Opinion
NUMBER 2013 CA 0691
12-27-2013
PHILLIP HARRISON v. SLIDELL SPECIALTY HOSPITAL, LP D/B/A SOUTHERN SURGICAL HOSPITAL
M.H. Gertler Louis L. Gertler Leola M. Anderson New Orleans, LA Attorneys for Appellant Plaintiff - Phillip Harrison James C. Young Loretta O. Hoskins New Orleans, LA Attorneys for Appellee Defendant - Slidell Specialty Hospital, LP d/b/a Southern Surgical Hospital
NOT DESIGNATED FOR PUBLICATION
Appealed from the
22nd Judicial District Court
In and for the Parish of St. Tammany, Louisiana
Trial Court Number 2012-14955
Honorable Raymond Childress, Judge
M.H. Gertler
Louis L. Gertler
Leola M. Anderson
New Orleans, LA
Attorneys for Appellant
Plaintiff - Phillip Harrison
James C. Young
Loretta O. Hoskins
New Orleans, LA
Attorneys for Appellee
Defendant - Slidell Specialty Hospital, LP
d/b/a Southern Surgical Hospital
BEFORE: WHIPPLE, C.J., WELCH, AND CRAIN, JJ.
WELCH, J.
The plaintiff, Phillip Harrison, appeals a judgment sustaining the peremptory exception raising the objection of no cause of action filed by the defendant, Slidell Specialty Hospital, L.P. d/b/a Southern Surgical Hospital ("SSH") and dismissing his action for damages against SSH. For reasons that follow, we reverse in part and affirm in part.
FACTUAL AND PROCEDURAL HISTORY
On November 21, 2008, Mr. Harrison underwent a total hip replacement performed by Dr. Deryck Jones at SSH. During this procedure, a hip prosthesis, known as the DePuy ASR (the "ASR hip") was implanted into Mr. Harrison's hip. An ASR hip consists of a metal acetabular cup with a porous coating implanted in the pelvic joint, and a metal ball and metal stem implanted in the femur, which together, replace the natural hip joint. The ASR hip was manufactured, designed, marketed, and sold by DePuy Orthopaedics, Inc. ("DePuy") and Mark Starring & Associates, Inc. ("Starring") was the exclusive distributor of the ASR hip for DePuy in Louisiana. DePuy and/or Starring sold the ASR hip to SSH, who in turn, sold the ASR hip to Mr. Harrison when it was implanted into him by Dr. Jones.
Following the implant, Mr. Harrison suffered severe pain and discomfort. In November 2010, Mr. Harrison went for follow up treatment with Dr. Jones and it was discovered that Mr. Harrison had abnormal levels of cobalt and chromium in his blood. Based on the abnormal blood test results and Mr. Harrison's complaints of pain, it was determined that the ASR hip had loosened, dislocated, and migrated. On January 19, 2011, Mr. Harrison underwent surgical revision of the previously implanted ASR hip at Ochsner Baptist Medical Center in New Orleans, Louisiana.
According to the plaintiff, prior to his implant, undisclosed studies had demonstrated numerous problems with ASR hips, including, but not limited to failure of the metal acetabular cup to achieve proper fixation, significant metal debris formation in patients' tissues, formation of pseudotumors in patients, hip fractures, and a higher rate of necessary revision surgery. He also claimed that SSH knew or should have known of the complications, failures, lack of safety and effectiveness, and excessive revision rate associated with the ASR hip that it sold to patients.
On August 24, 2010, due to complications, premature failures, lack of safety and effectiveness, and excessive revision rate associated with ASR hips, DePuy issued a recall notice advising clinicians that DePuy was issuing a recall of all ASR products because new data demonstrated that the reasons for revision surgery were consistent with those previously reported for ASR hips, including component loosening, component malalignment, infection, fracture of the bone, dislocation, metal sensitivity and pain. That same date, DePuy issued a letter to its customers, including SSH, advising them of the recall of the ASR hip and advising them that additional testing and monitoring may be necessary to ensure that their patients' hips were functioning well. The plaintiff claimed that these previously reported problems (referenced in the recall notice) existed and were known to SSH prior to his implant in November 2008, but were never communicated to the public.
The recall was issued after the implantation of the ASR hip into Mr. Harrison, but before his revision surgery in January 2011.
