Megan Thomas v. the Regional Health System of Acadiana, LLC

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-215

MEGAN THOMAS, ET AL.

VERSUS

THE REGIONAL HEALTH SYSTEM
OF ACADIANA, LLC, ET AL.

KEATY, Judge, dissenting.

I respectfully dissent from the majority opinion, and I would affirm the

appealed judgment.

In the petition, Ms. Thomas alleged that “Dr. Dalal had all of the tests and

clinical findings available to her in order to timely diagnose and treat baby Mariah

Charles. Her failure to do so was a deviation from the accepted standard of medical

care for pediatric cardiologists.” Ms. Thomas further alleged that both LGMC and

Women’s and Children’s “negligently credentialed Dr. Dalal and negligently

provided her with privileges to practice in [their] hospital[s].”

As correctly noted in the majority opinion, the LMMA defines “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.

La.R.S. 40:1231.1(A)(13) (emphasis added).

The majority relies heavily on the supreme court’s analysis and holding in

Billeaudeau v. Opelousas General Hospital Authority, 16-846 (La. 10/19/16), 218

So.3d 513, to support its finding that Ms. Thomas’ allegations against the hospital

defendants in this matter sounded in negligence such that the trial court erred in

granting the exception of prescription brought by LGMC and Women’s and

Children’s. After stating that “the only issue presented to this Court is whether

plaintiffs’ credentialing claim sounds in medical malpractice or in general

negligence,” the Billeaudeau court noted in footnote 9 that:

[T]he circuit cases to which [the defendant hospital] refers all involved
mixed allegations of negligent credentialing and supervision or strictly
negligent supervision claims and, thus, are clearly distinguishable from
the present case, which currently proceeds in this Court strictly on
negligent credentialing. See Talbert v. Evans, 11-1096 (La.App. 4 Cir.
3/7/12), 88 So.3d 673; Plaisance v. Our Lady of Lourdes Regional Med.
Ctr., Inc., 10-348 (La.App. 3 Cir. 10/6/10), 47 So.3d 17; Dinnat v.
Texada, 09-665 (La.App. 3 Cir. 10/6/10), 30 So.3d 1139; Bickham v.
Inphynet, Inc., 03-1897 (La. 8/24/04), 899 So.2d 15.

Id. at 519.

In my opinion, the allegations made by Ms. Thomas herein are similar to those

made by the plaintiffs in Plaisance, 47 So.3d 17. After considering the allegations

in the plaintiffs’ petition in light of the six-factor test pronounced in Coleman v.

Deno, 01-1517, 01-1519, 01-1521 (La. 1/25/02), 813 So.2d 303, this court

determined that the trial court did not err in granting the hospital defendant’s

exception of prematurity because the plaintiffs’ claims sounded in medical

malpractice rather than in negligence. Plaisance, 47 So.3d 17.

As written, I find that the majority’s discussion of the Coleman factors is

somewhat brief and conclusory. I believe that application of the Coleman test to the

facts alleged in Ms. Thomas’ petition leads to the same result as that which we

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reached in Plaisance. My belief is bolstered by a recent opinion handed down by

the fifth circuit court of appeal.

In Matranga v. Parish Anesthesia of Jefferson, LLC, 17-73, (La.App. 5 Cir.

8/29/18), 254 So.3d 1238, the appellate court was tasked with reviewing a judgment

sustaining an exception of prescription in favor of a hospital that was added as a

defendant in a medical malpractice case that had been remanded to the trial court for

a new trial. The plaintiffs in Matranga were the surviving children of a woman who

died in June 2008, “six days after experiencing complications during her intubation

for general anesthesia in preparation for elective heart surgery.” Id. at 1240. The

originally named defendants were the anesthesiologist and the certified registered

nurse anesthetist who had attempted to intubate the decedent.

After a trial of the matter as to the claims against the original
defendants, the jury returned a verdict in favor of defendants which the
trial court adopted as the judgment of the court. Upon appeal by the
[plaintiffs, the fifth circuit] reversed the judgment and remanded the
matter for a new trial. Matranga[ v. Parish Anesthesia of Jefferson,
LLC, 14-448 (La.App. 5 Cir. 5/14/15), 170 So.3d 1077, writs denied,
15-1143,15-1168 (La. 9/18/15), 178 So.3d 148, 152.]

Matranga, 254 So.3d at 1240-41. Thereafter, the plaintiffs:

filed a supplemental and amending petition in which they added [East
Jefferson General Hospital (EJGH)] as a defendant, alleging that it was
negligent in its credentialing and privileging of [the defendant
anesthesiologist] to practice anesthesiology in its hospital. In response,
EJGH filed an exception of prescription which was sustained by the
trial court.

Id. at 1241. On appeal of that judgment, the fifth circuit observed:

We recognize that the Louisiana Supreme Court, in Billeaudeau,
[218 So.3d 513,] distinguished between the “. . . ‘supervision and
training of the health care providers’ once they enter the building and
engage in the practice of medicine therein,” which clearly falls under
the definition of malpractice in the LMMA, and negligent credentialing
and privileging that takes place in the hiring process when the physician
first enters the hospital, which the Court found to be a claim in general
negligence. Billeaudeau, 218 So.3d at 520-24. Consequently, . . . , we
find that, under the rational of Billeaudeau, the alleged negligent
conduct of EJGH, in order to be characterized as negligent credentialing

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and privileging, is necessarily limited to the time period when [the
defendant anesthesiologist] was hired to begin practicing at EJGH. Any
later alleged negligent conduct of EJGH, and certainly any alleged
negligent conduct of EJGH that was occurring contemporaneously with
[the anesthesiologist’s and the certified registered nurse anesthetist’s]
alleged medical malpractice in June 2008, would clearly be conduct
within the ambit of “. . . training or supervision of health care
providers . . . ” which falls squarely within the definition of medical
malpractice.

Id. at 1246.

Here, Dr. Dalal was credentialed by LGMC approximately twenty-seven

years before the conduct at issue took place. Accordingly, I conclude that Ms.

Thomas’ allegations against the hospital defendants in this matter necessarily

encompass the “the training or supervision” of Dr. Dalal regardless of Ms. Thomas’

having labeled her claims as “negligent credentialing.” Accordingly, I would affirm

the trial court’s grant of the exceptions of prematurity brought by LGMC and

Women’s and Children’s.

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