Devin Tucker Versus Seaside Behavioral Center, LLC; East Jefferson General Hospital

DEVIN TUCKER NO. 23-CA-132

VERSUS FIFTH CIRCUIT

SEASIDE BEHAVIORAL CENTER, LLC; COURT OF APPEAL
EAST JEFFERSON GENERAL HOSPITAL
STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 829-149, DIVISION "M"
HONORABLE SHAYNA BEEVERS MORVANT, JUDGE PRESIDING

December 27, 2023

FREDERICKA HOMBERG WICKER
JUDGE

Panel composed of Judges Susan M. Chehardy,
Fredericka Homberg Wicker, and Marc E. Johnson

REVERSED AND REMANDED
FHW
SMC
MEJ

COUNSEL FOR PLAINTIFF/APPELLANT,
DEVIN TUCKER
Adrian M. Simm, Jr.
Lance C. Unglesby
Jamie F. Gontarek
Lewis O. Unglesby

COUNSEL FOR DEFENDANT/APPELLEE,
SEASIDE BEHAVIORAL CENTER, LLC
Guice A. Giambrone, III
Ivana Dillas

COUNSEL FOR DEFENDANT/APPELLEE,
EAST JEFFERSON GENERAL HOSPITAL
Brett M. Dupuy
Jean-Paul J. Morrell

WICKER, J.

Plaintiff appeals the trial court’s judgments sustaining the dilatory

exceptions of prematurity filed by defendants and dismissing his claims against

them without prejudice. For the following reasons, we reverse both judgments and

remand the matter for further proceedings.

FACTS AND PROCEDURAL HISTORY

On June 10, 2022, plaintiff, Devin Tucker, filed this lawsuit against

defendants, Seaside Behavioral Center, L.L.C. (“Seaside”) and East Jefferson

General Hospital (“EJGH”), for damages sustained on December 25, 2020, when

he jumped from a third-floor window at EJGH while under the care of Seaside and

EJGH. In his petition, Mr. Tucker asserts that he suffers from schizophrenia and

bipolar disorder, and that he suffered a psychotic breakdown on December 16,

2020. He provides that the Jefferson Parish Coroner’s Office ordered him to be

brought to EJGH for a psychiatric examination, and he was placed on a “10-day

hold.” According to Mr. Tucker, after he arrived at EJGH and was evaluated, he

was transferred into the care of Seaside, which is a behavioral health center

“housed in and run by EJGH.” Mr. Tucker asserts that on Christmas morning, he

was able to completely open the window in his hospital room, and he attempted to

escape by jumping from the window to the ground three stories below.

In his petition, Mr. Tucker alleges that the grievous injuries he sustained

were caused by the negligence, fault, and/or strict liability of Seaside and EJGH.

He contends that he was in the custody and control of Seaside and/or EJGH at the

time of the incident, and that their failure to properly maintain the window created

a foreseeable and unreasonably dangerous condition. Mr. Tucker asserts that

Seaside and EJGH were negligent in failing to have locks or some type of restraint

on a third-floor window of a psychiatric unit, where individuals are committed

against their will. He also claims that Seaside and EJGH failed to maintain an

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adequate staff of properly trained personnel in the psychiatric unit. Mr. Tucker

alleges that none of his allegations are medical malpractice claims, because they do

not relate to his treatment or the judgment of a medical professional.

On July 18, 2022, Seaside filed a dilatory exception of prematurity, asserting

that it is a qualified health care provider under the Louisiana Medical Malpractice

Act (“LMMA”), La. R.S. 40:1231.1, et seq., and that Mr. Tucker’s claims against

it are based on allegations of medical malpractice. Seaside argued that Mr.

Tucker’s lawsuit must be dismissed without prejudice, because he failed to bring

his claims before a medical review panel prior to filing this lawsuit, as required by

La. R.S. 40:1231.8(A)(1). In support of its exception, Seaside attached a document

from the Louisiana Patient’s Compensation Fund (“PCF”) certifying that Seaside

was a qualified health care provider at the time of the incident.

On August 15, 2022, Mr. Tucker filed a memorandum in opposition to

Seaside’s exception of prematurity, stating that he does not dispute that Seaside is

a qualified healthcare provider under the LMMA, but this fact alone is insufficient

to show that his claims arise from medical malpractice. He argued that his claims

are not related to any medical treatment and therefore, do not fall under the

LMMA. Seaside filed a response on August 18, 2022, maintaining that Mr.

