 2011-1096, p. 8 (La. App. 4 Cir. 3/7/12), 88 So. 3d 673, 678; Harris,

2001-1827, p. 9, 819 So. 2d at 1140. In Talbert, the patient was given a

prescription written on a pre-signed pad. Id. The physician had never examined the

patient or even met with the patient during the visit. Id. at 675. The prescription

was written out by a physician’s assistant and no further examination or

questioning was performed by the doctor. Id. This Court ruled that even though the

physician never met with the patient, a physician-patient relationship existed

because the physician was the operator of the clinic and his name on the pre-signed

scripts.

The current case is distinct from the previously cited cases because, the

patients in the cited cases received some type of care or assessment prior to the

injury, even if the acts were not performed by the physician. This Court, however,

cannot ignore the fact that Respondent was following Relator’s instructions in

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anticipation of receiving the care she sought out. Based on the aforementioned

jurisprudence, we find that a physician-patient relationship existed in this case.

Thus, this factor weighs in favor of applying LMMA.

5. Whether the Injury Would Have Occurred if the Patient Had Not Sought
Treatment
Relator argues that Respondent admitted this factor in pleadings with the

statement “[b]y necessity, [Respondent]’s claim would not exist had she not visited

[Relator]’s office.” Respondent’s admission does immediately decide this factor

because this factor is not about whether the patient needed to seek treatment, or if

the patient could have been injured in the same manner at some other location. The

Court considers whether anyone visiting the premises, “even those not seeking

treatment,” and used the equipment could have suffered injury. Blevins, 2007-127,

p. 11, 959 So. 2d at 447; Williamson, 2004-0451, p. 14, 888 So. 2d at 791.

The stepstool was not a necessary part of Respondent’s treatment, and her

fall was not related to her treatment or even the reason she sought treatment.

Respondent fell because she stepped onto the stepstool and lost her balance. Any

person, whether they were seeking medical treatment or not could have fallen from

the stepstool. A colleague or friend visiting Relator and choosing to sit on the

examination table for whatever reason could just as easily have fallen from the

stepstool just as Respondent did. This factor weighs in favor of not applying

LMMA.

6. Whether the Tort Alleged Was Intentional

There is no allegation or evidence to support a finding that Relator acted

with the intent to harm Respondent. This factor is not an issue in this case and

therefore weighs in favor of not applying LMMA.

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Conclusion

Overwhelmingly, when applying the Coleman factors, we find that they

were not met such that the LMMA applies to the instant matter. Respondent’s fall

and subsequent injury were neither treatment-related nor caused by dereliction of

professional skill. Expert medical evidence is likely unnecessary to determine

whether the appropriate standard of care was breached. Respondent’s use of the

stool to climb on the table did not involve assessment of her condition. The injury

could have happened to anyone using the stepstool regardless of whether the

individual was seeking medical treatment. There is no allegation that either Relator

or Respondent acted with an intent to cause harm. We, therefore, conclude that the

trial court did not err in denying Relator’s Exception of Prematurity.

For the forgoing reasons, the writ is Granted, but relief is Denied.

WRIT GRANTED; RELIEF DENIED

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