Opinion
2024-CA-0263
11-05-2024
CYNTHIA PEED v. CHERIE LESAICHERRE, CHERIE P. LESAICHERRE, DDS, LLC, DACHIELL A. ROWDON, TRUSTEE OF THE DACHIELL A. ROWDON EXEMPT TRUST, JON S. D'AZZO, TRUSTEE OF THE JON SHEFFIELD D'AZZO EXEMPT TRUST, AND ABC INSURANCE COMPANY
Rene Paul Frederick Jeanne M. Mauldin RENE FREDERICK & ASSOCIATES, LLC COUNSEL FOR PLAINTIFF/APPELLANT Guice A. Giambrone, III Ivana Dillas BLUE WILLIAMS, L.L.P. COUNSEL FOR DEFENDANT/APPELLEE
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2022-11376, DIVISION "C" Honorable Sidney H. Cates, Judge
Rene Paul Frederick
Jeanne M. Mauldin
RENE FREDERICK & ASSOCIATES, LLC
COUNSEL FOR PLAINTIFF/APPELLANT
Guice A. Giambrone, III
Ivana Dillas
BLUE WILLIAMS, L.L.P.
COUNSEL FOR DEFENDANT/APPELLEE
Court composed of Judge Daniel L. Dysart, Judge Joy Cossich Lobrano, Judge Dale N. Atkins
LOBRANO, J., CONCURS IN PART, DISSENTS IN PART, AND ASSIGNS REASONS
Daniel L. Dysart, Judge
In this personal injury action, the plaintiff, Cynthia Peed ("Ms. Peed"), appeals the trial court's judgment maintaining a dilatory exception of prematurity in favor of the defendants, Dr. Cherie LeSaicherre and Cherie P. LeSaicherre, DDS, LLC (hereinafter sometimes collectively referred to as "Dr. LeSaicherre"), and the denial of her motion for new trial. For the following reasons, we affirm the trial court's judgment.
BACKGROUND
On January 27, 2022, Ms. Peed presented for a dental appointment at Dr. LeSaicherre's office. While she was seated in the examination chair during a procedure, an overhead dental examination light fell and struck Ms. Peed, causing injuries to her face and eye. As a result of the injuries she sustained, Ms. Peed has undergone several eye surgeries.
Ms. Peed filed a petition for damages on December 16, 2022, naming as defendants: Dr. LeSaicherre, Cherie P. LeSaicherre, DDS, LLC, as well as the property owners, Dachiell A. Rowdon, trustee of the Dachiell A. Rowdon Exempt Trust, and Jon S. D'Azzo, trustee of the Jon Sheffield D'Azzo Exempt Trust, and ABC Insurance Company, named fictitiously as defendant's general liability carrier. On February 23, 2023, Dr. LeSaicherre filed an exception of prematurity, alleging that Ms. Peed's claims fall under the Louisiana Medical Malpractice Act ("LMMA") and must first be presented to a medical review panel. Ms. Peed opposed the exception arguing that her claims sounded in general negligence, rather than medical malpractice. A hearing on the exception was held on June 16, 2023. On June 16, 2023, the district court sustained the exception in open court. The district court issued a signed judgment on July 18, 2023, dismissing without prejudice all of Ms. Peed's claims against Dr. LeSaicherre.
On December 20, 2022, Ms. Peed also filed a complaint against Dr. LeSaicherre with the Patient's Compensation Fund, alleging that Dr. LeSaicherre had breached the standard of care by medical professionals and committed medical malpractice.
La. R.S. 40:1231.1, et seq.
On July 24, 2023, Ms. Peed filed a motion for new trial on the grounds that the judgment granting the exception of prematurity was contrary to the law and evidence. A hearing on the motion was held on September 29, 2023. The district court signed a judgment denying Ms. Peed's motion for new trial on December 21, 2023. Ms. Peed filed her appeal with this Court on February 16, 2024.
DISCUSSION
In her assignment of alleged errors, Ms. Peed contends that the "District Court was in error when it denied the Motion for New Trial despite evidence supporting that the judgment granting Defendant's Exception of Prematurity was contrary to the law and evidence in this case, and a miscarriage of justice."
