Opinion
NO. 2012 CA 0074
09-21-2012
BOBBY BAKER v. HAYDEN JOSEPH DUNN, GOVERNMENT EMPLOYEES INSURANCE COMPANY, ACADIAN AMBULANCE SERVICE, INC., and ABC INSURANCE COMPANY
G. Karl Bernard New Orleans, Louisiana Attorney for Plaintiff/Appellant, Bobby Baker Peter A. Bourgeois New Orleans, Louisiana Attorney for Defendant/Appellee, Acadian Ambulance Service, Inc. Jay R. Boltin Baton Rouge, Louisiana Attorney for Defendant/Appellee, Hayden Joseph Dunn and Government Employees Insurance Company "GEICO"
NOT DESIGNATED FOR PUBLICATION
On Appeal from the
21st Judicial District Court,
In and for the Parish of St. Helena,
State of Louisiana
Trial Court No. 21,207
The Honorable Elizabeth P. Wolfe, Judge Presiding
G. Karl Bernard
New Orleans, Louisiana
Attorney for Plaintiff/Appellant,
Bobby Baker
Peter A. Bourgeois
New Orleans, Louisiana
Attorney for Defendant/Appellee,
Acadian Ambulance Service, Inc.
Jay R. Boltin
Baton Rouge, Louisiana
Attorney for Defendant/Appellee,
Hayden Joseph Dunn and
Government Employees Insurance
Company "GEICO"
BEFORE: CARTER, C.J., GUIDRY AND GAIDRY, JJ.
CARTER , C.J.
Bobby Baker appeals a judgment of the trial court dismissing his lawsuit pursuant to an exception of prematurity on the basis that the claim is one for medical malpractice which must be presented to the Medical Review Panel. We affirm.
FACTS AND PROCEDURAL HISTORY
On December 1, 2009, Acadian Ambulance Service, Inc. ("Acadian Ambulance") was contacted at about 12:20 a.m. to transport Bobby Baker from 91 Baker Road in St. Helena Parish to the closest hospital due to a seizure and a fall from a trailer. Later that same day, at about 5:50 p.m., Acadian Ambulance was again called to transport Mr. Baker to the closest hospital due to a seizure. On the second occasion, Mr. Baker was transported from 2784 Highway 1045. On both occasions, the police were already at the scene due to the violent actions of Mr. Baker. The evidence submitted at the hearing indicates that on the second occasion, Mr. Baker walked to the ambulance with assistance, was placed on the stretcher and strapped to it, and was placed in the ambulance. Mr. Baker twisted onto his stomach on the stretcher causing one of the attending medics to unfasten Mr. Baker so he could reposition on his back. Upon doing so, Mr. Baker exited the ambulance, ran onto Highway 1045, and was struck by a vehicle driven by Hay den Joseph Dunn.
The petition does not distinguish that two separate incidents occurred. However, the evidence submitted at the hearing on the exception reveals that Mr. Baker suffered his injury during the second occasion in which he was in the ambulance. Furthermore, the petition refers to the plaintiff being restrained in handcuffs and shackles which were allegedly removed by the medic before Mr. Baker ran onto the highway. The ambulance record contains two separate incidents: the first involved Mr. Baker being handcuffed and shackled; the second involved Mr. Baker walking to the ambulance and being placed on the stretcher. It was during the second incident that Mr. Baker ran onto the highway. At this time, he was only restrained by the stretcher, not handcuffs or shackles.
The plaintiff filed suit against Mr. Dunn, Government Employees Insurance Company ("GEICO"), the automobile insurer of Mr. Dunn, Acadian Ambulance, and ABC Insurance Company, as insurer of Acadian Ambulance. The plaintiff dismissed Mr. Dunn and GEICO as a result of a settlement. Acadian Ambulance filed an exception raising the objection of prematurity, alleging that the claims asserted by Mr. Baker against Acadian Ambulance relate to the handling and assessment of the patient, Mr. Baker. Therefore, Acadian Ambulance maintains that the claims of Mr. Baker fall under the Louisiana Medical Malpractice Act and are premature prior to their submission to a medical review panel. The trial court granted the exception of prematurity and dismissed Mr. Baker's claims against Acadian Ambulance without prejudice. This appeal followed.
