Abney v. Charity Hospital in New Orleans

787 So. 2d 1123, 2000 La.App. 4 Cir. 0450, 2001 La. App. LEXIS 1575, 2001 WL 670088
CourtLouisiana Court of Appeal
DecidedMay 16, 2001
DocketNo. 2000-CA-0450
StatusPublished

This text of 787 So. 2d 1123 (Abney v. Charity Hospital in New Orleans) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Abney v. Charity Hospital in New Orleans, 787 So. 2d 1123, 2000 La.App. 4 Cir. 0450, 2001 La. App. LEXIS 1575, 2001 WL 670088 (La. Ct. App. 2001).

Opinion

JjBAGNERIS, J.

This appeal arises from a judgment of the trial court dismissing the defendant’s exception of prematurity. For the reasons explained below, this Court finds that the defendant’s exception of prematurity should have been dismissed. The judgment of the trial court is therefore affirmed.

FACTS

Plaintiff/appellee, Leon Abney (“Mr. Ab-ney”) received a blood transfusion while hospitalized at Charity Hospital in New Orleans in 1969. It was from this transfusion that Abney contracted the Hepatitis C virus, a terminal illness causing the deterioration of the liver. On March 2, 2000, Abney died from various liver problems associated with the Hepatitis C virus. Pri- or to his death, Abney suffered from numerous medical problems associated with his disease.

On June 20, 1999, Mr. Abney filed suit against defendant/appellant, Medical Center of Louisiana at New Orleans, Charity Campus (“Charity Hospital”). His suit was filed within one year of his being diagnosed with the disease. In his | ¡^petition, Mr. Abney claimed that he received transfusions at Charity Hospital with units of blood contaminated with the Hepatitis C virus, and that Charity Hospital was negligent and subject to strict liability for supplying the blood contaminated with the virus.

In the trial court proceedings, Charity Hospital claimed that its exception of prematurity should be granted because the case had not been submitted to a medical review panel, as required by the state malpractice act, La. R.S. 40:1299.39, et seq. Mr. Abney argued that Charity Hospital’s exception should be dismissed for the following reasons: Charity Hospital was not a “covered” health care provider under the statute; there was no state malpractice act in 1969 when Mr. Abney received his transfusion; and “blood” is not covered by the Public Malpractice Act. On November 30, 1999, the trial court judge dismissed Charity Hospital’s exception of prematurity. It is from this dismissal that Charity Hospital now appeals.

LAW AND DISCUSSION

Because of the fact that the Public and Private Medical Malpractice Acts limit the liability of health care providers in derogation of the general rights of tort victims, any ambiguities in the Acts should be strictly construed against coverage. See Lange v. Earl K. Long Medical Center, 97-1661 (La.App. 1 Cir. 6/29/98), 713 So.2d 1195, 1197.

LThe Malpractice Liability for State Services Act (“MLSSA”), which is central to this claim, provides in pertinent part:

All malpractice claims against the state, its agencies, or other persons covered by this Part, other than claims wherein the patients are prisoners and claims comprised or settled by the claimant and the division of administration with the concurrence of designated legal counsel for the state, shall be reviewed by a state medical review panel established as provided in this Section, to be administered [1125]*1125by the commissioner of administration, hereinafter referred to as the commission. LSA-R.S. 40:1299.39.1(A)(1).

“[A] statute [that] grants immunities or advantages to a special class in derogation of general rights available to tort victims. . .must be strictly construed against limiting the tort claimants’ rights against the wrongdoer.” Branch v. Willis-Knighton Medical Center, 92-3086 (La.4/28/94), 636 So.2d 211; Kelty v. Brumfield, 93-1142 (La.2/25/94), 633 So.2d 1210; Roberts v. Sewerage & Water Board, 92-2048 (La.3/21/94), 634 So.2d 341; Touchard v. Williams, 617 So.2d 885 (La.1993); Galloway v. Baton Rouge Gen. Hosp., 602 So.2d 1003 (La.1992); Monteville v. Terrebonne Parish Consolidated Gov’t, 567 So.2d 1097 (La.1990) (and authorities cited therein); Keelen v. State Dept. of Culture and Recreation, 463 So.2d 1287 (La.1985).

