Judgment rendered April 13, 2022. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 54,405-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
SHAWANDA EVANS JACKSON, Plaintiff-Appellant DULY APPOINTED TESTAMENTARY EXECUTRIX OF THE ESTATE OF WILLIE E. JACKSON, JR.
versus
WILLIS-KNIGHTON HEALTH Defendant-Appellee SYSTEM D/B/A WILLIS- KNIGHTON MEDICAL CENTER
Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 622,051
Honorable Ramon Lafitte, Judge
SHAWANDA EVANS JACKSON In Proper Person
WATSON, BLANCHE, WILSON & POSNER Counsel for Appellee By: Shelby G. LaPlante
Before MOORE, ROBINSON, and HUNTER, JJ. MOORE, C.J.
A hospital patient, Willie E. Jackson, brought an action against Willis-
Knighton Medical Center (“Willis-Knighton” or “hospital”) seeking
damages for injuries he sustained when he fell off a gurney while being
transported to a hospital room by hospital employees. The hospital filed an
exception of prematurity on grounds that the plaintiff had not first presented
his claim to a medical review panel (“MRP”). Before the matter was
decided, the plaintiff passed away; his widow, Shawanda Jackson, was
substituted as plaintiff. Following amendments to the original petition and a
hearing on Willis-Knighton’s renewed exception of prematurity, the district
court held that the plaintiff’s claim sounded in medical malpractice, granted
the exception of prematurity, and dismissed the plaintiff’s petition without
prejudice.
This appeal followed. For the following reasons, we affirm.
FACTS
Willie E. Jackson, age 68, filed a “petition for medical malpractice”
on January 30, 2020, alleging that Willis-Knighton committed malpractice
due to substandard medical care while he was a patient being transported on
a gurney to a hospital room. Specifically, he alleged that he was dumped or
allowed to fall off a gurney or stretcher and sustained serious injuries as a
result. Willis-Knighton responded with a dilatory exception of prematurity,
arguing that the medical malpractice claim must be first reviewed by an
MRP convened pursuant to the Louisiana Medical Malpractice Act
(“LMMA” or “the Act”). Although Jackson had filed a complaint with the
Louisiana Division of Administration Patient’s Compensation Fund for
appointment of an MRP just nine days before he filed the petition, the complaint was not reviewed by an MRP before he filed his petition for
medical malpractice in district court.
A hearing on Willis-Knighton’s exception was initially set for July 27,
2020, but Jackson passed away one week before the scheduled hearing. The
matter was continued. His wife, Shawanda Evans Jackson, appearing pro se
as executrix of his estate, was substituted as party plaintiff. Ms. Jackson
also filed an amended petition, dropping the original allegations of medical
malpractice; instead, she characterized the claim as a “petition for damages”
for general negligence, thereby attempting to avoid an MRP.
Factually, the amended petition alleged that on January 31, 2019,
Jackson was admitted to the emergency room of Willis-Knighton North
about 2:30 p.m., after becoming disoriented at a dialysis center. A series of
tests, including a CT scan and MRI, indicated that he suffered a series of
mini-strokes, sometimes called transient ischemic attacks (“TIAs”). As his
condition improved and he became coherent, he was in the process of being
transported to a hospital room when the accident occurred. The petition
alleged that while the two hospital employees were rolling the gurney into
the elevator, Jackson was dumped or fell from the gurney or stretcher. The
petition alleged that Jackson suffered injuries, including a swollen face,
bruises, an eye injury, and humiliation because the employees laughed at
him. Further, the injury caused his mental status to deteriorate such that he
could not talk or move, and had bruises all over his body.
A hearing on the exception of prematurity was finally held on March
15, 2021. At the hearing, the court explained to Ms. Jackson the MRP
process was required by law and that her petition could not be filed until that
process had run its course, that she would not be prejudiced by whatever 2 decision the MRP rendered, and she could still file a suit if she was not
satisfied by the MRP’s decision. Nevertheless, Ms. Jackson persisted in her
position that her claim lay outside the LMMA, and she persuaded the court
to allow her to amend her petition again. The court gave Ms. Jackson two
weeks to amend her petition and reset a hearing for June 28, 2021.
Ms. Jackson timely filed an “amended petition for general damages
under Louisiana premise liability.” The operative new allegation reads:
Additional Facts that defendants had actual knowledge of the defective elevator incident at its facility . . . on February 1, 2019 at 10:45 a.m., at time they Hit and Dumped Patient, Willie E. Jackson, Jr. Entire (270 lbs.) Body into the Elevator’s floor and wall and allowed the unsafe Stretcher to Hit and/or assault; Causing severe injuries to head, face and entire body at or about that time and place the accident occurred. (Emphasis in original.)