Tucker’s claims arise from medical malpractice, because this case involves

complex medical questions regarding the medication and proper monitoring

necessary for a schizophrenic patient and the risk he posed to himself or others.

Seaside’s exception of prematurity came for hearing before the trial court on

August 23, 2022. After considering the arguments of counsel, the trial court

sustained the exception and dismissed Mr. Tucker’s claims against Seaside without

prejudice. The court signed a written judgment to this effect on September 1,

2022.

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Thereafter, on September 15, 2022, EJGH filed a dilatory exception of

prematurity, asserting that it is a qualified health care provider and that Mr.

Tucker’s claims against EJGH were treatment-related and caused by dereliction of

professional skill. Therefore, it argued that the claims against it arise from medical

malpractice and are subject to the provisions of the LMMA. EJGH, like Seaside,

attached a document from the PCF certifying that it was a qualified health care

provider.

On October 19, 2022, Mr. Tucker filed a memorandum in opposition to

EJGH’s exception, asserting that his claims against EJGH were not treatment-

related, because he did not receive any psychiatric treatment or other medical care

from EJGH after he was transferred to the care of Seaside. Mr. Tucker argued that

his claims against EJGH arose from the acts of its administrators in failing to

properly maintain the third-floor hospital room window on its premises and failing

to protect Mr. Tucker from the dangerous condition created by allowing the

unsecured window to be fully opened on the third floor of the hospital psychiatric

unit. Mr. Tucker attached his medical records to his memorandum in opposition to

EJGH’s exception of prematurity. EJGH filed a reply memorandum on October

24, 2022, stating that Mr. Tucker’s claims against EJGH are identical to those

against Seaside and thus, EJGH is entitled to have the claims against it dismissed

as premature, just as Seaside did.

A hearing on EJGH’s exception of prematurity was held on October 27,

2022. At the conclusion of the hearing, the trial court sustained EJGH’s exception.

On November 28, 2022, the court signed a written judgment granting the exception

of prematurity and dismissing Mr. Tucker’s claims against EJGH without

prejudice. Mr. Tucker appeals both the September 1, 2022 and November 28,

2022 judgments.

LAW AND DISCUSSION

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On appeal, Mr. Tucker argues that the trial court erred by granting

defendants’ exceptions of prematurity and finding that his claims, which arise from

general negligence, administrative decisions, and premises liability, are subject to

the LMMA. He contends that the trial court failed to strictly construe the

provisions of the LMMA to his claims against Seaside and EJGH. Mr. Tucker

further argues that even if the trial court had properly found that one or some of his

claims sound in medical malpractice, the trial court should have severed any claims

that could fall under the LMMA. Finally, Mr. Tucker contends that the trial court

erred when it refused to consider his medical records attached to and filed in

support of his opposition to EJGH’s exception of prematurity.

A dilatory exception of prematurity questions whether a cause of action has

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

Farm Mutual Automobile Insur. Co., 16-418 (La. App. 5 Cir. 12/14/16), 209 So.3d

308, 311; Spradlin v. Acadia-St. Landry Med. Found., 98-1977 (La. 2/29/00), 758

So.2d 116, 119. When an exception of prematurity is pled in the medical

malpractice context, the burden of proving prematurity is on the exceptor, who

must show that it is entitled to a medical review panel because the allegations fall

within the LMMA. LaCoste v. Pendleton Methodist Hosp., L.L.C., 07-008 (La.

9/5/07), 966 So.2d 519, 523; Perry, 209 So.3d at 311. 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. La. R.S. 40:1231.8(B)(1)(a)(i); Williamson v.

Hospital Service Dist. No.1 of Jefferson, 04-451 (La. 12/1/04), 888 So.2d 782, 785.

Appellate courts conduct a de novo review of a trial court's ruling sustaining

a 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

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denied, 12-1545 (La. 10/12/12), 98 So.3d 873. Where, as here, no evidence is

introduced at the trial of a dilatory exception of prematurity, the court must render

its decision on the exception based upon the facts as alleged in the petition, and all

allegations therein must be accepted as true. LaCoste, 966 So.2d at 525.

