Brandi Billeaudeau v. Opelousas General Hospital Health System

• Court: Louisiana Court of Appeal
• Decided: April 6, 2016
• Docket: CA-0015-1034
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

15-1034

BRANDI BILLEAUDEAU, VERONICA BILLEAUDEAU, AND JOSEPH BILLEAUDEAU

VERSUS

OPELOUSAS GENERAL HOSPITAL AUTHORITY, DR. KONDILO SKIRLIS-ZAVALA, AND THE SHUMACHER GROUP OF LOUISIANA, INC.

**********

APPEAL FROM THE TWENTY-SEVENTH JUDICIAL DISTRICT COURT PARISH OF ST. LANDRY, NO. 13-C-0097-D HONORABLE D. JASON MECHE, DISTRICT JUDGE

ELIZABETH A. PICKETT JUDGE

Court composed of Elizabeth A. Pickett, James T. Genovese, and Shannon J. Gremillion, Judges.

AFFIRMED. Gremillion, J., dissents and assigns written reasons.

Joseph L. McReynolds Karen Patricia Holland John Jerry Glas Deutsch Kerrigan, LLP 755 Magazine St. New Orleans, LA 70130-3672 (504) 581-5141 COUNSEL FOR DEFENDANT/APPELLANT: Opelousas General Hospital Authority Brandon M. Rhodes Nicholas Gachassin, Jr. Nicholas Gachassin, III Gachassin Law Firm P. O. Box 80369 Lafayette, LA 70598 (337) 235-4576 COUNSEL FOR DEFENDANT/APPELLANT: Opelousas General Hospital Authority

Kara Hadican Samuels Nora R. Udell Kara Hadican Samuels & Associates, L.L.C. 935 Gravier Street, Suite 1150 New Orleans, LA 70112 (504) 558-9478 COUNSEL FOR PLAINTIFFS/APPELLEES: Veronica Billeaudeau Joseph Billeaudeau PICKETT, Judge.

Opelousas General Hospital Authority (Opelousas General) appeals a

judgment of the trial court holding that a claim for “negligent credentialing” of a

physician by a hospital does not constitute medical malpractice subject to the terms

of the Louisiana Medical Malpractice Act (MMA), La.R.S. 40:1231.1, et seq.

FACTS

On June 20, 2010, Brandi Billeaudeau was taken to Opelousas General after

collapsing in her parents’ home. Brandi is a thirty-five-year-old woman with

Down syndrome. Veronica Billeaudeau, Brandi’s mother and a nurse, and her

husband Joseph transported their daughter to the hospital, where she was

diagnosed by the emergency room (ER) physician, Dr. Kondilo Skirlis-Zavala,

with focal motor seizure. Dr. Skirlis-Zavala ordered the administration of anti-

seizure medication and a CT scan, which was reported as normal.

The Billeaudeaus disagreed with the doctor’s diagnosis and thought their

daughter had suffered a stroke. They asked that their daughter be given tPA (t-

plasminogen activator), a treatment for stroke victims. However, according to the

allegations of the Billeaudeaus, they were informed that their daughter was not a

candidate for tPA. The Billeaudeaus requested that Brandi be transferred to Our

Lady of Lourdes (OLOL) in Lafayette. Dr. Skirlis-Zavala arranged for Brandi to

be transferred to OLOL, where she was given tPA four hours after she suffered

what was ultimately determined to be a stroke.

Veronica Billeaudeau, individually and as curatrix of Brandi, and Joseph

Billeaudeau pursued a claim under the MMA and brought suit in general

negligence against Opelousas General, among other defendants. They filed a

motion for partial summary judgment asking that the trial court declare that their demands against Opelousas General for negligent credentialing were not subject to

the terms of the MMA, including the cap on damages found in La.R.S.

40:1231.2(B)(1). The trial court granted this motion.

