Peter D. Vizzi, M.D., a Medical Corporation v. Lafayette City-Parish Consolidated Government

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-623

ON REHEARING

PETER D. VIZZI, M.D., A MEDICAL CORPORATION

VERSUS

LAFAYETTE CITY-PARISH CONSOLIDATED GOVERNMENT

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20092080
HONORABLE JULES DAVID EDWARDS, III, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Sylvia R. Cooks, Oswald A. Decuir, Elizabeth A. Pickett,
James T. Genovese, and Shannon J. Gremillion, Judges.

AFFIRMED.

Cooks, J., dissents and assigns written reasons.
Genovese, J., dissents and assigns written reasons.

Katherine A Theunissen
Mahtook & Lafleur
P. O. Box 3089
Lafayette, LA 70502
(337) 266-2189
Counsel for Defendant-Appellant:
Lafayette City-Parish Consolidated Government

Kevin Scott Frederick
James P. Doherty, III
Frederick Law Firm
P. O. Box 52880
Lafayette, LA 70505
(337) 269-5143
Counsel for Plaintiff-Appellee:
Peter D. Vizzi, M.D., A Medical Corporation

PICKETT, Judge.

For the reasons assigned in the original opinion released by a three-judge

panel of this court on December 8, 2010, the judgment of the trial court is

affirmed.

AFFIRMED.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-623

PETER D. VIZZI, M.D., A MEDICAL CORPORATION

VERSUS

LAFAYETTE CITY-PARISH CONSOLIDATED GOVERNMENT

COOKS, J., dissenting.

I disagree with the majority’s decision to reaffirm the earlier opinion in this

matter. I believe the earlier opinion was in error, and I would reverse the judgment of

the trial court and render judgment in favor of Lafayette City-Parish Consolidated

Government.

Quentin Cottrell Sam allegedly robbed a taxi driver, fled from the scene, and

attempted to force his way into a private residence occupied by Mr. George Richard.

In the attempt to enter the house, Mr. Sam was shot in the leg by Mr. Richard, who

then called 911. Shortly thereafter, Acadian Ambulance and the police (after being

notified by 911) arrived on the scene to find Mr. Sam injured. Mr. Sam was

transported to Lafayette General Medical Center for emergency medical care by

Acadian Ambulance. At some point prior to his arrival at the hospital, he was arrested.

Mr. Sam was treated for his injuries by Dr. Peter Vizzi, who was Lafayette General’s

on-call physician in the emergency room at that time.

Dr. Vizzi contends the Parish is liable because Mr. Sam was under arrest at the

time Dr. Vizzi treated him. I disagree.

There are no disputed issues of fact in this case. The sole issue before us is

whether La.R.S. 15:304 requires Lafayette to pay the medical expenses of Mr. Sam

under the facts of this case. La.R.S. 15:304 provides in pertinent part:

All expenses incurred in the different parishes of the state or in the city
of New Orleans by the arrest, confinement, and prosecution of persons
accused or convicted of crimes, their removal to prison, the pay of
witnesses specifically provide for by law, jurors and all prosecutorial
expenses whatever attending criminal proceedings shall be paid by the
respective parishes which the offense charged may have been committed
or by the city of New Orleans, as the case may be.

(Emphasis added.)

The statute specifically requires that expenses must be incurred as a result of “arrest,

confinement and prosecution.” In this case, it is plainly obvious the resultant medical

treatment required by the injury was not an “expense incurred . . . by the arrest” of Mr.

Sam as the statute mandates.

When the law is clear and unambiguous, and its application does not result in

absurd consequences, it shall be applied as written and no interpretation may be made

in search of the legislature’s intent. La.Civ.Code art. 9. When a statute is clear, the

court must give credence to the mandate expressed by the legislature. Vogt v. Board of

Levee Commissioners of the Orleans Levee District, 95-1187 (La.App. 4 Cir.9/4/96),

680 So.2d 149. Further, courts may not extend statutes to situations, which the

legislature never intended to be covered thereby. Schackai v. Louisiana Board of

Massage Therapy, 99-1957 (La.App. 1 Cir.9/22/00), 767 So.2d 955.

Counsel for Dr. Vizzi argued because the arrest occurred before Sam arrived at

the hospital, the Parish is required to shoulder financial responsibility for the arrestee’s

care. I do not agree. The plain wording of La.R.S. 15:304 clearly provides that the

Parish is only responsible for expenses that are “incurred . . . by the arrest,

confinement, and prosecution of persons accused or convicted of crimes.” The

legislature did not intend to hold governmental entities financially responsible for

situations they did not cause or that did not occur during the confinement of an arrestee

or prisoner.

