ALENDRA NIANG * NO. 2019-CA-0425
VERSUS * COURT OF APPEAL DRYADES YMCA SCHOOL OF * COMMERCE, INC. AND XYZ FOURTH CIRCUIT INSURANCE CO. * STATE OF LOUISIANA *******
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2017-10745, DIVISION “L” Honorable Kern A. Reese, Judge ****** Judge Tiffany G. Chase ****** (Court composed of Judge Daniel L. Dysart, Judge Joy Cossich Lobrano, Judge Tiffany G. Chase)
LOBRANO, J., CONCURS IN THE RESULT
M. Suzanne Montero Scott L. Sternberg Michael Finkelstein Natalie K. Mitchell STERNBERG NACCARI & WHITE, LLC 935 Gravier Street, Suite 2020 New Orleans, LA 70112
COUNSEL FOR PLAINTIFF/APPELLANT
Sidney J. Angelle Brant J. Cacamo LOBMAN CARNAHAN BATT ANGELLE & NADER 400 Poydras Street The Texaco Center, Suite 2300 New Orleans, LA 70130
COUNSEL FOR DEFENDANT/APPELLEE
AFFIRMED DECEMBER 4, 2019 Alendra Brown-Niang (hereinafter “Mrs. Niang”) seeks review of the trial
court’s February 8, 2019 judgment granting the motion for partial summary
judgment filed by Dryades YMCA School of Commerce, Inc. (hereinafter
“YMCA”). After consideration of the record before this Court, and the applicable
law, the trial court’s dismissal of Mrs. Niang’s claim for loss of chance of survival
is affirmed.
Facts and Procedural History
On March 2, 2017, Mouhamadou Moustapha Niang, Mrs. Niang’s husband,
(hereinafter “Mr. Niang”) collapsed while playing basketball at the YMCA. Mrs.
Niang, who is certified in cardiac life support, was present and requested an
automated external defibrillator (hereinafter “AED”) to start resuscitation attempts.
YMCA staff informed Mrs. Niang that an AED machine was not available on the
premises. Mr. Niang was subsequently transported to University Medical Center
where he died on March 11, 2017 of anoxic encephalopathy secondary to sudden
cardiac arrest.
1 On November 8, 2017, Mrs. Niang filed a petition for damages1 against
YMCA and its insurance company, asserting survival and wrongful death claims
pursuant to La. C.C. art. 2315.1 and La. C.C. art. 2315.6. Mrs. Niang also asserted
a loss of chance of survival claim, alleging that YMCA was negligent in failing to
have an AED machine on the premises as required by La. R.S. 40:1137.3.2
On December 17, 2018, YMCA filed a motion for partial summary
judgment arguing that Mrs. Niang’s loss of chance of survival claim should be
dismissed because that cause of action is not applicable in a non-medical
malpractice case. In opposition to the motion for partial summary judgment, Mrs.
Niang maintained that YMCA’s motion was actually a peremptory exception of no
cause of action, presented as a motion for summary judgment.3 She asserted that
she presented a valid cause of action and that YMCA’s failure to have an AED
machine on the premises, as required by La. R.S. 40:1137.3, resulted in the loss of
a chance of survival for her husband. Mrs. Niang argued that the breach of the
statutory duty imposed on YMCA created a cause of action by the person injured
as a result of that breach. Thus, she maintains that she has stated a cause of action
because she was alleging that the loss of chance of survival of her husband was a
1 Mrs. Niang filed an amended petition for damages on January 30, 2019, substituting the name of the insurance company. 2 La. R.S. 40:1137.3 provides, in pertinent part:
D. (1) The owner of or entity responsible for a physical fitness facility shall keep an AED on its premises. *** (a) “Physical fitness facility” means a facility for profit or nonprofit with a membership of over fifty persons that offers physical fitness services. This term includes but is not limited to clubs, studios, health spas, weight control centers, clinics, figure salons, tanning centers, athletic or sport clubs, and YWCA and YMCA organizations. 3 YMCA submitted Mrs. Niang’s petition for damages in support of its motion for partial summary judgment. In opposition, Mrs. Niang submitted correspondence between the parties. No affidavits or other documentation were submitted by either party.