DISCUSSION
Louisiana Code of Civil Procedure article 926 A(1) provides for the dilatory exception of prematurity. A suit is premature if it is brought before the right to enforce the claim sued on has accrued. La. Code Civ. Proc. Ann. Art. 423. Prematurity is determined by the facts existing at the time suit is filed. Hidalgo v. Wilson Certified Express, Inc., 94-1322 (La. App. 1 Cir. 5/14/96), 676 So. 2d 114, 116. The exception raising the objection of prematurity may be utilized in cases where the applicable law has provided a procedure for a claimant to seek administrative relief before resorting to judicial action. Hidalgo, 676 So.2d at 116. 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. Hernandez v. Diversified Healthcare--Abbeville, LLC, 09-546 (La. App. 3 Cir. 11/4/09), 24 So. 3d 284, 285 writ denied, 09-2629 (La. 2/12/10), 27 So. 3d 849.
Under the Louisiana Medical Malpractice Act ("the Act"), all medical malpractice claims against qualified health care providers must be submitted to a medical review panel for consideration. See La. Rev. Stat. Ann. § 40:1299.47(A)(1)(a). No civil action against a qualified health care provider or its 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 Act. See La. Rev. Stat. Ann. § 40:1299.47(B)(1)(a)(i). A request for a medical review panel is a prerequisite to and not the equivalent of a suit for medical malpractice. Houghton v. Our Lady of the Lake Hosp., Inc., 03-0135 (La. App. I Cir. 7/16/03), 859 So. 2d 103, 105-06. If a lawsuit against a health care provider covered by the Act has been commenced in a court and the complaint has not been first presented to a medical review panel, the exception of prematurity must be sustained, and the claimant's suit must be dismissed. Dunn v. Bryant, 96-1765 (La. App. 1 Cir. 9/19/97), 701 So. 2d 696, 699, writ denied, 97-3046 (La. 2/13/98), 709 So. 2d 752.
Louisiana Revised Statutes section 40:1299.41 through 1299.48.
"Malpractice" is defined by La. Rev. Stat. Ann. § 40:1299.41(A)(13), in pertinent part, as follows:
"Malpractice" means 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 ... in the training or supervision of health care providers...,
"Health care" is further defined in La. Rev. Stat. Ann. § 40:1299.41(A)(9), in pertinent part, as follows:
"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...,
"Health care provider" is defined in La. Rev. Stat. Ann. § 40:1299.41 (A)(10), in pertinent part, as follows:
"Health care provider" means a person, ambulance service under circumstances in which the provisions of R.S. 40:1299.39 are not applicable ...,
In general, any conduct by a health care provider complained of by a patient is properly within the scope of the Act if it can reasonably be said that it comes within the definitions of the Act, even though there are alternative theories of liability. Todd v. Angelloz, 02-1400 (La. App. 1 Cir. 3/28/03), 844 So. 2d 316, 318 writ denied, 03-1210 (La. 6/27/03), 847 So. 2d 1276.
Nonetheless, the supreme court has emphasized that the Act and its limitations on tort liability for a qualified health care provider apply strictly to claims arising from medical malpractice and that all other tort liability on the part of the qualified health care provider is governed by general tort law. Blevins v. Hamilton Medical Center, Inc., 07-127 (La. 6/29/07), 959 So. 2d 440, 444; Coleman v. Deno, 01-1517 (La. 1/25/02), 813 So. 2d 303, 315.