Mr. Tucker contends that the trial court erred by refusing to consider his

medical records, which were attached to his opposition memorandum, when ruling

on EJGH’s exception of prematurity. At the hearing, counsel for both parties

referred to the medical records during their argument. Thereafter, the trial court

indicated that it was “bound by the four corners of the petition in addressing the

exception” and could not consider evidence. However, La. C.C.P. art. 930

provides that on the trial of a dilatory exception, evidence may be introduced to

support or controvert any of the objections pleaded, when the grounds thereof do

not appear from the petition. Although the trial court erroneously provided that it

could not consider evidence, this error is of no moment in this case, where the

record reflects that neither Mr. Tucker nor defendants moved to introduce any

exhibits at the hearings.

In Denoux v. Vessel Management Services, Inc., 07-2143 (La. 5/21/08), 983

So.2d 84, 88, the Louisiana Supreme Court held that “evidence not properly and

officially offered and introduced cannot be considered, even if it is physically

placed in the record. Documents attached to memoranda do not constitute evidence

and cannot be considered.” Accordingly, because no evidence was properly

offered and introduced at the hearings on the exceptions, we must render our

decision on the exception of prematurity based solely upon the facts as alleged in

the petition, accepting all allegations therein as true. 1

1
At the hearing on Seaside’s exception of prematurity, counsel for Seaside stated, “I would like to offer,
file and introduce my exhibits into the record.” Counsel for Mr. Tucker indicated he had no objection,
and the trial court replied that the exhibits were admitted. However, the transcript does not reflect that
any specific exhibits were identified. The record shows that Seaside attached a document to its exception
of prematurity indicating that it is a qualified health care provider. In the event Seaside intended to

23-CA-132 5

In Mr. Tucker’s petition, he sets forth the same claims against both

defendants, Seaside and EJGH. He asserts that defendants had custody and control

over him at the time of the incident and are liable for his damages, which occurred

as a result of their negligence, fault, and strict liability. The petition sets forth

specific allegations against defendants as follows:

1. Permitting said premises and/or areas to be maintained in a negligent and
improper manner;

2. Failing to maintain and/or repair aforesaid premises and/or areas;

3. Failing to warn Petitioner of the hazardous condition existing at said
premises;

4. Failing to see and take proper precautions against what should have been
seen and precautioned against;

5. Failing to discover and protect petitioner against the dangerous condition
and risk created by the dangerous condition of said defect;

6. Failing to remedy a defective condition of which defendants had actual or
constructive notice, despite a reasonable opportunity to do so;

7. Operating a premises which contained an unreasonable hazard;

8. Failing to maintain the window in Mr. Tucker’s hospital room in a proper
manner to prevent escape;

9. Failing to place protective screens or bars over the psychiatric unit
windows so as to prevent Mr. Tucker from being able to jump out of the
window in an attempt to escape; and

10.Failing to maintain an adequate staff of properly trained personnel in the
psychiatric unit.

The LMMA’s limitations on tort liability for a qualified health care provider

apply only to claims arising from medical malpractice, as defined in the LMMA

itself, while all other tort liability on the part of the qualified health care provider is

governed by general tort law. Blevins v. Hamilton Medical Center, Inc., 07-127

(La. 6/29/07), 959 So.2d 440, 444. Because the LMMA is special legislation in

derogation of the general rights of tort victims, any ambiguities in the LMMA must

introduce this document, we point out that the parties do not dispute that Seaside is a qualified healthcare
provider.

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be strictly construed against coverage. Id.; Price v. City of Bossier City, 96-2408

(La. 5/20/97), 693 So.2d 1169, 1172.

“Malpractice” is defined in La. R.S. 40:1231.1(13), 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.

In Coleman v. Deno, 01-1517 (La. 1/25/02), 813 So.2d 303, the Louisiana

Supreme Court set forth a six-part test to determine whether certain conduct by a

qualified health care provider constitutes medical malpractice, as defined in the

LMMA. Williamson, 888 So.2d at 786. The Coleman factors include: 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 that patient had not sought treatment, and 6)

whether the tort alleged was intentional. Id. at 786-787.

In order to determine whether or not Mr. Tucker’s claims arise from medical

malpractice and are subject to the provisions of the LMMA, we consider the

allegations of the petition, along with the definition of malpractice in La. R.S.

40:1231.1(13), and apply the Coleman factors thereto.

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The first Coleman factor considers whether the particular wrong is

treatment-related or caused by a dereliction of professional skill. Mr. Tucker

argues that his claims do not arise from a failure to render medical treatment or

services. Rather, they arise from defendants’ failure to properly maintain the

premises over which it had care, custody, and control, and their failure to warn or

protect him from the dangerous condition on the premises, i.e. an unlocked and

unsecured window on the third floor of a psychiatric ward. He further asserts that

his claims are based on the actions of the administrators of Seaside and EJGH by

allowing a dangerous or defective condition to remain on the premises without any

warning and failing to provide an adequate staff of properly trained personnel in

this psychiatric unit.

