STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2019 CA 1463
WILLIAM COOK & RENEE SOILEAU
VERSUS
CARL SWAYZE RIGBY, M. D. & LOUISIANA MEDICAL MUTUAL INSURANCE COMPANY
Judgment Rendered: APR 13 2021
On Appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana
Docket No. C633382
Honorable William A. Morvant, Judge Presiding
Michael C. Palmintier Counsel for Plaintiffs/ Appellants Baton Rouge, Louisiana William Cook & Renee Soileau
Hebert J. Mang, Jr. Counsel for Defendants/ Appellees Tara S. Bourgeois Carl Swayze Rigby, M. D. & Carey M. Nichols Louisiana Medical Mutual Insurance Nancy B. Roberts Company Jonathan Thomas Baton Rouge, Louisiana
Douglas K. Williams Counsel for Defendant/ Appellee Chris D. Billings Our Lady of the Lake Hospital, Inc. Kelsey A. Clark Katherine D. Cook Baton Rouge, Louisiana
Vance A. Gibbs Counsel for Defendants/ Appellees Randal R. Cangelosi Matthew A. Stair, M. D., Michael L. Jason R. Cashio Bruce, M. D., David W. Walker, M. D., Baton Rouge, Louisiana Radiology Associates, LLC & Louisiana Medical Mutual Insurance Company
BEFORE: McCLENDON, WELCH, AND HOLDRIDGE, 33. McCLENDON, J.
The plaintiffs appeal a trial court judgment in favor of the defendant hospital,
sustaining its peremptory exception raising the objection of prescription and dismissing the plaintiffs' claims against it with prejudice. For reasons that follow, we affirm the
judgment of the trial court.
BACKGROUND
On July 20, 2012, William Cook underwent a mitral valve repair surgery
performed by Dr. Carl Swayze Rigby. In January of 2013, Mr. Cook' s cardiologist
discovered a retractor bolt in Mr. Cook's pericardium, which purportedly had fallen from
the Cosgrove Valve Retractor System used during the 2012 surgical procedure. On July
19, 2013, Cook and his wife, Renee Soileau, filed a complaint against Dr. Rigby with the
Patient' s Compensation Fund ( PCF) to establish a medical review panel in accordance
with the provisions of the Louisiana Medical Malpractice Act ( LMMA). However, after a
panel chairman was not appointed within one year pursuant to LSA- R. S. 40: 1299. 47
currently LSA- R. S. 40: 1231. 8), the claim was dismissed.' Thereafter, on September 9,
2014, the plaintiffs filed the instant medical malpractice suit against Dr. Rigby and his
insurer, Louisiana Medical Mutual Insurance Company ( LAMMICO). z
On July 13, 2018, the plaintiffs filed an amended and supplemental petition
naming Kapp Surgical Instrument, Inc. ( Kapp), Our Lady of the Lake Hospital, Inc.
OLOL), Radiology Associates, LLC ( Radiology Associates), Matthew Allen Stair, M. D.,
Michael Lynn Bruce, M. D., David Wyman Walker, M. D., and their insurer, LAMMICO, as
defendants.3 Kapp and OLOL were added as defendants based on allegations that the
retractor bolt was manufactured by Kapp and owned and maintained by OLOL. The
allegations against Drs. Stair, Bruce, and Walker and Radiology Associates ( the
1 Pursuant to House Concurrent Resolution No. 84 of the 2015 Regular Session, Title 40 was recodified in its entirety and the LMMA, formerly cited as LSA- R. S. 40: 1299. 41, et seq., was redesignated as LSA- R. S. 40: 1231. 1, etseq. In particular, LSA- R. S. 40: 1299. 47 was redesignated as LSA- R. S. 40: 1231. 8. For ease of reference, all citations hereinafter are to the current statutory designation. See Kirt v. Metzinger, 19- 1162 ( La. 4/ 3/ 20), — So. 3d n. 3.
z The plaintiffs also asserted constitutional challenges to the LMMA. The parties subsequently agreed to bifurcate the plaintiffs' claims that the LMMA was unconstitutional from the plaintiffs' claims of medical malpractice.
3 The plaintiffs also filed a request for a medical review panel as to these defendants on July 13, 2018.
2 radiology defendants) were based on their negligent interpretation of radiological
images.
Subsequently, OLOL, as well as the radiology defendants, filed dilatory
exceptions raising the objection of prematurity. With regard to its objection of
prematurity, OLOL asserted that the plaintiffs' claims against it fell within the ambit of the LMMA and, therefore, had to be submitted to a medical review panel. On January
31, 2019, following a hearing, the trial court sustained the exceptions of prematurity
and stayed the proceeding as to the newly added defendants pending completion of the
medical review panel.