2 direct result of YMCA’s breach of its statutory duty. Mrs. Niang rejected the
assertion that a cause of action for loss of chance of survival is limited to medical
malpractice cases.
A hearing on the motion for partial summary judgment was held on
February 8, 2019. In providing reasons for its ruling, the trial court stated:
And let me say this for the record so that it’s clear, obviously this body of law, this particular cause of action, as it is being sought to be invoked, doesn’t exist at present in this state, pursuant to the Supreme Court’s ruling in … Smith versus State of Louisiana, 676 So.2d 543, 1996. And in that decision the Supreme Court cited to the Oklahoma Supreme Court case of Hardy versus South Western Bell Telephone Company, 910 [P.2d] 1024, also a 1996 case.
But the language that is pertinent to me is the decision only addresses damages in a medical malpractice case and does not consider damages for loss of a chance of survival in cases against other types of tortfeasors. That decision is left for another day. Well that day has arrived [].
By judgment dated February 14, 2019, the trial court granted YMCA’s motion for
partial summary judgment, dismissing Mrs. Niang’s loss of chance of survival
claim. The trial court’s judgment also designated the judgment as a final
appealable judgment pursuant to La. C.C.P. art. 1915. This appeal followed.
Discussion
The matter currently before this Court presents a res nova issue in Louisiana.
As her sole assignment of error, Mrs. Niang maintains that the trial court erred in
granting YMCA’s motion for partial summary judgment, finding that there is no
cause of action in Louisiana for loss of chance of survival in non-medical
3 Mrs. Niang’s request for review of the trial court’s judgment seeks to have
this Court determine whether or not the loss of chance of survival claim can be
expanded to non-medical malpractice cases.
As a threshold matter, we note that although styled as a motion for partial
summary judgment, YMCA has actually raised an exception of no cause of action.
The failure of a plaintiff to state a cause of action may be noticed by this Court on
its own motion.4 La. C.C.P. art. 927; see also Moreno v. Entergy Corp., 2010-
2268, p. 3 (La. 2/18/11), 64 So.3d 761, 762. We find that analyzing this case under
the procedural device of an exception of no cause of action is more appropriate.
Thus, we will consider Mrs. Niang’s petition for damages to determine whether or
not it states a cause of action for which the law affords a remedy.5
Exception of No Cause of Action
A peremptory exception of no cause of action questions whether the law
affords a remedy against a particular defendant under the factual allegations of a
petition. Badeaux v. Southwest Computer Bureau, Inc., 2005-0612, p. 7 (La.
3/17/06), 929 So.2d 1211, 1217. “The function of the peremptory exception is to
have the plaintiff’s action declared legally nonexistent, or barred by the effect of
law, and hence this exception tends to dismiss or defeat the action.” La. C.CP. art.
923. When deciding an exception of no cause of action, a court considers only the
petition for damages, amendments to the petition for damages and any documents
attached to the petition for damages. 2400 Canal, LLC v. Bd. of Sup’rs of
4 This Court issued an order on November 7, 2019, affording the parties an opportunity to submit briefs, considering YMCA’s summary judgment as an exception of no cause of action. The briefs were timely submitted to this Court. 5 Exceptions of no cause of action are reviewed under the de novo standard of review because it presents a legal question. O’Dwyer v. Edwards, 2008-1492, p. 3 (La.App. 4 Cir. 6/10/09), 15 So.3d 308, 310.
4 Louisiana State Univ. Agr. & Mech. Coll., 2012-0220, p. 7 (La.App. 4 Cir.
11/7/12), 105 So.3d 819, 825.
Loss of Chance of Survival
Our analysis begins with a review of the jurisprudential context of the loss of
chance of survival claim in Louisiana. The Louisiana Supreme Court has long held
that there is a right to recover damages for loss of chance of survival in medical
malpractice cases. See Hastings v. Baton Rouge Gen. Hosp., 498 So.2d 713 (La.