The issue of whether a claim sounds in medical malpractice is a question of law conducted under a de novo standard of review. See Matherne v. Jefferson Par. Hosp. Dist. No. 1, 11-1147, pp. 3-4 (La.App. 5 Cir. 5/8/12), 90 So.3d 534, 536 (citation omitted). No action against a qualified healthcare provider may be commenced in any court before the claimant's proposed complaint has been presented to a medical review panel. See La. R.S. 40:1231.8 (B)(1)(a)(i).
"[A] medical malpractice claim against a qualified healthcare provider is subject to dismissal on a timely exception of prematurity if such claim has not first been reviewed by a pre-lawsuit medical review panel." Dupuy v. NMC Operating Co., 15-1754, p. 3 (La. 3/15/16), 187 So.3d436, 438 (citing La. R.S. 40:1231.8). The burden of proving prematurity is on the moving party, which, in a medical malpractice case, must show that it is entitled to the medical review panel because the allegations fall within the scope of the LMMA. Kelleher v. Univ. Med. Ctr. Mgmt. Corp., 21-00011, pp. 3-4 (La. 10/10/21), 332 So.3d 654, 657 (citing Dupuy, 15-1754, p. 4, 187 So.3d at 439). Where no evidence is presented at the trial of a dilatory exception, "the court must render its decision on the exception based upon the facts as alleged in the petition, and all allegations therein must be accepted as true." LaCoste v. Pendleton Methodist Hosp., 07-0008, 0016, p. 8 (La. 9/5/07), 966 So.2d 519, 525 (citing Blakely v. Powers, 590 So.2d 1286, 1290 (La.App. 1st Cir. 1991)).
An appellate court "reviews a ruling on a motion for new trial under an abuse of discretion standard of review." Sunset Harbour, LLC v. Brown, 22-0572, p. 9 (La.App. 4 Cir. 1/9/23), 356 So.3d 1167, 1173 (citing Jouve v. State Farm Fire &Cas. Co., 10-1522, p. 15 (La.App. 4 Cir. 8/17/11), 74 So.3d 220, 229). The party that files a motion for a new trial carries the burden to show that he or she is entitled to a new trial. See Jackson v. Wise, 17-1062, p. 18 (La.App. 1 Cir. 4/13/18), 249 So.3d 845, 856 (citation omitted). "[A] motion for a new trial based on the contention that a judgment is contrary to the law and evidence should be denied if the trial court's ruling is supportable by any fair interpretation of evidence, and a trial court judgment denying a motion for new trial should not be reversed unless the appellate court finds that the trial court abused its great discretion." 1137 N. Robertson, LLC v. Jackson, 19-0553, pp. 7-8 (La.App. 4 Cir. 11/20/19), 364 So.3d 72, 77 (citing FIE, LLC v. New Jax Condo. Ass'n, Inc., 16-0843, 17-0423, p. 23 (La.App. 4 Cir. 2/21/18), 241 So.3d 372, 391).
Under the LMMA, no action against a qualified healthcare provider can commence until the claimant's proposed complaint has been presented to a medical review panel. See La. R.S. 40:1231.1, etseq. In Coleman v. Deno, 01-1517, 1519, 1521, pp. 17-18 (La. 1/25/02), 813 So.2d 303, 315-16 (citations omitted), the Louisiana Supreme Court set forth six factors to determine if an action falls under the LMMA:
[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 if the 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 which 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.See also Harris v. Sternberg, 01-1827, 2170, pp. 5-6 (La.App. 4 Cir. 5/22/02), 819 So.2d 1134, 1138.
Louisiana courts have held that any conduct by healthcare providers during medical treatment that can reasonably fall within the definitions of the LMMA must be handled under its procedures, even if alternative theories of liability are presented. See Bolden v. Dunaway, 97-1425, p. 5 (La.App. 1 Cir. 12/28/98), 727 So.2d 597, 600 (citations omitted); W.P. v. Universal Health Servs. Found., 11-801, p. 10 (La.App. 5 Cir. 3/27/12), 91 So.3d 1097, 1102.
In the instant case, Ms. Peed was seated in an examination chair for a dental procedure when Dr. LeSaicherre allegedly mishandled an overhead dental examination light, causing it to fall and strike Ms. Peed in the face. The act in no way appears to be intentional. The injury would not have occurred had Ms. Peed not sought treatment. The injury occurred in the context of a physician-patient relationship during Dr. LeSaicherre's assessment of Ms. Peed's condition.
