Diamond Fields and Gerald Sanford Versus Ochsner Medical Center - Kenner, L.L.C.

DIAMOND FIELDS AND GERALD SANFORD NO. 21-C-481

VERSUS FIFTH CIRCUIT

OCHSNER MEDICAL CENTER - KENNER, COURT OF APPEAL
L.L.C., ET AL
STATE OF LOUISIANA

August 20, 2021

Nancy F. Vega
Chief Deputy Clerk

IN RE DIAMOND FIELDS AND GERALD SANFORD

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT
COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE
JUNE B. DARENSBURG, DIVISION "C", NUMBER 813-278

Panel composed of Judges Stephen J. Windhorst,
Hans J. Liljeberg, and John J. Molaison, Jr.

WRIT GRANTED

According to the Petition for Damages enclosed in their writ application, the
relators, plaintiffs Diamond Fields and Gerald Sanford, claim mental injuries
resulting from Ochsner Medical Center, L.L.C.’s (“Ochsner”) alleged negligence
in misplacing, and not recovering, the remains of their stillborn daughter, Nalini.
Before answering the petition, Ochsner filed an exception of prematurity on the
basis that the relators had yet to first convene a medical review panel before filing
the instant lawsuit under Louisiana Medical Malpractice Act (“LMMA”) found at
La. R.S. 40:1231.1, et. seq. The trial court granted Ochsner’s exception on June
17, 2021, dismissing the relators’ non-intentional negligence claims without
prejudice, and the relators have timely sought review of that ruling.

Exception of prematurity

The dilatory exception of prematurity questions whether a cause of action
has matured to the point where it is ripe for judicial determination. Spradlin v.
Acadia–St. Landry Medical Foundation, 98-1977 (La. 2/29/00), 758 So.2d 116.
Under the LMMA, a medical malpractice claim against a private qualified health
care provider is subject to dismissal on an exception of prematurity if such claim
has not first been presented to a medical review panel. LaCoste v. Pendleton
Methodist Hosp., L.L.C., 07-0008 (La. 09/05/07), 966 So.2d 519. “No action
against a health care provider covered by this Part, or his insurer, may be
commenced in any court before the claimant's proposed complaint has been
presented to a medical review panel established pursuant to this Section.” La. R.S.
40:1231.8(B)(1)(a)(i). When the exception of prematurity is pled in the medical
malpractice context, the burden of proving prematurity is on the exceptor, who

21-C-481

must show that it is entitled to a medical review panel because the allegations fall
within the LMMA. LaCoste, supra, at 523-24. The LMMA and its limitations on
tort liability for a qualified health care provider apply only to claims “arising from
medical malpractice,” while all other tort liability on the part of the qualified health
care provider is governed by general tort law. Id. at 524. Therefore, we conduct a
de novo review of the district court's ruling sustaining the dilatory exception of
prematurity because the issue of whether a claim sounds in medical malpractice
involves a question of law. Matherne v. Jefferson Parish Hospital Dist. No. 1, 11-
1147 (La. App. 5 Cir. 5/8/12), 90 So.3d 534, 536, writ denied, 12-1545 (La.
10/12/12), 98 So.3d 873. Because the MMA's limitations on the liability of health
care providers are in derogation of the rights of tort victims, the MMA is to be
strictly construed. Dupuy v. NMC Operating Co., 15-1754 (La. 3/15/16), 187
So.3d 436, 439.

Applicable definitions

La. R.S. 40:1231.1 of the LMMA provides the following definitions relevant
to the issues raised:

(9) “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's medical care, treatment, or confinement, or during or relating
to or in connection with the procurement of human blood or blood
components.

(13) “Malpractice” means 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.

(15) “Patient” means a natural person, including a donor of
human blood, a donor or prospective donor of an organ or tissue, or
blood components and a nursing home resident who receives or
should have received health care from a licensed health care provider,
under contract, expressed or implied.

The relators argue that the application of these definitions warrants a finding that
Ochsner’s alleged acts of negligence fall outside of the scope of the LMMA
because the negligence was not related to the healthcare of Ms. Fields or Nalini.
The relators also contend that because Nalini was stillborn, she was never
considered to be a “person” according to La. C.C. art. 26, which provides in
relevant part, “If the child is born dead, it shall be considered never to have existed
as a person, except for purposes of actions resulting from its wrongful death.”
Accordingly, relators conclude that Nalini does not meet the definition of a patient.
Conversely, Ochsner argues that the LMMA applies to professional services

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provided by a hospital that are an extension of health care services, including the
handling of an unborn child’s remains while in its custody. Ochsner also contends
that the relators’ claims are based on health care and professional services rendered
by Ochsner to Ms. Fields.

