Mickey Atkinson v. Lammico Ins. Co.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-13

MICKEY ATKINSON, ET AL.

VERSUS

LAMMICO INSURANCE COMPANY, ET AL.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 238,842
HONORABLE GEORGE C. METOYER, JR., DISTRICT JUDGE

**********

MARC T. AMY
JUDGE

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Court composed of Jimmie C. Peters, Marc T. Amy and Phyllis M. Keaty, Judges.

REVERSED AND REMANDED.

Randall M. Seeser
Joseph P. Landreneau
Gold, Weems, Bruser, Sues & Rundell
Post Office Box 6118
Alexandria, LA 71307-6118
(318) 445-6471
COUNSEL FOR DEFENDANTS/APPELLEES:
Healthcare Indemnity Insurance Company
Dr. Martin Young

Michael G. Hodgkins
Veron, Bice, Palermo & Wilson, LLC
Post Office Box 2125
Lake Charles, LA 70602
(337) 310-1600
COUNSEL FOR PLAINTIFFS/APPELLEES:
Mickey Atkinson
Amy Atkinson

David A. Woolridge, Jr.
Roedel, Parsons, Koch, Blache, Balhoff
& McCollister, A.L.C.
8440 Jefferson Highway, Suite 301
Baton Rouge, LA 70809-7652
(225) 929-7033
COUNSEL FOR THIRD PARTY APPELLANT:
Louisiana Patients’ Compensation Fund Oversight Board

AMY, Judge.

The plaintiffs filed suit, alleging that their minor child suffered damages as a

result of a physician’s failure to test his brother for a genetic disorder. The

defendants filed an exception of prematurity, arguing that the plaintiffs had failed to

exhaust the remedies available in the Louisiana Medical Malpractice Act (MMA)

prior to the institution of suit. The trial court determined that the child was a

“patient” for the purposes of the MMA and granted the exception. The intervenor,

the Louisiana Patient’s Compensation Fund Oversight Board, appeals, asserting that

the trial court erred in granting the exception. For the following reasons, we reverse

the trial court’s grant of the exception of prematurity and remand for further

proceedings.

Factual and Procedural Background

This suit arises from allegations that one of the defendants, Dr. Martin C.

Young, committed medical malpractice. The basic facts of this case are not in

dispute. Mickey and Amy Atkinson consulted Dr. Young for treatment of their son

Gabriel’s deep-skin pigmentation condition. Dr. Young diagnosed Gabriel with

idiopathic Addison’s Disease, but did not test him to determine the cause of the

disease.

After Gabriel’s condition did not improve, the Atkinsons sought a second

opinion from Dr. Janna Flint. Dr. Flint had Gabriel tested for a rare and potentially

fatal cause of idiopathic Addison’s Disease—X-linked Adrenoleukodystrophy (“X-

ALD”). According to the parties’ arguments at the hearing on the exception of

prematurity, X-ALD is a genetic disorder that, if left untreated, results in coma and/or

death by age thirteen. Gabriel tested positive for X-ALD. Because X-ALD is an X-

linked genetic disorder, Dr. Flint “immediately recommended” that the Atkinsons’

other sons, Evan and Luke, be tested for the disease. The youngest son, Luke, tested

positive.

The Atkinsons, individually and on behalf of Gabriel, Evan, and Luke, sued Dr.

Young and his insurance companies, seeking damages for Dr. Young’s alleged failure

to test Luke for X-ALD.1 The defendants filed a dilatory exception of prematurity,

arguing that a medical review panel had not reviewed the plaintiffs’ claim before they

filed suit. The Louisiana Patient’s Compensation Fund Oversight Board (the

Oversight Board) intervened,2 asserting that Luke was not a “patient” within the

meaning of the MMA and that, therefore, the claim was not subject to review by a

medical review panel.

After a hearing, the trial court found that “through Gabriel, Luke was also a

patient” of Dr. Young and granted the exception. The Oversight Board appeals,

asserting the following assignments of error:

1. Contrary to the clear allegation in the plaintiffs’ Panel
Request, that Dr. Young never had a physician/patient
relationship with Master Luke, which Panel Request was
admitted into evidence by the plaintiffs with no contrary
documentary evidence or testimony to contradict such
allegation, the Trial Court erred in factually determining that
Luke was a patient of Dr. Young.