Defendants respond that Mr. Tucker’s claims relate to his medical treatment,

because he would not have attempted to escape via the hospital’s third floor

window if he did not suffer from schizophrenia and bipolar disorder. They also

contend that his claims of inadequate staff directly relate to his condition and are

intricately connected to his evaluation and confinement.

In considering the first Coleman factor, our review of the jurisprudence

reveals that the Louisiana Supreme Court’s opinion in Lacoste, supra, is

instructive. In Lacoste, 966 So.2d at 522-522, the plaintiffs brought wrongful

death and survival actions against a hospital alleging negligent and intentional

conduct of the defendant in 1) designing, constructing and/or maintaining a facility

in such a manner that the hospital did not have sufficient emergency power to

sustain life support systems; 2) designing, constructing and/or maintaining a

facility in such a manner that allowed flood waters to enter the structure, thus

endangering the safety of patients; and 3) failing to implement an adequate

evacuation plan. The Louisiana Supreme Court found that the plaintiffs’ claims

against the hospital did not fall within the purview of the LMMA. When

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considering the first Coleman factor, the Louisiana Supreme Court found that the

plaintiffs’ claims were not treatment-related or caused by dereliction of

professional medical skill. Id. at 526. The Court pointed out that the petition did

not allege that the decedent’s death was related to medicine, medical care, or

medical treatment. It further provided that the “language of the allegations,

‘designing,’ ‘constructing,’ ‘maintaining,’ and ‘failing to implement’ all suggest

premises liability and general negligence rather than a dereliction of professional

medical skill.” Lacoste, 966 So.2d at 526.

In the present case, similar to Lacoste, Mr. Tucker did not allege in his

petition that his injuries were related to medicine, medical care, or medical

treatment. The allegations refer to a “hazardous,” “dangerous,” and “defective”

condition of the premises, and the failure to “warn Petitioner of the hazardous

condition,” “discover and protect the Petitioner against the dangerous condition,”

and “maintain an adequate staff of properly trained personnel.” This language

suggests general negligence or premises liability, rather than the dereliction of

professional medical skill.

The jurisprudence reflects several situations in which the claims of patients

were found not to be treatment-related. For instance, in Williamson, 888 So.2d at

784-787, the Louisiana Supreme Court considered whether the failure of a health

care provider to properly maintain a wheelchair, which lost a wheel causing injury

to a patient, was subject to the provisions of the LMMA. The Court held that these

acts were not treatment-related, because the claims that “the hospital negligently

failed to repair the wheelchair and placed it back into service without verifying that

it was properly repaired” were neither related to, nor did they involve, actual

“treatment” of the patient. Id. at 789-90.

In Blevins v. Hamilton Medical Center, Inc., 07-0217 (La. 6/29/07), 959

So.2d 440, the Louisiana Supreme Court considered whether the failure of a health

23-CA-132 9

care provider to properly maintain a hospital bed, which rolled while the patient

was attempting to use the bathroom, resulting in a knee injury, fell within the

LMMA. The Court found that the alleged acts were not treatment-related and were

not covered by the LMMA. Id. at 446-448.

In Blazio v. Ochsner Clinic Foundation, 19-753 (La. App. 4 Cir 3/4/20), 294

So.3d 36, 43, writ denied, 20-732 (La. 10/6/20), 302 So.3d 530, the Fourth Circuit

found that a plaintiff’s negligence claim against a hospital for placing a lock on the

bathroom door of his/her hospital room, without a way to enter the bathroom

timely in an emergency situation, was not treatment-related. The Court found that

the plaintiff’s claim related to the deficient design of the hospital and lack of

emergency procedure, which did not involve medical treatment and was not related

to the dereliction of medical skill. The Court concluded that the plaintiff’s claims

were not subject to the LMMA. Id.