2

Dr. Vizzi cites Southwest Louisiana Hospital Association v. Hunt, 551 So.2d

818 (La.App. 3 Cir. 1989) for his position that La.R.S. 15:304 places responsibility on

the Parish in this case. In Hunt an inmate in the Beauregard Parish jail required

hospitalization after being beaten by an inmate. The hospital eventually brought a suit

for open account against curatrix of the inmate for payment of medical services. The

curatrix of the inmate brought a third party action against the parish police jury. The

trial judge found the police jury was responsible under La.R.S. 15:304 for the inmate’s

medical care. The trial court specifically noted that at the time the injury was suffered

the inmate was incarcerated in the parish jail. This court agreed with the trial court,

specifically finding the police jury was statutorily responsible for the inmate’s medical

care “while he was an inmate in the parish jail.” Id. at 820.

The facts in Hunt are clearly distinguishable from those in the present case.

Hunt involved injuries sustained by an inmate from another inmate while in the care

and custody of the parish jail.

Dr. Vizzi also cites Opinion No. 89-308, of Louisiana’s Office of the Attorney

General in support of his position. In that opinion, the attorney general concluded the

parish was liable for the medical expenses of a subject who was shot by police while

attempting to run through a roadblock. In reaching this conclusion, the attorney

general stated:

In the present case, the subject was shot by law enforcement officials in
the process during their attempt to arrest the subject. At that point, it
became the duty of the Police Jury under R.S. 15:304 and Amiss v.
Dumas[, 441 So.2d 1137 (La.App. 1 Cir. 1982)] to provide medical care
to the subject.

As the Attorney General’s opinion specifically notes, the injury occurred during the

police attempt to arrest the subject. Clearly that instance is distinguishable from this

case. Here the injury occurred prior to law enforcement arriving on the scene.

3

The Parish is not automatically responsible for payment of expenses associated

with an independent ambulance service bringing an injured man to a hospital for

necessary medical treatment. Simply because Mr. Sam was arrested at the scene does

not change the nature of the police involvement in this matter. The Lafayette Police

Department did not cause or contribute in any way to the injuries sustained by Mr.

Sam, nor did the injuries occur while he was in the care or custody of the police or

housed in the jail. Therefore, the expenses were not incurred by the arrest,

confinement or prosecution of Mr. Sam, and the Parish is not statutorily obligated to

pay Dr. Vizzi for his services. Further, the statute which Dr. Vizzi relies upon for

payment does not provide a penalty or attorney fees for failure to pay. Moreover, the

Parish has good reasons to dispute the invoice forwarded to it. Additionally, the Parish

did not have an existing relationship with Dr. Vizzi and did not obligate itself to pay

Mr. Sam’s medical expenses by consenting to or establishing an account with Dr.

Vizzi. In order to prevail on a suit for an open account, the creditor must prove that the

debtor “contracted for services on open account,” and there must necessarily be a

contract which gave rise to the debt. Dixie Machine Welding & Metal Works, Inc. v.

Gulf States Marine Technical Bureau, Inc., 96-869 (La.App. 5 Cir. 3/12/97), 692 So.2d

1167, 1169. An open account necessarily involves an underlying agreement between

the parties on which the debt is based. Vintage Wings and Things, LLC v.Toce & Daiy,

LLC, 04-706 (La.App. 3 Cir. 11/10/04), 886 So.2d 652. No such contract or

agreement was present in this case between the Parish and Dr. Vizzi, thus any recovery

of attorney fees under the open account statute is inappropriate.

For the above reasons, I would reverse the trial court’s judgment holding

otherwise and enter summary judgment in favor of Lafayette City-Parish Consolidated

Government.

4

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

10-623

PETER D. VIZZI, M.D., A MEDICAL CORPORATION

VERSUS

LAFAYETTE CITY-PARISH CONSOLIDATED GOVERNMENT

GENOVESE, J., dissents and assigns the following written reasons.

I disagree with the majority’s affirmation of the trial court judgment in this

case finding Lafayette City-Parish Consolidated Government (LCG) legally

responsible for Mr. Sam’s medical expenses. This case is governed by La.R.S.

15:304, which states in pertinent part that “[a]ll expenses incurred . . . by the arrest,

confinement, and prosecution . . . shall be paid by the respective parishes in which

the offense charged may have been committed . . . .”

It is an undisputed fact that Mr. Sam was wounded (shot) by a third party

before he was arrested. A strict reading of La.R.S. 15:304 states that the parish

(LCG) is responsible for all expenses incurred “by the arrest, confinement, and

prosecution[.]” Mr. Sam’s medical expenses were not incurred “by [his] arrest” or

as a result of his arrest or confinement; his medical expenses became manifest and

were subsequently incurred when he was shot and wounded. His subsequent arrest

and confinement were not the cause of his incurred medical expenses Being shot

as an intruder was the cause of his incurred medical expenses.

This decision opens Pandora’s box and subjects all parishes to liability for

any and all expenses incurred before and after an arrest regardless of their

involvement in arrest, confinement, or prosecution. I do not find that to be the

wording or the intent of the statute. Consequently, I dissent from the majority. I

would reverse the trial court judgment and absolve LCG from any legal liability for

Mr. Sam’s medical expenses based on the facts of this case and La.R.S. 15:304.