Opinion
2023 CA 0914
03-13-2024
Jane DOE v. Raynando L. BANKS, M.D., Raynando L. Banks, "A Medical Corporation", & Louisiana Medical Mutual Insurance Co.
Kennedy A. LeJeune, Todd A. Hebert, New Orleans, Louisiana, Counsel for Plaintiff/Appellant, Jane Doe Shelby G. LaPlante, Ann M. Halphen, Amy C. Lambert, Bethany B. Percle, Baton Rouge, Louisiana, Counsel for Defendants/Appellees, Raynando L. Banks, M.D.; Raynando L. Banks, A Medical Corporation; and Louisiana Medical Mutual Insurance Company
On Appeal from the 19th Judicial District Court, In and for the Parish of East Baton Rouge, State of Louisiana, Trial Court Docket Number C727495, Div. M, Sec. 31, Hon. Tiffany Foxworth-Roberts, Judge Presiding
Kennedy A. LeJeune, Todd A. Hebert, New Orleans, Louisiana, Counsel for Plaintiff/Appellant, Jane Doe
Shelby G. LaPlante, Ann M. Halphen, Amy C. Lambert, Bethany B. Percle, Baton Rouge, Louisiana, Counsel for Defendants/Appellees, Raynando L. Banks, M.D.; Raynando L. Banks, A Medical Corporation; and Louisiana Medical Mutual Insurance Company
BEFORE: THERIOT, PENZATO, AND GREENE, JJ. PENZATO, J.
2The plaintiff/appellant, Jane Doe, appeals from a judgment sustaining a dilatory exception of prematurity and dismissing Doe’s petition without prejudice. For the following reasons, we affirm.
The plaintiff is identified as "Jane Doe" to protect her identity, pursuant to a protective order issued by the trial court on January 13, 2023.
FACTS AND PROCEDURAL HISTORY
On January 9, 2023, Doe filed a petition for damages, naming Raynando L. Banks, M.D.; Raynando L. Banks, A Medical Corporation (collectively, "Dr. Banks"); and the Louisiana Medical Mutual Insurance Company ("LAMMICO") as defendants. In her petition, Doe, a woman living with HIV, alleged she first treated with Dr. Banks in December 2021, when she sought pain medications to manage preexisting conditions. Doe alleged that, during her new patient examination, Dr. Banks asked how long she had been an intravenous drug user, after learning that she had HIV. After Doe denied ever using drugs. Dr. Banks asked Doe "directly how she had contracted HIV." Although it allegedly caused Doe "much trauma" to relive the story, she recounted to Dr. Banks how she contracted HIV.
Doe further alleged that, following Dr. Banks’s "accusation and intrusive questions," he purportedly advised Doe that he would only prescribe "basic pain medications" and instructed Doe to return to his office the following day to receive her medications. According to Doe, when she returned to Dr. Banks’s office as instructed, the door was locked, and the receptionist picked up Doe’s phone call and immediately hung up.
According to Doe’s petition, Dr. Banks and Doe met via teleconference the next day to discuss her prescriptions. During this appointment, Dr. Banks stated he would send Doe’s prescription to the pharmacy. However, Doe’s pharmacy 3subsequently advised her the prescription could not be filled without prior authorization. Doe alleged Dr. Banks never issued the prior authorization, despite her request, and she was unable to obtain the medications prescribed by Dr. Banks.
In her second supplemental and amended petition, Doe alleged she contacted Dr. Banks’s office on January 6, 2022 to notify him the pharmacy needed prior authorization. According to this petition. Doe first discovered Dr. Banks failed to issue a prior authorization on January 7, 2022. These factual allegations are immaterial to the determination of whether Doe’s suit is premature under the Louisiana Medical Malpractice Act.
Doe asserted Dr. Banks’s actions were intentional and intended to, and did, cause her harm. Specifically, Doe alleged she was distraught, embarrassed, and traumatized by the events at Dr. Banks’s clinic and, as a result, missed multiple days of work. Doe contended Dr. Banks and his staff refused to treat her due to her HIV status, a legally recognized disability. In her petition, Doe alleged Dr. Banks and his staff discriminated against her and intentionally inflicted emotional distress upon her by:
a. refusing to provide treatment to her;
b. mistreating a patient;
c. acting in a discriminatory manner toward a patient in providing her care and services;
d. requiring her to return to the office multiple times for her prescriptions, and then never actually filling them;
e. refusing to grant the prior authorization for her prescriptions despite multiple requests by Doe and her pharmacy;
f. accusing Doe of being an intravenous drug user;
g. failing to act in a professional manner;
h. any and all other acts of omission or commission which may be proven at the time of trial.
In her first supplemental and amended petition, Doe again alleged Dr. Banks and his staff discriminated against her by refusing to treat her due to her HIV status and their actions were intentional and intended to cause harm to Doe.
