Brenna Ash Miller v. Acadian Ambulance Service, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 13-1269

BRENNA ASH MILLER, ET AL.

VERSUS

ACADIAN AMBULANCE SERVICE, INC., ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20126808
HONORABLE EDWARD B. BROUSSARD, DISTRICT JUDGE

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JOHN E. CONERY
JUDGE

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Court composed of J. David Painter, Phyllis M. Keaty, and John E. Conery, Judges.

AFFIRMED.

Robert J. David
Walter C. Morrison, IV
Gainsburgh, Benjamin, David, Meunier & Warshauer, L.L.C.
1100 Poydras Street
New Orleans, Louisiana 70163-2800
(504) 522-2304
COUNSEL FOR PLAINTIFF/APPELLANT:
Brenna Ash Miller, et al.

Clint Pierson
Pierson Law Firm
5100 Village Walk, Suite 101
Covington, Louisiana 70433
(985) 809-1577
COUNSEL FOR PLAINTIFF/APPELLANT:
Brenna Ash Miller, et al.

Charles J. Foret
Briney & Foret
Post Office Drawer 51367
Lafayette, Louisiana 70505
(337) 237-4070
COUNSEL FOR DEFENDANT/APPELLEE:
Northshore EMS, LLC

Nadia de la Houssaye
Jones Walker, LLP
Post Office Drawer 3408
Lafayette, Louisiana 70502-3408
(337) 262-9000
COUNSEL FOR DEFENDANT/APPELLEE:
Acadian Ambulance Service, Inc.

James D. “Buddy” Caldwell
Attorney General
Luke Lancaster
Assistant Attorney General
Louisiana Department of Justice
400 Poydras Street, Suite 1600
New Orleans, Louisiana 70130
(504) 599-1200
COUNSEL FOR DEFENDANT/APPELLEE:
State of Louisiana, et al.

CONERY, Judge.

Brenna Ash Miller, individually, as the duly appointed guardian of the minor

child, Skyler Miller, and the individual authorized to make the claim on behalf of

the Estate of Richard A. Miller, Jr., (“Miller”) appeals the judgment of the trial

court dismissing her lawsuit without prejudice. Acadian Ambulance Service, Inc.

(“Acadian”), Louisiana Emergency Response Network (“LERN”), and Medical

Center of Louisiana at New Orleans now known as Interim LSU Public Hospital,

(“Interim LSU”), filed an exception of prematurity which the trial court granted,

finding that the Millers’ claim is governed by the Louisiana Medical Malpractice

Act (“LMMA”), La.R.S. 40:1299.41-48 and must first be presented to a Medical

Review Panel (“MRP”) for a determination prior to filing a lawsuit in district court.

For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On December 28, 2011, Richard A. Miller, Jr. (“Mr. Miller”) was involved

in a serious motorcycle accident in Washington Parish. The Northside Emergency

Medical Service (“Northside”) responded to a 911 call and transported Mr. Miller

to the Riverside Medical Center (“Riverside”) where he was attended to by Dr.

Barbara Cohn and other Riverside Emergency Room personnel.

Dr. Cohn determined that Mr. Miller’s condition was critical. As a result of

the accident, he had sustained extensive internal injuries, which included

lacerations of the lung, heart, and kidney, extensive blood loss, multiple fractures,

and a flail chest, which is a crushing chest injury due to the fracture of several ribs.

In Dr. Cohn’s opinion, Mr. Miller’s critical medical condition required her

to contact LERN, as Riverside did not have the necessary level of medical

resources to properly treat Mr. Miller’s injuries. Dr. Cohn’s call to LERN was the

first step in initiating the procedure to have Mr. Miller transported to a trauma

facility equipped to treat Mr. Miller’s extensive injuries.

LERN was designed to serve as the clearing house for all of the resources of

each medical facility and to determine which facility is best equipped to treat a

particular patient’s condition. The LERN dispatch center is staffed with a trained

paramedic who receives the incoming calls, and based on the information provided

from the transferring health care provider, LERN makes a determination as to the

appropriate trauma facility to treat the injured patient.

The LERN dispatcher informed Dr. Cohn that Mr. Miller should be

transferred to Interim LSU. A call was then placed by a member of the Riverside

staff at 5:36 p.m. to Acadian to request that a helicopter be dispatched to Riverside

in order to transport Mr. Miller to Interim LSU.