Law and analysis

Other Louisiana courts have considered the issue of whether a hospital’s
alleged mishandling of human remains after death constitutes an act of medical
malpractice as defined by the LMMA. In Gayden v. Tenet Healthsystem Mem'l
Med. Ctr., Inc., 04-0807 (La. App. 4 Cir. 12/15/04), 891 So.2d 734, the plaintiffs
alleged that the defendant hospital failed to properly refrigerate and preserve the
body of their deceased family member. The hospital filed an exception of
prematurity, arguing that the alleged negligence was an act of medical malpractice
that first needed to be submitted to a medical review panel. The trial court granted
the hospital’s exception. In reversing the trial court’s ruling, the Fourth Circuit
held:

In the present case, it is undisputed that Edwards was not alive at the
time of the alleged negligence. We conclude that because he was not a
natural person he was not a patient as defined by the MMA. Furthermore,
La. R.S. 40:1299.41(A)(8), in defining malpractice for the act, provides for
liability of a health care provider for negligent acts or omissions in rendering
health care or professional services to a patient.
…
Applying a strict reading of the MMA in the present case, more
particularly, the definitions of “patient” and “malpractice”, we cannot say
that the statute was intended to encompass negligent acts toward a deceased
person.
Therefore, we conclude that Memorial's alleged negligence, in
handling Edwards' body after his death, is not a medical malpractice claim
as contemplated by the MMA.

Id., at 736. In an unpublished opinion, Harris v. St. Tammany Par. Hosp. Serv.
Dist. No. 1, 11-0941 (La. App. 1 Cir. 12/29/11), writ denied, 12-0585 (La.
4/20/12), 85 So.3d 1275, and writ denied, 12-0678 (La. 4/20/12), 85 So.3d 1277,
the First Circuit applied Gayden to find that a hospital’s handling of a body after
death fell under general negligence principles. (“To the extent that plaintiff argues
in its malpractice claim against STPH that STPH erred in failing to send Mrs.
Harris' body for autopsy, we note that the Medical Malpractice Act was not
intended to encompass negligent acts toward a deceased person because a corpse is
not considered a “patient” under the MMA.”)

Based on the foregoing, we agree with the relators that a stillborn child
cannot, for the purpose of invoking LMMA review, be considered a “patient,” as
defined above. Next, we must consider whether the handling of a Nalini’s remains
could be considered as an extension of “health care” provided to Ms. Fields.

Coleman factors

In Coleman v. Deno, 01-1517 (La. 1/25/02), 813 So.2d 303, 315-316, the
Louisiana Supreme Court identified the following factors to be considered when

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determining whether the conduct of 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,
[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
[6] whether the tort alleged was intentional.

Health care

While clearly an act of malpractice can occur in the rendition of professional
services, the patient must still be in the process of receiving “health care” from the
doctor or hospital when the negligent rendition of professional services occurs.
This means that the act or omission must have occurred “during the patient's
medical care, treatment or confinement.” Price v. City of Bossier City, 96-2408
(La. 5/20/97), 693 So. 2d 1169, 1172-73; Richard v. Louisiana Extended Care
Centers, Inc., 02-0978 (La. 1/14/03), 835 So.2d 460, 468. As noted above, “health
care” means any “act” or “treatment performed.” In the instant case, the petition
does not allege that Ms. Fields was receiving any type of ongoing care or treatment
from Ochsner at the time that the alleged negligence took place. The petition does
allege, however, that the act of negligence occurred after she was discharged from
the hospital. Accordingly, we fail to find, based on the petition, that that the act of
negligence was in the context of “health care” as defined by the LMMA.

Expert medical evidence

The relators argue that the second Coleman factor is inapplicable based on
the allegations raised in the Petition for Damages because expert medical evidence
is not required to determine whether losing a body under the hospital’s custody and
control falls below an appropriate standard of care. Conversely, Ochsner contends
that the procedures and processes in this case “are driven by medical standards and
legal requirements and involve multiple levels of medical and professional staff,
including physicians, nurses, religious, security and other hospital professional
staff.” Ochsner concludes, “the requirements of the handling of human remains and
post mortem care is not within the purview of a lay person, and thus, this factor
weighs in favor of applying the MMA to this action.”

In LaCoste v. Pendleton Methodist Hosp., L.L.C., supra at 527, the family
members of a deceased patient sued the hospital where the patient received
treatment, alleging that the patient’s death was caused by the hospital’s complete
inability to transfer a patient because of a lack of emergency power, poor building
design, and inadequate protection from floodwaters. In that case, the supreme
court held, based on the petition, that because the plaintiffs had not alleged that the
patient’s death had been caused by individuals with medical training, medical
evidence was not necessary to evaluate certain aspects of the claim.

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In the instant case, the petition alleges that the act of negligence was the
hospital’s misplacement of Nalini’s remains. Here, like the reasoning of the
LaCoste court, we find that no medical expert will be needed to determine whether
hospital personnel were negligent in doing so. Expert testimony is not required
where a layperson can infer negligence from the facts. Pfiffner v. Correa, 94-0924,
94-0963, 94-0992 (La. 10/17/94), 643 So.2d 1228, 1230; Gisclair v. Bonneval,
M.D., 04-2474 (La. App. 1 Cir.12/22/05), 928 So.2d 39, 42. We find this factor
weighs in favor of finding the allegations sound in general negligence.

