Roxine Lachney v. James L. Gates, M.D.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

23-682

ROXINE LACHNEY

VERSUS

JAMES L. GATES, M.D. AND
CHRISTUS CABRINI SURGERY CENTER, L.L.C.

**********

APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 259,930
HONORABLE LOWELL C. HAZEL, DISTRICT JUDGE

**********

VAN H. KYZAR
JUDGE

**********

Court composed of Elizabeth A. Pickett, Van H. Kyzar, and Jonathan W. Perry,
Judges.

AFFIRMED.

Brian M. Caubarreaux
Eugene A. Ledet, Jr.
Jacob R. Caubarreaux
Charles A. Woessner
Brian Caubarreaux & Associates
2000 Kaliste Saloom Road, Suite 102
Lafayette, LA 70508
(337) 202-0900
COUNSEL FOR PLAINTIFF/APPELLANT:
Roxine Lachney

Aldric C. Poirier, Jr.
Kelly M. Brian
Blue Williams, LLP
1060 West Causeway Approach
Mandeville, LA 70471
(985) 626-0058
COUNSEL FOR DEFENDANT/APPELLEE:
Christus Cabrini Surgery Center, L.L.C.

Randall M. Seeser
Gold, Weems, Bruser, Sues & Rundell
P.O. Box 6118
Alexandria, LA 71307
(318) 445-6476
COUNSEL FOR DEFENDANT/APPELLEE:
James L. Gates, M.D.

KYZAR, Judge.

In this medical malpractice action, the plaintiff, Roxine Lachney, appeals

from the trial court judgment granting the exception of prescription in favor of the

defendant, Christus Cabrini Surgery Center, L.L.C., and dismissing her claims

against it with prejudice. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Ms. Lachney (Plaintiff) underwent three surgical procedures performed by Dr.

James L. Gates, all of which were performed between February 2013 and June 2014,

at the Christus Cabrini Surgery Center in Alexandria, Louisiana. As a result of the

care she received, Plaintiff filed a medical malpractice complaint against Dr. Gates,

alleging numerous grounds by which he breached the standard of care during his

care and treatment of her. Although the medical review panel found that Plaintiff

was offered more conservative non-surgical treatment alternatives by Dr. Gates, that

the treatment recommended by him was appropriate, and that the complications she

suffered were typical of the procedures performed, it stated: “Nevertheless, in light

of the sworn affidavit testimony submitted by the claimant, Roxine Lachney, there

is a material issue of fact, not requiring expert opinion, which the panel cannot

resolve without making a credibility determination, bearing on liability for

consideration of the court.”

After the rendition of the medical review panel’s July 11, 2017 opinion,

Plaintiff filed suit on September 22, 2017, seeking damages for injuries she suffered

related to Dr. Gates’s “negligence, fault and deviation in the standard of care” during

his care and treatment of her. On December 7, 2018, she filed a first supplemental

and amending petition, alleging that Dr. Gates was negligent in failing to inform and

advise her that “he was undergoing significant mental distress, psychological turmoil

and emotional instability, relative to spousal abuse, all of which affected his medical

judgment. Had plaintiff known of Dr. Gates’s emotional instability, she would have

sought care elsewhere.” The alleged malpractice claims against Christus Cabrini

occurred prior to and subsequent to her June 2014 surgery.

On September 21, 2020, Plaintiff filed a second supplemental and amending

petition naming Christus Cabrini Surgery Center, L.L.C. (Christus Cabrini) as an

additional defendant in her suit and alleging the following:

“9.

On April 19, 2014, only six (6) weeks before the surgery in
question, defendant JAMES L. GATES, M.D., severely beat his wife
of thirty-four (34) years, Mona Gates. Dr. Gates was arrested and
charged with various crimes. In an effort to salvage his medical license,
JAMES L. GATES, M.D.[,] allegedly participated in domestic
violence counseling with psychologist James Quillin, Ph.D. and Jason
Bonfanti, social worker. Quillin and [Bonfanti] documented
psychiatric/psychological conditions including severe depression,
nervousness, excessive worry, agitation, rage attacks, and restlessness.
Additionally, JAMES L. GATES, M.D., with limited and potentially
improper psychological testing with which to confirm diagnosis(s)
[sic], was prescribed medication with very serious and potentially
impairing symptoms.”