The recorded telephone conversation between Riverside and Acadian

reflects that Riverside was informed that due to a required crew change and the

need for refueling of its helicopter, it would be an hour to an hour and fifteen

minutes before Acadian could respond and arrive at Riverside to transport Mr.

Miller. The Riverside staff member indicated to the Acadian dispatcher that if this

period of time was not acceptable to Dr. Cohn, he would call back. No call

canceling the helicopter transportation of Mr. Miller was received, and the Acadian

helicopter arrived at Riverside at 7:08 p.m., some seventeen minutes after the

anticipated arrival time.1

Once the determination by LERN was made to transport Mr. Miller to

Interim LSU, Dr. Cohn began the testing on Mr. Miller required by Interim LSU

1
At the hearing on the exception, Acadian introduced into evidence the medical records
and the recording of the initial telephone call between Riverside and Acadian concerning Mr.
Miller’s medical transportation to Interim LSU by Acadian, without objection from the Millers.

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prior to his transport by Acadian. Upon arrival at Riverside, Acadian was not

permitted to immediately transport Mr. Miller as the testing required by Interim

LSU was not complete. Once the testing was completed, Mr. Miller was cleared

for transport at 7:40 p.m., thirty-two minutes after Acadian’s arrival at Riverside.

Mr. Miller was taken to the aircraft by Riverside personnel and Acadian’s

EMT/paramedic Kimberly Wesley (“Wesley”). Mr. Miller was loaded and secured

for takeoff. Wesley provided constant critical care monitoring and medical

treatment throughout the transport, which included placing Mr. Miller on a

ventilator and suctioning his chest tube. Mr. Miller’s condition rapidly declined

right before the helicopter landed in New Orleans near the Superdome, as Interim

LSU did not have a helicopter landing pad and the Superdome site was the closest

landing pad to Interim LSU.

Mr. Miller was then transported by ambulance to Interim LSU, with the

ambulance staff continuing to attempt to maintain Mr. Miller’s medical status. Mr.

Miller unfortunately died at approximately the same time as his arrival at Interim

LSU at approximately 8:12 p.m.

On December 27, 2012, the Millers timely filed a medical malpractice

complaint with the Division of Administration and the Louisiana Patient’s

Compensation Fund, naming Interim LSU, LERN, and Acadian, the three health

care provider defendants before this court on appeal.

On December 27, 2012, the Millers also filed a petition for damages in the

Fifteenth Judicial District Court, Parish of Lafayette naming LERN and Acadian as

defendants. The Millers’ “First Supplemental and Amending Petition for

Damages,” filed on April 2, 2013, added three other health care providers as

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defendants, Interim LSU, Northside EMS, LLC, Barbara Cohn, M.D., and her

insurer, Proassurance Specialty Insurance Company (“Proassurance”).

All health care provider defendants, except Northside, filed dilatory

exceptions of prematurity in response to the Millers’ petitions. Each asserted they

were qualified health care providers pursuant to the LMMA, La.R.S. 40:1299.39 &

40:1299.41. As qualified health care providers under the LMMA, providing

medical care to Mr. Miller, each claimed to be entitled to have the Millers’ claims

dismissed without prejudice pending review and notification of an opinion by the

MRP, pursuant to La.R.S. 40:1299.47(A)(2)(a) & (B)(1)(a)(i). In granting the

health care provider defendants’ exceptions, the exceptors assert that the Millers

would not be prejudiced, as under the LMMA prescription is suspended in state

district court until the MRP sends notification of its opinion, following which the

Millers would have ninety days to file suit in state district court.

A hearing was held on the health care defendants’ exception of prematurity

on July 22, 2013. At the beginning of the hearing, the dilatory exception of

prematurity filed by Dr. Barbara Cohn and her insurer, Proassurance, was granted

by the trial court without opposition, and the Millers’ claims as to these defendants

were dismissed without prejudice in a separate judgment signed by the trial court

on July 22, 2013. The dismissal of Dr. Cohn and her insurer is not subject to this

appeal.