In response, Dr. Banks and LAMMICO filed a dilatory exception of prematurity, asserting Doe’s claims arise out of medical malpractice and must first be presented to and reviewed by a medical review panel pursuant to the Louisiana 4Medical Malpractice Act (LMMA), La. C.C.P. art. 926(A)(1); La. R.S. 40:1231.1, et seq. In support of the exception, Dr. Banks and LAMMICO introduced evidence to establish Dr. Banks is a qualified health care provider pursuant to the LMMA. Dr. Banks and LAMMICO also introduced Doe’s request for a medical review panel, filed on January 11, 2023, wherein Doe set forth the same factual allegations and purported misconduct by Dr. Banks as she asserted in her petition for damages.
Dr. Banks and LAMMICO also raised a peremptory exception of prescription, which was denied. The trial court’s ruling on the exception of prescription is not before this court on appeal and, therefore, is not addressed.
Doe opposed the exception. Although Doe did not dispute that Dr. Banks is a qualified health care provider, Doe asserted Dr. Banks’s conduct was intentional and, therefore, outside the scope of the LMMA.
After a hearing, the trial court sustained Dr. Banks and LAMMICO’s exception of prematurity in a written judgment signed on April 21, 2023 and dismissed Doe’s suit without prejudice. The trial court concluded the complained of conduct arose out of the doctor-patient relationship and concerned Dr. Banks’s ability to make a medical decision relative to the assessment of Doe, the patient.
Doe filed the instant appeal, asserting the trial court erred by sustaining the exception of prematurity. Specifically, Doe asserts the trial court erred by finding her claims of intentional conduct and discrimination fall within the purview of the LMMA and satisfy the factors set forth in Coleman v. Deno, 2001-1517 (La. 1/25/02), 813 So.2d 303.
DISCUSSION
[1, 2] The dilatory exception of prematurity neither challenges nor attempts to defeat the elements of the plaintiff’s cause of action; instead, the exception questions whether the cause of action has matured to the point where it is ripe for judicial determination. La. C.C.P. art. 926(A)(1); 5 LaCoste v. Pendleton Methodist Hosp., L.L.C., 2007-0008 (La. 9/5/07), 966 So.2d 519, 523 (referencing La. R.S. 40:1299.47, a predecessor LMMA statute). Under the LMMA, a medical malpractice claim against a private qualified health care provider is subject to dismissal on an exception of prematurity if such claim has not first been presented to a medical review panel. La. R.S. 40:1231.8; LaCoste, 966 So.2d at 523. The exception of prematurity is the proper procedural mechanism for a qualified health care provider to invoke when a medical malpractice plaintiff has failed to submit the claim for a medical review panel’s consideration before filing suit against the provider. La. C.C.R art. 926; LaCoste, 966 So.2d at 523; Frank L. Maraist & Harry T. Lemmon, 1 Louisiana Civil Law Treatise, Civil Procedure § 6.6, 116 (West 1999).
[3, 4] In a medical malpractice matter such as this, the exceptors must demonstrate they are entitled to a medical review panel because the allegations fall within the scope of the LMMA. The question of whether a medical malpractice claim is within that scope is a question of law subject to the de novo standard of review. Morrow v. Louisiana Medical Mutual Ins. Co., 2022-1006 (La. App. 1st Cir. 2/24/23), 361 So.3d 986, 989. In evaluating an exception of prematurity, a court may look to the evidence offered at the hearing as well as the allegations of the petition. Patterson v. Claiborne Operator Group, L.L.C, 55,264 (La. App. 2d Cir. 11/15/23), 374 So.3d 299, 306.
As noted, it is undisputed Dr. Banks is a qualified health care provider. See La. R.S. 40:1231.1(A)(10) and (16); La. R.S. 40:1231.2(A). It is also evident Doe was a "patient" under the LMMA, as she is a natural person who received or should have received health care from a licensed health care provider. La. R.S. 40:1231.1(A)(15).
For purposes of the LMMA, "malpractice" by a private health care provider is defined, in part, as "any unintentional tort … based on health care or professional 6services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely[.]" La. R.S. 40:1231.1(A)(13). Malpractice claims against health care providers covered by the LMMA shall be reviewed by a medical review panel. La. R.S. 40:1231.8(A)(1)(a).
In Coleman, 813 So.2d at 315-16, the Louisiana Supreme Court identified six factors used to determine whether conduct by a health care provider constitutes "malpractice" under the LMMA. Specifically, the Coleman factors consider whether: (1) the particular wrong is treatment related or caused by a dereliction of professional skill; (2) the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached; (3) the pertinent act or omission involved assessment of the patient’s condition; (4) 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) the injury would have occurred if the patient had not sought treatment; and (6) the tort alleged was intentional. See Garner v. Louisiana Medical Mutual Ins. Co., 2022-0778 (La. App. 1st Cir. 3/29/23), 364 So.3d 508, 513-14.
Sixth Coleman Factor , Intentional Tort:
[5] Because Doe’s primary assertion is that her claim is for intentional conduct, we begin by examining the sixth Coleman factor.