....

“10.

Defendant, CHRISTUS CABRINI SURGERY CENTER,
L.L.C., who upon information and belief, had full knowledge of the
condition of JAMES L. GATES, M.D. and nevertheless, allowed
JAMES L. GATES, M.D., to treat and perform surgical procedures at
its facility within weeks of the domestic attack, without any assessment
whatsoever of his fitness to practice medicine.”

She further alleged the following “tortious actions and inactions” of Dr. Gates:

1. Failing to implement policies and protocols to address and
monitor the fitness of physicians enjoying privileges at its
facility;

2. Failing to properly credential physicians practicing at its
facility[;]

3. Failing to recognize the significant psychiatric/psychological
condition of JAMES L. GATES, M.D., thereby restricting his
practice of medicine at the facility; and
2

4. Failing to recognize the potentially serious and impairing effects
of medicine consumed by JAMES L. GATES, M.D. requiring
a restriction of his practice of medicine at the facility.[”]

Plaintiff finally alleged:

“12.

As a result of the above tortious actions and inactions of
defendant, CHRISTUS CABRINI SURGERY CENTER L.L.C.,
L.L.C., plaintiff, ROXINE LACHNEY, without knowledge of
JAMES L. GATES, M.D. having committed horrendous domestic
abuse and without knowledge of his psychiatric/psychological
condition, gave misguided and uninformed consent to the June 6, 2014
surgical procedure by Dr. Gates. Had plaintiff been properly informed
of the above, plaintiff would have not consented to the surgery.[”]

In response to the first and second supplemental amending petitions, both

Christus Cabrini and Dr. Gates filed peremptory exceptions of prescription, arguing

that the allegations contained in these petitions were prescribed as they were filed

more than three years from the date of the alleged act or acts giving rise to her

malpractice claim. Plaintiff opposed both exceptions. Following an August 29, 2022

hearing, the trial court rendered judgment denying Dr. Gates’s and Christus

Cabrini’s exceptions. Dr. Gates then filed an application for supervisory writs,

seeking review of the trial court’s denial of his exception.

On January 25, 2023, this court granted Dr. Gates’s writ, reversed the trial

court’s ruling, and rendered judgment in favor of Dr. Gates, as follows:

We find that the trial court erred in denying Relator’s Peremptory
Exception of Prescription. The new allegations raised in Respondent’s
First Supplemental and Amending Petition were filed more than three
years from the date of the alleged medical malpractice and do not relate
back to the original petition for damages. See Warren v. Louisiana
Medical Mutual Ins. Co., 07-492 (La. 12/2/08), 21 So.3d 186; Santiago
v. Tulane University Hosp. and Clinic, 12-1095 (La.App. 4 Cir.
4/23/13), 115 So.3d 675. Accordingly, we reverse and set aside the trial
court’s ruling and enter judgment granting Relator’s exception and
dismissing Respondent’s First Supplemental and Amending Petition.

Lachney v. Gates, 22-629 (La.App. 3 Cir. 1/25/23) (unpublished writ ruling).

3

As Plaintiff did not seek review of this ruling by the supreme court, the ruling is

final.

Thereafter, Christus Cabrini again filed an exception of prescription, arguing

that “any possibility that the non-medical malpractice claims against it related back

to the original Petition for Damages have been foreclosed by the dismissal of the

claims against Dr. Gates asserted in the First Supplemental and Amending Petition

for Damages.” In opposition to Christus Cabrini’s exception, Plaintiff argued that

her claims were not prescribed as they focused “on [Christus Cabrini’s]

administrative failure to investigate the domestic abuse by Gates, which was in

violation of its own bylaws and national standards.” She argued that the general code

articles on interruption of prescription applied to her claims because administrative

negligence sounds in general negligence rather than medical malpractice. Thus, her

initial suit against Dr. Gates interrupted prescription such that her administrative

negligence claims were not prescribed when she added Christus Cabrini to her suit

on September 21, 2020.
1
Following a May 1, 2023 hearing, the trial court took the matter under

advisement. Thereafter, it rendered a judgment, with incorporated written reasons

for judgment, on May 15, 2023. In its written reasons, the trial court identified two

separate issues to be decided:

First, it must determine the applicable legal framework for prescription,
i.e., whether it should be viewed through the general Civil Code Article
2324(C) or the more specific Louisiana Medical Malpractice Act
(LMMA), in particular La. R.S. 40:1231.8(A)(2)(a) and related
Louisiana Supreme and Appellate Court decisions, and if prescription
has run. Second, the Court must determine whether Christus has a
separate designation, as the claim against it is based on administrative
negligence and not medical malpractice.

1
This judgment was rendered by Judge Hazel. The previous judgments in this matter were
rendered by Judge Patricia E. Koch.
4

Relying on supreme court opinions in LeBreton v. Rabito, 97-2221 (La.

7/8/98), 714 So.2d 1221, and Borel v. Young, 07-419 (La. 11/27/07), 989 So.2d 42

(on rehearing), the trial court held that the more specific prescriptive period found

in La.R.S. 40:1231.8(A)(2)(a), pertaining to medical malpractice claims, superseded

the more general provision as to the interruption of prescription for joint tortfeasors

in La.Civ.Code art. 2324(C). Thus, as Plaintiff’s initial suit was brought under the

Louisiana Medical Malpractice Act (LMMA), her second supplemental and

amending petition adding claims against Christus Cabrini more than six years after

her initial suit was filed had prescribed. The trial court further held that even if

Plaintiff had a viable administrative negligence claim against Christus Cabrini,

“because of the nature of the initial petition, prescription has run and the claim is

prescribed.” Based on these findings, the trial court granted Christus Cabrini’s

exception and dismissed all of Plaintiff’s claims against it with prejudice. It is from

this judgment that Plaintiff has perfected her appeal.

On appeal, Plaintiff raises one assignment of error: “The trial court committed

legal error in granting the exception of prescription.”

OPINION

The law pertaining to the review of an exception of prescription was laid out

by this court in Arton v. Tedesco, 14-1281, p. 3 (La.App. 3 Cir. 4/29/15), 176 So.3d

1125, 1128, writ denied, 15-1065 (La. 9/11/15), 176 So.3d 1043, as follows:

The exception of prescription is governed by La.Code Civ.P. art.
927. The standard of review of a grant of an exception of prescription
is determined by whether evidence was adduced at the hearing of the
exception. If evidence was adduced, the standard of review is manifest
error; if no evidence was adduced, the judgment is reviewed simply to
determine whether the trial court’s decision was legally correct. Allain
v. Tripple B Holding, LLC, 13-673 (La.App. 3 Cir. 12/11/13), 128 So.3d
1278. The party pleading the exception of prescription bears the burden
of proof unless it is apparent on the face of the pleadings that the claim
is prescribed, in which case the plaintiff must prove that it is not. Id.

5

We begin with a review of the substantive laws pertaining to prescription that

are applicable here. First, claims sounding in medical malpractice against health care

providers are governed by the prescriptive periods set forth in La.R.S. 9:5628(A):

No action for damages for injury or death against any physician,
chiropractor, nurse, licensed midwife practitioner, dentist,
psychologist, optometrist, hospital or nursing home duly licensed under
the laws of this state, or community blood center or tissue bank as
defined in R.S. 40:1231.1(A), whether based upon tort, or breach of
contract, or otherwise, arising out of patient care shall be brought unless
filed within one year from the date of the alleged act, omission, or
neglect, or within one year from the date of discovery of the alleged act,
omission, or neglect; however, even as to claims filed within one year
from the date of such discovery, in all events such claims shall be filed
at the latest within a period of three years from the date of the alleged
act, omission, or neglect.

The provisions of La.R.S. 9:5628, were explained more fully in Harris v.