Opelousas General sought a writ of supervisory review from this court,

which was denied. Billeaudeau v. Opelousas Gen. Hosp. Auth., 15-821 (La.App. 3

Cir. 9/28/15) (unpublished). One member of the panel dissented and would have

granted the writ application. Opelousas General then sought a writ of certiorari

from the Louisiana Supreme Court, which was also denied. Billeaudeau v. Skirlis-

Zavala, 15-1948 (La. 11/30/15), 182 So.3d 43. In the meantime, the trial court

certified its grant of partial summary judgment as a final judgment. Opelousas

General has now filed this appeal.

ASSIGNMENTS OF ERROR

On appeal, Opelousas General asserts three assignments of error (footnotes

omitted):

1. Contrary to the holding in Plaisance v. Our Lady of Lourdes Regional Medical Center, Inc., [10-348 (La.App. 3 Cir. 10/6/10), 47 So.3d 17, writ denied, 10-2520 (La. 1/14/11), 52 So.2d 904)] the district court erred in its legal conclusion that a “negligent credentialing” claim coupled with a negligent supervision claim against a hospital, qualified as a health care provider, did not constitute an act of “malpractice” under Louisiana’s Medical Malpractice Act (“LMMA”), La.R.S. 40:1231.1(A)(13).

2. The trial court’s error was induced by disregarding its own analysis of the negligent credentialing claim under the Coleman v. Deno[, 01-1517 (La. 1/25/02), 813 So.2d 303,] factors that produced a contrary conclusion.

3. The trial court’s error was compounded by employing an expression unius est exclusion alterius statutory analysis that misapprehends the rule of strict construction and leads to an absurd conclusion the Legislature must have intended to exclude “negligent credentialing” claims from the LMMA’s definition of “malpractice” coverage when it amended that definition in 2001 to include “all legal responsibility of a health care provider arising from acts or

2 omissions . . . in the training or supervision of health care providers . . . .”

ANALYSIS

This court has already ruled on this exact issue in an application for

supervisory writs. Thus, the discretionary “law of the case” doctrine is clearly

applicable.

This doctrine provides that “an appellate court will not reconsider its own rulings of law in the same case.” Lejano v. Bandak, 97–388, p. 23 (La.12/12/97), 705 So.2d 158, 170, cert. denied, 525 U.S. 815, 119 S.Ct. 52, 142 L.Ed.2d 40 (1998). This doctrine, however, is purely discretionary and will not apply “in cases of palpable error or when, if the law of the case were applied, manifest injustice would occur.’” Id.

Shailow v. Gulf Coast Soc. Servs., 15-91, p. 7 (La. App. 3 Cir. 6/10/15), 166 So.3d

1239, 1245-46, writs denied, 15-1336, 15-1355 (La. 10/9/15), 178 So. 3d 1002,

1003. We will review the ruling of this court to determine if there is palpable error.

We review summary judgments de novo, applying the same criteria the trial

court considered in determining whether summary judgment was appropriate.

Gray v. Am. Nat’l Prop. & Cas. Co., 07-1670 (La. 2/26/08), 977 So.2d 839.

Every medical malpractice claim asserted against a health care provider that

is properly qualified must be pursued subject to the terms of the MMA. La.R.S.

40:1231.8(A)(1)(a); La.R.S. 40:1231.2(B). The MMA defines malpractice as:

[A]ny unintentional tort or any breach of contract 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 and the handling of a patient, including loading and unloading of a patient, and also includes all legal responsibility of a health care provider arising from acts or omissions during the procurement of blood or blood components, in the training or supervision of health care providers, or from defects in blood, tissue, transplants, drugs, and medicines, or from defects in or failures of prosthetic devices implanted in or used on or in the person of a patient.

3 La.R.S. 40:1231.1(A)(13). Whether certain acts or omissions constitute

“malpractice” under the MMA’s definition has been extensively litigated. The

supreme court has provided the analytical framework within which such an

analysis is to take place. In Coleman v. Deno, 01-1517, 01-1519, 01-1521, pp. 17-

18 (La. 1/25/02), 813 So.2d 303, 315-16, the supreme court enunciated the test

(citations and footnote omitted):

In determining whether certain conduct by a qualified health care provider constitutes “malpractice” as defined under the MMA this court has utilized the following three factors:

“[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 whether the appropriate standard of care was breached, and

[3] whether the pertinent act or omission involved assessment of the patient's condition.”