In April 2001, Mr. Harrison filed suit against DePuy and Starring asserting numerous claims, including claims under the Louisiana Products Liability Act and claims in redhibition, fraud, failure to warn, breach of warranty, intentional and negligent misrepresentations, and fraudulent concealment. In May 2011, that suit was removed to the United States District Court for the Eastern District of Louisiana and was ultimately transferred to MDL 2197 (In re: DePuy Orthopaedics, Inc., ASR Hip Implant Products Liability Litigation) and is currently pending in the United States District Court for the Northern District of Ohio.
On September 14, 2012, Mr. Harrison filed a petition for damages against SSH, asserting claims in redhibition, fraud, and detrimental reliance. In response, SSH filed a peremptory exception raising the objection of no cause of action. Essentially, SSH claimed in its exception that the plaintiff failed to allege any breach of the standard of care or negligence by SSH, a qualified health care provider; that SSH neither manufactured nor sold the ASR hip; and that Mr. Harrison's claims, while falling exclusively under the express provisions of the Louisiana Medical Malpractice Act ("MMA"), La. R.S. 40:1299.41, et seq., were also barred under its provisions, i.e., La. R.S. 40:1299.41(C). As such, SSH claimed that Mr. Harrison's petition failed to state a cause of action against SSH in redhibition, fraud, or detrimental reliance. After a hearing and by judgment read, rendered and signed on February 13, 2013, the trial court sustained SSH's exception and dismissed Mr. Harrison's suit with prejudice. From this judgment, Mr. Harrison appeals, asserting that the trial court erred in dismissing his claims in redhibition and detrimental reliance.
On June 28, 2011, the plaintiff filed a request for a medical review panel, "out of an abundance of caution," asserting that SSH was liable for the plaintiff's claims under the Louisiana Medical Malpractice Act, La. R.S. 40:1299.41, et seq., for the plaintiff's damages from the defective prosthesis. On June 19, 2012, the medical review panel opined that the "evidence [did] not support the conclusion that [SSH] failed to meet the applicable standard of care as charged in the complaint" and that "[b]ased on the records[,] the use of this [ASR hip] was acceptable at that time."
On appeal, Mr. Harrison has not challenged the trial court's dismissal of his claim asserting fraud by SSH.
LAW AND DISCUSSION
No Cause of Action
A cause of action, for purposes of the peremptory exception, is defined as the operative facts that give rise to the plaintiff's right to judicially assert the action against the defendant. Ramey v. DeCaire, 2003-1299 (La. 3/19/04), 869 So.2d 114, 118. The function of the peremptory exception raising the objection of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the petition. Id.
The burden of demonstrating that no cause of action has been stated is on the party filing the exception. Adams v. Owens-Corning Fiberglas Corp., 2004-1296 (La. App. 1st Cir. 9/23/05), 921 So.2d 972, 975, writ denied, 2005-2501 (La. 4/17/06), 926 So.2d 514. Generally, no evidence may be introduced to support or controvert the exception raising the objection of no cause of action. See La. C.C.P. art. 931; Ramey, 869 So.2d at 118. For the purpose of determining the issues raised by the exception, all facts pled in the petition must be accepted as true. Id. If the petition alleges sufficient facts to establish a cause of action cognizable in law, the exception raising the objection of no cause of action must fail. Rebardi v. Crewboats, Inc., 2004-0641 (La. App. 1st Cir. 2/11/05), 906 So.2d 455, 457. Any reasonable doubt concerning the sufficiency of the petition must be resolved in favor of finding that a cause of action has been stated. Belle Pass Terminal, Inc. v. Jolin, Inc., 92-1544, 92-1545 (La. App. 1st Cir. 3/11/94), 634 So.2d 466, 493, writ denied, 94-0906 (La. 6/17/94), 638 So.2d 1094. Appellate courts review a judgment sustaining a peremptory exception raising the objection of no cause of action de novo, because the exception raises a question of law, and the trial court's decision is based only on the sufficiency of the petition. Ramey, 869 So.2d at 119.
Malpractice
The parties do not dispute that the MMA covers all legal responsibility of SSH arising from alleged defects in or failures of the hip prosthesis implanted in Mr. Harrison. See Huffaker v. ABC Ins. Co., 94-2345 (La. App. 4th Cir. 7/26/95), 659 So.2d 544, 545-546; Rogers v. Synthes, Ltd., 626 So.2d 775, 776-777 (La. App. 2nd Cir. 1993). Malpractice is defined by La. R.S. 40:1299.41(A)(13) as follows:
(13) "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 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. (Emphasis added).
