Thomas Garner, Sr. v. Louisiana Medical Mutual Insurance Company (LAMMICO), TDC Specialty Insurance Company, Advanced Surgical Care of Baton Rouge, LLC, Jonathan Taylor, M.D., Chad Paul Gautreaux, CRNA, Kevin Anderson, M.D., and Gehl Davis, M.D.

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2022 CA 0778

C1 THOMAS GARNER, SR.

VERSUS

LOUISIANA MEDICAL MUTUAL INSURANCE COMPANY
LAMMICO), TDC SPECIALTY INSURANCE COMPANY,
ADVANCED SURGICAL CARE OF BATON ROUGE, LLC,
JONATHAN TAYLOR, M.D., CHAD PAUL GAUTREAUX, CRNA,
KEVIN ANDERSON, M.D., AND GEHL DAVIS, M.D.

DAVE OF JUDGMENT: MAR 2 9 2023

ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT
PARISH OF EAST BATON ROUGE, STATE OF LOUISIANA
NUMBER 710676, SECTION 24

HONORABLE DONALD R. JOHNSON, JUDGE

Hannah E. Mayeaux Counsel for Plaintiff A
- ppellant
Damon L. Beard Thomas Garner, Sr.
Todd A. Townsley
Sage L. Middleton
Lake Charles, Louisiana

Brandon Ashley Sues Counsel for Defendant -Appellee
Sarah Spruill Couvillon Advanced Surgical Care of Baton
Alexandria, Louisiana Rouge, LLC, and TDC Specialty
Insurance Company

Tara S. Bourgeois Counsel for Defendant -Appellee
Garrett S. Callaway Chad Paul Gautreaux, CRNA
Jonathan E. Thomas
Baton Rouge, Louisiana

Vance A. Gibbs Counsel for Defendant -Appellee
Jason R. Cashio Jonathan Taylor, M.D.
Baton Rouge, Louisiana
and

Karen M. Fontana Young
New Orleans, Louisiana

L. Adam Thames Counsel for Defendant -Appellee
Ann Michelle Halphen Kevin Anderson, M.D., and Gehl
Amy Collier Lambert Davis, M.D.
Baton Rouge, Louisiana

BEFORE: GUIDRY, C. J., CHUTZ, AND RESTER, JJ.

Disposition: AFFYRAMD.

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CHUTZ, J.

Plaintiff-appellant, Thomas Garner, Sr., appeals the trial court' s judgment

sustaining a dilatory exception raising the objection of prematurity and dismissing
his claims of medical malpractice against defendants -appellees, Advanced Surgical

Care of Baton Rouge (Advanced Surgical Care), its alleged insurer, TDC Specialty

Insurance Company, Jonathan Taylor, M.D., Chad Paul Gautreaux, CRNA, Kevin

Anderson, M.D., and Gehl Davis, M.D., based on a finding that Gamer filed this

lawsuit in district court prior to review of his claims and rendition of an opinion by
a medical review panel ( MRP) as required under the provisions of the Louisiana

Medical Malpractice Act (LMMA). We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

According to the allegations of his petition, 71 -year- old Garner sought the

surgical removal of bilateral shoulder lipomas. On August 14, 2020, Dr. Taylor

undertook the surgical procedure at an Advanced Surgical Care facility. Shortly

after surgery commenced, the procedure was aborted when a spark of a Bovie

cautery ( an electrosurgical device) ignited beneath the drapes and Garner' s face

caught on fire.

According to Dr. Taylor' s operative report, the drapes were removed, and a

scrub tech threw ( what appeared to be) water onto Garner' s face, quenching the

flames. Saline and a bacitracin ointment were applied to Garner' s face, and the

surgical team cleaned and removed debris with gauze and saline. Dr. Taylor noted

that Garner sustained burns to his face and bilateral checks/maxillary areas as well

as to his upper and lower lips.

Garner was subsequently administered pain medication and transferred to

the burn unit at Baton Rouge General Medical Center. He was discharged the

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following day, on August 15, 2020, and continued to receive outpatient wound

care.