The latter annotation lists three additional factors that courts have considered, and we now add those to our Sewell [v. Doctors Hosp., 600 So.2d 577 (La.1992)] list; to wit:

[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.

The Billeaudeaus contend that negligent credentialing is not subject to the

terms and limitations of the MMA. They allege that Opelousas General’s decision

to grant credentials to Dr. Skirlis-Zavala is an administrative decision, not a

medical decision. They claim Opelousas General negligently allowed Dr. Skirlis-

Zavala to have privileges in its emergency department because she lacked the

4 experience and training required by Opelousas General’s own by-laws governing

the granting of privileges. They also allege that Opelousas General failed to

follow-up on a “qualified” reference given by an emergency medicine physician at

the time Dr. Skirlis-Zavala was granted privileges. Finally, the Billeaudeaus argue

that Opelousas General failed to investigate two malpractice claims filed against

Dr. Skirlis-Zavala before she sought privileges at the hospital.

Before analyzing this case in light of the Coleman factors, we note the

difficulty of applying these factors to a claim for negligent credentialing, which is

not purely a medical decision. The first Coleman factor is whether the particular

wrong is treatment related. The Billeaudeaus focus on Dr. Skirlis-Zavala’s relative

inexperience in emergency medicine and stroke diagnosis in particular. They also

point out that Dr. Skirlis-Zavala attended medical school in Mexico, and that she

had two malpractice claims filed against her at the time she applied for privileges

at Opelousas General.

In Plaisance v. Our Lady of Lourdes Regional Medical Center, Inc., 10-348

(La.App. 3 Cir. 10/6/10), 47 So.3d 17, writ denied, 10-2520 (La. 1/14/11), 52

So.3d 904, this court engaged in an exhaustive examination of each of the Coleman

factors to determine whether a claim for “negligent credentialing” constituted a

malpractice claim. In Plaisance, the plaintiff claimed the hospital was negligent in

originally credentialing a physician and allowing him to retain his credentials in

light of multiple allegedly unsatisfactory medical procedures performed on the

plaintiff. In that case, we found the particular wrong was treatment related because

it required the court to review the treatment that physician provided to that plaintiff,

and the hospital’s decisions in light of the plaintiff’s allegations of substandard

care.

5 This case is distinguishable from Plaisance in that it does not require the

court to review the treatment of Brandi in determining whether Opelousas General

acted negligently in hiring Dr. Skirlis-Zavala. We find the first Coleman factor

weighs against treating the claim of negligent credentialing as medical malpractice.

The second factor determines whether the wrong requires expert testimony

to determine whether there was a breach of the standard of care. In Plaisance, we

found that the hospital’s response to the physician’s alleged breach of the standard

of care required testimony about the standard of care from experts. In this case,

though, the question is whether Dr. Skirlis-Zavala was qualified to practice

emergency medicine in general based on her education, experience, and

certifications. While expert testimony will surely be required, it is of a different

character than what we found necessary in Plaisance. The applicable standard of

care is not the proper administration of tPA, but the hospital’s decision-making

process in evaluating qualifications necessary to work as an ER doctor. While we

find this factor weighs in favor of finding that the claim sounds in malpractice, we

note that the expert testimony is of a different nature than that which we found in

Plaisance.

An analysis of the hospital’s credentialing methods as they relate to Dr.

Skirlis-Zavala does not require any assessment of Brandi’s condition. This third

Coleman factor mitigates against considering this a malpractice matter.

The fourth Coleman factor is a determination of whether the incident

occurred in the context of a physician-patient relationship, or was within the scope

of activities a hospital is licensed to perform. In Plaisance, 47 So.3d at 22, this

court explained that Louisiana Revised Statutes 40:2114(E) provides that “[a]

hospital shall establish rules, regulations, and procedures setting forth the nature,

6 extent, and type of staff membership and clinical privileges, as well as the

limitations placed by the hospital on said staff membership and clinical privileges

for all health care providers practicing therein.” Thus, credentialing is within the

scope of activities that a hospital is licensed to perform, and this factor weighs in

favor of treating the claim as falling under the MMA.

