Crystal Self, Individually, and Todd Self, Individually, and on Behalf of Their Minor Children, Cora Self and Carsyn Self v. Willis-Knighton Medical Center D/B/A Willis-Knighton Pierremont Health Center, State of Louisiana Through The Board of Supervisors of Louisiana State University and Agricultural and Mechanical College, on Behalf of LSU Health Sciences Center-New Orleans, Bharat Guthikonda, M.D., David Steven Green, M.D., Amy Alise Fontenot, P.A., Louisiana Medical Mutual Insurance Company, Pulmonary & Critical Care Specialists, LLC, Jason Deen Nelson, M.D., and Contracted Physicians of WKMC

• Court: Louisiana Court of Appeal
• Decided: August 9, 2023
• Docket: 55,130-CA
• Status: Published

Opinion

Judgment rendered August 9, 2023. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.

No. 55,130-CA

COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

***** CRYSTAL SELF, Plaintiffs-Appellants INDIVIDUALLY, AND TODD SELF, INDIVIDUALLY, AND ON BEHALF OF THEIR MINOR CHILDREN, CORA SELF AND CARSYN SELF versus WILLIS-KNIGHTON MEDICAL Defendants-Appellees CENTER D/B/A WILLIS- KNIGHTON PIERREMONT HEALTH CENTER, STATE OF LOUISIANA THROUGH THE BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND AGRICULTURAL AND MECHANICAL COLLEGE, ON BEHALF OF LSU HEALTH SCIENCES CENTER-NEW ORLEANS, BHARAT GUTHIKONDA, M.D., DAVID STEVEN GREEN, M.D., AMY ALISE FONTENOT, P.A., LOUISIANA MEDICAL MUTUAL INSURANCE COMPANY, PULMONARY & CRITICAL CARE SPECIALISTS, LLC, JASON DEEN NELSON, M.D., AND CONTRACTED PHYSICIANS OF WKMC ***** Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 635,165

Honorable Ramon Lafitte, Judge

***** THE TOWNSLEY LAW Counsel for Appellants FIRM, LLP By: Jordyn A. Goody

JEFF LANDRY Counsel for Appellees, Attorney General State of Louisiana, through the Board of MARGARET E. RICHIE GASKINS Supervisors of Louisiana JEANNIE C. PRUDHOMME State University Assistant Attorneys General Agricultural and Mechanical College, on behalf of LSU Health Sciences Center-New Orleans, and Bharat Guthikonda, M.D.

WATSON, BLANCHE, WILSON Counsel for Appellees, & POSNER Willis-Knighton By: Robert W. Robison, Jr. Pierremont Health Colin T. Munn Center and Jason D. Nelson, M.D.

PUGH, PUGH, PUGH, LLP Counsel for Appellees, By: Robert G. Pugh, Jr. Louisiana Medical Mutual Insurance Company, Pulmonary & Critical Care Specialists, LLC, and David S. Green, M.D.

PETTIETTE, ARMAND, Counsel for Appellee, DUNKLEMAN, WOODLEY Amy Alise Fontenot, & CROMWELL, LLP P.A. By: Lawrence W. Pettiette, Jr. Joseph S. Woodley

*****

Before STEPHENS, THOMPSON and ELLENDER, JJ. THOMPSON, J.

Before us is the tragic situation of a young wife and mother of two,

whose brain surgery and subsequent medical treatment allegedly resulted in

her quadriparesis and other devastating permanent injuries. The mother and

her husband, on their own behalf and that of their two children, filed suit

against her various health care providers, alleging that their claims arise

under a theory of intentional tort, rather than simply medical malpractice.

The health care providers filed exceptions of prematurity, arguing that the

suit was premature because her claims sound in medical malpractice rather

than intentional tort. The district court agreed and dismissed all claims

against the health care providers. For the foregoing reasons, we affirm the

judgments of the district court and direct plaintiffs to seek remedy under the

theory of medical malpractice.

FACTS AND PROCEDURAL HISTORY

On January 29, 2021, Crystal Self (“Self”), a 38-year-old married

mother of two, saw Dr. Bharat Guthikonda for headaches and because she

had an MRI in May of 2020 that showed a Chiari I Malformation.1 Dr.