The parties also do not dispute that SSH is a health care provider as defined by La. R.S. 40:1299.41(A)(10).
Mr. Harrison's claims against SSH are based on breach of contract arising from defects in and failures of the ASR hip implanted into him. SSH contends, and the trial court found, that Mr. Harrison's claims against SSH were barred by La. R.S. 40:1299.41(C), which provides:
C. No liability shall be imposed upon any health care provider on the basis of an alleged breach of contract, whether by express or implied warranty, assuring results to be obtained from any procedure undertaken in the course of health care, unless such contract is expressly set forth in writing and signed by such health care provider or by an authorized agent of such health care provider.
However, from our review of the petition, Mr. Harrison has not alleged or claimed that SSH assured particular results from the hip replacement. Rather, Mr. Harrison claims that SSH failed to provide a safe, effective, and defect-free prosthetic hip, which he expected to receive from SSH as part of the surgical procedure. Therefore, La. R.S. 40:1299.41(C) was not applicable to the plaintiff's claims against SSH and the trial court erred in finding that this provision barred the plaintiff's claims.
SSH also argued, and the trial court found, that Mr, Harrison's failure to plead or reference a "standard of care," in his petition warranted the dismissal of his claims against SSH. Specifically, the trial court found that the "standard of care" was a statutory standard for any liability under the MMA to attach to a health care provider. However, the "standard of care" is only an element of a plaintiff's malpractice claim when the alleged malpractice is based on the negligence of a physician, optometrist, or a chiropractic physician. See La. R.S. 9:2794; Pfiffner v. Correa, 94-0924 (La. 10/17/94), 643 So.2d 1228. We cannot find, nor have we been directed to, any statutory or jurisprudential authority providing that the "standard of care" is an element of a malpractice claim when the alleged malpractice is based on a breach of contract. As previously set forth, Mr. Harrison's malpractice claim against SSH is not based on its alleged negligence (or other unintentional tort), but rather, based on an alleged breach of contract. Thus, the "standard of care" was not an element of Mr. Harrison's claim, and he was not required to plead or reference the "standard of care" in his petition. Accordingly, we also find that the trial court erred in determining that Mr. Harrison's failure to reference the "standard of care" in his petition warranted the dismissal of the plaintiff's claims against SSH.
Despite these errors in the trial court's ruling, we note that appeals are taken from judgments and not the reasons for judgment or the reasons why a trial court reached a particular result. See Huang v. Louisiana State Bd. of Trustees for State Colleges and Universities, 99-2805 (La. App. 1st Cir. 12/22/00), 781 So.2d 1, 6. Accordingly, the issue before this court is the propriety of the trial court's ruling that Mr. Harrison failed to state a cause of action against SSH, not the reason that it reached that particular result. Therefore, we must examine Mr. Harrison's petition to determine whether the law extends a remedy to him against SSH under the factual allegations of the petition. Mr. Harrison contends that he has stated a breach of contract cause of action against SSH for redhibition (breach of the warranty against redhibitory defects) and for detrimental reliance.
Redhibition
The seller warrants the buyer against redhibitory defects, or vices, in the thing sold; a defect is redhibitory when it renders the thing useless, or its use so inconvenient that it must be presumed that a buyer would not have bought the thing had he known of the defect, or else of such diminished usefulness and value that the buyer would only have purchased the thing for a lesser price. La. C.C. art. 2520. The existence of a redhibitory defect gives the buyer the right to obtain rescission of the sale where the thing is rendered useless, or the right to have the price reduced where the thing is found to be of lesser value as a result. Id.
The seller owes no warranty for defects in the thing that were known to the buyer at the time of the sale, or for defects that should have been discovered by a reasonably prudent buyer of such things. La. C.C. art. 2521. The buyer must give the seller notice of the existence of a redhibitory defect in the thing sold, and that notice must be sufficiently timely as to allow the seller the opportunity to make the required repairs. La. C.C. art. 2522. A buyer who fails to give that notice suffers diminution of the warranty to the extent the seller can show that the defect could have been repaired or that the repairs would have been less burdensome, had he received timely notice. Id. Such notice is not required when the seller has actual knowledge of the existence of a redhibitory defect in the thing sold. Id.