Assessment of condition

Under this factor, Ochsner argues that “the care and treatment provided to
Diamond Fields during delivery of Naomi [sic], and the determination of stillborn
delivery and after life-care requirements involve the assessment of both mother and
the stillborn child during delivery, and after life-care of the stillborn child.” As
stated above, we do not find that Nalini was the patient for the purposes of the
LMMA. Ochsner fails to identify what, if any, “assessments” of Nalini’s remains
were required in the weeks after Ms. Fields was discharged from the hospital,
which is when the alleged acts of negligence occurred.

Patient relationship

The petition, on its face, does not allege that an act of negligence occurred
in the context of a physician-patient relationship. While relators acknowledge the
obvious relationship between Ms. Fields and Ochsner in the delivery of Nalini,
they claim that the emotional damages sustained were removed from any treatment
or physician-patient relationship. Additionally, it is not asserted that Nalini’s
father, Gerald Sanford, was ever a patient of Ochsner in connection with the
alleged acts of negligence.

Relating to the second part of the fourth factor, Ochsner argues that
safeguarding remains after death is an activity that it is licensed to perform. If so,
then this fact must be weighed along with the other factors in our analysis.
Nothing in the plain language of the LMMA limits its application to direct
treatment by a physician. Dupuy v. NMC Operating Co., supra. The use of the
term “health care provider” rather than simply “physician” or “medical doctor”
necessarily includes actions that are treatment-related and undertaken by a hospital
in its capacity as a health care provider - even if a medical professional does not
directly perform those actions. Dupuy, 187 So.3d at 443.

Would injury have occurred

Here, Ms. Fields was admitted to Ochsner for the delivery of her stillborn
child. If she had not sought treatment there, Ochsner would not have been
responsible for Nalini’s remains. Therefore, the fifth Coleman factor is satisfied.

Intentional tort

The LMMA does not protect the provider from all acts of misconduct
between the provider and his patients. It is only triggered by the negligent care and
treatment of the patient. Were the provider to commit an intentional tort against

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his patient or negligently injure his patient in a manner unrelated to medical
treatment, the limitation of liability would not be available. Descant v. Adm'rs of
Tulane Educ. Fund, 93-3098 (La.7/5/94), 639 So.2d 246, 250. A review of the
relators’ petition shows that they advanced theories of recovery under both
negligence and intentional tort. To the extent that the trial court did not dismiss the
intentional tort claims, the sixth factor in Coleman is inapplicable.

In derogation of the general rights of Louisiana tort victims, the LMMA
grants qualified health care providers certain limitations on liability for
unintentional torts that constitute medical malpractice as defined in the Act.
Williamson v. Hosp. Serv. Dist. No. 1 of Jefferson, 04-0451 (La. 12/1/04), 888 So.
2d 782, 791. Here, because we find that the alleged act does not constitute
“malpractice,” a finding of intent as to the general negligence claims is not
necessary to our analysis.

Conclusion

After a de novo review of the petition and Ochsner’s exception, and applying
all the Coleman factors, we find that the trial court erred in granting Ochsner’s
exception on the basis that the relators' claims must first be presented to a medical
review panel. For the purpose of the LMMA, Nalini cannot be considered as a
patient, nor did she ever meet the legal definition of a person. Under Coleman, and
applying the relevant definitions, we fail to find that that the act(s) of negligence
were in the context of “health care” as defined by the LMMA. Nor do we find that
expert medical testimony is necessary to understand the allegations of general
negligence which, in this case, consist of losing Nalini’s remains. The relators
claim that the emotional damages sustained were removed from any treatment or
physician-patient relationship. Additionally, it is not asserted that Nalini’s father,
Mr. Sanford, was ever a patient at Ochsner related to Nalini’s delivery. Finally,
certain acts alleged in the petition are classified as intentional torts which fall
outside of the LMMA.

Accordingly, for the foregoing reasons, the relators’ writ is granted
and the judgment of the trial court granting the exception of prematurity is
reversed.

Gretna, Louisiana, this 20th day of August, 2021.

JJM
SJW
HJL

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SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

NANCY F. VEGA
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN S. BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
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GRETNA, LOUISIANA 70054 (504) 376-1400

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NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN
TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS
DAY 08/20/2021 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF
THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY
COUNSEL, AS LISTED BELOW:

21-C-481
E-NOTIFIED
24th Judicial District Court (Clerk)
Honorable June B. Darensburg (DISTRICT JUDGE)
David L. Bateman (Relator)
Nadia M. de la Houssaye (Respondent)

MAILED
J. Michael McDonald (Relator)
Attorney at Law
6700 Jefferson Highway
Building 3
Baton Rouge, LA 70806