In support of its decision to sustain Seaside’s exception of prematurity, the

trial court referred to the Fourth Circuit’s decision in Prisk v. Palazzo, 95-1475

(La. App. 4 Cir. 1/19/96), 668 So.2d 415, writ denied, 96-437 (La. 4/8/96), 671

So.2d 335. However, we do not find the holding in Prisk to be persuasive here. In

Prisk, 668 So.2d at 416, the plaintiff filed suit against a doctor and a hospital,

alleging she was falsely imprisoned for eight days and that she “was caused to go

to [the hospital] under false pretenses.” The Fourth Circuit found that based on its

review of certain provisions of the Louisiana Mental Health Law, La. R.S. 28:1, et

seq., confinement for purposes of treatment falls within the definition of health

care. The Court stated that the plaintiff specifically alleged that she was falsely

imprisoned in violation of the Louisiana Mental Health Law, which “contemplates

confinement in a treatment facility as the initial step in the examination and

treatment of persons suffering from substance abuse or mental illness” and

“imposes special duties on physicians and hospitals before confining a patient for

23-CA-132 10

treatment.” The Court found that a breach of the statutory duties set forth in the

Mental Health Law constitutes medical malpractice. Id. at 418.

In the present case, unlike Prisk, Mr. Tucker did not allege he was

wrongfully confined to the hospital, that any mental health procedures were not

followed, or that the Mental Health Law was violated.

The petition does not show that Mr. Tucker’s allegations against Seaside and

EJGH relate to medical treatment or the dereliction of professional medical skill.

There is no indication of whether all of the windows in the hospital were

maintained without locks or restraints or whether, instead, the window in this

particular room was broken. Although defendants argue that the decision to hold

Mr. Tucker in a room with no locks on the windows was negligent due to his

psychiatric condition, there is nothing in the petition indicating that a medical

professional made this decision or that it was based on a medical assessment.

Further, with regard to the claim that Seaside and EJGH failed to maintain an

adequate staff of properly trained personnel, the petition does not indicate whether

the hospital administrators, a medical professional, or other hospital personnel was

responsible for the staffing of the psychiatric unit. Finally, as discussed above,

defendants introduced no evidence in support of their claim that Mr. Tucker’s

confinement in a room with no locks on its window was related to his evaluation

and treatment.

Based on our review of the factual allegations in the petition, we find that

the first Coleman factor weighs in favor of finding that the alleged actions of

defendants were not treatment-related.

Next, we consider the second Coleman factor, which is whether the wrong

requires expert medical evidence to determine whether the appropriate standard of

care was breached. Mr. Tucker contends that no medical professional has been

named in this lawsuit or is alleged to have breached the standard of care, and a

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medical professional would not be qualified to determine whether a hospital

window was defective or presented an unsafe condition. Defendants respond that

an expert is needed to determine the applicable standard of care for patients

suffering from schizophrenia and bipolar disorder.

Mr. Tucker has not alleged that his injuries were caused by an act or

omission of a doctor, nurse, or other medical professional. Based on the

allegations of the petition, there has been no showing that expert medical testimony

is necessary to determine whether Seaside or EJGH breached a particular duty

owed to Mr. Tucker. Defendants introduced no evidence to the contrary.

The third Coleman factor considers whether the pertinent act or omission

involved assessment of the patient's condition. Mr. Tucker argues that defendants’

acts or omissions did not involve an assessment of his condition, because the

design and maintenance of the hospital and its windows involved administrative

decisions, not professional, medical decisions. Defendants respond that

defendants’ medical assessments of Mr. Tucker bear directly on what precautions

they took, or failed to take, to prevent Mr. Tucker from escaping through the

window.

In support of its decision to grant Seaside’s exception of prematurity, the

trial court also relied on this Court’s decision in W.P. v. Universal Health Services

Foundation, 11-801 (La. App. 5 Cir. 3/27/12), 91 So.3d 1097, writ denied, 12-960

(La. 6/15/12), 90 So.3d 1067. Defendants rely on this case as well. However, we

find this case to be distinguishable. In W.P., 91 So.3d at 1098, the plaintiffs filed

suit against a hospital for negligence in failing to prevent two sexual assaults of

their minor son after he was placed in a room with another psychiatric patient.

This Court found that “a determination of a breach of the appropriate standard of

care for assessment of psychiatric patients and making room assignments based on

this assessment falls within the scope of the malpractice act.” Id. at 1101. The

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Court pointed out that placing a patient in a room with another patient with special

medical needs related “to the particular medical assessment and condition of each

of the patients, and are therefore related to the treatment of the patients within the

meaning of the medical malpractice act.” Id.

Unlike W.P., in the present case, the allegations of the petition do not

indicate whether Seaside and EJGH’s acts or omissions involved an assessment of

Mr. Tucker’s condition, and defendants introduced no evidence in support of their

argument.