We also note that Dr. LeSaicherre has fulfilled all statutory requirements to qualify as a healthcare provider under the LMMA, including procuring the necessary insurance and enrolling in the Patient's Compensation Fund (PCF). See Sewell v. Drs. Hosp., 600 So.2d 577, 578 (La. 1992).
In Dupuy, 15-1754, p. 14, 187 So.3d at 445, the Louisiana Supreme Court concluded that allegations regarding failure to sterilize medical equipment used to sanitize surgical instruments fall under the LMMA. Likewise, the First Circuit, in Andrews v. Our Lady of the Lake Ascension Comm. Hosp., Inc., 13-1237, p. 5 (La.App. 1 Cir. 2/18/14), 142 So.3d 36, 39-40, affirmed the trial court's granting of the defendant's exception of prematurity where a plaintiff claimed she was dropped by hospital staff when they attempted to move her from her bed to a wheelchair, holding that such handling of a patient is covered by the LMMA. Conversely, in Williamson v. Hospital Service District No. 1 of Jefferson, 04-0451, pp. 1-2 (La. 12/1/04), 888 So.2d 782, 784, the Supreme Court found that an incident involving a defective wheelchair wheel was distinguishable, as the effect was an obvious mechanical issue, not related to professional medical treatment.
The record, in the instant case, contains no evidence or even makes mention of a specific defect in the dental examination light. Ms. Peed's petition does not allege any intentional acts by Dr. LeSaicherre but focuses on her alleged negligence in handling medical equipment. Dr. LeSaicherre and her practice were qualified healthcare providers at the time of the incident and had met all statutory requirements under the LMMA. As such, we find that the trial court properly ruled that Ms. Peed's allegations necessitated a review by a medical review panel, as they pertain to the standard of care and professional skill required in medical treatment, and properly maintained Dr. LeSaicherre's exception of prematurity.
Ms. Peed has also failed to show that there was a "miscarriage of justice" to warrant a new trial. This matter was dismissed without prejudice requiring Ms. Peed to first proceed through a medical review panel to determine whether the dental examination light was properly handled during the procedure. Ms. Peed's medical review panel complaint has already been filed and is ongoing. She has not been deprived of any substantial rights, nor has there been a miscarriage of justice. Furthermore, Ms. Peed's motion for new trial was based on the contention that the trial court erred in granting Dr. LeSaicherre's exception of prematurity and we have already determined that the evidence in the record reflects that the trial court properly sustained the exception. Accordingly, we find that the trial court did not abuse its wide discretion in denying Ms. Peed's motion for new trial.
CONCLUSION
Based on the above and foregoing reasons, we affirm the trial court's maintaining of Dr. LeSaicherre's exception of prematurity, as well as its denial of Ms. Peed's motion for new trial.
AFFIRMED
DLD
DNA
JCL
LOBRANO, J., CONCURS IN PART, DISSENTS IN PART, AND ASSIGNS REASONS
I respectfully concur in part and dissent in part. While the majority applies the Louisiana Medical Malpractice Act ("LMMA") to Ms. Peed's claims in their entirety, I find the petition sets forth claims that each involve distinct legal theories and should be treated accordingly. Specifically, Ms. Peed has three claims:
(1) an LMMA claim against the dentist (Dr. LeSaicherre) and the dental company (Cherie P. LeSaicherre, DDS, LLC) (collectively, "Dr. LeSaicherre");
(2) a general negligence claim against Dr. LeSaicherre arising from the administrative responsibility for the malfunctioning dental equipment; and
(3) a premises liability claim against the property owners (Dachiell A. Rowdon, trustee of the Dachiell A. Rowdon Exempt Trust, and Jon S. D'Azzo, trustee of the Jon Sheffield D'Azzo Exempt Trust).
At this stage of the litigation, only the allegations in the petition are at issue, no discovery is before this Court, and any apportionment of fault between any of the parties (z.e., between the dentist and the dental company) is not known. For this reason and for the purposes of this discussion, I will refer to both the dentist and the dental company collectively as "Dr. LeSaicherre" as the majority does.
The exception of prematurity did not address the premises liability claim against the property owners. Ms. Peed's claim against the property owners was not dismissed as premature, and premises liability is not at issue in this appeal. I discuss premises liability in demonstrating that the petition sets forth multiple theories of negligence.
The allegations sounding in general negligence and premises liability fall outside of the LMMA and are not subject to a medical review panel.