Thereafter, on May 31, 2019, OLOL filed a peremptory exception raising the
objection of prescription, asserting that Mr. Cook's surgical procedure took place on July
20, 2012, that Mr. Cook was informed in January of 2013 that the retractor bolt from a
surgical instrument was left in his body, and that the plaintiffs had filed a claim with the
PCF against only Dr. Rigby and LAMMICO. 4 Therefore, OLOL contended, prescription
was not suspended or interrupted against it, and the claims asserted by the plaintiffs in
July of 2018, were filed more than three years after the alleged act, omission, or
neglect. See LSA- R. S. 9: 5628A. 5
In opposition to the exception, the plaintiffs asserted that they did not know until
September 27, 2017, when Dr. Rigby supplemented answers to interrogatories
propounded to him, that Dr. Rigby intended to " allege that equipment failure or
malfunction of the Cosgrove Valve Retractor System used by him" during Mr. Cook's
July 20, 2012 surgery caused or contributed to Mr. Cook' s damages. Dr. Rigby also
gave an interrogatory response that OLOL was the owner of and the party responsible
for maintaining the Cosgrove Valve Retractor System. Therefore, according to the
4 We note that when OLOL filed its exception of prescription, it asserted that the plaintiffs' claims against OLOL were pending before the PCF.
5 Louisiana Revised Statutes 9: 5628A provides:
No action for damages for injury or death against any ... hospital ... duly licensed under the laws of this state, ... whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.
3 plaintiffs, Dr. Rigby expressly asserted that OLOL was a joint tortfeasor who caused or
contributed to Mr. Cook's damages, and, pursuant to LSA- C. C. art. 2324C, interruption
of prescription as to one joint tortfeasor was effective against all joint tortfeasors.6
Accordingly, the plaintiffs argued, the timely filed suit against Dr. Rigby interrupted
prescription as to OLOL. Further, although the plaintiffs recognized the case law cited
by OLOL that all potential medical malpractice defendants must be added within ninety
days of the dissolution of the medical review panel as provided in LSA- R. S.
40: 1231. 8A( 2), they suggested that this should not be the case when a defendant
conceals knowledge of a potentially liable party.
Following a hearing on the exception, the trial court found that the plaintiffs'
claims against OLOL had prescribed. Accordingly, on July 23, 2019, the trial court
signed a judgment sustaining the exception of prescription and dismissing the plaintiffs'
claims against OLOL with prejudice.
The plaintiffs now appeal the trial court's July 23, 2019 judgment sustaining the
exception of prescription, as well as the trial court's January 31, 2019 interlocutory
judgment sustaining OLOL's exception of prematurity.' Dr. Rigby and LAMMICO have
filed an answer to the appeal " out of an abundance of caution." 8
DISCUSSION
The Louisiana Legislature enacted the LMMA in response to a perceived medical
malpractice insurance crisis. Williamson v. Hospital Serv. Dist. No. 1 of
Jefferson, 04- 0451 ( La. 12/ 1/ 04), 888 So. 2d 782, 785. The legislature intended the
LMMA to reduce or stabilize medical malpractice insurance rates and to assure the
availability of affordable medical service to the public by giving qualified health care
providers two advantages: a limit on the amount of damages, and the right to an
6 Louisiana Civil Code article 2324C provides that "[ i] nterruption of prescription against one joint tortfeasor is effective against all joint tortfeasors."
When an unrestricted appeal is taken from a final judgment, the appellant is entitled to seek review of all adverse interlocutory judgments prejudicial to him, in addition to the review of the final judgment. Judson v. Davis, 04- 1699 ( La. App. 1 Cir. 6/ 29/ 05), 916 So. 2d 1106, 1112, writ denied, 05- 1998 ( La. 2/ 10/ 06), 924 So. 2d 167.
B In their answer to the appeal, Dr. Rigby and LAMMICO admitted that they were not parties to OLOL's exception of prescription and did not seek to have the trial court's judgment sustaining the exception modified, revised, or reversed. They stated that their answer to the appeal was filed ` but of an abundance of caution" in order to preserve their right to contest whether a contra non valentem exception to LSA- R. S. 9: 5628 should be applied to the facts of this case.