Based on our review of the petition, we find that this Coleman factor weighs

in favor of finding that Mr. Tucker’s claims sound in general negligence, not

medical malpractice. The claims set forth in the petition do not suggest that an

assessment of Mr. Tucker’s condition had any bearing on the decision to hold him

in a room with a window that did not lock or have any restraints.

The fourth Coleman factor considers 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. Mr. Tucker argues that issues regarding

the hospital room window were design or maintenance issues, not issues involving

a physician-patient relationship. Defendants respond that, because Mr. Tucker was

under a mandatory psychiatric hold, the incident occurred in the context of the

physician-patient relationship.

There is no allegation in the petition that any medical professional breached

the standard of care in his treatment of Mr. Tucker. The allegations do not suggest

that either the design or maintenance of the window, or the adequacy of properly

trained staff in the psychiatric unit, were the result of any medical decision. The

allegations of the petition do not support a finding that the incident occurred in the

context of a physician-patient relationship or within the scope of activities a

hospital is licensed to perform. Again, defendants introduced no evidence to the

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contrary. Therefore, this factor also weighs in favor of finding that Mr. Tucker’s

claims do not sound in medical malpractice.

The fifth Coleman factor is whether the injury would have occurred if the

patient had not sought treatment. As the Louisiana Supreme Court stated in

Lacoste, 966 So.2d at 529, “[i]n a general sense, any wrong that a patient suffers in

a hospital or doctor’s office would not occur if the patient had not first entered the

facility.” The Court found that, given its finding that the wrongs alleged in the

petition were not treatment-related or the result of a dereliction of professional

skill, the possibility that the injury would not have occurred if the plaintiff had not

sought treatment did not weigh greatly in favor of finding that the wrongful

conduct alleged in the petition was medical malpractice within the confines of the

LMMA.

Following the reasoning in Lacoste, we find that while the particular

incident and injury may not have occurred if Mr. Tucker had not been treated by

defendants, this does not weigh greatly in favor of finding that the wrongful

conduct alleged was medical malpractice.

The final Coleman factor, whether the tort alleged was intentional, is not at

issue in this case. Mr. Tucker has not alleged that Seaside or EJGH intentionally

committed any wrongful act or omission.

After applying the LMMA’s definition of malpractice and the Coleman v.

Deno factors to the petition, we find that Mr. Tucker’s claims, as alleged in the

petition, do not arise from medical malpractice and are not subject to the

provisions of the LMMA. Therefore, defendants are not entitled to a medical

review panel.2 Accordingly, we find that the trial court erred in sustaining

2
Our decision is based solely on the allegations of the petition. In Lacoste, 966 So.2d at 529, n. 2, the
Louisiana Supreme Court pointed out that the trier of fact would ultimately decide if the case involved
medical malpractice or negligence, and it was only concerned with whether the factual allegations of the
petition asserted claims within the purview of the LMMA. It further stated, “[t]hat a fact-finder with
more evidence before it may ultimately conclude that the defendant’s conduct was medical malpractice
does not control our review of the instant exception of prematurity, which is, as we have explained,

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defendants' exception of prematurity and dismissing plaintiff's claims against

Seaside and EJGH.

CONCLUSION

For the reasons stated above, we reverse the trial court’s September 1, 2022

and November 28, 2022 judgments that sustained the exceptions of prematurity

filed by Seaside and EJGH, and we remand to the trial court for further

proceedings.

REVERSED AND REMANDED

limited to the factual allegations in the amended pleadings.” Likewise, in the present case, we
acknowledge that a fact-finder with more evidence before it may ultimately find that defendant’s conduct
was medical malpractice. However, defendants did not meet their burden of proving, at this stage of the
proceedings, that the allegations arise from medical malpractice.

23-CA-132 15

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
SCOTT U. SCHLEGEL FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
DECEMBER 27, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

23-CA-132
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE SHAYNA BEEVERS MORVANT (DISTRICT JUDGE)
ADRIAN M. SIMM, JR. (APPELLANT) LEWIS O. UNGLESBY (APPELLANT) GUICE A. GIAMBRONE, III (APPELLEE)
IVANA DILLAS (APPELLEE) BRETT M. DUPUY (APPELLEE)

MAILED
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LANCE C. UNGLESBY (APPELLANT) ATTORNEY AT LAW ATTORNEY AT LAW
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