1986); Smith v. State Through Dept. of Health & Human Resources Admin., 523
So.2d 815 (La. 1988); Martin v. East Jefferson Gen. Hosp., 582 So.2d 1272 (La.
1991).
In Hastings v. Baton Rouge Gen. Hosp., 498 So.2d 713 (La. 1986), our
Louisiana Supreme Court reversed the trial court’s judgment granting a directed
verdict in favor of the hospital and treating physicians. The parents of a stab-
wound victim brought a medical malpractice action against the hospital,
emergency room physician and thoracic surgeon on call, for wrongful death, when
their son died following an attempt to transfer him to another hospital.
Cedric Hastings presented to the emergency room with two stab wounds and
weak vital signs. After extensive testing, it was determined that he required a
thoracotomy. Since the emergency room physician was not qualified to perform
that type of surgery, he contacted the thoracic surgeon on call that evening. After
inquiring about whether or not the patient had insurance, which he did not, the
thoracic surgeon ordered Mr. Hastings transferred to another hospital. The
emergency room physician did not seek another thoracic surgeon and
complications ensued during the attempted transfer. After transferring him back to
the emergency room, Mr. Hastings died of cardiac arrest.
5 The Louisiana Supreme Court held that “[a]s a result of [the emergency
room physician’s] failure to obtain another surgeon and [the thoracic surgeon’s]
failure to operate, Cedric had no chance of living… .” Hastings, 498 So.2d at 721.
The Court noted:
Thus, in a death case, if a defendant physician, by action or inaction, has destroyed any substantial possibility of the patient’s survival, such conduct becomes a proximate cause of the patient’s death. The law does not require the plaintiff to prove to a certainty that the patient would have lived had he received more prompt diagnosis and treatment for the condition causing the death.
Id. (quoting Brown v. Koulizakis, 229 Va. 524, 331 S.E.2d 440, 446 (1985)).
Relying on Hastings, our Supreme Court in Smith v. State, Dep’t of Health
& Hosps., 1995-0038, (La. 6/25/96), 676 So.2d 543, granted certiorari in order to
address the method of valuation of damages recoverable in loss of chance of
survival actions. Smith involved a patient who, approximately fifteen months after
his initial hospital stay, was diagnosed with a lethal form of cancer. Benjamin
Smith presented to the hospital complaining of a sore on the top of his right foot.
He stayed in the hospital for five days and underwent minor surgery to drain the
fluid from his foot. While hospitalized, a routine chest x-ray was performed and
revealed “a mediastinal mass projected to the right of the trachea.” Smith, 1995-
0038, p. 2, 676 So.2d at 545. A CT scan of the thoracic area was recommended in
order to consider lymphoma in the diagnosis. The hospital and physicians failed to
notify the family of the Mr. Smith’s x-ray results or order further testing during his
initial hospitalization.
Mr. Smith returned to the hospital, approximately fifteen months later,
complaining of chills, fever and chest pain. A second chest x-ray was performed
revealing that the mediastinal mass had doubled in size. It was at this time that Mr.
6 Smith and his family learned of the previous x-ray report from his initial hospital
stay. Upon further testing, Mr. Smith was diagnosed with a lethal form of cancer.
Additionally, by the time of his second hospital visit the cancer had progressed and
was deemed aggressive. Mr. Smith died nineteen months after his initial hospital
stay when the first chest x-ray was performed. Id.
The Supreme Court affirmed the appellate court’s determination that the
plaintiff established that the hospital and the physicians’ negligent conduct
deprived Mr. Smith of a chance of survival. Id., p. 5, 676 So.2d at 546. Therefore,
the plaintiff was entitled to seek damages for the loss. Id. The Supreme Court
further found that “[t]he lost chance of survival in professional malpractice cases
has a value in and of itself that is different from the value of a wrongful death or
survival claim.” Id., p. 9, 676 So.2d at 548. In the case sub judice, the trial court
cited to footnote 7 of the Smith opinion which stated, “[t]his decision only
addresses damages in a medical malpractice case and does not consider damages
for loss of a chance of survival in cases against other types of tortfeasors. See
Hardy v. Southwestern Bell Tel. Co., 910 P.2d 1024 (Okla. 1996). That decision is
left for another day.” Smith, 1995-0038, p. 6, 676 So.2d at 547 n.7. Our research
does not reveal any cases directly on point to the facts presented before this Court,
and thus we consider, as guidance, decisions from other jurisdictions.