The thing sold must be reasonably fit for its ordinary use. La. C.C. art. 2524. When the seller has reason to know the particular use the buyer intends for the thing, or the buyer's particular purpose for buying the thing, and that the buyer is relying on the seller's skill or judgment in selecting it, the thing sold must be fit for the buyer's intended use or for his particular purpose. Id. If the thing is not so fit, the buyer's rights are governed by the general rules of conventional obligations. Id.
The warranty against redhibitory defects covers only defects that exist at the time of delivery. La. C.C. art. 2530. A seller who did not know that the thing he sold had a defect is only bound to repair, remedy, or correct the defect. La. C.C. art. 2531. If he is unable or fails so to do, he is then bound to return the price to the buyer with interest from the time it was paid, and to reimburse him for the reasonable expenses occasioned by the sale, as well as those incurred for the preservation of the thing, less the credit to which the seller is entitled if the use made of the thing, or the fruits it has yielded, were of some value to the buyer. Id.
A seller who knows that the thing he sells has a defect but omits to declare it, or a seller who declares that the thing has a quality that he knows it does not have, is liable to the buyer for the return of the price with interest from the time it was paid, for the reimbursement of the reasonable expenses occasioned by the sale and those incurred for the preservation of the thing, and also for damages and reasonable attorney fees. La. C.C. art. 2545.
With regard to redhibition, Mr. Harrison made the following factual allegations in his petition:
(1) DePuy and/or Starring sold the ASR hip to SSH who later sold the prosthesis to the plaintiff, the product's end user;
(2) The ASR hip, at the time of its manufacture and sale to the plaintiff, was unreasonably dangerous in normal use;
(3) The ASR hip implanted in the plaintiff was defective and unreasonably and inherently dangerous for its intended use because: (a) the ASR hip was not reasonably safe when it was used as intended by the manufacturer; (b) the ASR hip was defectively designed in that its individual components and/or assembly as a unit was unstable and susceptible to early failure; (c) the ASR hip design placed the metal femoral ball in direct contact with the metal acetabular cup, which produced a large amount of metal-on-metal wear debris; (d) the unstable and defective design of the ASR hip resulted in a hip prosthesis that had risks that exceeded the benefits of the medical device; (e) the acetabular component of the ASR hip had a propensity to detach, disconnect, and/or loosen from the acetabulum causing some patients, including Mr. Harrison, to develop adverse reactions to the substantial amounts of metal debris which resulted from the normal use of the ASR hip; (f) the unstable and defective design of the ASR hip resulted in a hip prosthesis that was more dangerous than the ordinary consumer would expect; (g) the ASR hip failed to perform in a manner reasonably expected in light of its nature and intended function and subjected the plaintiff to an unreasonable risk of harm beyond that contemplated by an ordinary person; and (h) the ASR hip was insufficiently tested, studied, or approved as intended by the Food and Drug Administration for Class III devices;
(4) These particular defects stated above in paragraph 3 rendered the ASR hip implanted in Mr. Harrison useless, or its use so inconvenient that Mr. Harrison would not have bought the ASR hip had he known of the complications and defects associated with the device;
(5) As a seller, SSH warranted to Mr. Harrison that the prosthesis it sold and caused to be implanted in him at its facilities was free from redhibitory defects or vices;
(6) SSH breached its warranty against redhibitory defects to Mr. Harrison;
(7) SSH either knew or should have known of the existence of the redhibitory defects, yet continued to sell and allow implants of ASR hips at its facilities;
(8) SSH, as a seller of medical devices, and particularly hip implants, is held to the level of knowledge of an expert in its field, in light of the then existing available scientific and technological studies and data sets;
(9) Due to the above-listed defects stated in paragraph (3), the ASR hip was defective as defined by La. C.C. art. 2520, et seq.;
(10) At the time the ASR hip was sold, Mr. Harrison did not know and could not have reasonably expected to discover the defects and complications associated with his ASR hip, and in fact, relied upon SSH to provide safe and effective devices necessary to his medical treatment;
(11) SSH knew about the defects and complications associated with the ASR hip such that the plaintiff was not obligated to provide SSH with notice of said defects;
(12) Pursuant to La. C.C. arts. 2520, et seq., SSH is a seller who provided warranties to its buyers, including the plaintiff, against redhibitory defects or vices in the ASR hip it sold for implantation into his body and the defects listed above in paragraph 3 rendered the ASR hip useless or its use so inconvenient that it must be presumed that the buyers would not have bought the thing had they known of its defects;