The petition further alleged that Willis-Knighton had actual knowledge of
Jackson’s preexisting condition (TIAs) that hastened his death, and actual
knowledge that the elevators are not covered by the LMMA. It alleged
Jackson was an “inpatient/invitee” covered by Louisiana premise liability
law.
At the June 28, 2021, hearing, Ms. Jackson argued that Willis-
Knighton’s employees transporting Jackson on the gurney “dumped him in
the elevator as a result of the malfunctioning elevator not being level, which
is outside the scope of medical malpractice.” She argued that “it is not
malpractice” because “[t]he elevator is what caused it.”
Willis-Knighton argued that notwithstanding how the plaintiff styled
her petition, the allegations fell within the scope of the LMMA, which
applies to any unintentional tort based on health care or professional
3 services, including handling a patient, loading and unloading a patient, or
transporting a patient.
The district court agreed. It granted Willis-Knighton’s exception of
prematurity and dismissed the petition without prejudice.
This appeal followed.
DISCUSSION
On appeal, the pro se plaintiff asserts three assignments of error that
have no bearing on the judgment appealed from or on any issue of law
before the court, namely, whether the judgment granting the exception of
prematurity dismissing the petition without prejudice was correct.
Accordingly, we defer discussion of the merits of the assignments raised by
the plaintiff until the end of this opinion.
The LMMA governs medical malpractice claims filed in the State of
Louisiana. La. R.S. 40:1231.1 et seq. The Act defines “malpractice” as
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[.] (Emphasis added.)
La. R.S. 40:1231.1 A(13).
A medical malpractice claim against a private qualified health care
provider is subject to dismissal on an exception of prematurity if the claim
has not first been presented to a medical review panel. La. R.S. 40:1231.8
B; Matherne v. Jefferson Parish Hosp. Dist. No. 1, 11-1147 (La. App. 5 Cir.
5/8/2011), 90 So. 3d 534, writ denied, 12-1545 (La. 10/12/12), 98 So. 3d
873. Because the question whether a claim sounds in medical malpractice is
4 a question of law, appellate review of the trial court’s grant of the dilatory
exception of prematurity is de novo. Id.
In Coleman v. Deno, 01-1517 (La. 1/25/02), 813 So. 2d 303, the
Louisiana Supreme Court set out a six-factor test to determine if a negligent
act is covered by the LMMA. These 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 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.
(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.
Coleman, supra at pp. 17-18, 813 So. 2d at 315-16.
Ms. Jackson maintains, however, that her claim is not based in
medical malpractice or any breach of a professional skill. Rather, after two
attempts to move the claim outside the LMMA by amending the original
petition expressly alleging medical malpractice, she now couches her claim
as a premises liability claim, alleging that the elevator and/or the gurney
were defective, and she attributes the act or agency of Mr. Jackson’s fall to
these factors rather than any act or omission by hospital medical staff or
employees.
In Blevins v. Hamilton Med. Ctr., Inc., 07-127 (La. 6/29/07), 959 So.
2d 440, a case listed in the table of authorities in Ms. Jackson’s appeal brief, 5 a patient brought a personal injury action against the hospital for injuries he
sustained when he fell in his hospital room. He alleged that his hospital bed
rolled when he attempted to get out of the bed to use a bedside commode;
the movement of the bed caused him to lose his balance and fall, tearing the
meniscus of his right knee. The plaintiff filed a request for an MRP, and
filed a petition for damages in district court, alleging nine acts of negligence,
designated by the letters (a) through (i), that proximately caused his injury.
The hospital filed a dilatory exception of prematurity, which the
district court granted with respect to six of the allegations of medical
malpractice, but denied with respect to allegations (g), (h), and (i):
(g) Failing to furnish patient with equipment in proper working condition;
(h) Failing to keep the patient’s bed in the lowest position with the wheels locked; and
(j) Failing to properly instruct the patient on the proper use and safety with regard to his bed.
The district court concluded that those three allegations sounded in
ordinary negligence and could proceed in district court.
A five-judge panel of the Third Circuit granted the hospital’s
supervisory writ (3-2), made it peremptory, and granted the dilatory
exception as to all allegations, concluding that all fell under the LMMA.
The two dissenters disagreed with the majority opinion “because the faulty
equipment at issue is not intricately connected to the medical care provided
by the hospital.” Id. at p. 3-4, 959 So. 2d at 443.
The Supreme Court granted the plaintiff’s writ application.
Importantly, it noted that the suit was against a qualified health care provider
brought to recover for an injury allegedly sustained due to a patient’s contact
6 with faulty equipment. Specifically, when the plaintiff put pressure on the
allegedly unlocked or defective bed, it rolled, causing him to lose his
balance and fall. Id. at p. 8, 959 So. 2d at 446. The court then applied the
Coleman factors.