Guthikonda found a ping pong ball-sized nodule located where her

cerebellum met her spinal cord and told Self that the Chiari I Malformation

was likely caused by the swelling from the nodule. He recommended

surgery to remove the mass. On February 8, 2021, Self had a suboccipital

craniotomy performed by Dr. Guthikonda at Willis-Knighton Medical

Center, d/b/a Willis-Knighton Pierremont Heath Center (“Willis Knighton”),

1 A Chiari I Malformation is a condition where the cerebellum bulges through the normal opening at the base of the skull. to remove the mass in her brain. When her family visited her after the

surgery, Self was awake, alert, and smiling. The basis of the instant lawsuit

is the treatment Self allegedly received over the following days and weeks

from various nurses and doctors.2

Self alleges that five nurses provided her with ICU nursing care

between the morning of February 8, 2021, and the evening of February 10,

2021. She alleges that the Willis Knighton nurses did not perform a proper

assessment of her pain, perform proper neurological checks, develop a

proper nursing care plan, or follow doctor’s orders for strict blood pressure

control. For example, Dr. Guthikonda ordered that he be notified if her heart

rate dropped below 60, but Self alleges that nurse Allisha Brown lowered

her pulse rate alarm to 40 and lowered the low O2 sat alarm to 88. Nurse

Brown did not contact Dr. Guthikonda about Self’s low heart rate and did

not advise him that she had lowered the heart rate alarm below the level he

ordered.

While at Willis Knighton, Self was treated by Dr. David Green and

his physician assistant, Amy Fontenot (“Fontenot”), who are both employees

of Pulmonary and Critical Care Specialist (“PCCS”). Self was also treated

by Dr. Jason Nelson, a hospitalist with Willis Knighton. Self details her

inability to do physical therapy over the next several days following surgery

because of her lethargy, vomiting, and severe headache. She states that none

of the above doctors or Fontenot ordered additional diagnostic imaging or

labs despite her condition worsening.

2 As noted below, for the purposes of the disputed exception of prematurity, the court has assumed all facts pled in Self’s petition as true. LaCoste v. Pendleton Methodist Hosp., LLC, 07-0008 (La. 9/5/07), 966 So. 2d 519.

2 The evening of February 10, 2021, while still a patient at Willis

Knighton, Self’s mother noticed Self was not breathing and a code blue was

called. Self was intubated and a CT scan of her brain was performed. Dr.

Guthikonda was in her ICU room that evening but made no notes of his visit.

Two attempts were made to place a ventriculostomy drain,3 but there is no

documentation of what time the drains were attempted or the outcome of the

final drain placement. Dr. Guthikonda performed a second surgery the

evening of February 10, 2021 to decompress her posterior fossa and perform

a craniectomy.4 Self contends that the ICU nurse on duty after her second

surgery did not document anything about the drain, the infusion, and many

other aspects of her care during his nine-hour shift. She argues that a proper

neurological check did not occur until nine hours after her second surgery.

A CT scan performed February 12, 2021 indicated that Self had a

cerebrospinal fluid5 (“CSF”) leak that she argues remained untreated while

at Willis Knighton. Self also alleges that the staples placed during her

second surgery were not removed from her posterior neck incision until five

weeks after the surgery, on March 19, 2021. On April 1, 2021, a nurse

called Dr. Guthikonda because her neck incision was leaking, and he placed

a small stitch at the base of Self’s skull in an attempt to address the leak.

On April 9, 2021, 60 days after her initial surgery, Self was

transferred to a rehabilitation facility in Houston, Texas. Upon her arrival,

3 A ventriculostomy drain is a temporary system that allows drainage of cerebral spinal fluid from the ventricles to an external closed system, in order to alleviate intracranial pressure. 4 A craniectomy is a type of surgery to remove a portion of the skull to relieve extra pressure on the brain. 5 CSF is the fluid that flows in and around the hollow spaces of the brain and spinal cord.

3 the doctors and staff at the rehabilitation facility determined that she was

febrile, tachycardic, had left side pneumothorax, leukocytosis, and had

multiple pressure sores. Her pillow was soaked with CSF fluid that had

likely been present since the stitch was placed in her neck incision eight days

earlier. She was transferred to a hospital in Houston, Texas, where a chest

tube was placed to treat her pneumothorax. She was also diagnosed with

sepsis secondary to the CSF leak and required the placement of a lumbar

drain. It was also discovered that she had several intra-abdominal abscesses

caused by a leaking PEG tub.

Plaintiffs’ petition includes numerous allegations detailing serious

complications that may have been avoided with attentive care. Plaintiffs

allege that due to the willful, deliberate, and intentional choices made by the

defendants, Self now suffers from quadriparesis, remains with a

tracheostomy, requires a feeding tube for nutrition, and does not

communicate. They allege that her care following her surgery and brain

injury led to the development of preventable pressure ulcers, ongoing

infections, and her inability to return home.