Breaud, 17-42, p. 8 (La.App. 1 Cir. 2/27/18), 243 So.3d 572, 578, as follows:

Louisiana Revised Statute 9:5628 has been referred to as a
“tripartite prescription provision,” meaning that the statute has three
parts. In re: Medical Review Panel for Claim of Moses, 2000-2643
(La. 5/25/01), 788 So.2d 1173, 1178. First, a one-year prescriptive
period, which follows the same time frame as a traditional tort, is the
general rule. Id., 788 So.2d at 1178-79[.] Second, when an injury is not
immediate and apparent, there is a discovery exception to the general
rule, known as contra non valentum, providing that such actions
prescribe one year from the date of discovery of the alleged act,
omission, or neglect. Id. Third, a period of three years has been placed
on all claims, regardless of discovery. Id. at 1178. Both the one-year
and three-year periods set forth in La. R.S. 9:5628 are prescriptive, with
the qualification that the contra non valentem type exception to
prescription embodied in the discovery rule is expressly made
inapplicable after three years from the act, omission, or neglect. Borel
v. Young, 2007-0419 (La. 11/27/07), 989 So.2d 42, 48 (on rehearing).

The LMMA provides a specific rule regarding the effect that the filing of a

request for review of a medical malpractice claim against a healthcare provider has

on the running of prescription as to joint tortfeasors, whether or not the additional

claim sounds in malpractice. Louisiana Revised Statutes 40:1231.8(A)(2)(a)

provides, in pertinent part, that “[t]he filing of a request for review of” a malpractice

claim “shall suspend the running of prescription against all joint and solidary
6

obligors and all joint tortfeasors, including but not limited to health care providers,

both qualified and not qualified, to the same extent that prescription is suspended

against the party or parties that are the subject of the request for a review.” However,

the interruption lasts only until the expiration of ninety days following notification

by certified mail to the claimant or his attorney of the issuance of an opinion by the

medical review panel. Id.

In most other actions outside the scope of the LMMA, prescription is

interrupted by the commencement of suit against the obligor in a court of competent

jurisdiction and venue. La.Civ.Code art. 3462. A timely filed suit against one joint

tortfeasor interrupts prescription as to all joint tortfeasors. La.Civ.Code art. 2324(C).

However, in Borel, 989 So.2d at 54, the supreme court held “that the more specific

provisions of the Medical Malpractice Act regarding suspension of prescription

against joint tortfeasors apply in this case to the exclusion of the general code articles

on interruption of prescription against joint tortfeasors, and in particular LSA-C.C.

art. 2324(C).”

Although Christus Cabrini, as the mover, bears the burden of proving

prescription, it is apparent on the face of the pleadings that Plaintiff’s claims against

Christus Cabrini have prescribed as they were filed more than three years after the

date of the alleged malpractice. Thus, the burden shifts to Plaintiff to prove that her

claims are not prescribed.

Plaintiff filed four exhibits in support of her opposition to Christus Cabrini’s

exception: Christus Cabrini’s response to Plaintiff’s request for admissions and

interrogatories; an affidavit by Dr. Susan Abookire; Dr. Abookire’s Medical Expert

Witness Report; and a supplemental affidavit by Ellen G. Stein, Ph.D.

In its response to Plaintiff’s requests for admissions and interrogatories,

Christus Cabrini admitted that it “did not initiate an investigation or peer review” of
7

Dr. Gates following his April 19, 2014 arrest. It further admitted that the first surgery

Dr. Gates performed following his arrest was on April 21, 2014.

In Dr. Stein’s supplemental affidavit, she states:

Dr. Gates’ [sic] behavior, as memorialized by Officer Dauzet, clearly
outlines a matter of grave concern, both to the victim and the Court,
where his ability to effectively address a matter of frustration, quickly
escalated to one of annihilation or attempts to extinguish the object of
his wrath. Dr. Gates [sic] effort to restrain his victim by placing his
body on top of her while pinning her to the floor, left little doubt that
he was not willing to stop with “slapping her a few times”. His
intention, at that point, given his conduct, suggests that he was moving
toward more lethal harm. Attempted strangulation is a consistent
marker for lethality in domestic violence. When the attempt fails, it
remains essential for the Court as well as treatment providers, to regard
the offender as continuing to possess a clear and lethal danger to the
alleged victim and potentially others in the community if he remains
untreated.

