Opinion
Civil Action No. 02-0295
January 28, 2003
ORDER
Before the Court is a Motion to Dismiss [Doc. 37], filed by the third-party defendant, Acadian Ambulance Service, Inc., pursuant to Fed.R.Civ.P. 12(b)(1). After considering the memoranda filed by Acadian Ambulance Service, Inc. and Delta Towing, LLC, the applicable law, the record, and the jurisprudence, this Court is now ready to rule. Motion came before the Court for hearing on January 15, 2003, and oral argument was waived by all parties.
I. PROCEDURAL BACKGROUND
This matter involves a personal injury allegedly sustained on January 11, 2002, by a deckhand, Charles Bodin, aboard the M/V DELTA TRADITION during anchor operations for the barge M/V MIDNIGHT RIDER.
On February 1, 2002, Bodin filed a Seaman's Complaint against Delta Towing, LLC and Torch, Inc. On March 18, 2002, the First Amended Seaman's Complaint was filed, adding Bodin's spouse for loss of consortium claims against Torch, Inc. On August 27, 2002, the Second Amended Seaman's Complaint was filed, adding numerous parties as defendants. In the second amended complaint, Plaintiffs allege that Delta Towing, LLC is also liable for the negligence of its agents, Acadian Ambulance Service, Inc. and Offshore Logistics, Inc., under the doctrine of respondeat superior and the Hopson/Sinkler doctrine applicable to Delta Towing as the Jones Act employer.
In connection with its answer to the Second Amended Seaman's Complaint, Delta filed a third-party complaint against Acadian Ambulance Service, Inc., and Offshore Logistics, Inc. Based upon Fed.R.Civ.P. 14[c], Delta averred that the named defendants failed to provide timely medical care and/or evacuation to an appropriate medical facility. Third-party defendants now move to dismiss the claim for lack of subject matter jurisdiction.
II. ARGUMENTS OF THE PARTIES
A. Arguments of Acadian Ambulance in favor of Motion to Dismiss
Acadian Ambulance Service argues that Fed.R.Civ.P. 14[c] allows actions to proceed against a third party defendant, but the claims proceed as if they had been filed by the original plaintiff against the third-party defendant as well as the third-party plaintiff. However, no allegation exists, in either the Second Amended Seaman's Complaint or Delta Towing's Third-Party Complaint, that the medical review panel process as required by the Louisiana Medical Malpractice Act, La. R.S. 40:1299.41, et seq. [`LMMA'], prior to initiation of a malpractice action, has been completed. Consequently, because Acadian is a qualified health care provider under the LMMA, and the claim sought to be brought against Acadian is covered by the LMMA, this court is without subject matter jurisdiction over Acadian at this time.
B. Arguments of Delta Towing in opposition of Motion to Dismiss
For purposes of Acadian's motion, Delta Towing does not contest that it would be proper for a claim against Acadian to be submitted first to a medical review panel as provided for by the LMMA. Accordingly, Delta submitted a claim to the State of Louisiana Patients Compensation Fund on January 6, 2002 with respect to Acadian. However, Delta maintains that since the plaintiff has not chosen to pursue a claim against Acadian directly, that Delta would be severely prejudiced in the federal case without the presence of Acadian as a party. A continuing concern of Delta is that subsequent to a dismissal in the present motion, the Louisiana Medical Review Panel would not reach a final decision concerning Delta's claim in sufficient time to reinstate its third-party claim against Acadian as provided for in this Court's scheduling order, and prior to trial, which is currently scheduled for October 20, 2003.
III. LAW AND ANALYSIS
A. Law on Motion to Dismiss pursuant to Rule 12(b)(1):
Rule 12 of the Federal Rules of Civil Procedure governs the manner in which defenses and objections to the pleadings are to be brought by defendants in federal civil actions.
Every defense, in law or in fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter, . . . Fed.R.Civ.P. 12(b)(1).
Rule 12(b)(1) requires that a defendant file a Motion to Dismiss the action if the court lacks jurisdiction. Without jurisdiction over the subject matter, the nature of the case, and the relief sought, a court is powerless to render a ruling on the conduct of persons or the status of the proceeding.
B. Court's Analysis
Under the Louisiana Medical Malpractice Act, La. R.S. 40:1299.41, et seq., "all malpractice claims against health care providers covered by this Part, other than claims validly agreed for submission to a lawfully binding arbitration procedure, shall be reviewed by a medical review panel established as hereinafter provided for in this section. La. R.S. 40:1299.47(A)(1). The law further provides that, "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 this section. La. R.S. 40:1299.47(B)(1)(a)(I).
The LMMA defines `malpractice' as:
`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, 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. 40:1299.41(A)(8) (emphasis added).
The LMMA specifically defines a `health care provider' as including an ambulance service. La. R.S. 40:1 299(A)(1).
An ambulance service is defined under the LMMA as:
`Ambulance service' means an entity under circumstances in which the provisions of R.S. 40:1299.39 are not applicable which operates either ground or air ambulances, using a minimum of two persons on each ground ambulance, at least one of whom is trained and registered at the level of certified emergency medical technician-basic, or at the intermediate or paramedic levels, or one who is a registered nurse, and using a minimum on any air ambulance of one person trained and registered at the paramedic level or a person who is a registered nurse, or any officer, employee, or agent thereof acting in the course and scope of his employment.
In the current matter at hand, Acadian Ambulance was enrolled as a qualified health care provider in conformity with the LMMA. While functioning as an ambulance service, Acadian Ambulance is covered by the administrative remedies that exist to provide ways to pursue malpractice claims against health care providers that qualify under the LMMA. Acadian Ambulance was so qualified. When a malpractice claim against the qualified health care provider covered in the LMMA is brought in a court action before the claim has been presented to a medical review panel under the LMMA, the claim must be dismissed as premature. Richardson v. Advanced Cardiovascular Systems, Inc., 865 F. Supp. 1210, 1217 (E.D. La. 1994), citing Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed 1188 (1938); Spradlin, v. Acadia-St. Landry Medical Foundation, 758 So.2d 116, 119 (La. 2000). This pre-suit screening process acts to delay, not to defeat, a tort suit for malpractice. Frank L. Maraist and Thomas C. Galligan, Jr., Louisiana Tort Law § 21-3(f) (1996).
See Ex. 1, Third-Party Defendant's Motion to Dismiss.
It is the opinion of this Court, that at this time, the third-party Plaintiff has not complied with the provisions of the LMMA, and has failed to follow through with the completion of the administrative remedies. This Court must conclude that the alleged negligence by Acadian Ambulance Services, Inc., of which third-party plaintiffs complain is clearly covered under, and subject to the Louisiana Medical Malpractice Act. Therefore, third-party Plaintiffs must exhaust their administrative remedies before bringing this suit before this Court.
Accordingly,
IT IS ORDERED that the Third-party Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction is GRANTED WITHOUT PREJUDICE.