19 opinion from a medical review panel before a plaintiff may proceed in litigation. Dupuy
v. NMC Operating Co., L. L. C., 15- 1754 ( La. 3/ 15/ 16), 187 So. 3d 436, 439. As such,
the LMMA is special legislation in derogation of the rights of tort victims, and the
coverage of the act should be strictly construed. Billeaudeau v. Opelousas Gen.
Hosp. Auth., 16- 0846 ( La. 10/ 19/ 16), 218 So. 3d 513, 520.
The rules governing the time within which a medical malpractice action can be
brought are clearly set forth in LSA- R.S. 9: 5628A, which provides, in pertinent part:
No action for damages for injury or death against any ... hospital ... duly licensed under the laws of this state, ... whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.
Both the one-year and three-year periods set forth in LSA- R. S. 9: 5628 are prescriptive,
with the qualification that the contra non va/entem type exception to prescription
embodied in the discovery rule is expressly made inapplicable after three years from the
act, omission, or neglect. Borel v. Young, 07- 0419 ( La. 11/ 27/ 07), 989 So. 2d 42, 69
on rehearing).
Ordinarily, the party pleading prescription bears the burden of proving that the
claim has prescribed. However, if prescription is evident on the face of the pleadings,
the burden shifts to the plaintiff to show that the action has not prescribed. Campo v.
Correa, 01- 2707 ( La. 6/ 21/ 02), 828 So. 2d 502, 508. At the hearing on the exception
raising the objection of prescription, evidence may be introduced to support or
controvert the exception. See LSA- C. C. P. art. 931. When, as in this case, evidence is
introduced at the hearing on the peremptory exception of prescription, the trial court's
findings of fact are reviewed under the manifest error -clearly wrong standard of review.
Carter v. Haygood, 04- 0646 ( La. 1/ 19/ 05), 892 So. 2d 1261, 1267.
In their appeal, the plaintiffs acknowledge that the prescriptive period set forth in
the LMMA should be applied to qualified health care providers and that the suspension
of prescription during and immediately after the medical review panel should be applied
to all joint obligors, as clearly expressed in the LMMA. However, they argue, because
E the LMMA is to be strictly construed, the effects of the LMMA on non -health care 9 providers should not be extended any further. The plaintiffs assert that OLOL
successfully, although incorrectly, invoked the LMMA in order to be dismissed from this litigation on prescription grounds, even where it was acting in a fashion decidedly
outside the scope of medical malpractice. Accordingly, the plaintiffs argue, " the
procedural particularities of the LMMA have be[ en] extended beyond their intended
limits." The plaintiffs maintain that their claim against OLOL is as a negligent product
owner unrelated to medical treatment and not within the ambit of the LMMA.
Accordingly, the plaintiffs allege that they should benefit from the interruption of
prescription and relation back principles as set forth in the Civil Code and the Code of
Civil Procedure, in addition to the suspension of prescription provision of the LMMA. As
such, the plaintiffs contend that the trial court erred in sustaining OLOL' s peremptory
exception raising the objection of prescription.
In support of this argument, the plaintiffs contend that, although OLOL is a well-
known health care provider, OLOL was added as a defendant when Dr. Rigby implicated
OLOL as the owner and the party responsible for maintaining the Cosgrove Valve
Retractor System. The plaintiffs suggest that OLOL should not be considered a health
care provider for the purposes of this litigation, arguing that its role in this case stems
solely from its responsibility as the owner and custodian of the product, not under any
relationship to the patient. They argue that their allegations against OLOL do not
constitute " malpractice" and therefore, the LMMA does not apply. Thus, according to
the plaintiffs, their claim against OLOL is timely. Contrarily, OLOL argues that the
plaintiffs' claim against it clearly sounds in medical malpractice and falls within the
ambit of the LMMA.
The Louisiana Supreme Court has determined that medical malpractice claims
against health care providers are governed by the specific provisions of the LMMA
9 Specifically, the plaintiffs argue that the Louisiana Supreme Court cases of LeBreton v. Rabito, 97- 2221 ( La. 7/ 8/ 98),714 So. 2d 1226, Borel, 989 So. 2d 42 ( on rehearing), and Warren v. Louisiana Medical Mut. Ins. Co., 07- 0492 ( La. 12/ 2/ 08), 21 So. 3d 186, 207 ( on rehearing), discussed hereafter, dealt exclusively with qualified health care provider defendants, and do not apply to non -health care provider defendants. Therefore, according to the plaintiffs, the provisions of the Civil Code and the Code of Civil Procedure on the interruption of prescription and relation -back principles still apply to a non- health care provider.