The hearing on Acadian, LERN, and Interim LSU’s exceptions of

prematurity continued with oral argument, after which the trial court took the

matter under advisement. The trial court issued its written reasons for judgment on

July 26, 2013, and granted the exceptions of prematurity dismissing the Millers’

claims without prejudice for the three remaining health care provider defendants,

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Acadian, LERN, and Interim LSU.2 A judgment reflecting the trial court’s ruling

was signed on August 15, 2013, and is the source of the Millers’ timely appeal to

this court.

ASSIGNMENT OF ERROR

The district court erred by granting Acadian, LERN, and Interim
LSU’s Dilatory Exceptions of Prematurity and dismissing Appellant’s
case.

LAW AND DISCUSSION

Louisiana Code of Civil Procedure Article 926(A)(1) contains the dilatory

exception of prematurity, which “questions whether the cause of action has

matured to the point where it is ripe for judicial determination.” Spradlin v.

Acadia-St. Landry Med. Found., 98-1977, p. 4 (La. 2/29/00), 758 So.2d 116, 119.

Louisiana Code of Civil Procedure Article 423 provides in pertinent part, “When

an action is brought on an obligation before the right to enforce it has accrued, the

action shall be dismissed as premature, but it may be brought again after this right

has accrued.”

Louisiana Revised Statutes 40:1299.47(A) requires review by a medical

review panel for any qualified health care provider covered under the Medical

Malpractice Act. The statute further provides, “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 the Section.” La.R.S. 40:1299(B)(1)(a)(i).

The Louisiana Supreme Court has emphasized that the Louisiana Medical

Malpractice Act’s “limitations on tort liability for a qualified health care provider

2
The trial court’s written reasons for judgment only reference the exceptions of prematurity filed
by Acadian and LERN, however the judgment issued on August 15, 2013, also grants the exception of
prematurity filed by Interim LSU and dismisses the Millers’ claims against it as well.

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apply strictly to claims ‘arising from medical malpractice,’ La.Rev.Stat.

40:1209.4(I), and that all other tort liability on the part of the qualified health care

provider is governed by general tort law.” Williamson v. Hosp. Serv. Dist. No. 1 of

Jefferson, 04-451, p. 5 (La. 12/1/04), 888 So.2d 782, 786.

We conduct a de novo review of the trial court’s grant of the dilatory

exception of prematurity as the issue of whether a claim sounds in medical

malpractice involves a question of law. Eldridge v. Heritage Manor, L.L.C, 06-718

(La.App. 3 Cir. 11/02/06), 942 So.2d 743. The burden of proof is on the moving

parties, in this case the defendant health care providers, to show that each is

entitled to a medical review panel because the allegations made by the claimant fall

within the LMMA. Williamson, 888 So.2d 782.

When a dilatory exception of prematurity is raised, La.Code Civ.P. art. 930

allows the introduction of evidence at the contradictory hearing on the exception to

“support or controvert any of the objections pleaded.” If evidence is admitted at

the hearing, and in this case, evidence submitted by Acadian was admitted without

objection by the Millers, “the exception must be resolved on the evidence

presented, rather than on the allegations in the petition.” SteriFx, Inc. v. Roden,

41,383, p. 4 (La.App. 2 Cir 8/25/06), 939 So.2d 533, 536.

Louisiana Revised Statutes 40:1299.41(A)(13) defines medical malpractice
as:
[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 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.

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Louisiana Revised Statutes 40:1299.41(A)(22) & (9) further defines the

terms of tort and health care pursuant to the LMMA as follows:

“Tort” means any breach of duty or any negligent act or omission
proximately causing injury or damage to another. The standard of care
required of every health care provider, except a hospital, in rendering
professional services or health care to a patient, shall be to exercise
that degree of skill ordinarily employed, under similar circumstances,
by the members of his profession in good standing in the same
community or locality, and to use reasonable care and diligence, along
with his best judgment, in the application of his skill.

“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.

It is undisputed that Acadian, LERN, and Interim LSU are all qualified

health care providers pursuant to La.R.S. 40:1299.39. Based on the requirements

stated above, the supreme court in Coleman, 813 So.2d at 315-16, set forth six

factors in making a determination of whether certain conduct by 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.

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Allegations Against the Health Care Providers

The trial court in its written reasons for ruling specifically addressed the

issue at hand, whether or not the claims made by the Millers against all three health

care providers, Acadian, LERN, and Interim LSU, were covered by the LMMA.

