Opinion
Civil Action No. 00-707 Section "F"
June 7, 2000
ORDER AND REASONS
Before the Court is a motion to dismiss by Chalmette Medical Center for failure to state a claim upon which relief can be granted. For the reasons that follow, the motion is granted.
Background
On March 5, 1999, Joshua Kerne was shot. The plaintiffs contend that while he was being transported to the Chalmette Medical Center for emergency treatment, a St. Bernard Parish Sheriff's deputy stopped him. An ambulance was called to take Kerne to Charity Hospital, which was farther away. Kerne died upon arrival.
In this scantily briefed motion and opposition, plaintiffs' standing to sue is not apparent, but other papers of record infer that plaintiffs are the parents of the deceased.
The plaintiffs allege that Kerne was not taken to Chalmette Medical Center because it "had circulated information to defendants, St. Bernard Sheriff's Office and/or ABC Ambulance Service, Inc. that they will not handle trauma cases through their emergency ward." The plaintiffs are also suing Chalmette Medical Center for "any and all other acts and/or omissions of negligence."
I. Motion to Dismiss
Federal Rule of Civil Procedure 12(b)(6) allows a party to move for dismissal of a complaint for failure to state a claim upon which relief can be granted. Such a motion "is viewed with disfavor and is rarely granted." See Kaiser Aluminum Chem. Sales v. Avondale Shipyards, 677 F.2d 1045, 1050 (5th Cir. 1982), cert. denied, 459 U.S. 1105 (1983). The complaint must be liberally construed in the plaintiff's favor, and all facts pleaded in the complaint must be taken as true. See Campbell v. Wells Fargo Bank, 781 F.2d 440, 442 (5th Cir.), cert. denied, 476 U.S. 1159 (1986) This Court may not dismiss a complaint under Rule 12 (b)(6) "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."Lowrey v. Texas AM University System, 117 F.3d 242, 247 (5th Cir. 1997) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
II. EMTATLA
The Emergency Medical Treatment and Active Labor Act "mandates that a hospital must conduct appropriate screening examinations for any individual" who comes to its emergency department. Miller v. Medical Center of Southwest Louisiana, 22 F.3d 626, 628 (5th Cir. 1994). "Further, if an emergency condition is found to exist, the hospital must either provide sufficient treatment to stabilize the patient or transfer the patient in accordance with the strictures of the statute." Id.
However, "these duties are only triggered when an individual "comes to the emergency department and a request is made on the individual's behalf for examination or treatment. . . ." Id. (quoting 42 U.S.C. § 1395dd). Because the plaintiff was never actually taken to the hospital's emergency department, Miller instructs that the hospital's EMTALA duties were not triggered. Id.
The plaintiffs refer to footnote 5 of Miller v. Medical Center of Southwest Louisiana, 22 F.2d 626, 629 (5th Cir. 1994), which mentions two cases, Thornton v. Southwest Detroit Hospital, 895 F.2d 1131 (6th Cir. 1990) and McIntyre v. Schick, M.D., 795 F. Supp. 777 (E.D.Va. 1992), where the patient went to the hospital but not its emergency department. Since the decedent in this case did not even go to the hospital, the Court will not apply the reasoning of Thornton and Schick as the plaintiffs urge.
III. Louisiana Medical Malpractice Act
Under La.R.S. § 40:1299.41(A)(8), "'malpractice' means any unintentional tort . . . 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. . . ." La.R.S. § 1299.47(A)(1) states that "[a]ll malpractice claims against health care providers covered by this Part . . . shall be reviewed by a medical review panel. . . ." Furthermore, under La.R.S. § 1299.47(B)(1)(a)(i), "[n]o 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."
Chalmette asserts that the plaintiffs' claims that the decedent should have been treated at Chalmette Medical Center and its alleged negligent failure to treat him constitute "malpractice" under the statute. Referring to its Certificate of Enrollment with the Patients' Compensation Fund, Chalmette states that it is a qualified health care provider under the statute. Therefore, Chalmette concludes that because "the plaintiffs filed suit without first having their claim reviewed by a medical review panel, their Complaint is premature and must be dismissed." The Court agrees. See Brister v. Southwest Louisiana Hospital Association, 624 So.2d 970, 971 (La.App. 1993) (stating that "[w]hen a medical malpractice plaintiff files suit prior to review by a medical review panel, the suit is premature.")
The plaintiffs contend that the Louisiana Medical Malpractice Act does not apply to EMTALA claims. However, the Court has determined that the EMTALA does not apply to this case.
Because the Court finds that the plaintiffs' complaint is premature, it is not necessary to address Chalmette's remaining arguments.
For the foregoing reasons, the motion to dismiss for failure to state a claim upon which relief can be granted by Chalmette Medical Center, Inc. is GRANTED. The claims under EMTALA are dismissed with prejudice. Because the claims under the Louisiana Medical Malpractice Act are brought prematurely, they are dismissed without prejudice.