(13) Pursuant to La. C.C. art. 2524, the ASR hip must be reasonably fit for its intended ordinary use (a hip prosthesis) and it was not, and SSH knew the particular use that Mr. Harrison intended for the ASR hip, Mr. Harrison relied on SSH's skill or judgment in selecting the device used at its facilities, and SSH breached its obligations under the rules of conventional obligations and contracts;
(14) The defects in the ASR hip existed at the time of the products delivery to and implant into the plaintiff, and the plaintiff's injuries caused by the ASR hip were not caused by any misuse of the product, but rather, by use that was specifically designed for the product;
(15) Because of the defects of the ASR hip that caused injury to the plaintiff, he suffered economic losses, including, but not limited to loss of his job, loss of income and fringe benefits, and medical, pharmaceutical and other incidental expenses;
(16) SSH was a seller of the ASR hip who knew that it was defective but failed to declare the defects and/or was a seller who declared that the ASR hip had qualities regarding durability and safety that it knew and/or should have known that the ASR hip did not have, and as a result, SSH is liable to the plaintiff for the return of the purchase price from the time it was paid and reimbursement of the reasonable expenses occasioned by the sale, damages, and reasonable attorney fees;
(17) Alternatively, SSH represented that the ASR hip was safe, effective, durable, and fit for the purpose for which it was sold, that SSH knew that the ASR hip lacked these qualities despite its representations, consequently SSH is liable for the return of the purchase price of the ASR hip with interest from the time it was paid, to reimburse for the reasonable expenses occasioned by the sale, and to pay for damages and reasonable attorney fees;
(18) As a result of the injuries the plaintiff sustained from the defective ASR hip, he was not able to work, and therefore, SSH is liable for the loss of the plaintiff's wages and fringe benefits from his employment, the cost of the doctor and hospital fees and other medical and pharmaceutical expenses he incurred from the treatment he received for the complications caused by the ASR hip and the revision surgery to explant the ASR hip and reasonable attorney fees; and
(19) SSH knew or should have known that by selling and allowing implant of a device with redhibitory defects, thereby breaching its implied warranties by selling and allowing implant of the ASR device, which caused device loosening, premature failure, component degradation, failure of the cup to achieve proper fixation, significant metal debris formation in patients' tissue, formation of pseudotumors in patients, and hip fractures in its end users, general damages for personal injuries were recoverable.
Accepting the allegations of fact set forth in the plaintiff's petition as true, as we are required to do in evaluating whether a cause of action has been stated, in light of the above set forth articles of the Louisiana Civil Code, we find that Mr. Harrison has stated a cause of action against SSH for breach of the warranty against redhibitory defects or vices and for breach of contract as to fitness for a particular use or purpose. See La. C.C. arts. 2520 and 2524.
Cf. Martin v. Rome, 486 So.2d 213 (La. App. 1st Cir. 1986) (determining that a claim against a dentist arising from a faultily constructed and installed bridge work, where the bridge was custom made to the specifications submitted by the dentist based on impressions he made of the patient's mouth, his overall evaluation of the patient's teeth, and the patient's stated wishes, together with the fact that a major portion of the dentist's compensation was for personal services, was not a claim in redhibition).
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Detrimental Reliance
The doctrine of detrimental reliance is codified in Louisiana Civil Code article 1967, which provides:
Cause is the reason why a party obligates himself.
A party may be obligated by a promise when he knew or should have known that the promise would induce the other party to rely on it to his detriment and the other party was reasonable in so relying. Recovery may be limited to the expenses incurred or the damages suffered as a result of the promisee's reliance on the promise. Reliance on a gratuitous promise made without required formalities is not reasonable.
The doctrine of detrimental reliance is designed to prevent injustice by barring a party from taking a position contrary to his prior acts, admissions, representations, or silence. Suire v. Lafayette City-Parish Consol. Government, 2004-1459 (La. 4/12/05), 907 So.2d 37, 59. The elements of a cause of action for detrimental reliance are: (1) the defendant (promisor) made a promise to the plaintiff (promisee); (2) the defendant knew or should have known that the promise would induce the plaintiff to rely on it to his detriment; (3) the plaintiff relied on the promise to his detriment; (4) the plaintiff was reasonable in relying on the promise; and (5) the plaintiff suffered damages as a result of the reliance (if specific performance is not the remedy sought.) Wooley v. Lucksinger, 2006-1167 (La. App. 1st Cir. 5/4/07), 961 So.2d 1228, 1238.