The fifth factor questions whether the injury would have occurred if the

patient had not sought treatment. If Brandi’s parents had not sought treatment for

her at Opelousas General, this claim would never have been filed. We find this to

be a peculiarly circular type of analysis. While Brandi’s alleged injuries relate to

the treatment provided by Dr. Skirlis-Zavala, the credentialing decisions of

Opelousas General are not necessarily tied to the treatment of Brandi. We agree

with the trial court that it is difficult to apply this factor to this case, but conclude

that it weighs against treating the claim as malpractice.

There is no allegation of an intentional tort, so the final factor is not

applicable in this case.

We find that the claim for negligent credentialing, when analyzed under the

Coleman framework, is not a claim of malpractice under the MMA. In so

concluding, we are mindful that the limitations of the MMA are in derogation of

general tort law, and should, therefore, be strictly construed in favor of plaintiffs.

Williamson v. Hosp. Serv. Dist. No. 1 of Jefferson, 04-451 (La. 12/1/04), 888 So.2d

782.

Further, we note that the legislature in 2001 amended the definition of

“malpractice” in La.R.S. 40:1299.41(A)(8) (since redesignated La.R.S.

40:1231.1(A)(13)) to include the “acts or omissions . . . . in the training or

supervision of health care providers[.]” 2001 La. Acts No. 713, § 1. The original

7 bill introduced in the senate would have included “acts or omissions in the hiring,

training, supervision, or retention of caregivers[.]” On three other occasions, bills

were introduced in the Louisiana legislature to include “credentialing” in the

definition of medical malpractice. See 2005 House Bill No. 257; 2006 House Bill

No. 260; and 2008 Senate Bill No. 509. Each of these bills failed to become law.

We will not create law by judicial fiat when, as here, the legislature clearly failed

to do so.

We find no palpable error in this court’s previous denial of supervisory writs,

and we affirm the judgment of the trial court finding that the claims of “negligent

credentialing” are not claims of malpractice under the MMA. The case is

remanded to the trial court for further proceedings. Costs of this appeal are

assessed to the Opelousas General Hospital Authority.

AFFIRMED.

8 STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

BRANDI BILLEAUDEAU

OPELOUSAS GENERAL HOSPITAL HEALTH SYSTEM, ET AL.

GREMILLION, Judge, dissenting.

I dissent from the majority‘s opinion. I would reverse the trial court.

Initially, I disagree with the majority‘s contention that this matter is

governed by the doctrine of law of the case by virtue of the denial of the

Authority‘s application for writs. The denial was simple. There was no finding in

the denial that the trial court did not err. In fact, Judge Peters concurred

specifically on the basis that he would find no error on the trial court‘s part.

Without a determination that the trial court did not err, a denial of writs does not

constitute law of the case. See Waller v. State, Dep’t of Health and Hosps., 11-643

(La.App. 3 Cir. 11/9/11), 79 So.3d 1085, writ denied, 11-2692 (La. 2/10/12), 80

So.3d 488; In re Appeal of ANR Pipeline Co., 11–379 (La.App. 3 Cir. 8/10/11), 73

So.3d 398; Cormier v. McNeese State Univ., 13-12 (La.App. 3 Cir. 11/13/13), 127

So.3d 66.

The Billeaudeaus contend—and, presumably, the majority agrees—that

negligent credentialing represents a ―distinct cause of action‖ from the medical

malpractice claim. This cannot be, of course, because ―[t]he cause of action is the

state of facts which gives a party a right to judicially assert an action against the

defendant.‖ Trahan v. Lib. Mut. Ins. Co., 314 So.2d 350, 353 (La.1975). That necessarily encompasses the determination of whether the plaintiff has suffered

damages. Before the alleged acts and omissions on Dr. Skirlis-Zavala‘s part, the

Billeaudeaus could have sustained no damage from the credentialing decision of

the authority. The claim for negligent credentialing does not—logically, cannot—

constitute a separate cause of action.

Every medical malpractice claim asserted against a health care provider that

is properly qualified must be pursued subject to the terms of the MMA. La.R.S.