0 regarding suspension of prescription to the exclusion of the general civil code articles on interruption of prescription. 10 LeBreton v. Rabito, 97- 2221 ( La. 7/ 8/ 98), 714 So. 2d
1226, 1230. In Borel, 989 So. 2d at 68, the supreme court extended the holding of
LeBreton and held that the specific provisions of the LMMA regarding the suspension
of prescription against joint tortfeasors applied to the exclusion of the general code
article on interruption of prescription against joint tortfeasors. Thereafter, in Warren
v. Louisiana Medical Mut. Ins. Co., 07- 0492 ( La. 12/ 2/ 08), 21 So. 3d 186, 207 ( on
rehearing), the supreme court reaffirmed its prior holdings in Borel and LeBreton and
rejected the application of LSA- C. C. arts. 3462 and 2324C regarding the interruption of
prescription, as well as the application of LSA- C. C. P. art. 1153 regarding relation -back
principles, in medical malpractice actions, finding the LMMA provisions to be exclusive."
See Warren, 21 So. 3d at 206- 08. 12 However, the supreme court did not address
whether the interruption of prescription and relation -back principles in LSA- C. C. arts.
3462 and 2324C and LSA- C. C. P. art. 1153 would be available to a non -health care
provider in addition to the suspension of prescription principle set forth in the LMMA.
Subsequent to these supreme court decisions, as well as the trial court's
judgment sustaining the exception of prescription in this matter and the lodging of the
appeal, the first circuit decided two related companion cases, one involving the
radiology defendants and the other concerning Kapp, the manufacturer of the retractor
10 Louisiana Revised Statutes 40: 1231. 8 provides, in pertinent part:
The filing of a request for review of a claim shall suspend the running of prescription against all joint and solidary obligors, and all joint tortfeasors, including but not limited to health care providers, both qualified and not qualified, to the same extent that prescription is suspended against the parry or parties that are the subject of the request for review.
LSA- R. S. 40: 1231. 8A( 2)( a ).
11 Louisiana Civil Code article 3462 provides that prescription is interrupted when the obligee commences an action against the obligor in a court of competent jurisdiction and venue. Additionally, LSA- C. C. P, art. 1153 provides that "[ w] hen the action or defense asserted in the amended petition or answer arises out
of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading."
12 Subsequently, the supreme court in Milbert v. Answering Bureau, Inc., 13- 0022 ( La. 6/ 28/ 13), 120 So. 3d 678, determined that if a non -health care provider is a joint tortfeasor with a health care provider, once a request for a medical review panel is filed, the rules that suspend the running of prescription against a health care provider, qualified or not qualified, will be applied to a non -health care provider. Milbert, 120 So. 3d at 686.
7 system .13 In Cook v. Rigby, 19- 1475 ( La -App. 1 Cir. 11/ 25/ 20), So. 3d , writ
denied, 20- 01493 ( La. 3/ 9/ 21), So. 3d ( Cook 1), this court held that the
plaintiffs' medical malpractice claims against the radiology defendants were prescribed,
in light of the decisions in Warren, Borel, and LeBreton. In Cook 1, the plaintiffs
made the argument, as here, that potentially liable medical malpractice defendants
could delay revealing or conceal malpractice committed by other parties. However, this
court rejected the plaintiffs' argument and found no legal authority to support the
application of the general Civil Code and Code of Civil Procedure articles relative to the
interruption of prescription and relation -back principles in the plaintiffs' medical
malpractice action against these qualified health care providers. Therefore, because
the alleged negligent interpretation of Mr. Cook' s x- rays by the radiology defendants
occurred in July of 2012 and because the plaintiffs' petition and complaint with the PCF
were both filed more than three years later in July of 2018, the plaintiffs' claims filed
against the radiology defendants almost six years after the alleged acts, omission, or
neglect, were prescribed pursuant to LSA- R. S. 9: 5628A. Cook, So. 3d at
Thereafter, another panel of this court decided Cook v. Rigby, 19- 0637
La. App. 1 Cir. 12/ 2/ 20), So. 3d , writ denied, 20- 1504 ( La. 3/ 9/ 21) ( Cook 2).
Cook 2 involved Kapp, the manufacturer of the Cosgrove Valve Retractor System, and
specifically addressed whether the Civil Code articles on interruption of prescription
applied to a non -health care provider joint tortfeasor. 14 The majority in Cook 2 stated
that the LMMA was never intended to protect non -health care providers, such as Kapp,
and was never intended to apply to any claims other than malpractice claims.