The court stressed the first Coleman factor, whether the particular
wrong was treatment-related or dereliction of a professional skill. Because
Blevins was in the hospital for treatment of a groin infection, but the
particular wrong alleged was “furnishing equipment not in proper working
order,” it concluded that the incident had nothing to do with the condition or
treatment for which he was hospitalized.
The court also concluded that no medical expert testimony would be
needed to determine if the bed was defective or whether failing to lock the
bed for a hospital patient is negligent or to determine the proper maintenance
procedures regarding the bed. Hence, the court concluded that the second
factor sounded in general negligence, not medical malpractice.
Under factor three, whether the act or omission involved assessment
of the patient’s condition, the court concluded that keeping a hospital bed at
its lowest position or locking the wheels, or instruction as to safety, did not
require a medical assessment of the patient’s condition by a hospital
employee, especially since the failure to provide proper working equipment
or instruct the patient had nothing to do with the groin infection for which
the plaintiff was hospitalized.
The court in Blevins went on to conclude that the remaining three
Coleman factors favored the plaintiff’s argument that the claim was not
covered by the Act. The incident did not occur in the context of a physician-
patient relationship or within the scope of activities which a hospital is 7 licensed to perform; any person, patient, or visitor not seeking treatment,
who put pressure on the bed, could have suffered the injury; and, since there
was no allegation of an intentional tort, the sixth Coleman factor did not
require consideration.
The court reversed the Third Circuit’s judgment and reinstated the
ruling of the district court allowing the three general negligence claims to
proceed in district court while the other six allegations in medical
malpractice would be considered by an MRP.
After review of the circumstances of this case in light of the current
jurisprudence and the Coleman factors, we find that the facts of Blevins are
easily distinguished from the instant case.
The Blevins court found that the all-important first Coleman factor,
whether the particular wrong is treatment related or caused by a dereliction
of professional skill, clearly favored the plaintiff for the reasons already
discussed, but particularly because Blevins was not being loaded, unloaded,
or transported to or from medical treatment when the incident occurred.
By contrast, in this case, Jackson was being transported on a gurney or
stretcher by hospital staff from the emergency room to a hospital bed
following treatment and CT and MRI tests by medical professionals and it
was determined that he was stable enough to be moved to a room.
Regarding Ms. Jackson’s attempt to phrase her claim in terms of
general negligence and/or premises liability with respect to the gurney and
the elevator, this case is more analogous to Dupuy v. NMC Operating Co.,
15-1754 (La. 3/15/16), 187 So. 3d 436. In Dupuy, a patient sustained a post-
operative bone infection, osteomyelitis, following spine surgery. He and his
wife filed a petition against the hospital, alleging, inter alia, that the hospital 8 failed to properly maintain and service equipment, including the washers and
sterilizers used to sterilize the equipment used in plaintiff’s surgery.
The issue before the court, then, was whether the allegation of failure
to maintain and service sterilization equipment falls within the LMMA. The
court analyzed the question using the Coleman factors. It distinguished
Blevins, supra, where the injury sustained by the plaintiff from the defective
bed was not related to the treatment for which he was hospitalized. It
concluded that proper sterilization of the instruments was at the very core of
the “treatment,” back surgery, for which Dupuy was hospitalized.
After reaching the same conclusion that the other relevant Coleman
factors favored the hospital, the court held that the allegation that the
hospital failed to properly maintain and service equipment utilized in the
sterilization of surgical instruments for treatment of a patient falls within the
LMMA and must be submitted for review by an MRP before suit may be
filed.
Numerous cases have held that incidents similar to the instant case
constituted medical malpractice claims:
In Matherne v. Jefferson Parish Hosp. Dist. No. 1, supra, a patient
and her husband sued the hospital in district court for damages after the
patient fell while being transported by a hospital employee to her hospital
room. The court sustained the hospital’s exception of prematurity stating
that the claim sounded in medical malpractice and must be presented to a
medical review panel.
In Andrews v. Our Lady of the Lake Ascension Comty. Hosp. Inc.,
2013-1237 (La. App. 1 Cir. 12/18/14), 142 So. 3d 36, hospital staff allegedly
dropped a patient while moving her from a bed to a wheelchair. The petition 9 also alleged that the bed or the wheelchair or both were defective. The trial
court sustained the hospital’s exception of prematurity, noting that the fact
that plaintiff may have made allegations sounding in both medical
malpractice and general tort law does not remove her petition from the
penumbra of the LMMA if a claim for medical malpractice is stated. Id. at
p. 3-4, 142 So. 3d at 38.
In Richard v. Louisiana Extended Care Ctrs. Inc., 02-0978 (La.
1/14/03), 835 So. 2d 460, a 92-year-old double amputee fell from her
wheelchair while being transported by nursing home staff. The Louisiana
Supreme Court found that plaintiff’s allegations involved the negligent
handling, including loading and unloading, of a patient. Id. at p.12, 835 So.