40:1231.8(A)(1)(a); La.R.S. 40:1231.2(B). ―Malpractice‖ is defined as (emphasis

added):

[A]ny unintentional tort or any breach of contract 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 and the handling of a patient, including loading and unloading of a patient, and also includes all legal responsibility of a health care provider arising from acts or omissions during the procurement of blood or blood components, in the training or supervision of health care providers, or from defects in blood, tissue, transplants, drugs, and medicines, or from defects in or failures of prosthetic devices implanted in or used on or in the person of a patient.

La.R.S. 40:1231.1(A)(13). What acts or omissions constitute ―malpractice‖ under

the MMA‘s definition has been extensively litigated. In my opinion, the fact that

the damages were caused by alleged malpractice and not the credentialing of a

physician should end the analysis. Nonetheless, I will willing engage the majority

within the context of the supreme court‘s jurisprudence on this issue.

The supreme court has provided the analytical framework within which such

an analysis is to take place. In Coleman v. Deno, 01-1517, 01-1519, 01-1521, pp.

17-18 (La. 1/25/02), 813 So.2d 303, 315-16, the supreme court enunciated the test

2 In determining whether certain conduct by a qualified health care provider constitutes ―malpractice‖ as defined under the MMA this court has utilized the following three factors:

―[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 whether the appropriate standard of care was breached, and

[3] whether the pertinent act or omission involved assessment of the patient's condition.‖

The latter annotation lists three additional factors that courts have considered, and we now add those to our Sewell list; to wit:

[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

The Louisiana Supreme Court has quoted with approval our colleagues on

the Second Circuit Court of Appeal, who stated (emphasis added):

―In general, any conduct by a hospital complained of by a patient is properly within the scope of the [MMA] if it can reasonably be said that it comes within the definitions of the Act, even though there are alternative theories of liability.‖

Richard v. Louisiana Extended Care Ctrs., Inc., 02-978, p. 11 (La. 1/14/03), 835

So.2d 460, 467-68 (quoting Rogers v. Synthes, Ltd., 626 So.2d 775, 777 (La.App. 2

Cir.1993). Negligent credentialing is simply a theory of liability and not a cause of

action.

The first reported case that invoked the theory of negligent credentialing is

Bickham v. Inphynet, Inc., 03-1897 (La.App. 1 Cir. 9/24/04), 899 So.2d 15.

Bickham was a case that arose before the MMA‘s definition of ―malpractice‖ was

3 amended to include ―acts of omissions in the training or supervision of health care

providers.‖ See 2001 La. Acts No. 108. The majority of the court found that the

claim for negligent credentialing fell outside the scope of the MMA. In dissent,

then-Judge Guidry, writing for himself and four other judges, observed, correctly,

in my opinion:

In order for Mr. Bickham to prove the tort of negligent credentialing, he must first establish that a negligent act of Dr. Yacoub proximately caused his injury before he can proceed against Riverside. As a result, it is inappropriate to look only to the credentialing conduct alleged in the complaint to determine whether it sounds in malpractice or in ordinary negligence. The credentialing process alleged must have resulted in a definable act of medical malpractice that caused damage to Mr. Bickham or Mr. Bickham would be without a basis to bring the suit against Riverside. See Armand, 97–2958 at p. 10, 729 So.2d at 1090; Williams, 00–0365 at pp. 1–2, 801 So.2d at 464–465 (Guidry, J., dissenting); Winona Memorial Hospital v. Kuester, 737 N.E.2d 824, 828 (Ind.App.10/24/00). Therefore, when examining these two acts together, it is clear that the credentialing conduct directly impacts, involves, and is related to the treatment received by Mr. Bickham, and as such, is related to the provision of health care.

Bickham v. Inphynet, Inc., 03-1897, p. 18 (La. App. 1 Cir. 9/24/04), 899 So. 2d 15,

18. The act of credentialing does not cause damage; it is the act or omission

alleged against the health care provider that causes damage.

The first circuit reached a similar conclusion in a second pre-2001 case,

Eusea v. Blanchard, 04-1855 (La.App. 1 Cir. 2/11/05), 899 So.2d 41, which also,

like Bickham, involved allegations of negligent supervision and training in addition

to negligent credentialing.