2. The Trial Court erred in granting Dr. Young’s Exception of
Prematurity, where the definition of “malpractice” under the
MMA requires a physician/patient relationship and the
undercontroverted evidence indicated that there was no

1
In addition to Luke’s alleged damages, the petition included claims for medical expenses
and loss of consortium.

The plaintiffs filed a separate cause of action on behalf of Gabriel.
2
Louisiana Revised Statutes 40:1299.44(D)(2)(b)(xiv) permits the Oversight Board to
intervene “in any civil action or proceeding in which a health care provider files a dilatory exception
of prematurity” where the Oversight Board reasonably believes that the health care provider is not
qualified or the claim is not subject to the MMA.

2

physician/patient relationship between Dr. Young and Master
Luke.

Discussion

The Louisiana Medical Malpractice Act (MMA)

Louisiana Revised Statutes 40:1299.41 through 40:1229.49 sets forth the

MMA, which limits liability for “qualified health care providers” and provides a

procedural framework for the litigation of medical malpractice claims. See

Delcambre v. Blood Systems, Inc., 04-561 (La. 1/19/05), 893 So.2d 23. The MMA’s

procedural requirements and limitations of liability apply only to medical malpractice

claims. Id. All other tort liability by a qualified health care provider is subject to the

general law of torts. Id. We note that, because the provisions of the MMA are in

derogation of the rights of tort victims, the act is strictly construed. Blevins v.

Hamilton Med. Ctr., Inc., 07-127 (La. 6/29/07), 959 So.2d 440.

One of the primary features of the MMA is that, when a plaintiff asserts a claim

meeting the statutory requirements, unless the parties agree to waive the requirement,

the plaintiff must submit his complaint to a medical review panel and may not file suit

in any court until the medical review panel has rendered its expert opinion on the

merits of the complaint. Delcambre, 893 So.2d 23. Thus, if the plaintiff fails to

submit the claim to a medical review panel before the institution of suit, the

appropriate procedural remedy is a timely filed exception of prematurity. Blevins,

959 So.2d 440.

At the hearing on an exception of prematurity, “evidence may be introduced

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

not appear from the petition.” La.Code Civ.P. art. 930. “The burden of proving

prematurity is on the exceptor . . . who must show that it is entitled to a medical

3

review panel because the allegations fall within the [MMA].” Blevins, 959 So.2d at

444.

“Malpractice,” as defined by the MMA, is:

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.

La.R.S. 40:1229.41(A)(13) (emphasis added).

The MMA defines a “patient” as “a natural person, including a donor of human

blood 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.” La.R.S. 40:1229.41(A)(15) (emphasis added). Further, “health care” is

defined as “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.”

La.R.S. 40:1229.41(A)(9) (emphasis added).

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

enumerated a list of factors to be considered in determining whether alleged

misconduct by a qualified health care provider constitutes “malpractice” under the

MMA. The examining court should consider:

[1] whether the particular wrong is ‘treatment related’ or caused
by a dereliction of professional skill[;]

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[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 alleged tort was intentional.

Id. at 315-16 (quoting, in part, Sewell v. Doctors Hospital, 600 So.2d 577 (La.1992)).

The Existence, or Non-Existence, of a Physician/Patient Relationship Between
Luke and Dr. Young

In its first assignment of error, the appellant contends that the trial court erred

in finding that Luke was a patient of Dr. Young. The controlling question in this case

is whether a minor sibling, who allegedly should have been tested for a genetic

disorder by his brother’s health care provider and who never received any testing or

treatment from the health care provider, is a “patient” for purposes of the MMA.

Whether Luke Received, or Should Have Received, Health Care Services from Dr.
Young

Both the MMA and the Coleman factors clearly contemplate that the conduct

occurs within the context of a patient-physician relationship. The supreme court

examined who constitutes a patient in this context in Delcambre, 893 So.2d 23. The

claimant in that case was a volunteer blood donor who suffered injuries to his arm

while having blood drawn. In finding that the blood donor was not a patient,3 the

3
After the supreme court decided Delcambre, 893 So.2d 23, in 2005, the legislature
amended La.R.S. 40:1229.41 in 2006 to include blood donors and the donation of blood or blood
components in the definitions of “patient,” “health care,” and “malpractice.”