In her affidavit, Dr. Abookire, M.D., MPH, FACP, an assistant professor at

Harvard Medical School, stated that “[b]y virtue of my training, education, and

experience, I am familiar with the hospital standards of care that relate to issues for

physicians such as James L. Gates, M[.]D. and I can fairly evaluate the quality of

oversight that was provided, and the administrative standard of care.” In her report,

Dr. Abookire stated that she “was asked to provide an expert opinion as to whether

Christus Cabrini Surgery Center met the standard of care in the administrative

management of Ms. Lachney’s surgeon, Dr. James Gates.”

In her summary, Dr. Abookire noted that Dr. Gates was on the medical staff

of Christus Cabrini, performing his first surgery there in 2007. She stated that

although Christus Cabrini’s administrator learned of the domestic incident involving

Dr. Gates shortly after it occurred, no investigation into the incident was conducted

as there was no question regarding Dr. Gates’s competence. Dr. Abookire listed the

following Christus Cabrini bylaw:

10.1 Routine Corrective Action

8

10.1-1 Criteria for Initiation

Any person may provide information to the Administrator about the
conduct, performance or competence of the Surgery Center
Practitioners. When reliable information indicates a Practitioner with
clinical privileges may have exhibited acts, demeanor or conduct,
reasonably likely to be: (1) detrimental to patient safety or to the
delivery of quality patient care within the Surgery Center; (2) unethical;
(3) contrary to the Professional Medical Staff Bylaws, Rules and
Regulations or policies and procedures; (4) below applicable
professional standards; or (5) disruptive to the operations of the Surgery
Center. Corrective action against such Practitioner may be requested by
the Medical Director, by a member of the Board, or by a member of the
Medical Executive Committee.

If the Medical Executive Committee fails to investigate or take
disciplinary action, contrary to the weight of the evidence, the Board
may direct the Medical Executive Committee to initiate the
investigation or disciplinary action, but only after consultation with the
Medical Executive Committee. If the Medical Executive Committee
fails to take action in response to that Board direction, the Board may
initiate corrective action, but this corrective action must comply with
Article X of these bylaws.

Dr. Abookire noted that Dr. Stein’s affidavit “referenced the prescribing of

several medications directed to serious mental health diagnoses, and that the

prescribed medications have potential serious and impairing symptoms.”

It was Dr. Abookire’s opinion “based upon a reasonable degree of medical

certainty,” that Christus Cabrini “breached the standard of care by failing to provide

the necessary administrative oversight and actions to ensure that Dr. Gates was

eligible to continue to have unrestricted privileges to perform surgery and to provide

safe, high-quality patient care.” She stated that pursuant to the 2014 Joint

Commission Comprehensive Accreditation Manual (Joint Commission), the

standard of care for evaluating competence required a comprehensive evaluation

including consideration of patient care, medical/clinical knowledge, practice-based

learning and improvement, interpersonal communication skills, professionalism,

and system-based practice. Thus, she stated that it was a breach of the standard of

care for a hospital to “ignore professionalism and concerns about patient safety[]”
9

when evaluating a physician’s competency. Dr. Abookire stated that the Joint

Commission requires hospitals to utilize a “Focused Professional Practice

Evaluation[,]” which “calls for an immediate inquiry into events such as occurred

with James Gates. An arrest for violent behavior must be investigated. Concern

about ongoing violence, mental health, psychiatric stability, or medications that alter

behavior must be addressed. Any risk to patient safety must be actively managed.”

In finding that Christus Cabrini breached its standard of care, Dr. Abookire

stated:

Christus Cabrini Surgery Center LLC breached the standard of care by
failing to follow its own by Bylaws in their response and management
of the criminal record of James L. Gates. The Bylaws call for Corrective
Action to be initiated by the Board and/or Medical Executive
Committee when reliable information exists of concerns as delineated
in the 5 elements of the Bylaws 10-1.1. Restricting the interpretation of
concerns to a notion of ‘competence’ that is not affected by an arrest
for violent behavior is a breach of the standard of care. Had Christus
Cabrini Surgery Center LLC met the standard of care, an inquiry would
have been initiated by the Medical Staff Executive Committee and/or
the Board. More likely than not, Dr. Gates would not have had ongoing
unrestricted, unmonitored, [sic] privileges.