In Dinnat v. Texada, 09-665 (La.App. 3 Cir. 2/10/10), 30 So.3d 1139, writ

denied, 10-540 (La. 6/18/10), 38 So.3d 322, this court found that a claim for

―negligent credentialing‖ was actually a claim for negligent supervision.

Accordingly, we granted writs and peremptorily reversed the trial court judgment

4 denying an exception of prematurity on the basis that such a claim was not

required to be presented to a medical review panel.

In Plaisance v. Our Lady of Lourdes Regional Medical Center, Inc., 10-348

(La.App. 3 Cir. 10/6/10), 47 So.3d 17, writ denied, 10-2520 (La. 1/14/11), 52

So.3d 904, this court engaged in an exhaustive examination of each of the Coleman

factors to determine whether a claim for ―negligent credentialing‖ constituted a

malpractice claim. In the final analysis, this court concluded that the claim was

subject to the MMA. Thus, for the first time since the MMA was amended to

include physician oversight issues within the definition of ―malpractice,‖ a court

has concluded that such a claim is not subject to the MMA.

The Billeaudeaus complain that the Authority negligently credentialed Dr.

Skirlis-Zavala in the following respects, as asserted in their motion for partial

summary judgment:

Based upon information obtained during discovery in the panel phase of this suit, the Billeaudeaus brought a credible negligent credentialing claim against OGH concerning its credentialing of Dr. Zavala—a physician who attended medical school in Mexico, obtained a family practice certification in 2005, began working in Louisiana emergency departments in 2006, and by the time of her application for emergency department privileges to OGH in 2009, had racked up not one, but two medical malpractice complaints that had resulted in settlements.

It is clear that Plaintiffs‘ [sic] have a medical malpractice action subject to the LMMA concerning Dr. Zavala‘s care and treatment. However, their claim of negligent credentialing against OGH is not subject to the LMMA. Pertinent to the Court's analysis is the Plaintiffs‘ Petition for Damages, which alleges:

 Dr. Zavala completed a residency in family practice in 2005 and has been working with the Schumacher Group since 2006. She is not a board- certified emergency medicine physician. Prior to this incident, she had diagnosed stroke on only five other occasions. Also, prior to this incident, she

5 had administered tPA in the emergency department on only two other occasions.

 Defendant, Opelousas General Hospital, it‘s liable unto Petitioners because Ms. Billeaudeau‘s injuries, and damages, which will be specified hereinafter, were proximately and legally caused by the fault, including negligence, of Opelousas General Hospital and its officers, agents, employees and those for whom it is legally responsible, including the following negligent acts of omission and commission, among others, which may be shown during the trial; . . (e) Negligent credentialing of Dr. Zavala.

[1] Whether the particular wrong is “treatment related” or caused by dereliction

of professional skill

The Billeaudeaus focus on Dr. Skirlis-Zavala‘s relative inexperience in

emergency medicine and stroke diagnosis in particular. They also point to her

attendance at a Mexico medical school instead of one located in the United States,

and on Dr. Skirlis-Zavala‘s two malpractice claims, which were asserted before she

applied for privileges at Opelousas General. Unlike the demands in Plaisance,

these assertions relate to conduct that occurred before Dr. Skirlis-Zavala was

granted privileges at Opelousas General, and, thus, are not ―treatment related‖ per

the Coleman analysis. I agree with the majority on this point.

[2] Whether the wrong requires expert medical evidence to determine whether

the appropriate standard of care was breached

In Plaisance, the wrong alleged against the hospital included allegations that

the hospital‘s response to the doctor‘s ―alleged deficient performance of medical

procedures‖ was inadequate or negligent. Id. at 22. We found, ―It follows that

expert medical evidence would be required to determine whether Dr. Beauregard

was qualified to perform the medical procedures, whether he committed

6 malpractice, and whether that malpractice necessarily created a duty on the

hospital to take action.‖ Id. This matter will be no different, whether one is asking

whether a hospital is required to take action to suspend a doctor‘s privileges in

light of alleged malpractice after his privileges have been extended or, as in the

present case, the issue involves claims against the doctor before the privileges have

been extended. Because expert testimony is required, an analysis of the second

Coleman factor would indicate that this matter sounds in malpractice.