5

supreme court looked to whether the claimant was receiving any medical care from

the health care provider. The supreme court found that because the blood donor was

not relying on the provider “to diagnose or inform him of any physical condition,” the

donor was not receiving medical care from the provider. Id. at 29.4

Similarly, in Clark v. Baird, 97-1025 (La.App. 4 Cir. 5/20/98), 714 So.2d 840,

writ denied, 98-1684 (La. 10/9/98), 726 So.2d 31, the fourth circuit addressed

whether the husband of a patient who, due to her doctor’s negligence, was infected

with Hepatitis C was a “patient” for the purposes of the MMA. The fourth circuit

concluded that the husband was not a patient, stating “[h]e neither received health

care from the defendants, nor did he have an express or implied contract with the

defendants. He had no relationship with the defendants whatsoever.” Id. at 845. See

also Reed v. St. Charles Gen. Hosp., 01-1148 (La.App. 4 Cir. 3/27/02), 815 So.2d 319

(discussing whether a hospital patient’s wife’s claim was subject to the MMA in the

context of an exception of prescription).

An exception of prematurity is based on the facts that existed at the time the

lawsuit was filed. Blevins, 959 So.2d 440. Here, the evidence entered in support of

the exception are the allegations made in the petition, the memorandums and exhibits

filed in support of, and in opposition to, the exception of prematurity, and the exhibits

filed at the hearing. Therein, the Atkinsons allege that only Gabriel received

4
Even if a doctor/patient relationship exists, under certain fact patterns, the alleged tortious
conduct may not arise “in the context of” that relationship, and does not, therefore, constitute
medical malpractice. See Blevins, 959 So.2d 440 (analyzing the Coleman factors and finding that
certain claims for injuries from an improperly secured hospital bed fell under general tort law and
not medical malpractice, in part, because they did not arise in the context of a physician/patient
relationship or within the scope of activities the hospital is licensed to perform); Price v. City of
Bossier City, 96-2408 (La. 5/20/97), 693 So.2d 1169, 1173 (an employer-mandated drug screen
given to an employee who was treated for a non-drug related work injury was not given in the course
of medical treatment as the employee was not, with regard to the drug screen, relying on the provider
to “inform her of a physical condition of which she was unaware”).

6

treatment from Dr. Young. They do not allege that they ever sought treatment for

Luke, the subject of this litigation, from Dr. Young, or that he ever received any kind

of treatment whatsoever from Dr. Young. Notably, the plaintiffs’ letter requesting a

medical review panel specifically refers to Luke as a “non-patient” of Dr. Young.

Further, Dr. Young does not allege that he ever treated Luke or that the Atkinsons

ever consulted him about treatment for Luke. Thus, based on the evidence submitted

in support of the exception, we find that Dr. Young did not establish that Luke

received any health care services from him.

Therefore, the only basis upon which Luke could have been a “patient” of Dr.

Young under these circumstances is that Luke “should have” received treatment from

Dr. Young, based on Dr. Young’s alleged failure to test Gabriel for X-ALD and his

alleged subsequent failure to recommend testing for Gabriel’s male siblings,

including Luke. We note that in Price, 693 So.2d at 1173, the supreme court held

that the negligent act or omission must have occurred “during the patient’s medical

care, treatment or confinement.” Further, cases referenced herein addressing whether

someone who “should have” received treatment is a patient under the MMA generally

contemplate a situation where the claimant has sought diagnosis or treatment from a

health care provider and the provider has, for whatever reason, failed to provide the

treatment.5

5
See McLemore v. Westwood Manor Nursing & Rehabilitation, L.L.C., 37,450 (La.App. 2
Cir. 8/20/03), 852 So.2d 1170 (After a nursing home resident was allegedly dropped by staff and
then was not treated for injuries sustained as a result of the fall, the claimant filed suit. The second
circuit held that because the resident should have received treatment as a result of the fall, the claim
was subject to the MMA.); Bolden v. Dunaway, 97-1425 (La.App. 1 Cir. 12/28/98), 727 So.2d 597,
writ denied, 99-275 (La. 3/26/99), 739 So.2d 801 (The claimant alleged that, after she was prepped,
her surgeon refused to perform the surgery after a miscommunication regarding whether payment
had been provided. The first circuit, although not stating that the claimant “should have” received
services from the surgeon, found that the suit was subject to the MMA.). See also Leonard v. State,
Dep’t of Health & Hospitals, 42,893 (La.App. 2 Cir. 1/30/08), 975 So.2d 662, writ denied, 08-0805
(La. 6/6/08), 983 So.2d 920 (Group home’s delay in obtaining treatment for resident who ingested

7

That is not the case in this situation. Based on the evidence submitted at the

hearing on the exception of prematurity, as discussed above, the Atkinsons did not

seek Dr. Young’s professional services for the diagnosis or treatment of Luke.