[6–9] The statutory law leaves no doubt that "malpractice" under the LMMA does not include intentional torts. See La. R.S. 40:1231.1(13). The nature of the purported conduct must be examined to determine whether the conduct truly constitutes an intentional tort as alleged by the plaintiff. Heacock v. Cook, 45,868 (La. App. 2d Cir. 12/29/10), 60 So.3d 624, 628. Something more than a conclusory allegation of intentional conduct is required. Morrow, 361 So.3d at 990. Simply labeling the defendants’ actions as intentional is not sufficient to avoid the LMMA and the required medical review panel. 7 Self v. Willis-Knighton Medical Center, 55,130 (La. App. 2d Cir. 8/9/23), 369 So.3d 455, 462. To sufficiently plead an intentional tort in the context of medical malpractice, the petition must contain specific facts sufficient to establish the medical provider consciously desired the physical result of his acts or knew the result was substantially certain follow from his conduct. Morrow, 361 So.3d at 990, citing Bazley v. Tortorick, 397 So.2d 475, 481 (La. 1981). See also Hebert v. Louisiana Medical Mutual Ins. Co., 2022-316 (La. App. 3d Cir. 10/26/22), 353 So.3d 846, 854 (finding the plaintiffs’ petition contained no allegations the defendants actively desired or knew their actions would result in harm; thus, the plaintiffs’ factual claims sounded in medical malpractice despite their attempt to couch the defendants’ actions as "intentional").
Doe’s petition identified the following acts by Dr. Banks, which she maintains amounted to intentional, discriminatory conduct: (1) Dr. Banks asked Doe how long she had been an intravenous drug user, (2) Dr. Banks asked Doe how she contracted HIV, and (3) Dr. Banks did not issue the requested prior authorization for the pain medications he prescribed. Doe alleged she missed several days of work after being distraught, embarrassed, and traumatized by Dr. Banks. However, the petition contains no specific factual allegations that, by posing these questions to Doe during her examination or failing to issue the requested prior authorization, Dr. Banks consciously desired these results (i.e., embarrassment, traumatization) or knew these results were substantially certain to follow from his actions. See Morrow, 361 So.3d at 990. Doe’s conclusory allegations of intentional conduct are insufficient to remove her claims from the purview of the LMMA.
Remaining Coleman Factors
[10] Doe relies on the same purported conduct by Dr. Banks to support her argument that the remaining Coleman factors are not satisfied. Specifically, Doe contends Dr. Banks’s "presumption and accusation" and "demand" for her to tell 8him how she contracted HIV were not treatment related and her HIV was in no way related to the pain for which she sought treatment from Dr. Banks. Instead, Doe maintains Dr. Banks’s questions were related to her HIV diagnosis. Because Doe was not seeking treatment from Dr. Banks for her HIV, Doe contends Dr. Banks’s "presumptions, accusations, and comments about how [she] contracted HIV fell outside the physician-patient relationship context." According to Doe, medical expert testimony is not required, because "[a] reasonable layperson" would understand that Dr. Banks’s "intentional and discriminatory conduct" was based on Doe’s HIV status. Thus, Doe maintains the first, second, third, and fourth Coleman factors are not satisfied and weigh against a finding that her claims fall within the purview of the LMMA. Finally, Doe argues the fifth Coleman factor is likewise not satisfied because Dr. Banks’s "intentional discriminatory actions could have occurred at any time or place," regardless of whether she sought treatment.
We find Doe’s arguments about Dr. Banks’s motive are speculative, and her assertions concerning the information Dr. Banks did or did not need to treat her pain complaints are unsupported. Medical testimony would be required to determine whether and to what extent Dr. Banks needed information regarding Doe’s history and whether the circumstances surrounding how she contracted HIV were pertinent to Dr. Banks’s medical decisionmaking and his assessment of Doe, his patient. Doe specifically alleged in her petition that Dr. Banks failed to "act in a professional manner." Whether Dr. Banks breached the standard of care will also require medical testimony. See McCorkle v. Gravois, 2013-2009 (La. App. 1st Cir. 6/6/14), 152 So.3d 944, 948, writ denied, 2014-2179 (La. 12/8/14), 153 So.3d 446, citing Pfiffner v. Correa., 94-924, 94-963, 94-992 (La. 10/17/94), 643 So.2d 1228, 1233 (Expert medical testimony is generally re- quired to establish the applicable standard of care and whether the standard was breached.)
9Additionally, Doe’s treatment with Dr. Banks cannot be separated from his purported misconduct, which caused Doe’s alleged injuries in the context of the physician-patient relationship. Had Doe not sought treatment with Dr. Banks, their encounter would be something different entirely. Doe specifically alleged Dr. Banks refused to provide treatment and mistreated her, his patient. Doe’s claims sound in medical malpractice.
On de novo review, we find all Coleman factors are satisfied and support the trial court’s conclusion that Doe’s suit is premature.
DECREE
We affirm the April 21, 2023 judgment rendered in favor of Raynando L. Banks, M.D.; Raynando L. Banks, A Medical Corporation; and the Louisiana Medical Mutual Insurance Company, and against Jane Doe, sustaining the dilatory exception of prematurity filed by Raynando L. Banks, M.D.; Raynando L. Banks, A Medical Corporation; and the Louisiana Medical Mutual Insurance Company, and dismissing Jane Doe's petition without prejudice. All costs of this appeal are assessed against Jane Doe.
AFFIRMED.