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FOR IMMEDIATE NEWS RELEASE NEWS RELEASE # 54

FROM : CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 5th day of September, 2007 , are as follows:

BY CALOGERO, C.J. :

2007-CC-0008 C/W 2007-CC-0016

STEPHEN B. LACOSTE, ET AL. v. PENDLETON METHODIST HOSPITAL, L.L.C. (Parish of Orleans) Therefore, the ruling of the court of appeal is reversed, and the ruling of the district court is reinstated. The case is remanded to the district court for further proceedings. REVERSED; DISTRICT COURT JUDGMENT REINSTATED; REMANDED. VICTORY, J., dissents. KNOLL, J., dissents and assigns reasons. WEIMER, J., dissents for the reasons assigned by Knoll, J.

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09/05/07 SUPREME COURT OF LOUISIANA No. 2007-CC-0008 consolidated with No. 2007-CC-0016 STEPHEN B. LACOSTE, ET AL. VERSUS PENDLETON METHODIST HOSPITAL, L.L.C. ON WRIT OF CERTIORARI TO THE COURT OF APPEAL FOURTH CIRCUIT, PARISH OF ORLEANS CALOGERO, Chief Justice Today we reiterate that the limitations on the legal liability of qualified health care providers in Louisiana, as set forth in the Louisiana Medical Malpractice Act (LMMA), are to be applied only and strictly to cases of medical malpractice as defined in the LMMA, because the LMMA's limitations on such liability were created by special legislation in derogation of the general rights of Louisiana tort victims. In this civil action against a private hospital for survival and wrongful death damages, the plaintiffs contend their decedent, while a patient in the defendant's hospital, died during a natural disaster as a result of the failure of the hospital to design, construct, and/or maintain a facility so as to provide sufficient emergency power to sustain life support systems and/or to prevent flood waters entering the structure, as well as the result of the failure of the hospital to implement an adequate evacuation plan, to have a facility available for the transfer of patients, and/or to have in place a plan to transfer patients in the event of a mandatory evacuation. We granted the writ applications in this case to examine whether such claims sound in general negligence or constitute medical malpractice under the parameters of the LMMA. For the reasons set forth

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below, we find the defendant health care provider was not entitled to a medical review panel for the claims set forth in the plaintiff's petition, as amended. Therefore, the district court correctly overruled the defendant's dilatory exception of prematurity. We thus reverse the decision of the court of appeal and reinstate the ruling of the district court. This case originated with a petition for damages filed by the plaintiffs, Stephen B. LaCoste, individually and as legal representative of his father, Belgarde LaCoste, his brother Neal LaCoste, and the estate of Althea LaCoste, and Jann L. Raymond, Corlis LaCoste, Linda L. Rogue, Dana L. Barthelemy, and D'Andrea L. Prater, in Civil District Court for the Parish of Orleans on March 21, 2006, naming as defendant, Pendleton Methodist Hospital, L.L.C. (Pendleton Methodist). In the petition for damages, the plaintiffs alleged that Althea LaCoste was admitted to defendant's hospital on or about August 28, 2005, at which time she was recovering from pneumonia and required the use of a ventilator. The plaintiffs alleged that, during Hurricane Katrina and its aftermath, the hospital lost electrical power and emergency power resulting in the failure of life support systems used to sustain the lives of individuals like Mrs. LaCoste, who were dependent on such systems. The plaintiffs alleged the loss of use of the emergency power and the defendant's failure to implement an adequate evacuation plan were a direct and proximate cause of Mrs. LaCoste's death. Specifically, the plaintiffs alleged negligent and intentional conduct of the defendant in: (a) designing, constructing and/or maintaining a facility in such a manner that the hospital did not have sufficient emergency power to sustain life support systems; (b) designing, constructing and/or maintaining a facility in such a manner that allowed flood waters to enter the structure, thus endangering the safety of patients; and (c) failing to implement an adequate evacuation plan. On May 8, 2006, the plaintiffs filed a first supplemental and amending petition
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for damages naming as an additional defendant, Universal Health Services, Inc., and asserting additional acts of negligence by the defendants in failing to have a facility available for transfer of patients, and in failing to have in place a plan to transfer patients in the event of mandatory evacuation.1 Pendleton Methodist, a qualified health care provider pursuant to the LMMA, filed a dilatory exception of prematurity to the plaintiffs' petition for damages and to their first supplemental and amending petition for damages on the basis that the plaintiffs' claims sounded in medical malpractice, thus falling within the parameters of the LMMA and, therefore, requiring review by a medical review panel before commencement of litigation in the state courts. The district court heard argument on the defendant's exception on August 11, 2006. The district court denied the exception on August 21, 2006, reasoning that the plaintiffs' allegations of wrongful conduct were not treatment related or caused by the dereliction of professional skill. The court reasoned that these allegations, rather than implicating medical treatment or