On August 13, 2021, Garner initiated a claim with the Commissioner of the

Division of Administration, requesting the formation of an MRP. That same day,
Garner also instituted this lawsuit in district court, naming as defendants Advanced

Surgical Care, its insurer, and Dr. Taylor. Additionally named as a defendant was

Nurse Gautreaux, whom Garner alleged performed a pre -induction assessment of

him; pre -oxygenated and sedated him; and drafted notes describing the surgery
room events. Garner also named Dr. Anderson, the anesthesia provider

supervising anesthesiologist) noted at the bottom of Garner' s anesthesia record,

and Dr. Davis, an anesthesiologist who visited Garner, signed Garner' s anesthesia

consent form, noted the pre -operative and post-operative anesthesia orders, and

initiated the pre- procedure check- in, as defendants in this lawsuit.'

In response to the lawsuit, these defendants filed dilatory exceptions

subsequently filed dilatory exceptions raising the objection of prematurity,

averring that because the MRP had not reviewed Garner' s claims and rendered its

opinion, Garner' s petition had been initiated too early. After a hearing on February
7, 2022, the trial court sustained the exceptions and dismissed Garner' s claims

without prejudice. Garner appeals.

DISCUSSION

The dilatory exception of prematurity provided for in La. C. C.P. art. 926( 1)

questions whether the cause of action has matured to the point where it is ripe for

judicial determination. Under the LMMA, a medical malpractice claim against a

1 Although Garner named as a defendant Louisiana Medical Mutual Insurance Company
LAMMICO), whom he averred is " a local insurance corporation," the petition is devoid of any
other allegations against this defendant. While nothing in the appellate record shows an
appearance by LAMMICO in this litigation, in correspondence to Garner from the Division of
Administration it appears that Nurse Gautreaux and Drs. Anderson and Davis are insured by
LAMMICO.

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qualified health care provider is subject to dismissal on a timely exception of
prematurity if the claim has not first been reviewed by a pre -suit MRP. In such

situations, an exception of prematurity neither challenges nor attempts to defeat

any of the elements of the plaintiffs cause of action but instead asserts that the

plaintiff has failed to take some preliminary step necessary to make the

controversy ripe for judicial involvement, The burden of proving prematurity is on

the moving party who, in a medical malpractice case, must show entitlement to an

MRP because the allegations fall within the scope of the LM14A. Whether a claim

sounds in medical malpractice is a question of law reviewed de novo. See Kelleher

v. Univ. Med Cir. Mgmt. Corp., 2021- 00011 ( La. 10/ 10/ 21), 332 So. 3d 654, 657.

Under La. R.S. 40: 1231. 8( B)( 1)( a)( i) of the LMMA, no action against a

health care provider under the LMMA, or against his insurer, " may be commenced

in any court before the claimant' s proposed complaint has been presented to [ an

MRP]." Any tort suit filed before completion of the MRP process is subject to

dismissal on an exception of prematurity. McDowell v. Garden Court Healthcare,

L.L,C,, 54,645 ( La. App. 2d Cir. 8/ 10122), 345 So. 3d 506, 510, writ denied, 2022-

01364 ( La. 11/ 16/ 22), 349 So. 3d 999, citing Blevins v, Hamilton Med Ctr. Inc.,

2007- 127 ( La. 6/ 29107), 959 So. 2d 440.

Each of the health -care -provider defendants placed into evidence certified

copies of their respective certificates of enrollment with the Louisiana Patients

Compensation Fund, thereby establishing that they are qualified health care

providers subject to the protections and benefits of the LMMA. See generally La.

R.S. 40; 1231. 2 ( setting forth the requirements for a health care provider' s

qualification under the LMMA).

On appeal, Garner asserts that because the acts giving rise to his entitlement

to damages occurred during a public health emergency, the provisions of the

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Louisiana Health Emergency Powers Act (LHEPA), La. R.S. 29:760- 775, apply to

his claim rather than those of the LMMA. Garner suggests the LHEPA sets up a
separate statutory scheme, which permits lawsuits for gross negligence and willful

conduct. He maintains the effect of the LHEPA is to prohibit the liability of a
health care provider from arising under the LIVIMA.