The burden rests upon the defendant to prove prematurity and initial immunity from suit as a qualified health care provider under the Act. Armand v. Lady of the Sea General Hospital, 11-1083 (La. App. 1 Cir. 12/21/11), 80 So. 3d 1222, 1226, writ denied, 12-0230 (La. 3/30/12), 85 So. 3d 121. The defendant must also show that it is entitled to a medical review panel, because the allegations fall within the Act. Id. (citing Hamilton v. Baton Rouge Health Care, 09-0849 (La. App. 1 Cir. 12/08/10), 52 So. 3d 330, 333). The Act applies only to "malpractice"; all other tort liability on the part of a qualified health care provider is governed by general tort law. Id. (citing Coleman, 813 So. 2d at 315). However, the fact that the plaintiff may have made allegations sounding in both medical malpractice and general tort law does not remove the petition from the penumbra of the Act, if a claim for medical malpractice is stated. See McKnight v. D&W Health Services, Inc., 02-2552 (La. App. 1 Cir. 11/7/03), 873 So. 2d 18, 23.
ANALYSIS
Mr. Baker claims that the trial court erred in sustaining the exception of prematurity because his accident was not the result of medical malpractice but was within the ambit of general tort law. Mr. Baker claims that the action of removing his restraints falls within the general negligence of failure of care. Therefore, he argues the Act does not apply to these facts.
Mr. Baker also asserts that Acadian Ambulance submitted only argument and two unauthenticated documents as evidence. However, when unauthenticated documents are introduced, a contemporaneous objection and the reasons for the objection must be made to preserve an evidentiary issue for appellate review. Armand, 80 So. 3d at 1226. As Mr. Baker made no contemporaneous objection, he cannot now complain that the trial court erred in allowing the documents into evidence.
The Louisiana Supreme Court has set forth six factors to be evaluated when considering whether an accident qualifies as medical malpractice. Coleman, 813 So. 2d at 315-316. These factors 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 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 that 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. Id.
Having evaluated the evidence in the light of the Coleman factors, we conclude the trial court did not err in determining that Mr. Baker's accident was alleged to be the result of medical malpractice, and thus fell within the parameters of the Act. The first Coleman factor considers whether the particular wrong is "treatment related" or caused by a dereliction of professional skill. The use of the ambulance was "treatment related" in that the medics were attempting to treat and transport Mr. Baker to the hospital due to seizures. The police were already at the scene and could have transported Mr. Baker if all he needed was transportation rather than medical care. The medics had to use their professional skill to determine how to handle a type of patient with seizures who appeared to be combative. The medics were required to make a medical determination regarding the mental status of the patient to determine whether restraints were necessary on the stretcher. No one can deny that Mr. Baker was being treated by the medics.
The Acadian Ambulance records indicate it was the sheriffs office that was on the scene although the petition refers to the "local police authority."
Defendant argued that once Mr. Baker was placed on the stretcher and loaded into the ambulance, he began receiving medical interventions such as intravenous fluids, respiration and pulse monitoring, and EKG monitoring. There is no evidence that any of the medical interventions which Defendant refers occurred prior to Mr. Baker being hit by the vehicle. Instead, the record does not indicate that the ambulance had yet left the scene when Mr. Baker bolted onto the highway. The medic notes that he was looking for the police just before he undid the restraint on the stretcher, which indicates that the ambulance had not left the scene.
There is no evidence that Mr. Baker received any of the medical interventions noted by defendant until after he was hit by the car and enroute to the hospital. The ambulance did deliver Mr. Baker to the hospital a little over an hour after first being called to transport the patient. The medic noted that the delay was due to the patient being struck by a vehicle.
The question of whether the medic who released Mr. Baker from the stretcher was negligent in doing so when Mr. Baker was known to be having seizures is not a fact that a lay person could answer. Expert testimony will be necessary to determine if the medic used the correct procedure and skill in releasing Mr. Baker at the moment he did. Questions concerning the adequate safeguards to prevent the release of Mr. Baker are issues related to patient assessment and will require expert medical evidence in order to determine whether the appropriate standard of care was breached.
The third factor involves the assessment of Mr. Baker's condition at the time of the alleged negligent act. The act of releasing Mr. Baker from the stretcher does involve an assessment of his condition at the time. The medic would have had to assess the physical and mental condition of Mr. Baker to determine whether he needed to be restrained at all times. The entire claim of plaintiff is based upon the inadequacy of an assessment of the patient's condition and how to handle that condition.