Since its original enactment in 1976 and its subsequent amendments, the courts of this State have been dealing with the issue of the scope of coverage of the MLSSA. Whether or not a claim must now be presented to a medical review panel depends on whether the claim fits within the definition of “malpractice” as provided in the Act. “Malpractice” is currently defined in the MLSSA as “the failure to exercise the reasonable standard of care specified and required... .in the provision of healthcare.” See La. R.S. 40:1299.39(A)(4); See also, Doe v. Medical Center of Louisiana, 612 So.2d 1050 (La.App. 4th Cir.1993).

In Doe, this Court was faced with the issue of whether the allegation of improper testing, screening and obtaining of blood by the Blood Bank of Charity Hospital falls under the ambit of the MLSSA. This Court concluded that while Charity Hospital was a state health care provider under the Act, the provisions of the Act were not applicable to all claims against it, only claims of malpractice. See Doe, 612 So.2d at 1051. Therefore, the plaintiff was not required to submit her claims to a medical review panel under the Act, since her claims did not include an allegation of negligence in the treatment that was performed or furnished to her. See Id., at 1052. Strict interpretation of the Act against coverage required this finding. See Id.

Additionally, the'courts have been faced with the issue of whether the MLSSA specifically covers claims regarding liability in the collecting and screening of blood by state hospitals. In this case, it is important to differentiate between the Public Malpractice Act (the MLSSA described above) and the Private Malpractice Act (La. R.S. 40:1299.41, et seq., “MMA”). Since 1976, the MMA has provided for malpractice to include “all legal responsibility of a health care provider arising from defects in blood.... ” Although it was initially drafted with a similar malpractice provision, since 1978, the MLSSA has not included any reference to blood in its definition of malpractice by state health care providers. Act No. 611, Section 1, of 1978, provides that under the MLSSA, “malpractice means any unintentional tort or breach of contract based on health care or professional services rendered... by a health care provider to a patient.”

| ¡¡The courts have ■ interpreted this change in the definition of malpractice in the MLSSA as being a policy decision to remove liability for defects in blood from the protection of the Act. See Lange, 713 So.2d at 1198. In Lange, the First Circuit was faced with the issue of whether or not a claim for negligence and strict liability arising from a transfusion with blood infected with the Hepatitis C virus was subject to the medical review panel requirement under the MLSSA. In Lange, the plaintiffs argued that the definition of malpractice under the MLSSA does not in-[1126]*1126elude liability for blood, blood products or blood transfusions. The Court observed that even though the MLSSA was enacted with a broad definition of malpractice, which included a reference to liability for blood and blood products, this definition was significantly narrowed by the 1978 amendment to the statute. See Id. The Court concluded that the rules of strict construction necessitated the finding that liability for injuries to a patient resulting from defects in blood, blood products or blood transfusions is specifically excluded from coverage under the MLSSA. Since this liability was specifically excluded, the plaintiff was not required to go through a medical review panel prior to filing suit against a state health care provider.

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Related

Keelen v. State, Dept. of Culture, Recreation & Tourism
463 So. 2d 1287 (Supreme Court of Louisiana, 1985)
Touchard v. Williams
617 So. 2d 885 (Supreme Court of Louisiana, 1993)
Vernon v. EA Conway Hosp.
756 So. 2d 1249 (Louisiana Court of Appeal, 2000)
Doe v. Medical Center of Louisiana
612 So. 2d 1050 (Louisiana Court of Appeal, 1993)
Galloway v. Baton Rouge General Hosp.
602 So. 2d 1003 (Supreme Court of Louisiana, 1992)
Kelty v. Brumfield
633 So. 2d 1210 (Supreme Court of Louisiana, 1994)
Branch v. Willis-Knighton Medical Center
636 So. 2d 211 (Supreme Court of Louisiana, 1994)
Monteville v. Terrebonne Par. Con. Gov't
567 So. 2d 1097 (Supreme Court of Louisiana, 1990)
Pevey v. Lallie Kemp Regional Medical Center
713 So. 2d 1258 (Louisiana Court of Appeal, 1998)
Lange v. Earl K. Long Medical Center
713 So. 2d 1195 (Louisiana Court of Appeal, 1998)
Roberts v. Sewerage and Water Bd.
634 So. 2d 341 (Supreme Court of Louisiana, 1994)
Spunizo v. Charity Hospital in New Orleans
705 So. 2d 1085 (Supreme Court of Louisiana, 1998)

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Bluebook (online)
787 So. 2d 1123, 2000 La.App. 4 Cir. 0450, 2001 La. App. LEXIS 1575, 2001 WL 670088, Counsel Stack Legal Research, https://law.counselstack.com/opinion/abney-v-charity-hospital-in-new-orleans-lactapp-2001.