On February 8, 2022, Self, her husband, Todd Self, and on behalf of

her children (collectively, “plaintiffs”) filed a petition, making the above

allegations and seeking damages against Dr. Guthikonda, Willis Knighton,

the State of Louisiana, through the Board of Supervisors of Louisiana State

University and Agricultural and Mechanical College, on behalf of LSU

Health Sciences Center-New Orleans, Dr. Green, Fontenot, PCCS, Louisiana

Medical Mutual Insurance Company (“LAMMICO”), Dr. Nelson, and

Contracted Physicians of WKMC (collectively, “defendants”). The

4 defendants filed several dilatory exceptions of prematurity, arguing that

plaintiffs’ claims sound in medical malpractice and are thus premature until

the claims have been reviewed by a medical review panel pursuant to the

Louisiana Medical Malpractice Act. The trial court granted the exceptions

and dismissed all claims against the defendants without prejudice. This

appeal followed.

DISCUSSION

The plaintiffs assert the following two assignments of error:

1. The trial court erred in sustaining defendants’ exceptions raising the objection or prematurity, where defendants failed to meet their burdens of proving that plaintiffs’ allegations of intentional tort fell within the ambit of Title 40.

2. The trial court erred in dismissing plaintiffs’ well-pleaded factual allegations of intentional tort, which should have been allowed to proceed through adjudication.

Considering the above two assignments of error involve the same analysis,

we will address them together.

Any action against health care providers concerning medical

malpractice is subject to the Louisiana Medical Malpractice Act (“LMMA”).

La. R.S. 40:1231.1, et seq.; Medical Review Panel for Lane v. Nexion Health

at Minden, Inc., 53,901 (La. App. 2 Cir. 8/11/21), 326 So. 3d 340, writ

denied, 21-01410 (La. 11/23/21), 328 So. 3d 82. The LMMA requires that

all claims against health care providers be reviewed through a medical

review panel before proceeding to any other court. Id. This filtering process

is done to pressure either the claimant to abandon a worthless claim or the

defendant to settle the case reasonably. Id. However, the LMMA and its

limitations on tort liability for a qualified health care provider apply strictly

5 to claims arising from medical malpractice. All other tort liability on the

part of the qualified health care provider is governed by general tort law.

Coleman v. Deno, 01-1517 (La. 1/25/02), 813 So. 2d 303; McDowell v.

Garden Court Healthcare, LLC, 54,645 (La. App. 2 Cir. 8/10/22), 345 So.

3d 506, writ denied, 22-01364 (La. 11/16/22), 349 So. 3d 999.

A tort suit that is subject to the LMMA that is filed before the

completion of the medical review panel process is subject to dismissal on an

exception of prematurity. McDowell, supra. An action may be premature if

it is brought before the right to enforce the claim sued upon has accrued.

The exception of prematurity, as provided in La. C.C.P. art. 926, raises the

issue of whether the judicial right of action has yet to come into existence

because a prerequisite condition has not been fulfilled. Campbell v. Nexion

Health at Claiborne, Inc., 49,150 (La. App. 2 Cir. 10/1/14), 149 So. 3d 436.

The burden of proving prematurity is on the moving party. In a medical

malpractice action, the moving party must prove that it is entitled to a

medical review panel because the plaintiffs’ allegations fall within the scope

of the LMMA. Kelleher v. Univ. Med. Ctr. Mgmt. Corp., 21-00011 (La.

10/10/21), 332 So. 3d 654.

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., LLC, 07-008 (La. 9/5/07), 966 So.

2d 519; Wendling v. Riverview Care Ctr., LLC, 54,958 (La. App. 2 Cir.

4/5/23), --- So. 3d ---, 2023 WL 2777997. Because the question of whether

a claim sounds in medical malpractice is a question of law, appellate review

6 of the trial court’s grant of the dilatory exception of prematurity is de novo.

Wendling, supra; Jackson v. Willis-Knighton Health Sys., 54,405 (La. App. 2

Cir. 4/13/22), 337 So. 3d 625.

La. R.S. 40:1231.1(A)(13) defines malpractice as:

“Malpractice” means any 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.

Health care is defined as “any act or treatment performed or furnished, or

which should have been performed or furnished, by any health care provider

for, to, or on behalf of a patient during the patient’s medical care, treatment,

or confinement.” La. R.S. 40:1231.1(A)(9). Tort is defined as “any breach

of duty or any negligent act or omission proximately causing injury or

damage to another.” La. R.S. 40:1231.1(A)(22). The LMMA serves to limit

the rights of tort victims, and as such, its coverage should be strictly

construed. Richard v. Louisiana Extended Care Centers, Inc., 02-0978 (La.

1/14/03), 835 So. 2d 460.

The Louisiana Supreme Court set forth a six-factor test to determine

whether a negligent act is covered under the LMMA in Coleman, supra.

Those factors are: 1) whether the particular wrong is “treatment related” or

caused by a dereliction of professional skill; 2) whether the wrong requires

expert medical advice to determine whether the appropriate standard of care

was breached; 3) whether the pertinent act or omission involved assessment

7 of the patient’s condition; 4) whether an incident occurred in the context of a

physician-patient relationship; 5) whether the injury would have occurred if

the patient had not sought treatment; and 6) whether the tort alleged was

intentional. Coleman, supra.