Further, Dr. Young’s failure to test Luke for X-ALD, the alleged negligent act or

omission, did not occur during any “medical care, treatment or confinement” that

related to Luke. La.R.S. 40:1229.41(A)(9). Thus, we find that Luke was not a person

who “receive[d] or should have received health care” as contemplated by the MMA.

La.R.S. 40:1229.41(A)(15).

Whether a Contractual Relationship Existed Between the Atkinsons and Dr. Young
for the Treatment of Luke

On appeal, the appellees additionally argue that, because the Atkinsons had a

contractual relationship with Dr. Young for the treatment of Gabriel, that contract

extends to the treatment of Luke.6 Louisiana Civil Code Article 1906 defines a

contract as “an agreement by two or more parties whereby obligations are created,

modified, or extinguished.”

In Hutchinson v. Patel, 93-2156 (La. 5/23/94), 637 So.2d 415, the supreme

court noted a difference between an implied contractual relationship and the

imposition of a duty of care with regard to a non-patient. The claimant in that case

was a psychiatric patient’s wife who was paralyzed after her husband shot her and

then killed himself. She sued her husband’s psychiatrist after he failed to warn her

about her husband’s threats of physical violence. The supreme court held that the

fatal dose of Seroquel was not subject to the MMA because, in part, there was no patient-physician
relationship. The relationship was “more akin to the relationship between a young student and his
teacher.”)
6
We note that, although they mentioned the contractual question in their arguments at the
trial court, the Atkinsons argued that the alleged damages to Luke occurred outside the context of
a physician/patient relationship.

8

“alleged ‘failure to warn’ plaintiff does not constitute ‘malpractice’ as defined in the

[MMA] because plaintiff was not Dr. Patel’s patient pursuant to an express or implied

contract establishing a physician-patient relationship.” Id. at 422. See also Guidry

v. Garrett, 591 So.2d 806 (La.App. 3 Cir. 1991), writ denied, 592 So.2d 1339

(La.1992).

The evidence submitted in support of the exception of prematurity includes the

petition, the memorandums and exhibits filed in support of, and in opposition to, the

exception of prematurity, and the exhibits filed at the hearing. In their pleadings, the

Atkinsons do not base their theory of liability on a contractual relationship allegedly

extending to the treatment of Luke. Instead, the Atkinsons base liability on Dr.

Young’s alleged breach of the standard of care, which, they contend, included testing

Gabriel for X-ALD and, if the result was positive, testing other male members of the

Atkinson family for the genetic disorder. Dr. Young does not allege that the

contractual relationship between the Atkinsons and Dr. Young contemplated anything

other than the treatment of Gabriel. Like the Atkinsons, Dr. Young contends that any

liability on his part stems from a breach of the duty of care in his treatment of Gabriel.

Thus, we find the appellees’ argument concerning an alleged contractual relationship

extending to the treatment of Luke unpersuasive.

The burden of proving the exception lies on the exceptor. Blevins, 959 So.2d

440. As discussed above, the evidence submitted in support of the exception of

prematurity establishes that the Atkinsons only consulted Dr. Young “to diagnose or

inform [them] of any physical condition” with regard to Gabriel, not Luke. Further,

the evidence reveals that the Atkinsons did not request that Dr. Young treat Luke, nor

is there any indication that the contractual relationship for the treatment of Gabriel

9

contemplated that Dr. Young would be responsible for Luke’s treatment, if any.

Given that we must construe the provisions of the MMA strictly, we find that Dr.

Young did not meet his burden of establishing that a “physician/patient” relationship

existed with regard to Luke, based on the evidence submitted to the trial court. See

Blevins, 959 So.2d 440. Therefore, we find the trial court erred in determining that

Luke was a patient of Dr. Young.7

Applicability of the MMA to Non-Patients

Although a physician/patient relationship does not exist, a litigant’s claim may

still be subject to the provisions of the MMA. The supreme court has interpreted the

MMA to apply to claims brought by “a patient, a patient’s representative on the

patient’s behalf, or other persons having claims arising from injuries to or death of

a patient.” Hutchinson, 637 So.2d at 422. However, claims which do not arise from

injuries to or the death of a patient are excluded from coverage under the MMA. Id.