Christus Cabrini Surgery LLC [sic] exhibited administrative negligence
by failing to ensure that James Gates was competent to practice surgery,
using a comprehensive approach to competence. Christus Cabrini
Surgery [sic] breached the standard of care by failing to ensure a
Focused Professional Performance Evaluation, by violating standards
for Leadership, and by failing to adhere to its Bylaws. Had Christus
Cabrini Surgery LLC [sic] met the standard of care, a thorough inquiry
and investigation would have been initiated. Had an investigation been
undertaken, Dr. Gates’ [sic] surgical privileges would be limited or
suspended pending confirmation that his professionalism, behavior,
mental health, and medications were consistent with the values of
patient safety and high-quality care. The failure to initiate any inquiry
or investigation into an episode of violent and criminal behavior
represents administrative negligence by Christus Cabrini Surgery LLC
[sic].

On appeal, Plaintiff argues that the trial court erred in granting Christus

Cabrini’s exception of prescription because unlike in Borel, which involved a claim

of medical malpractice against a healthcare provider, the general code articles on

10

interruption of prescription should apply in this instance as her claim against

Christus Cabrini involves “administrative negligence,” which falls outside the scope

of the LMMA.

After reviewing the evidence, we find no manifest error in the trial court’s

grant of Christus Cabrini’s exception of prescription; however, in doing so we find

that the claims alleged by Plaintiff against Christus Cabrini are subject to the

prescriptive period contained in La.R.S. 9:5628 as they sound in medical

malpractice.

There is no dispute that Christus Cabrini is a qualified health care provider

pursuant to La.R.S. 40:1231.1(A)(10). Moreover, as defined in La.R.S.

40:1231.1(13), an act of malpractice “includes all legal responsibility of a health care

provider . . . in the training or supervision of health care providers[.]” “Whether a

claim sounds in medical malpractice is a question of law reviewed under a de novo

standard.” Thomas v. Reg’l Health Sys. of Acadiana, LLC, 19-507, 19-524, p. 8 (La.

1/29/20), 347 So.3d 595, 601.

In Billeaudeau v. Opelousas General Hospital Authority, 16-846, p. 16 (La.

10/19/16), 218 So.3d 513, 523, the supreme court stated that “the treatment-related

medical decisions and dereliction of skill with which the LMMA is concerned, and

for which a hospital can be held liable for ‘malpractice,’ fall under the ‘supervision

and training of the health care providers’ once they enter the building and engage in

the practice of medicine therein.” Billeaudeau held that a claim of negligent

credentialing as it pertains to a hospital’s initial credentialing of a physician does not

sound in medical malpractice. However, the supreme court, in Thomas, 347 So.3d

at 602, held that claims involving “negligent re-credentialing necessarily fall within

the definition of ‘malpractice’ under the LMMA because they constitute an

‘unintentional tort . . . based on health care or professional services rendered, or
11

which should have been rendered, by a health care provider, to a patient . . . in the

training or supervision of health care providers.” Id. at 602 (alterations in original).

The supreme court further held:

Our holding comports with this court’s statement in Billeaudeau that
“the treatment-related medical decisions and dereliction of skill with
which the LMMA is concerned, and for which a hospital can be held
liable for ‘malpractice,’ fall under the ‘supervision and training of the
health care providers’ once they enter the building and engage in the
practice of medicine therein.” [Billeaudeau,] 218 So. 3d at 523. To the
extent that plaintiff’s allegations against the hospital include the
hospital’s initial credentialing of Dr. Dalal in 1987, we distinguish
Billeaudeau on its facts.

Id.