Where the petition contains allegations governed under the LMMA, as well as allegations of general negligence, the proper remedy is to deny the exception of prematurity, in part, as to the claims sounding in general negligence. See Blevins v. Hamilton Med. Ctr., Inc., 07-127, pp. 1-2 (La. 6/29/07), 959 So.2d 440, 442; Richard v. Notre Dame Health Sys., 22-0800, pp. 11-12 (La.App. 4 Cir. 5/31/23), 368 So.3d 671, 679; Blazio v. Ochsner Clinic Found., 19-0753, pp. 8-9 (La.App. 4 Cir. 3/4/20), 294 So.3d 36, 43. In the matter on appeal, the exception of prematurity should have been denied, in part, and the faulty equipment claims should not have been dismissed. I would reverse, in part, the district court's judgment granting the exception as to those claims.
I. Medical Malpractice Claim (LMMA)
The claim against Dr. LeSaicherre centers on the professional care provided during Ms. Peed's dental procedure. Under the Louisiana Supreme Court's Coleman v. Deno six-factor test, Dr. LeSaicherre's involvement in Ms. Peed's treatment could reasonably be considered within the scope of the LMMA because it involves the physician-patient relationship and professional skill. To the extent that Ms. Peed alleges that the dentist's actions or inactions regarding the dental light - such as the positioning or adjustment of the equipment during her procedure - contributed to her injury, that claim would properly fall under the LMMA. The Coleman test factors, including the need for expert testimony, support the majority's conclusion in this specific context, where the dentist's direct actions or professional judgment are at issue. Compare Harris v. Sternberg, 01-1827 (La.App. 4 Cir. 5/22/02), 819 So.2d 1134.
Coleman v. Deno, 01-1517 (La. 1/25/02), 813 So.2d 303.
However, while the LMMA may govern the claims directly related to the dentist's professional conduct, this does not mean that the entirety of Ms. Peed's claims fall under the LMMA.
II. General Negligence Claim
Ms. Peed's general negligence claim separately arises from the allegedly malfunctioning equipment under Dr. LeSaicherre's administrative oversight. The allegation is that the dental light fell because of improper maintenance, installation, or repair, where Dr. LeSaicherre was responsible for providing and maintaining the equipment. The LMMA does not govern this claim, as it does not pertain to the professional skill or judgment of the healthcare provider. Instead, it involves Dr. LeSaicherre's administrative responsibility to ensure that the equipment was operating properly and the patient is in a safe and functioning environment.
The Louisiana Supreme Court determined, in Blevins, 07-127, p. 12, 959 So.2d at 448, that allegations against a hospital, concerning the faulty condition of a hospital bed, were outside the confines of the LMMA and permitted those claims to proceed as ordinary negligence claims. The Court recognized that "only plaintiff's claims 'arising from medical malpractice' are governed by the LMMA, and all other tort liability on the part of the qualified health care provider is governed by general tort law." Id., 07-127, p. 11, 959 So.2d at 447. The Supreme Court discerned that the general negligence claims "are not entitled to the limitations or subject to the procedural requirements of the LMMA of first review by a pre-suit medical review panel, and should ... be severed from [the] medical malpractice claims, ... to proceed in accordance with general tort law." Id., 07-127, p. 11,959 So.2d at 447-48.
The LMMA governed the other allegations, however, concerning failing to properly monitor the patient's condition and exercise requisite care toward the patient, and those claims proceeded to the medical review panel.
This Court reached a similar conclusion in Blazio, 19-0753, pp. 8-9, 294 So.3d at 43, where equipment failure ("a door lock on the bathroom door to a hospital room without a way or a means to enter the bathroom timely in an emergency situation") was found to be unrelated to medical malpractice, but instead related to "the deficient design of the hospital and lack of emergency procedure." Blazio relied on the Supreme Court's holding in LaCoste v. Pendleton Methodist Hosp., L.L.C., 07-0008, p. 10 (La. 9/5/07), 966 So.2d 519, 526 in concluding that claims concerning a hospital's negligent administrative decisions, involving flaws in design and emergency procedure, sounded in general negligence rather than malpractice. Id. Therefore, this Court reversed, in part, the judgment granting the exception of prematurity as to the allegations of general negligence. Id.