In the present matter, the only disputed Coleman factor is the sixth,

i.e. whether the alleged torts committed by the defendants were intentional.

When analyzing whether acts should be considered intentional, this court has

stated that:

Regarding intentional torts, the meaning of intent is that the person who acts either 1) consciously desire the physical result of his act, whatever the likelihood of that result happening from his conduct; or 2) knows that the result is substantially certain to follow from his conduct, whatever his desire may be as to that result. Thus, intent has reference to the consequences of an act rather than to the act itself. Act is distinguished from intent in that the word act is used to denote an external manifestation of the actor’s will which produces consequences. That act must proceed from volition of the actor. 1 William E. Crawford, Tort Law, § 12:4 in 12 Louisiana Civil Law Treatise (2d ed. 2009). For example, terms such as “should have known” may raise issues of negligence or gross negligence, but do not amount to “intentional” as that term is used in the Worker’s Compensation Act. Id., citing Adams v. Time Saver Stores, Inc., 615 So. 2d 460 (La. App. 4 Cir. 1993), writ denied, 617 So. 2d 910 (La. 1993).

Evans v. Heritage Manor Stratmore Nursing & Rehab. Ctr., LLC, 51,651

(La. App. 2 Cir. 9/27/17), 244 So. 3d 737, writ denied, 17-1826 (La.

12/15/17), 231 So. 3d 639, quoting White v. Glen Retirement Sys., 50,508

(La. App. 2 Cir. 4/27/16), 195 So. 3d 485 (emphasis added). Here, plaintiffs

focus their arguments on the second definition of intentional, arguing that

the defendants were each substantially certain that their actions would result

in harm to Self.

8 An examination of jurisprudence reveals that Louisiana courts have

rarely determined that a health care provider committed an intentional tort

against a patient. For example, this court found that a patient’s claims that

her physician at an inpatient facility sexually abused her were intentional

tort, rather than malpractice, and did not fall under the LMMA. Heacock v.

Cook, 45,868 (La. App. 2 Cir. 12/29/10), 60 So. 3d 624; see also, L.T. v.

Chandler, 40,417 (La. App. 2 Cir. 12/14/05), 917 So. 2d 753; Fuentes v.

Doctors Hosp. of Jefferson, 01-0305 (La. App. 4 Cir. 11/21/01), 802 So. 2d

865. However, in Evans, supra, a nursing assistant went to change the

diaper of a resident, and he physically resisted, striking her in the face. In

return, she struck the patient in the face, cutting his eye and causing

bruising. This court held that striking the patient was not an intentional act

because she did not intend the consequences of her act and his claim was

more in the nature of gross negligence rather than an intentional act. Thus,

the claim sounded in medical malpractice and was subject to the LMMA.

In the present case, for every allegation made in their petition against

each defendant, plaintiffs have stated that the defendants made “willful,

deliberate, and intentional choices” and “these intentional choices made it

predictable or substantially certain harm would occur to Mrs. Self.” This

court has held that something more than a conclusory allegation of

intentional conduct is required. Butler-Bowie v. Olive Branch Senior Care

Ctr., 52,520 (La. App. 2 Cir. 2/27/19), 266 So. 3d 478; see also, Morrow v.

Louisiana Med. Mut. Ins. Co., 22-1006 (La. App. 1 Cir. 2/24/23), --- So. 3d -

--, 2023 WL 2198821. “Where special statutes limit the tort cause of action

to claims based on intentional conduct, the plaintiff is required to allege at

9 least some facts; the mere invocation of the word ‘intentional’ will not create

a cause of action.” Id.

If plaintiffs’ allegations of intentional tort are correct, then every

health care provider who provided care to Self would have consciously

desired the physical result of their acts or known that the result was

substantially certain to follow from their conduct. We do not find this to be

accurate. The allegations made by plaintiffs in their petition are not

intentional torts but, rather, detail allegations of gross negligence and

substandard medical care at all levels of treatment. Simply labeling the

defendants’ actions as intentional is not sufficient to avoid the LMMA and

the required medical review panel. While we find the allegations made

about Self’s treatment to be disturbing on multiple instances, they are

nevertheless subject to the LMMA. We find the defendants satisfied their

burden of proving that plaintiffs’ allegations are subject to the LMMA, and

plaintiffs have failed to plead factual allegations of intentional tort in their

petition. As such, the district court committed no legal error in sustaining

the exceptions of prematurity.

CONCLUSION

For the reasons set forth above, the judgments granting the exceptions

of prematurity are affirmed. All costs are to be paid by the plaintiffs, Crystal

Self, Todd Self, and on behalf of their minor children, Cora Self and Carsyn

Self.

AFFIRMED.