With regard to detrimental reliance, the plaintiff alleged that: (1) hospitals, including but not limited to SSH, have a direct duty to its patients to provide safe and reasonable healthcare services; (2) as a seller of metal-on-metal devices that are implanted in its patients, hospitals must exercise a reasonable amount of care toward its patients such that it would not sell and allow implant of prosthetic devices that are reasonably known to cause unnecessary personal injuries; (3) this duty is independent of any obligation or duty owed by treating physicians; (4) in the course of medical treatment, Mr. Harrison reasonably relied upon SSH for care and to provide safe and effective devices to implant in his body; (5) plaintiff was entitled to rely upon SSH's expertise and independent professional skill as a provider of medical services and a purchaser of medical devices, which when sold to plaintiff generated a significant markup/profit, to be implanted in plaintiff; and (6) plaintiff has suffered and continues to suffer from: physical and mental pain and suffering, past, present and future, as a result of the implantation of the ASR hip, its resulting complications and his revision surgery; economic losses, i.e., lost wages and fringe benefits, and incurred medical and pharmaceutical expenses in the diagnosis and treatment of the medical conditions, injuries and disabilities caused by the defective ASR and its removal from his hip; and suffered loss of enjoyment in his normal, social, recreational, employment and daily living activities.
Again, accepting these allegations of fact as true, we find these allegations are insufficient to state a cause of action for detrimental reliance against SSH. Notably absent from Mr. Harrison's petition are factual allegations that SSH made a promise to the plaintiff, that SSH knew or should have known that the promise would induce the plaintiff to rely on it to his detriment; that the plaintiff relied on the promise to his detriment; and that the plaintiff was reasonable in relying on the promise. Therefore, after de novo review, we find that the trial court properly sustained SSH's peremptory exception raising the objection of no cause of action with regard to Mr. Harrison's claim against SSH for detrimental reliance.
Louisiana Code of Civil Procedure article 934 provides that "[w]hen the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection raised through the exception cannot be so removed, or of the plaintiff fails to comply with the order to amend, the action, claim, demand, issue or theory shall be dismissed." (Emphasis added). The decision to allow amending a pleading to cure the grounds for a peremptory exception is within the discretion of the trial court. Pearl River Basin Land and Development Co., L.L.C. v. State, ex rel Governor's Office of Homeland Security and Emergency Preparedness, 2009-0084 (La. App. 1st Cir. 10/27/09), 29 So.3d 589, 594.
In this case, we find that the basis for the peremptory exception raising the objection of no cause of action as to the plaintiff's claim of detrimental reliance against SSH cannot be removed by amendment of the petition. Therefore, we cannot say that the trial court abused its discretion in failing to allow Mr. Harrison the opportunity to amend his petition to remove the grounds of the objection.
CONCLUSION
For the above and foregoing reasons, we reverse the judgment of the trial court insofar as it sustained the peremptory exception raising the objection of no cause of action and dismissed Mr. Harrison's claims for breach of warranty against redhibitory defects or vices and for breach of contract as to fitness for a particular use or purpose, and we affirm the judgment of the trial court insofar as it sustained the exception raising the objection of no cause of action and dismissed M. Harrison's claim of detrimental reliance. This matter is remanded for further proceedings.
All costs of this appeal are assessed to the defendant, Slidell Specialty Hospital, L.P. d/b/a Southern Surgical Hospital.
REVERSED IN PART AND AFFIRMED IN PART; REMANDED.
PHILIP HARRISON
VERSUS
SLIDELL SPECIALTY HOSPITAL, LP d/b/a SOUTHERN SURGICAL HOSPITAL
2013 CA 0691
CRAIN, J., concurs.
I respectfully disagree with the majority's conclusion that the plaintiff's petition states a cause of action in redhibition. However, I concur in the result because the petition alleges sufficient facts to support a cause of action for negligence.
The allegations of the petition do not support a cause of action in redhibition against Slidell Specialty Hospital because the alleged contract was not a contract of sale. The predominant or primary object of an agreement determines whether it is a contract of sale or a contract to do, such as a building contract or a contract to provide services. See Rasmussen v. Cashio Concrete Corp., 484 So. 2d 777, 778 (La. App. 1 Cir. 1986); Calandro's Supermarket, Inc. v. Hussman Refrigeration, Inc., 525 So. 2d 316, 319 (La. App. 1 Cir. 1988); Morris & Dickson Company, Inc. v. Jones Brothers Company, Inc., 29,379 (La. App. 2 Cir. 4/11/97), 691 So. 2d 882, 890-891, writ denied, 97-1259 (La. 9/5/97), 700 So. 2d 509.