The Supreme Court similarly explained, in Williamson v. Hosp. Serv. Dist. No. 1 of Jefferson, 04-0451, p. 12 (La. 12/1/04), 888 So.2d 782, 790, that a hospital's alleged negligence in failing to repair a wheelchair and to make sure it was in proper working condition before returning it to service was neither "treatment related" nor caused by a dereliction of "professional skill" as the wrongs alleged were "not directly related to, nor [did] they involve, treatment of this patient."
Likewise here, Dr. LeSaicherre's alleged failure to maintain or repair the overhead light and provide a safe environment signify breakdowns in administrative responsibility and are a classic case of general negligence. The LMMA is intended to govern claims involving healthcare providers' professional judgments, not equipment malfunctions or unsafe healthcare conditions due to the company's administrative or operational failures. Accordingly, Ms. Peed should be permitted to proceed with her general negligence claim against Dr. LeSaicherre, distinct from her medical malpractice claim against the dentist.
The Supreme Court and the Third Circuit provide guidance on trial procedure where a medical malpractice claim and general negligence claim are both alleged. In Billeaudeau v. Opelousas Gen. Hosp. Auth., 16-0846, pp. 8-9 (La. 10/19/16), 218 So.3d 513, 519, plaintiffs settled their medical malpractice claims against a hospital, reserving for review whether their "negligent credentialing" claim sounded in medical malpractice or in general negligence. Affirming the Third Circuit, the Supreme Court found that the negligent credentialing claim was properly classified as general negligence and fell outside the LMMA. Id., 16-0846, pp. 22-23, 218 So.3d 527. Thereafter, the Third Circuit upheld a partial summary judgment ruling that the factfinder must apportion fault between the plaintiffs' two causes of action against the hospital (malpractice and negligent credentialing), in addition to allocating fault between the hospital and the physician. Billeaudeau v. Opelousas Gen. Hosp. Auth., 17-895, pp. 2, 11 (La.App. 3 Cir. 4/18/18), 316 So.3d 1040, 1043, 1049, writ denied, 18-0819 (La. 10/15/18), 253 So.3d 1299.
III. Premises Liability Claim Against the Property Owners
Additionally, Ms. Peed has a premises liability claim against the owners of the building where the dental office is located. The judgment on appeal does not dismiss the property owners as defendants.
Under Louisiana law, property owners have a duty to keep their premises in a reasonably safe condition; they must discover any unreasonably dangerous condition on the premises and either correct the condition or warn potential victims of its existence. Pryor v. Iberia Parish Sch. Bd., 10-1683, p. 3 (La. 3/15/11), 60 So.3d 594, 596. In this case, the property owner may bear responsibility for any unsafe conditions related to the premises that contributed to the falling dental light, whether it was installed improperly or became hazardous due to other conditions within the building. This claim falls squarely within the realm of premises liability, governed by Louisiana Civil Code articles 2317, 2317.1, and 2322, which outline the duties of property owners regarding the safety of their premises. The premises liability claim is distinct from both the medical malpractice claim against the dentist and the general negligence claim against the dental company. It focuses on the property owner's failure to ensure the reasonably safe condition of the at property. In this instance, the property owner could be liable for creating or allowing a dangerous condition on the premises that contributed to equipment failure and led to Ms. Peed's injury.
"We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody." La. C.C. art. 2317. "The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care." La. C.C. art. 2317.1. "The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice or defect in its original construction. However, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known of the vice or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care." La. C.C. art. 2322.
In summary, the claims alleged should be treated under three distinct legal frameworks:
(1) Ms. Peed's LMMA claim against Dr. LeSaicherre for any breach in the applicable standard of care as to the dentist's handling the dental light during the procedure;
(2) Ms. Peed's general negligence claim against Dr. LeSaicherre for the alleged failure of the administrative responsibility to properly maintain, install, or repair the dental light, which does not involve the professional judgment or care of the healthcare provider; and
(3) Ms. Peed's premises liability claim against the property owner for any unsafe conditions on the property that contributed to the equipment failure.
By applying the LMMA to the entire set of claims, the majority has improperly broadened the scope of the Act, conflating general negligence with medical malpractice. The LMMA should not encompass claims unrelated to a healthcare provider's professional judgment or care. Therefore, I would reverse the district court's judgment as to the general negligence claims and remand those claims for further proceedings, while allowing the LMMA claim to proceed under the appropriate framework.