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As amended, the petitions specifically alleged:

During Hurricane Katrina and its aftermath, Methodist Hospital lost the use of electrical power and emergency power resulting in the failure of life support systems used to sustain the lives of individuals like Mrs. LaCoste, who were dependent on said systems. The loss of use of emergency power and the failure of defendants to implement an adequate evacuation plan were a direct and proximate cause of Mrs. LaCoste's wrongful death. The above described acts were caused through the negligence and intentional acts of defendants, their officers and agents in the following non-exclusive particulars: (a) by designing, constructing and/or maintaining a facility in such a manner that the hospital did not have sufficient emergency power to sustain life support systems; (b) by designing, constructing and/or maintaining a facility in such a manner that allowed flood waters to enter the structure, thus endangering the safety of patients; (c) failure to implement an adequate evacuation plan; (d) failure to have a facility available for transfer of patients; and (e) failure to have in place a plan to transfer patients in the event of mandatory evacuation. 3

professional skill, instead "relate to deficient design of the hospital including lack of emergency power, failure to implement an evacuation plan and failure to have a facility to transfer patients." The district court concluded that the plaintiffs'

allegations do not invoke the coverage of the LMMA. The district court then overruled the defendant's exception of prematurity. The Louisiana Patients' Compensation Fund Oversight Board (PCF) notified the parties that the allegations contained in the plaintiffs' request for a medical review panel and petitions were not within the scope of medical malpractice as defined in the LMMA. Subsequently, the PCF filed a petition of intervention in the district court aligning itself with the plaintiffs in opposition to the defendant's exception of prematurity. The defendant applied to the court of appeal for supervisory writs from the district court's denial of its exception of prematurity. The court of appeal granted the writ in part and sustained Pendleton Methodist's exception as to all allegations save those sounding in intentional tort. The court of appeal found that the plaintiffs' claims as set forth in the original and amending petitions, "relating to the handling of Ms. LaCoste once admitted to Methodist, the medical treatment she received, the evaluations made of her during her stay in Methodist, and her presentation to the health care provider which determined whether and when she should be evacuated from Methodist," were "all medical in nature and fall within the provisions and purview of the LMMA." The court of appeal further found that whether the emergency electricgenerating equipment, which powered the hospital equipment, was adequate, as well as the decision to evacuate or not, also fell within the purview of the LMMA. The court of appeal reasoned that a failure to have appropriate or working back-up equipment was equivalent to a failure to have necessary medical supplies with which
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to treat a patient. The court found that the underlying issues were the condition of the patient and the treatment provided to the patient during and after a natural disaster. The court reasoned that these issues related to patient care, i.e., whether the defendant hospital breached the applicable standard of care respecting the best care for patients when faced with a natural disaster, and further noted that expert evidence would be necessary to answer such a question. The court then dismissed without prejudice that part of the plaintiffs' petition containing allegations regarding the electrical generating equipment and evacuation plan, and it remanded the case for further proceedings on the petition's allegations of intentional tort. LaCoste v. Pendleton Methodist Hosp., L.L.C., 06-1268, pp. 7-8 (La. App. 4 Cir. 12/6/06), 947 So.2d 250, 155. We granted the consolidated writ applications of the plaintiffs and the PCF. LaCoste v. Pendleton Methodist Hosp., L.L.C., 07-0008, 07-0016 (La. 2/2/07), 948So.2d 184, 185. The issue thus presented in this case is whether the plaintiffs' claims in their original and amending petitions sound in medical malpractice, and thus fall within the purview of the LMMA, or whether they sound in general negligence. The dilatory exception of prematurity provided in La. Code Civ. Proc. art. 926 questions whether the cause of action has matured to the point where it is ripe for judicial determination, because an action will be deemed premature when it is brought before the right to enforce it has accrued. Williamson v. Hospital Service Dist. No.1 of Jefferson, 04-0451, p. 4 (La. 12/1/04), 888 So.2d 782, 785; Spradlin v. Acadia-St. Landry Medical Foundation, 98-1977, p.4 (La. 2/29/00), 758 So.2d 116, 119; see also Frank L. Maraist & Thomas C. Galligan, Jr., Louisiana Tort Law

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