The Millers’ relevant allegations against Acadian are contained in

paragraphs thirteen and fourteen of the petition and state as follows:

13.
Acadian did not respond in a reasonable [manner] to the request
to transport Richard from Riverside to New Orleans as above
described. The estimated 50 minutes to arrive at Riverside was
unreasonably lengthy. Moreover, the actual 92 minutes it took for
Acadian[’s] helicopter to arrive at Riverside was even more
unreasonable. Additionally, Acadian did not inform LERN or
Riverside personnel that such an inordinate period of time would have
lapsed before arrival at Riverside.

14.
Acadian’s failure to provide reasonably expeditious helicopter
service, and their failure to notify LERN and/or Riverside personnel
of the time it would take to get to Riverside, ultimately resulted in
Richard being denied timely medical care he needed which denial
resulted in his death.

The relevant allegations in the Millers’ petition against LERN are as follows:

15.
LERN was created by the state of Louisiana to protect citizens
of this state “against unnecessary trauma and time-sensitive related
deaths and incidents of morbidity due to trauma... .” As such, LERN
was tasked to create a comprehensive, coordinated statewide system
for access to regional trauma-patient care throughout the state. (R.S.
40:2841).

16.
LERN has created a network of hospitals and “Participating
Pre-hospital Providers” (i.e., ambulance and EMS services) that result
in LERN acting as a facilitator/dispatcher for placement of patients in
need of emergency medical treatment for medical conditions. LERN
functions as a database of the availability of medical resources at the
various network hospitals. It also functions as a coordinator and
dispatcher related to the transportation of such patients by directing
where the patient should be transported.

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17.
In this matter, LERN was guilty of negligence in not ensuring
that its contracted Pre-hospital Provider (Northshore EMS)
communicated with LERN about Richard’s medical condition and
needs from the scene of the accident. LERN was also negligent in
taking an unreasonable amount of time to coordinate transportation of
Richard once LERN had been notified of his medical condition and
needs. LERN was also negligent in failing to track/monitor the
transportation that was initiated with Acadian. Moreover, LERN was
negligent in not altering the transportation method and/or destination
in spite of the excessive delays especially in light of Richard’s
extremely critical medical condition.

18.
The utter failures by LERN constitute gross negligence by
LERN. LERN’s actions are especially egregious considering that
their actions were exactly what LERN was created and tasked to
prevent. The creation of LERN and delegating such far-reaching
authority and responsibility has resulted in LERN being the focal
point for coordinating placement and transportation of critically needy
patients such that when it fails to properly function (as in this case)
their negligence is willful, wanton and grossly in disregard for the
safety of patients.

The relevant allegation against Interim LSU is as follows:

30.
University Hospital refused to allow decedent to be transferred
to it, a facility that was capable of preforming the needed surgery,
until it was sent the results of a diagnostic test, thus delaying the
transfer process during this critical time, an action that caused and/or
contributed to Mr. Miller’s death and that falls outside the ambit of
Louisiana Medical Malpractice Act.

The trial court in its written reasons summed up the Millers’ contentions

against the three health care providers and stated, “Plaintiff contends that the

defendants’ failure to timely transport her husband to a medical facility equipped

to treat his injuries was a factor that contributed to his death. The MMA expressly

includes within its definition of malpractice the ‘failure to render services timely.’

La.R.S. 40:1299.41 (A) (13).”

The trial court further stated, “[D]espite predicating her claims on a delay in

rendering treatment, plaintiffs argue that the MMA does not apply, because the

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defendants were providing transportation services rather than medical treatment.”

Like the trial court, we disagree with the Millers’ claims.

In reviewing the Millers’ petition and the medical records and recording of

the telephone conversation between Riverside personnel and Acadian, it is clear

that the actions of each of the health care providers before the court were

intertwined. All were working in concert to attempt to provide the most

expeditious medical treatment to Mr. Miller. It is undisputed that he was in very

critical condition.

LERN and Interim LSU

The facts and allegations made by the Millers confirm that a medical

determination had to be made by LERN in order to choose the most suitable

medical facility to treat Mr. Miller’s injuries. The Millers argue in their reply

brief, that neither LERN nor Interim LSU offered evidence at the hearing to

establish they are entitled to the protections of the LMMA. This argument has no

merit, as the allegations in the Millers’ petition clearly discuss the function of

LERN, which was created to expedite the transfer of seriously injured patients to

the medical facility best suited to treat the patient’s injuries.