In Hardy v. Southwestern Bell Tel. Co., plaintiff filed a wrongful death
action, in the United States District Court for the Northern District of Oklahoma,
against Southwestern Bell Telephone Company. Plaintiff alleged that the telephone
company’s negligence caused the 911 emergency system to fail. Specifically, he
maintained that his wife’s death was the result of the failure of the 911 emergency
systems, which prevented him from promptly receiving emergency assistance after
7 his wife suffered a heart attack. On motions for summary judgment, the district
court found that plaintiff could not meet his burden of proof on the causation
element in a general negligence action. Id. at 1026. Based on its ruling, the district
court questioned whether it would be appropriate to apply the reduced standard of
causation found in the loss of chance of survival doctrine, since plaintiff could not
prove causation in a traditional negligence action. As such, the district court
certified the question of the applicability of the lost chance of survival doctrine to
non-medical malpractice cases to the Oklahoma Supreme Court. Id.
The Oklahoma Supreme Court considered the question of whether the loss
of chance of survival doctrine, restricted to certain limited types of medical
malpractice cases, applied to ordinary negligence cases that are not brought against
a hospital or medical practitioner. Hardy, 910 P.2d at 1025. The Oklahoma
Supreme Court found plaintiff’s causation claim speculative and found no
evidence presented that the reduced standard of causation found in a loss of chance
claim should be applied to a general negligence action. Hardy, 910 P.2d at 1030.
The Court stated that “we refuse to effect a total restructuring of tort law by
applying the lost chance doctrine beyond the established boundary of medical
malpractice to ordinary negligence actions.” Id.
The Hardy Court also considered the public policy implications associated
with expanding loss of chance of survival claims to non-medical malpractice cases.
The public policy concerns of medical practice which have been held to justify a reduced burden of causation in lost chance cases do not transfer over to ordinary negligence cases. Public policy is not served by extending the causation exception to the “but for” rule to other tortfeasors. Under the decisions discussed and other “loss of chance” medical provider opinions, the physician
8 had the opportunity to perform properly under the terms of the physician-patient special relationship but was alleged to have failed to do so.
The essence of the doctrine is the special relationship of the physician and the patient. In these cases, the duty is clear, the negligence is unquestioned and the resulting harm, the destruction of a chance for a better outcome, has obvious value and is not so speculative as to be beyond being reasonably considered a result of defendant’s negligence.
Hardy, 910 P.2d at 1029.
A review of other states’ implementation of the loss of chance of survival
claim reveals other jurisdictions unwillingness to expand such claims to non-
medical malpractice actions. The consensus being that certain public policy
considerations dictate not expanding the loss of chance of survival claim outside of
a medical malpractice context. See Roberts v. Ohio Permanente Med. Group, Inc.,
668 N.E.2d 480 (Ohio 1996) (overruling its previous findings and recognizing the
loss of chance of survival claim, in medical malpractice claims, by following the
approach as set forth in Restatement (Second) of Torts §323; however, declining to
alter traditional principles of causation with regards to other areas of tort law);
Daugert v. Pappas, 704 P.2d 600 (Wash. 1985) (providing that a patient’s
misdiagnosis deprives that patient of a chance of surviving, but not willing to
expand the loss of chance of survival claim in legal malpractice matters because
there is no lost chance to a client who can still have their case reviewed by a higher
court); Kramer v. Lewisville Mem’l Hosp., 858 S.W.2d 397 (Tex. 1993) (declining
to adopt the loss of chance doctrine as part of the common law of Texas; further
noting that it would be difficult to prevent application of the doctrine to other
professions, such as legal malpractice or lost profits for a new business).