Therefore, the majority concluded that where a non -health care provider was named as
a joint tortfeasor, applying the provisions of the LMMA to the exclusion of the general
coda( articles on the interruption of prescription for joint tortfeasors did not serve to
facilitate any purpose of the LMMA. Accordingly, the majority in Cook 2 held that the
plaintiffs were able to benefit from the suspension of prescription under the LMMA, as
13 We note that the arguments were broader in the parties' appellate briefs, as they were filed before this court's decisions in the Cook cases.
14 The author of this opinion dissented in the Cook decision involving Kapp. well as the general rules of interruption of prescription against a non -health care
provider joint tortfeasor. Thus, the plaintiffs' claims against Kapp were timely, since the
applicable one-year prescriptive period was interrupted by the filing of their timely suit
against Dr. Rigby. Cook, So. 3d at
With this framework in mind, in order to determine whether the plaintiffs' claim
against OLOL in the case before us is prescribed, we must first determine whether the
claim against OLOL is a malpractice claim subject to the provisions of the LMMA. The
LMMA defines " malpractice" in LSA- R.S. 40: 1231. 1A( 13), as follows:
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.
Additionally, the LMMA defines " health care" as:
Health care" means 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, or during or relating to or in connection with the procurement of human blood or blood components.
LSA- R. S. 40: 1231. 1A( 9).
In Coleman v. Deno, 01- 1517 ( La. 1/ 25/ 02), 813 So. 2d 303, the Louisiana
Supreme Court set forth six factors to assist a court in determining whether certain
conduct by a qualified health care provider constitutes " malpractice" as defined under
the LMMA:
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;
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;
9 5) whether the injury would have occurred if the patient had not sought treatment; and
6) whether the tort alleged was intentional.
Coleman, 813 So. 2d at 315- 16. If the allegations sound in medical malpractice, the
case must proceed in accordance with the protocol set forth in the LMMA to the
exclusion of the codal articles on the interruption of prescription. If, on the other hand,
the allegations sound in general negligence, the case should proceed under general tort
law, and the plaintiffs would have the benefit of interruption of prescription. See
Dupuy, 187 So. 3d at 440. 15 The issue of whether a claim sounds in medical
malpractice is a question of law conducted under a de novo standard of review.
Arrington v. St. Tammany Parish Hospital Service District No. 1, 18- 0215
La. App. 1 Cir. 10/ 31/ 18), 267 So. 3d 618, 622.
With regard to the first Coleman factor, the plaintiffs argue that the alleged
wrong was not " treatment related." Rather, they assert that OLOL's failure to account
for how many bolts were in the Cosgrove Valve Retractor System prior to and after
surgery, failure to inspect the functioning of the device and security of the bolts prior to
surgery, and failure to notify that a bolt was missing, are all matters unrelated to
medical treatment and do not involve dereliction of professional skill. We disagree.
In this matter, the Cosgrove Valve Retractor System was utilized by Dr. Rigby to
hold Mr. Cook' s sternal incision apart during the valve repair surgery, and the retractor
bolt allegedly fell into Mr. Cook' s chest during the surgical procedure. Ensuring the
proper maintenance of equipment at the hospital chosen for surgery is directly related
to the surgical treatment Mr. Cook received. See Dupuy, 187 So. 3d at 441- 42.
Further, there is no requirement that an action must be contemporaneous with a
patient's treatment in order to fall under the LMMA. Indeed, the LMMA itself specifically
provides that failures in the " training and supervision" of health care providers is within
the definition of malpractice, and such training and supervision necessarily occurs
before any treatment. LSA- R. S. 40: 1231. 1A( 13); Dupuy, 187 So. 3d at 442. Further,
15 The Dupuy case involved allegations similar to the one presented herein. The plaintiff therein alleged that he developed a post-operative infection and osteomyelitis following spine surgery. The plaintiff filed suit against the hospital alleging that the hospital failed to properly maintain and service the equipment utilized in the sterilization process. Dupuy, 187 So. 3d at 437- 38.
10 the plain language of the LMMA does not limit its application to direct treatment by a
physician, as the definition of " malpractice" includes " an unintentional tort ... based on
health care or professional services rendered by a health care provider, to a patient."
LSA- R. S. 40: 1231. 1A( 13); Dupuy, 187 So. 3d at 443.
Although not every act that occurs in a hospital is treatment related, the tortious
act alleged herein was directly related to Mr. Cook's health care and medical treatment.