The fourth factor is whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities that a hospital is licensed to perform. Acadian Ambulance is licensed to perform ambulance services. The services of an ambulance routinely entail transportation and emergency medical care services. The alleged negligent act occurred during the scope of activities which Acadian Ambulance is licensed to perform. Therefore, the fourth factor is satisfied.
The fifth factor is also satisfied. Mr. Baker lived on Highway 1045 where the ambulance responded to deliver him to the hospital. It is true that he could have bolted into the traffic from his own home while having a seizure. However, Mr. Baker bolted from the ambulance. It was from his confinement on the stretcher and ambulance from which he sought to escape at the time of his injury. Prior to the arrival of the ambulance, Mr. Baker was standing on the porch, and he did not run onto the highway. He only ran into traffic after being put in the ambulance. Therefore, Mr. Baker would not have suffered the injury but for the summoning of the ambulance.
Finally, there are no allegations that this tort was intentional. Therefore, this factor does not preclude the application of the medical malpractice act.
Medical malpractice is statutorily defined in part, as "failure to render services timely and the handling of a patient, including loading or unloading of a patient, and ... in the training or supervision of healthcare providers." La. Rev. Stat. Ann. § 40:1299.41(A)(13); See also, Encalade v. West Jefferson Medical Center Ambulance Service, 09-355 (La. App. 5 Cir. 11/24/09), 28 So. 3d 1116, 1118-1119. Mr. Baker's allegations fall squarely within the definition of medical malpractice, as he complains about the inadequacy of the handling of the patient. Encalade held that the failure of emergency medical technicians to hurriedly get to the decedent, stabilize him for transport, and quickly get him to the hospital, contributing to the quickness of his death, fell within the Act. The plaintiff's allegations in Encalade placed at issue the emergency medical technicians' assessment of the patient's medical condition and the nature of the response required by the applicable standard of care.
In the present case, Mr. Baker also alleges that the medics' assessment of his medical condition and the nature of the response breached the applicable standard of care. The issues raised by Mr. Baker's petition fall squarely within the Act.
Mr. Baker cites several cases in which the courts have held that not every activity in handling a patient constitutes medical malpractice. However, the cases relied upon by Mr. Baker are distinguishable from the present case. Mr. Baker relies upon Richard v. Louisiana Extended Care Centers, Inc., 2002-0978 (La. 1/14/03), 835 So. 2d 460, wherein the Louisiana Supreme Court stated that not every negligent act involving the handling of a patient under the Act constituted medical malpractice unless the negligent act was directly related to medical treatment. See Richard, 835 So. 2d at 468-469. (The Court, however, held that the evidence was insufficient to make a determination and remanded the case to the trial court for a full evidentiary hearing). In the present case, the alleged negligent act of removing the restraint was related to the handling and transporting of a seizure patient to a hospital. This negligent act is directly related to medical treatment.
Mr. Baker cites Price v. City of Bossier City, 96-2408 (La. 5/20/97), 693 So. 2d 1169, for the proposition that the patient must be in the process of receiving "health care." In the present case, Mr. Baker was indeed in the process of receiving "health care." Id. at 1173. He was in the ambulance to be transported to the hospital to receive medical care for the medical condition of seizures. The act of not restraining Mr. Baker was during his confinement in the ambulance. In Pender v Natchitoches Parish Hospital, 01-1380 (La. App. 3 Cir. 5/7/03), 844 So. 2d 1107, the court remanded the case for a full evidentiary hearing. In the present case, the records submitted by Acadian Ambulance are sufficient to determine that Mr. Baker was receiving medical care at the time of the alleged negligent act.
CONCLUSION
For the foregoing reasons, we affirm the trial court's grant of the defendant's dilatory exception of prematurity. All costs of this appeal are assessed against the plaintiff, Bobby Baker.
AFFIRMED.