9 While the laws of Louisiana are not governed by the principles of law of
other states, we agree with the argument that speculation, regarding causation, may
result by applying the loss of chance of survival claim to non-medical malpractice
cases. A loss of chance of survival claim is rooted in causation, which is directly
linked to medical treatment, or lack thereof, performed by a hospital and/or
physician. As noted in Hardy, the loss of chance as a result of medical treatment
has a definitive value and is not speculative. Hardy, 910 P.2d at 1030. In medical
malpractice cases, the conduct of the hospital and/or physician is a factor that can
conclusively be associated with the loss of chance of survival of a patient.
Applying the loss of chance of survival claim to general negligence cases would
open the door for speculation as to a person’s chance of survival. We find the
claims asserted by Mrs. Niang are adequately subsumed in the causation element
of the negligence claim against YMCA.
Louisiana courts have not expanded the applicability of the claim of loss of
chance of survival to general negligence actions. Outside of judicial recognition,
the law-making power of the State is unquestionably vested in the legislature. See
Krielow v. Louisiana Dep’t of Agric. & Forestry, 2013-1106, p. 5 (La. 10/15/13),
125 So.3d 384, 388. “[L]egislative power, conferred under constitutional
provisions, cannot be delegated by the Legislature either to the people or to any
other body or authority.” City of Alexandria v. Alexandria Fire Fighters Ass’n,
Local No. 540, 220 La. 754, 758, 57 So.2d 673, 674 (1952). We must follow
positive law and case law should not supersede constitutional or legislative
authority. DeBattista v. Argonaut-Southwest Ins. Co., 403 So.2d 26, 33 (1981)
(citation omitted). Since the Legislature has not yet created law allowing loss of
chance of survival claims in non-medical malpractice cases, or as a separate and
10 distinct tort, and the judiciary has not yet expanded it, we find that loss of chance
of survival claims are not applicable to non-medical malpractice cases.
In the case sub judice, “a summary judgment will not serve as a substitute
for an exception of no cause of action.” Sinclair Oil & Gas Co. v. Delacroix Corp.,
235 So.2d 187, 190 (La.App. 4 Cir. 1970). An exception of no cause of action
assesses the legal sufficiency of a petition for damages by determining whether the
law affords the plaintiff a remedy, based on the facts alleged within the four
corners of the petition. Ramos v. Liberty Bank & Tr. Co., 2018-0612, p. 1 (La.App.
4 Cir. 12/19/18), 262 So.3d 917, 918. “The function of the peremptory exception
of no cause of action is to question whether the law extends a remedy to anyone
under the factual allegations of the petition.” Cleco Corp. v. Johnson, 2001-0175,
p. 3 (La. 9/18/01), 795 So.2d 302, 304.
We find the proper context to consider the sufficiency of Mrs. Niang’s claim
is to determine whether her petition for damages states a cause of action. This
Court finds that it does not. Louisiana law has not expanded the loss of chance of
survival claim to non-medical malpractice cases. Therefore, based on current
Louisiana jurisprudence, and applicable statutory authority, Mrs. Niang’s claim for
loss of chance of survival is not a cause of action for which Louisiana law affords a
remedy in a non-medical malpractice case.
Conclusion
Our review of Louisiana jurisprudence reveals that our courts limit loss of
chance of survival claims to medical malpractice cases. We recognize the lack of
statutory or jurisprudential authority for such claims. However, as the intermediate
appellate court, we are confined by the law as it exists at this time. The case sub
judice is before this Court for a determination of whether Mrs. Niang’s petition for
11 damages states a cause of action. Based on the pleadings before us, the petition for
damages failed to state a cause of action, for which the law affords a remedy,
because a loss of chance of survival claim is not recognized in general negligence
matters. As noted by the trial court, the particular cause of action of loss of chance
of survival, sought to be invoked by Mrs. Niang, does not currently exist in
Louisiana. Therefore, we find the trial court did not err in dismissing Mrs. Niang’s
claim for loss of chance of survival.
AFFIRMED