Likewise, Interim LSU is a trauma center with the staff and facilities to treat

seriously injured patients. The Millers’ petition alleges that although Interim LSU

was capable of performing the necessary surgery on Mr. Miller, Interim LSU

delayed his transport until diagnostic testing could be completed and sent to

Interim LSU. Obviously, this testing is a medical determination designed to assist

the personnel at Interim LSU in determining what type of surgeon and facilities

would be required to treat Mr. Miller once he arrived. In addition, the testing was

necessary to determine whether Mr. Miller was stable enough for the transfer to

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take place to Interim LSU, or whether the transport should be attempted as a last

life-saving effort.

It is clear that both the determination made by LERN and the testing

required by Interim LSU were medically related and will require review by the

MRP in order to determine if their actions and the alleged delay breached the

standard of care for an emergency network such as LERN and a hospital such as

Interim LSU.

Acadian

The Millers specifically argue that the actions of Acadian are not medically

related, but occurred between the time of the call from Riverside at 5:36 p.m. and

their arrival at 7:08 p.m., some ninety-two minutes later, in excess of the fifty

minutes they allege in their petition the Acadian helicopter was estimated to arrive.

The recording of the telephone conversation submitted into evidence by Acadian

reflects that the Riverside staff member who contacted Acadian for Dr. Cohn was

informed that it would be at least an hour and fifteen minutes before Acadian could

respond. The delay was due to the unavailability of a helicopter, which was on

another mission and required a crew change and the need to refuel before departure

for Riverside.

The recording also reflects that the Acadian dispatcher requested that the

Riverside staff member contact Acadian if this time period was not acceptable to

Dr. Cohn. No call was ever made to Acadian to cancel the helicopter and the

Acadian helicopter arrived at Riverside at 7:08 p.m., some seventeen minutes later

than originally anticipated.

Although Acadian arrived at 7:08 p.m., the Acadian personnel were unable to

load and begin transport of Mr. Miller until 7:40 p.m., as the testing required by

11

Interim LSU was not complete. Unfortunately, Mr. Miller died upon his arrival at

Interim LSU.

The Millers argued that Robinson v. Allen Par. Police Jury, 05-394, (La.App.

3 Cir. 12/30/05), 918 So.2d 535, writ denied, 06-233 (La. 4/24/06), 918 So.2d 535,

applied to this case. In Robinson a panel of this court found that the failure of

Acadian to timely transport a patient due to a mechanical failure of a helicopter

was not covered under the LMMA, because it was not “treatment related” or the

result of a “dereliction of professional skill.” Robinson, 918 So.2d at 539.

The trial court correctly distinguished a mechanical failure from the

circumstances where the only available helicopter was on another mission and

would require a crew change and refueling before it could respond to transport Mr.

Miller. The trial court then determined from the medical records submitted by

Acadian that it was more expeditious to transport Mr. Miller by helicopter than to

risk the trip across Lake Pontchartrain and the likely delays due to traffic

congestion when they reached the city of New Orleans. The condition of the roads

and the effects of a potentially rough ride on Mr. Miller’s condition were also

considered. The trial court then found that the determination to wait for the

helicopter was an exercise of medical judgment in light of Mr. Miller’s critical

injuries.

The trial court in its ruling determined that all three of the health care

providers’ medical decisions and actions taken on behalf of Mr. Miller were

intertwined and cannot be separated for the purposes of the court’s analysis. We

agree. Therefore, each health care provider is entitled to a review and opinion

issued by a MRP to determine if the standard of care applicable to each was

breached in the alleged delay of the treatment provided by all three health care

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providers prior to Mr. Miller’s death.

CONCLUSION

For the foregoing reasons, we affirm the ruling of the trial court granting the

dilatory exceptions of prematurity filed on behalf of Acadian Ambulance Service,

Inc., Louisiana Emergency Response Network, and Medical Center of Louisiana at

New Orleans, now known as Interim LSU Public Hospital, dismissing without

prejudice the claims of Brenna Ash Miller, Individually and as the duly appointed

guardian of the minor child Skyler Miller, and the individual authorized to make

the claim on behalf of the Estate of Richard A. Miller, Jr., pursuant to the LMMA.

All costs of this appeal are assessed to Brenna Ash Miller.

AFFIRMED.

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