The supreme court’s finding that claims alleging negligent re-credentialing
2
fall under the LMMA was supported “by application of the Coleman[ ] factors.” Id.

at 604. The supreme court held:

Our conclusion that the LMMA encompasses the present claims
also is supported by application of the Coleman factors. First, as to
whether the particular wrong is treatment related or caused by a
dereliction of professional skill, we note that the allegations in the

2
Coleman v. Deno, 01-1517 (La. 1/25/02), 813 So.2d 303. The six Coleman factors utilized
for determining whether a qualified health care provider’s conduct qualifies as malpractice under
the LMMA are:

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 of 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.

Thomas, 347 So.3d at 604 nt.5 (quoting Coleman, 813 So.2d at 315–16).

12

petition are treatment related for failure to diagnose a heart condition.
Moreover, in light of evidence that LGMC engages in continuous peer
review as part of its re-credentialing process, professional skill is a
necessary element, and this factor would favor application of the
LMMA.

Second, because re-credentialing invokes the professional
assessment of a physician’s peers, expert medical testimony will be
required to determine whether the hospital’s conduct in re-credentialing
Dr. Dalal fell below the applicable standard of care. This factor also
favors application of the LMMA. Third, while the pertinent act of re-
credentialing Dr. Dalal did not necessarily involve specific assessment
of Mariah’s condition, the process involved ongoing review of Dr.
Dalal’s patient care. Under the fourth factor, credentialing is
unquestionably within the scope of activities a hospital is licensed to
perform under R.S. 40:2114(E). Fifth, the patient’s alleged damages
would not have occurred if she did not receive care at LGMC or W &
C, thereby satisfying this factor in favor of application of the LMMA.
As to the last factor asking whether the tort alleged was intentional,
there are no allegations of intentional misconduct. In the instant matter,
The [sic] Coleman factors weigh in favor of applying the LMMA to the
claims presented in this petition.

Id. (footnotes omitted).

At the heart of Plaintiff’s claim against Christus Cabrini is its failure to restrict

Dr. Gates’s credentials despite its knowledge of the domestic incident he initiated,

which failure led to it not recognizing Dr. Gates’s mental condition and the possible

effect his prescribed medication could have on his ability to safely practice medicine.

As such, this matter does not involve Dr. Gates’s initial credentialing as he was first

credentialed by Christus Cabrini in 2007. Rather, Plaintiff’s allegations concern

Christus Cabrini’s supervision of Dr. Gates following his initial credentialing as well

as its failure to properly supervise physicians already practicing at its facility. She

complains of its failure “to implement policies and protocols to address and monitor

the fitness of physicians enjoying privileges at its facility[,]” and its failure “to

properly credential physicians practicing at its facility[.]” As to Christus Cabrini’s

actions regarding Dr. Gates, specifically, Plaintiff complains that it failed to

recognize his “significant psychiatric/psychological condition” and “the potentially

13

serious and impairing effects” his medication could have on his ability to practice

medicine.

Although Plaintiff attempts to avoid the limitations of the LMMA by calling

her claims “administrative negligence,” we find that the actions she alleges Christus

Cabrini failed to take with regard to Dr. Gates and its other practicing physicians fit

squarely under its legal responsibility for the “supervision and training of health care

providers” practicing at its facility. La.R.S. 40:1231.1(A)(13). “Supervision” is

defined as “[t]he series of acts involved in managing, directing, or overseeing

persons or projects.” Black’s Law Dictionary (11th ed. 2019). As the definition of

malpractice specifically “includes all legal responsibility of a health care provider .

. . in the training or supervision of health care providers,” we find that Plaintiff’s

claims, which focus on Christus Cabrini’s failure to manage, direct, or oversee Dr.

Gates’s practice of medicine, as well as that of its other credentialed physicians, fall

under the LMMA.

Despite Plaintiff’s and Dr. Abookire’s use of the term “administrative” in

describing Christus Cabrini’s alleged negligence, their entire focus is on Dr. Gates’s

competency to practice medicine and Christus Cabrini’s failure to terminate or

restrict his medical privileges. Moreover, the term “administrative” as used in this

context is defined as “[o]f, relating to, or involving the work of managing a company

or organization[.]” Black’s Law Dictionary (11th ed. 2019). In this instance,

Plaintiff’s claims do not concern the actions Christus Cabrini took in managing its

facility. Rather, they concern the actions it took or failed to take in supervising Dr.