Based upon the alleged facts, the primary object of Harrison's agreement with the hospital was the rendering of medical treatment. Although Harrison alleged that the hospital "sold" him the ASR hip, he further alleged that the prosthetic device was "necessary to his medical treatment." The incidental furnishing of supplies or equipment during the course of medical treatment does not create a buyer-seller relationship between a patient and a healthcare provider that gives rise to an implied or express warranty. See Martin v. Earl J. Rome, Jr., D.D.S., 486 So. 2d 213, 215- 216 (La. App. 1 Cir. 1986) (installation of dental bridgework was contract for personal services that did not support application of redhibition). See also, Brandt v. Boston Scientific Corp., 204 Ill. 2d 640, 652-53, 792 N.E.2d 296, 303 (2003) (plaintiff did not have a claim for breach of implied warranty of merchantability where primary purpose of the transaction was medical treatment, and the purchase of a medical device implanted in the plaintiff was incidental to the treatment); Dove by Dove v. Ruff, 558 N.E.2d 836, 838 (Ind. Ct. App. 1990) ("By its nature, the practice of medicine is primarily a service, but there are times when goods are provided to patients incidental to the delivery of health care services. . . . The incidental furnishing of supplies or equipment during the course of medical treatment does not create a buyer-seller relationship between a patient and his physician which could give rise to an implied or express warranty."); Easterly v. HSP of Texas, Inc., 772 S.W.2d 211, 214 (Tex. App. 1989) ("Texas follows the majority rule that the essence of the hospital stay is the furnishing of the institution's healing services. These services necessarily require certain goods or products, and these goods are usually incidental to the primary purpose of the hospital's function which is to heal.")
However, the trial court erred in sustaining the exception of no cause of action because the allegations of the petition support a cause of action against the hospital for negligence. Although Harrison styles his claims as based in redhibition and detrimental reliance, Louisiana has a system of fact pleading, and it is not necessary for a plaintiff to plead the theory of his case in his petition. Ramey v. DeCaire, 03-1299 (La. 3/19/04), 869 So. 2d 114, 118. In a medical malpractice action against a hospital, the plaintiff must prove, as in any negligence action, that the defendant owed the plaintiff a duty to protect against the risk involved, the defendant breached that duty, the plaintiff suffered an injury, and the defendant's actions were a substantial cause in fact of the injury. Smith v. State through Department of Health and Human Resources Administration, 523 So. 2d 815, 819 (La. 1988). A hospital is bound to exercise the requisite standard of care toward a patient that the particular patient's condition may require and to protect the patient from external circumstances peculiarly within the hospital's control. Whether a hospital has breached those duties depends upon the circumstances and facts of the case. McGlothlin v. Christus St. Patrick Hospital, 10-2775 (La. 7/1/11), 65 So. 3d 1218, 1231-32.
Harrison alleged in his petition that Slidell Specialty Hospital had a "direct duty to its patients to provide safe and reasonable healthcare services." The petition identifies numerous problems with the ASR hip that allegedly rendered it unreasonably dangerous. Harrison alleged that the hospital knew or should have known of the problems prior to his procedure and "caused [the device to be] implanted in him at its facilities." Harrison further alleged that he suffered damages as a result of the implantation of the ASR hip. Accepting these facts as true and resolving any reasonable doubt concerning the sufficiency of the petition in favor of finding a cause of action, I believe the petition alleges sufficient facts to state a cause of action for negligence against the hospital. See McGlothlin, 65 So. 3d at 1231-32; Rebardi v. Crewboats, Inc., 04-0641 (La. App. 1st Cir. 2/11/05), 906 So.2d 455, 457. Accordingly, the trial court erred in sustaining the exception of no cause of action in whole or part. See Everything on Wheels Subaru, Inc., v. Subaru South, Inc., 616 So.2d 1234, 1236-1239 (La. 1993); Hulbert v. National Democratic Committee, 10-0772 (La. App. 1 Cir. 5/6/13), 2013 WL 1896945 (unpublished opinion) (if there are two or more items of damages or theories of recovery that arise from the operative facts of a single transaction or occurrence, a partial judgment on an exception of no cause of action should not be rendered to dismiss one item of damages or theory of recovery). Therefore, I respectfully concur in the result reached by the majority.