The present case is unlike Williamson v. Hospital Service Dist. No. 1 of Jefferson,
04- 0451, ( La. 12/ 1/ 04), 888 So. 2d 782, 785, where the issue was whether the failure of
the health care provider to properly maintain a wheelchair, which lost a wheel causing
injury to a patient after discharge, was within the ambit of the LMMA. In Williamson,
the supreme court determined that the alleged acts were not treatment related because
the failure to repair the wheelchair and place it back in service without verifying that it
was properly repaired, were not directly related to, nor involved, actual treatment of a
patient. Williamson, 888 So. 2d at 790. Consequently, the first Coleman factor
weighs in favor of OLOL and a finding that the alleged act of negligence falls within the
As to the second Coleman factor, the plaintiffs argue that medical expert
evidence is not necessary to determine that pieces of surgical equipment should not fall
off into a patient during surgery. On the other hand, OLOL contends that expert
testimony will be required to determine whether the Cosgrove Valve Retractor System
was properly maintained, including the protocol for maintenance and service, the
appropriate standard of care, and whether the standard of care was breached. We
agree with OLOL that expert medical evidence is required. Accordingly, we find that
this factor also favors OLOL.
The third Coleman factor is whether the pertinent act or omission involved
assessment of the patient's condition. Because the alleged negligent act occurred in
the context of OLOL's relationship with and assessment of the Cosgrove Valve Retractor
System rather than with the patient, this factor favors the plaintiffs.
However, the fourth factor, whether the incident occurred in the context of a
physician -patient relationship, or was within the scope of activities that a hospital is
11 licensed to perform, favors a finding that the plaintiffs' claim falls within the ambit of
the LMMA. Clearly, the use of the Cosgrove Valve Retractor System occurred during the
surgery performed by Dr. Rigby to repair Mr. Cook's mitral valve. Additionally, the
utilization and maintenance of surgical equipment is within the scope of activities
performed by a hospital. The failure by a hospital to maintain its surgical equipment
involves the failure to do an act " for, to, or on behalf of a patient during the patient's
medical care, treatment, or confinement[.]" See LSA- R. S. 40: 1231. 1A( 9).
We find the fifth Coleman factor, whether the injury would have occurred if the
patient had not sought treatment, also favors OLOL. Undoubtedly, if Mr. Cook had not
sought treatment at OLOL, the retractor bolt would not have fallen into his chest during
the valve replacement surgery. Mr. Cook's injury occurred during the treatment that he
purposefully entered the hospital to undergo. Lastly, whether the tort alleged was
intentional, does not have relevance to the present matter, and we need not consider
the sixth Coleman factor.
After considering these factors and applying them to the facts of this case, we
find that the plaintiffs' allegation that OLOL failed to " properly maintain" the Cosgrove
Valve Retractor System used in Mr. Cook's surgery necessarily fails within the definition
of " malpractice" under the LMMA. The act alleged by the plaintiffs constitutes an
unintentional tort ... based on health care or professional services rendered, or which
should have been rendered, by a health care provider, to a patient ... in the training or
supervision of health care providers[.]" LSA- R. S. 40: 1231. 1A( 13).
Having decided that the plaintiffs' claim against OLOL falls within the ambit of
the LMMA to the exclusion of the codal articles regarding interruption of prescription
and relation -back principles, we next determine whether the plaintiffs' claim is
prescribed. Similar to Cook 1, the plaintiffs' claim against OLOL was filed nearly six
years after the July 20, 2012 surgery. Prescription was evident on the face of the
pleadings, and the plaintiffs failed to present evidence to show that the action was not
prescribed. Therefore, the plaintiffs' claim against OLOL is prescribed according to the
prescriptive periods set forth for medical malpractice actions in LSA- R. S. 9: 5628A, and
12 we find no error by the trial court in sustaining OLOL's exception of prescription. 16 Further, considering the above, we deny as moot the answer to the appeal filed by the plaintiffs on behalf of Dr. Rigby and LAMMTCO.
CONCLUSION
For these reasons, we affirm the July 23, 2019 judgment of the trial court,
which sustained OLOL's exception of prescription and dismissed the claims of the
plaintiffs. Additionally, the answer to the appeal is denied. All costs of this appeal are
assessed to plaintiffs, William Cook and Renee Soileau.
JUDGMENT AFFIRMED; ANSWER TO APPEAL DENIED.
16 Additionally, we need not address the January 31, 2019 judgment of the trial court, which sustained OLOL's exception of prematurity, as the plaintiffs' claim against OLOL is prescribed.