Gates, a practitioner enjoying privileges at its facility.

This finding is also supported by application of the Coleman elements. As to

whether Plaintiff’s claims are treatment related or caused by a dereliction of

professional skill, her allegations against Christus Cabrini specifically arise from its
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failure to assess Dr. Gates’s fitness to perform surgery in the weeks following the

domestic attack on his wife, and more specifically, his fitness to perform Plaintiff’s

June 6, 2014 surgery. Additionally, Christus Cabrini’s bylaws allow for routine

corrective action against a credentialed health care provider when reliable

information indicates that the health care provider “may have exhibited acts,

demeanor or conduct, reasonable likely to be” “detrimental to patient safety or to the

delivery of quality patient care within the Surgery Center[.]” Rule 10.1-1.

Accordingly, we find that Plaintiff’s claims against Christus Cabrini relate to

medical treatment or the dereliction of professional skill.

We further find that expert medical testimony is required to determine

whether the appropriate standard of care was breached in this instance. Plaintiff

claims that Christus Cabrini should have assessed Dr. Gates’s competency following

the domestic incident in light of the medication he was prescribed to address his

mental health concerns. In fact, Plaintiff did present expert medical testimony via

Dr. Abookire’s affidavit and Medical Expert Witness Report regarding whether

Christus Cabrini breached the appropriate standard of care. Although Dr. Abookire

found that Christus Cabrini breached the standard of care in its administrative

management of Dr. Gates, whether Dr. Gates should have retained his credentials

following the domestic incident would have required the professional assessment of

his peers. Accordingly, this element weighs in favor of Plaintiff’s claim falling under

the LMMA.

As to the third Coleman element, although Christus Cabrini’s supervision of

Dr. Gates did not involve the assessment of Plaintiff’s condition, it was aware of the

domestic incident involving Dr. Gates and, according to Dr. Abookire, it failed to

ensure that Dr. Gates “was competent to practice surgery, using a comprehensive

approach to competence.” Again, Plaintiff’s own expert points to the conclusion that
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the claim was one for medical malpractice in that it involved Christus Cabrini’s

supervision of Dr. Gates and its assessment of his ability to continue to exercise

medical privileges at the hospital given his circumstances. This is made even clearer

by Dr. Abookire’s use of the term “standard of care” when referring to the failures

of Christus Cabrini in supervising Dr. Gates.

With regard to the fourth Coleman element, we find that Christus Cabrini’s

alleged failure to investigate Dr. Gates’s actions and restrict his privileges falls

within the scope of activities that a hospital is licensed to perform pursuant to La.R.S.
3
40:2114(E). The fifth Coleman factor weighs in favor of the LMMA as Plaintiff’s

injuries would not have occurred if she had not sought treatment from Dr. Gates.

Finally, Plaintiff has not alleged that the actions of Dr. Gates or Christus Cabrini

were intentional.

After reviewing the Coleman factors in light of Plaintiff’s allegations, we find

that they weigh in favor of finding that her claims against Christus Cabrini fall under

the provisions of the LMMA. Based on this finding and the fact that Plaintiff’s

claims against Christus Cabrini were filed more than three years after the date of the

alleged malpractice, we find that her claims against Christus Cabrini have

prescribed. La.R.S. 9:9562. Accordingly, the judgment of the trial court is affirmed.

DECREE

Based on the foregoing, the judgment of the trial court granting the exception

of prescription in favor of Christus Cabrini Surgery Center, L.L.C. is affirmed. The

costs of this appeal are assessed against Roxine Lachney.

AFFIRMED.

3
Louisiana Revised Statutes 40:2114(E) requires a hospital to “establish rules, regulations,
and procedures setting forth the nature, extent, and type of staff membership and clinical
privileges, as well as the limitations placed by the hospital on said staff membership and clinical
privileges for all health care providers practicing therein.”
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