2d at 468.
Finally, in Cashio v. Baton Rouge Gen’l Hosp., 378 So. 2d 182 (La.
App. 1 Cir. 1979), the First Circuit rejected the plaintiff’s argument that he
was suing the hospital as a premises owner rather than a healthcare provider
to avoid the LMMA. The court noted that a plaintiff cannot control the
progress and procedure of his claim by semantically designating one
capacity out of two or more capacities of the defendant when the statute
requires an MRP procedure if the claim fits within its definition. Id. at 185.
The court concluded that the plaintiff’s claim could reasonably be said to fall
under the LMMA and should be handled by its procedure, “even though
there may be alternative theories for liability.” Id.
In light of these cases, we conclude that Ms. Jackson’s claim arose out
of the transport of her husband from medical treatment to his hospital room
and is therefore “treatment related” within the meaning of the LMMA and
the first factor of Coleman. 10 Further, under Coleman factor number two, whether expert testimony
is required, such testimony would be necessary here. Clearly no expert is
required to testify whether a gurney has a broken wheel, or whether, as Ms.
Jackson now alleges, the elevator floor was not even with the lobby floor.
On the other hand, hospitals have protocols regarding transporting patients
that include an assessment by medical staff whether the side rails of a gurney
should be raised to keep the patient from rolling off, or whether the patient
was assessed to determine if restraints should have been used. These
important factors require expert testimony to explain the protocols and
assessments.
The hospital staff’s decision to transport Jackson on a gurney to a
hospital room, with or without restraints, necessarily involved an assessment
of his condition, the third Coleman factor, and indicates this claim should be
reviewed under the LMMA.
The fourth Coleman factor asks whether the incident occurred in the
context of a physician-patient relationship, or was within the scope of
activities which a hospital is licensed to perform. Although the incident did
not occur in the context of a physician-patient relationship, it did occur
within the scope of activities which a hospital is licensed to perform. Willis-
Knighton is the major hospital in the Shreveport area and it admits patients
to its emergency room for medical treatment. Part of that treatment involves
a medical determination of whether a patient should be admitted to a
hospital room for further treatment, which necessarily requires transporting,
loading, and unloading the patient. In this case, Jackson was admitted to the
hospital for treatment through the emergency room; the incident occurred
while he was being transported to his hospital room, a necessary part of 11 licensed medical treatment. We find that factor four of Coleman has been
met.
The fifth factor of Coleman requires a determination whether the
injury Jackson suffered would have occurred if he had not sought medical
treatment. Since the injury occurred during his treatment, or was “treatment
related” as he was being transported to his hospital room for further care
after treatment and tests in the emergency room, we conclude that the injury
would not have occurred if Jackson had not sought treatment.
We further find that the sixth factor of Coleman does not apply in this
case. Although the petition alleged that the hospital staff transporting
Jackson “dumped” him on the floor, this allegation does not appear to be
referring to any intentional act on the part of the hospital employees.
After review of the jurisprudence and application of the Coleman
factors to the allegations of this petition, we conclude that the claims fall
within the purview of the LMMA. We therefore affirm the judgment of the
trial court sustaining the dilatory exception of prematurity.
Finally, we consider the three assignments raised by Ms. Jackson.
In her first assignment, she complains that she first filed a complaint
requesting an MRP before filing suit in district court. Indeed this was
accomplished, nine days before suit was filed. However, any complaint so
filed must also be reviewed by the panel before suit may be filed. La. R.S.
40:1231.8 B(1)(a)(i). We note that this review procedure is required in all
medical malpractice cases unless the use of the MRP is waived by
agreement of all parties pursuant to La. R.S. 40:1231.8 B(1)(a)(ii)(c). There
has been no such agreement by the parties in this case. This assignment is
without merit. 12 In her second assignment, she appears to claim that Willis-Knighton
changed or altered a court order setting a hearing on the exception from 15
days to 9 days. The transcript of the March 15, 2021, hearing shows that the
trial court gave her 15 days to amend her petition; she received an additional
15 days thereafter; and a hearing was set by the court for June 28, 2021.
This assignment is without merit.
In her third assignment, she contends that Willis-Knighton
“defaulted” by failing to file an answer to her “amended petition from
medical malpractice to premise liability.” Neither this issue, nor any
objection, was raised at the trial court; accordingly, there is no judgment or
ruling subject to review. This assignment is without merit.
CONCLUSION
For the foregoing reasons, the judgment of the trial court granting
Willis Knighton’s dilatory exception of prematurity and dismissing Ms.
Jackson’s petition and amended petitions without prejudice is affirmed. All
costs are to be paid by Shawanda Evans Jackson.
AFFIRMED.