In Trahan v. McManus, 97-1224 (La. 3/2/99), 728 So.2d 1273, although

finding that the plaintiffs in that case could not recover bystander damages, the

supreme court stated that claims for mental anguish could fall under the purview of

the MMA, provided that the claims arose from the injury to or death of a patient. The

7
Although our holding in this case is based on Louisiana’s medical malpractice scheme and
jurisprudence, other states have found that immediate family members are not “patients” for the
purposes of a medical malpractice action based on failure to disclose or failure to test for a genetic
disorder. See Safer v. Estate of Pack, 677 A.2d 1188 (N.J. Super. Ct. App. Div. 1996) (noting that
the trial court found that a daughter, who was diagnosed with the same genetically-linked cancer as
her father, sued her father’s physician for failure to warn that his immediate family may have
inherited the disease, was not a “patient” for purposes of medical malpractice); Pate v. Threlkel, 661
So.2d 278 (Fla. 1995) (The plaintiff was diagnosed with the same genetically-linked cancer as her
mother and subsequently sued her mother’s physicians for failure to notify her mother that her
children should be tested for the disease. The Florida Supreme Court noted that the trial court found
that the plaintiff was not a “patient” for purposes of medical malpractice.); Richardson v.
Rohrbaugh, 857 S.W.2d 415 (Mo. Ct. App. 1993) (A “family physician” was treating the plaintiffs’
eldest child and mis-diagnosed the child as not having a genetic disorder. After the mother
subsequently became pregnant and gave birth to another child with the same disorder, she brought
suit. The Missouri Court of Appeals held that the physician/patient relationship was between the
physician and the eldest child, not the physician and the mother.)

10

first circuit expounded on this principle in Bolden v. Dunaway, 97-1425 (La.App. 1

Cir. 12/28/98), 727 So.2d 597, writ denied, 99-275 (La. 3/25/99), 739 So.2d 801.

One of the plaintiffs in that case was the husband of a patient whose surgeon refused

to perform surgery on her after she had been prepped for surgery. The first circuit

held that the husband’s claims, which included intentional infliction of emotional

distress, were subject to the MMA because they were “clearly derivative” of the

injuries to his wife.

In Jones v. Scribner, 30,693 (La.App. 2 Cir. 6/24/98), 716 So.2d 905, the

plaintiff was injured in a horse-and-buggy/automobile accident. He sued the other

driver’s ophthalmologist, alleging that the ophthalmologist had committed

malpractice in certifying that the other driver’s vision was sufficient for him to drive.

The second circuit noted that, although the plaintiff’s injuries might be related to the

ophthalmologist’s negligence, the plaintiff’s injuries did not “arise” from any injury

to the other driver, i.e., the ophthalmologist’s patient. Thus, the second circuit

affirmed the trial court’s denial of an exception of prematurity, finding that the claim

was “a non-patient claim which does not arise from injuries to or death of [the

ophthalmologist’s] patient[.]” Id. at 906.

The plaintiffs are not claiming, at least in this litigation, that the damages that

Luke suffered were in the nature of bystander damages or loss of consortium. Luke’s

claims are medical in nature. Although Luke’s claims are related to Dr. Young’s

alleged breach of the duty of care with regard to Gabriel, they do not arise from the

alleged injury to Gabriel and are thus not “derivative” of Gabriel’s claim. They are

similar to the claims in Clark, 714 So.2d 840, and Reed, 815 So.2d 319, where the

claimants suffered injuries that, although the damages stemmed from an act of alleged

11

medical malpractice, they occurred independently from the alleged malpractice.

Thus, we find that the claim is not “derivative” for the purposes of the MMA.

Exception of Prematurity

In order to grant the exception of prematurity, the claim must be subject to the

MMA. In Coleman, 813 So.2d 303, the supreme court enumerated a list of factors

to be considered in determining whether alleged misconduct by a qualified health care

provider constitutes “malpractice” under the MMA. The Coleman factors include a

requirement that the alleged injury occur in the context of a physician/patient

relationship. We have determined that the trial court erred in finding that Luke was

a patient of Dr. Young. Further, although Luke’s brother Gabriel was a patient of Dr.

Young, we have determined that Luke’s claim is not “derivative” of the alleged injury

to Gabriel. Thus, Luke’s claims do not comport with the Coleman factors and are not

subject to the provisions of the MMA.

For these reasons, we reverse the grant of the exception of prematurity and

remand for further proceedings.

DECREE

For the foregoing reasons, the trial court’s grant of the exception of prematurity

is reversed. One-half of the costs of this appeal are assessed to the

plaintiffs/appellees, Mickey Atkinson and Amy Atkinson, individually and on behalf

of their minor children, Luke Allen Atkinson, Gabriel Allen Atkinson, and Evan Kane

Atkinson. The remaining one-half of the costs of this proceeding are assessed to the

defendants/appellees, Healthcare Indemnity Insurance Company and Dr. Martin C.

Young.

REVERSED AND REMANDED.

12