[3] Whether the pertinent act or omission involved assessment of the patient's

condition

An analysis of the hospital‘s credentialing methods as they relate to Dr.

Skirlis-Zavala does not require any assessment of Ms. Billeaudeau‘s condition.

This factor mitigates against considering this a malpractice matter.

[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

In Plaisance, this court stated:

The plaintiffs' petition alleges that Lourdes was aware of certain negligent acts of Dr. Beauregard ―yet failed to suspend or revoke [his] privileges.‖ Louisiana Revised Statutes 40:2114(E) provides that ―[a] hospital shall establish rules, regulations, and procedures setting forth the nature, extent, and type of staff membership and clinical privileges, as well as the limitations placed by the hospital on said staff membership and clinical privileges for all health care providers practicing therein.‖ Thus, Lourdes's action or inaction regarding Dr. Beauregard's privileges is within the scope of activities a hospital is licensed to perform, and the fourth factor is satisfied. See Dinnat v. Texada, 09–665 (La.App. 3 Cir. 2/10/10), 30 So.3d 1139, writ denied, 10–540 (La.6/18/10), 38 So.3d 322.

Every credentialing decision a hospital makes would be subject to the MMA were

only this factor considered.

7 [5] Whether the injury would have occurred if the patient had not sought treatment As in Plaisance, the injuries Ms. Billeaudeau sustained would not have

happened had she not been treated by Dr. Skirlis-Zavala, according to the petition

filed by the Billeaudeaus. Again, this factor mitigates in favor of the matter being

considered subject to the MMA.

[6] Whether the tort alleged was intentional

There has been suggested nothing to indicate that the alleged tort was

intentional.

It appears, then, that of the six factors listed in Coleman, four factors— 2, 4,

5, and 6—lead to the conclusion that the Billeaudeau‘s claim for negligent

credentialing of Dr. Skirlis-Zavala is a malpractice claim and subject to the MMA.

Thus, not only the Plaisance, Dinnat, and Eusea decisions, but also

Coleman, provides judicial objections to the majority‘s view. But, my

disagreement with my colleagues comes from an even more fundamental place:

basic logic. Moreover, the rationale articulated in Coleman forces us to ask some

questions. Assume that the factfinder determines to a certainty that a hospital DID

negligently credential a doctor, but also that the same factfinder finds that the same

doctor DID NOT commit medical malpractice.

 How much should the plaintiff recover from the doctor who DID NOT commit malpractice on her?

 How much should the plaintiff recover from the hospital under whose roof she lay as she WAS NOT subjected to malpractice?

 What is the proper penalty for credentialing a doctor who treats his or her patient properly and who DOES NOT fall below the appropriate standard of care?

8  Where is the necessary connection between the alleged liability and the alleged damage?

Of course, the answer to each of these questions is NOTHING AT ALL. No

recovery. No penalty. No connection. To reach another conclusion would defy

logic. Such a conclusion would also extend a cause of action to every single

patient the doctor ever treated at the hospital, completely regardless of the question

of the doctor‘s alleged malpractice. Simply allowing a bad doctor access to

patients at your hospital, without more, gets a plaintiff nowhere. It is only when

that bad doctor does bad things to a patient, and those bad things result in damages,

that a patient may recover. That is what the Coleman court and the Plaisance court

both recognized. The majority should have recognized it as well.

Legislative intent

Lastly, the majority claims that the legislature‘s rejection of credentialing as

a matter covered by the MMA expresses the legislature‘s intent that credentialing

not be covered by the Act. Again, I disagree. It simply does not logically follow

that because the legislature excluded language specifically including credentialing

from the Act, the legislature intended for credentialing to not be covered

(particularly when one considers the all-encompassing language the Act employs

in defining malpractice); one can just as easily conclude that the legislature felt that

such an amendment was unnecessary, because the act of hiring an employee is an

act of supervision of the employee.

I would reverse the trial court.