On March 11, 2020, Governor John Bel Edwards declared a public health

emergency for the State of Louisiana due to the Covid- 19 global pandemic. Within

the declaration, the governor invoked the LHEPA. Whitehead v. Christus Health

Cent. La., 2021- 764 ( La. App. 3d Cir. 6/ 8/ 22), 344 So. 3d 91, 94. Since the surgical

procedure giving rise to Garner' s injuries occurred on August 14, 2020, Garner has

correctly pointed out that the provisions of LHEPA were in effect. According to

La. R. S. 29: 771( B)( 2)( c)( i), ",[d] uring a state of public health emergency, no health

care provider shall be civilly liable for causing the death of, or injury to, any

person or damage to any property except in the event of gross negligence or willful

misconduct."

Typically, the burden of proof that a plaintiff in a medical malpractice claim

must establish by a preponderance of the evidence is as set forth in La. R.S.

9: 2794( A) ( i. e., the standard of care applicable to the defendant; that the defendant

breached that standard of care; and there was a causal connection between the

breach and the resulting injury). La. R.S. 29: 771( B)( 2)( c)( i), however, provides a

heightened burden of proof ' against private health care providers during the event

of a public health emergency. Whitehead, 344 So. 3d at 94. Accord Hebert v

Louisiana Med Mut. Ins. Co. ( LAMMICO), 2022- 316 ( La. App. 3d Cir.

10/ 26/ 22), 353 So. 3d 846, 850. The " obvious purpose" of this modified burden of

proof is the need " to allow health cage providers to provide medical care and

treatment during a time of public health crisis without concerns of liability for a

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patient' s poor outcome, unless the treatment decisions were grossly negligent, or

the provider' s misconduct was willful." Whitehead, 344 So. 3d at 95. As the more

specific statute, La. R.S. 29: 771 prevails over the more general malpractice statutes

during a state of public health emergency and provides the heightened burden of
proof.Ian

Nevertheless, the LHEPA does not supplant the provisions of the LMNIA.

Under the provisions of the LMMA, La. R.S. 40: 1231. 1( A)( 13) defines

malpractice" as follows:

A]ny 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
in the training or supervision of health care providers.

Given the definition set forth in La. R. S. 40: 1231. 1( A)( 13), the courts of this state

have determined that claims for the gross negligence of private health care

providers are covered under the LNR%
4A.2 Hebert, 353 So.3d at 851- 5, relying on
Whitehead, 344 So. 3d at 95, which cited Wesco v. Columbia Lakeland Med. Or.,

2003- 0328 ( La. App. 4th Cir. 9110103), 862 So.2d 997, 999, writ denied, 2004-

0525 ( La. 4/ 30/ 04), 872 So. 2d 490 and Flood Y. Pendleton Mem' l Methodist

Hasp., 2002- 0440 ( La. App. 4th Cir. 7117/ 02), 823 So.2d 1002, 1013, writ denied,

02- 2206 ( La. 11/ 8/ 02), 828 So.2d 1121). Accord McDowell, 345 So. 3d at 512- 13.

Without disputing that all of the health -care -provider defendants are private

health care providers and acknowledging that the recent state -court cases have

concluded that claims for gross negligence against private health care providers are

subject to the LMMA, Garner points out that the appellate decisions have

2 Compare and contrast La. R.S. 40: 1237. 1- 1240, the Medical Liability for State Services Act,
which excludes claims of gross negligence in certain situations against state health care providers
and other persons defined therein. See La. R. S. 40: 1237. 1( A)(9)( a)( iv)(ce); Bryant V. Dept of
Health and Hosps., 2018- 423 ( La. App. 3d Cir. 1116119), 264 So. 3d 521, 525- 26, writ denied,
2019- 264 ( La. 418119), 267 So. 3d 614.

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recognized that claims for intentional torts against private health care providers fall

outside the ambit of the MMA. See e. g., Hebert, 353 So. 3d at 850- 5; Whitehead,

344 So.3d at 96; McDowell, 345 So. 3d at 511. Based on the allegations of his

petition, Garner maintains that he has asserted intentional torts against the health-

care -provider defendants.

Not every unintentional tort committed by a qualified health care provider

falls within the LMMA; only those " arising from medical malpractice." McDowell,

345 So.3d at 510, citing Williamson v Hosp. Ser. Dist. No. I ofJefferson, 2004-

0451 ( La. 12/ 1/ 04), 888 So. 2d 782. The Louisiana Supreme Court has, without

exception,
emphasized the LMMA and its limitations on tort liability for a

qualified health care provider apply strictly to claims " arising from medical

malpractice,"
and all other tort liability on the part of the qualified health care

provider is governed by general tort law. McDowell, 345 So. 3d at 510, citing
Williamson, 888 So. 2d 782 and Coleman v. Deno, 2001- 1517 ( La. 1/ 25/ 02), 813

So. 2d 303.

The Louisiana Supreme Court has set forth a six -factor test for

determining whether particular conduct by a health care provider constitutes

malpractice" under the LMMA. These are:

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,

3) whether the pertinent act or omission involved assessment
of the patient' s condition,

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

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6) whether the tort alleged was intentional.

McDowell, 345 So. 3d at 511.

On appeal, Garner does not make any assertions disputing that the first five
factors result in a determination that his claim against each health -care -provider

defendant sounds in medical malpractice under the LNO A, And our application of

these factors to the allegations of Garner' s petition confirms that. Since the injuries

occurred during surgery, the cause of the fire and each health -care -provider

defendant' s role are treatment related inquiries. Clearly, the appropriateness of

using the Bovie cautery device and each defendant' s actions and responsibilities in

its use requires medical expertise to establish whether any breaches in the standard

of care occurred. In his petition, as to each health care provider Garner averred that

the respective failure to " evaluate, assess, prepare, monitor, and treat" him before,

during, and after the surgical procedure were breaches in medical standards.

Importantly, these allegations show that the actions and omissions of each health-

care -provider defendant in the events that caused Garner' s injuries involved

assessments of Garner' s condition before, during, and after the attempted surgical

procedure. That the fire giving rise to the burns on Garner' s face occurred in the

context of patient -health care provider relationships or was within the scope of a

surgical procedure that Advanced Surgical Care was licensed to perform is an

undisputed factor. Similarly, but for the undertaking of lipoma removal surgical

procedure, Garner would not have had the injuries to his face. Thus, the first five

factors show the conduct of each of the health -care -provider defendants constituted

malpractice under the LMMA.

The issue of whether the allegations of each health -care -provider

defendant' s conduct set out in the petition suggest the intentional commission of

torts against Garner also establishes Garner' s claims sound in medical malpractice.

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That Garner claimed each health -care -provider defendant' s " willful, deliberate, and

intentional choices" made "
it predictable or substantially certain harm would

occur" to him is insufficient to constitute an intentional tort.

An intentional act in this context has the same meaning as an intentional tort;
that is, the person who acts either "( 1) consciously desires the physical result of his

act[ J or ( 2) knows that the result is substantially certain to follow from his

conduct, whatever his desire may be as to that result." Whitehead, 344 So.3d at 96,

quoting Bazley v. Tortorich, 397 So.2d 475, 481 ( La. 1981).

Garner has not averred that any of the health -care -provider defendants

consciously desired either the ignition below the drapes by a spark from the Bovie

cautery or the burns to Garner' s face. And the petition contains no allegations that

any of the healthcare -provider defendants knew either the ignition below the

drapes by the spark from the Bovie cautery or the burns to Garner' s face were

substantially certain to follow because of any particularly -described conduct

committed by one of the health -care -provider defendants. Garner has simply

averred acts which occurred during a surgical procedure in conjunction with the

administration of medical treatment. As such, Garner' s petition fails to aver an

intentional tort and the provisions of the LMMA apply, including review of his

claims and rendition of an opinion by the MRP. Accordingly, the trial court

correctly sustained the defendants' dilatory exceptions raising the objection of

prematurity and dismissed Garner' s lawsuit without prejudice.

DECREE

For these reasons, the trial court' s judgment is affirmed. Appeal costs are

assessed against plaintiff-appellant, Thomas Garner, Sr.

AFFIRMED.

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