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SUPREME COURT OF LOUISIANA
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No. 01-C-1517,, c/w 01-C-1519,, c/w 01-C-1521
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813 So.2d 303, 2002.LA.0000092
<http://www.versuslaw.com>
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January 25, 2002
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LOUIS COLEMAN, INDIVIDUALLY AND AS FATHER OF LOUIS FRANK
COLEMAN
v.
DR. RICHARD DENO, DR. IVAN SHERMAN AND JOELLEN SMITH
HOSPITAL
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The opinion of the court was delivered by: Lobrano, Justice Pro
Tempore *fn1
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ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT, PARISH
OF ORLEANS
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We granted certiorari in this case primarily to determine whether the
court of appeal erred in recognizing an intentional tort cause of action
against an emergency room physician for improper transfer of a patient
under general tort law, which is outside the scope of the limitations set
forth in the Medical Malpractice Act, La. R.S. 40:1299.41, et seq. (MMA).
After review of the evidence, we conclude that the plaintiff-patient's
cause of action against the defendant-doctor is based solely on medical
malpractice and thus the court of appeal's finding of an intentional tort
of "patient dumping" is in error. With respect to the medical malpractice
liability, we find no manifest error in the jury's finding of malpractice
on the part of the defendant-doctor; however, we reallocate fault between
the defendant-doctor and the non-party charity hospital. With respect to
damages, we remand to the court of appeal for both a meaningful quantum
review and a recasting of the ultimate judgment in accordance with the
limitations of the MMA.
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Facts
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On June 11, 1988, Louis Coleman, then thirty-two years old, underwent
surgery at Charity Hospital in New Orleans (CHNO). During that surgery,
his left arm was amputated to save his life. Coleman initially sought
emergency treatment at JoEllen Smith Hospital (JESH), where he presented
twice within a forty-hour interval on June 7 and 8, 1988. On the second
visit to JESH, the emergency room physician transferred Coleman to
CHNO.
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Coleman first visited JESH at 1:44 a.m. on June 7, 1988. On that
occasion, Coleman never complained of any problems with his arm. Rather,
Coleman told the triage nurse that he had pulled something in his chest
while lifting and that all movement hurts including deep breathing. With
the exception of an elevated temperature (100.3E F), his vital signs were
normal. Dr. Ivan Sherman, the emergency room physician who examined
Coleman, found his chest was clear, but his chest wall was tender. Dr.
Sherman ordered an EKG and a chest x-ray. Based on the negative results of
those tests and the physical examination, Dr. Sherman diagnosed chest pain
and costochondritis, which is an inflammation of the area between the ribs
and sternum
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At 3:45 a.m., Coleman was discharged with instructions to take the
prescribed medication, Naprosyn (an anti-inflamatory); to apply heat to
his chest; and to follow-up with a named physician. Realizing that all
area pharmacies were closed at that time of day, Dr. Sherman not only gave
Coleman a prescription for Naprosyn, but also ordered that an initial
double dose of Naprosyn be dispensed to him in the emergency
room.
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At 8:10 p.m. on June 8, 1988, Coleman returned to JESH. Coleman told
the triage nurse that at about 3:00 or 4:00 a.m. that day his left arm had
started aching and swelling. Coleman testified that he attributed these
symptoms to be side effects of the Naprosyn. The triage nurse noted that
Coleman's arm was swollen with warm bullae in the left antecubital space.
With the exception of an elevated temperature (102.8E F), and heart rate
(120 beats per minute), his vital signs were normal. Dr. Richard Deno, the
emergency room physician who examined Coleman, documented his findings by
drawing a picture of Coleman's left arm on which he depicted: (1) small
bullous lesions; (2) a hot, swollen area (which, using his engineering
background, he depicted by using thrash marks); and (3) track marks
(consistent with intravenous drug abuse).
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Dr. Deno initially believed that Coleman could be treated on an
outpatient basis and thus wrote discharge instructions (similar to Dr.
Sherman's) for outpatient treatment with oral antibiotics and follow-up
with a named physician. However, upon receiving the laboratory results
reflecting a markedly elevated white blood count (27.1), Dr. Deno
diagnosed Coleman with left arm cellulitis,*fn2 and determined that Coleman required inpatient
intravenous antibiotic treatment. At that point, the treatment decision
became where Coleman should receive such treatment. Ultimately, Dr. Deno
determined that a transfer for inpatient admission at CHNO was appropriate
for two reasons: (1) given Coleman's lack of insurance he would not be
able to financially afford private hospitalization at JESH;*fn3 and (2) given CHNO--a Level I Trauma Center with a
full-scale, on-site laboratory--was better equipped and more experienced
than JESH--a Level II Trauma Center lacking such an in-house
laboratory--at treating complicated infections of the type experienced by
Coleman.
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An evidentiary ruling by the trial judge precluded the parties from
informing the jury of the former, financial reason for the transfer to
CHNO. The sole reason explored at trial was the latter, i.e., CHNO's
superior resources. In that regard, Dr. Deno testified that although JESH
rarely treats intravenous drug abuse cellulitis, CHNO (where Dr. Deno also
practiced) routinely treats this type of complicated
infection.
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To facilitate Coleman's transfer, Dr. Deno telephoned the CHNO
Accident Room charge resident, who accepted Coleman for admission.
Documenting this call in the medical record, Dr. Deno wrote "[t]ransfer to
Charity, charge resident in accident room accepted,"*fn4 and Coleman signed that record documenting the
decision to transfer to CHNO. *fn5
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Once the charge resident accepted Coleman for admission, Dr. Deno
testified that it was contraindicated for him to draw blood cultures or to
do any further evaluation at JESH. Likewise, Dr. Deno explained that it
was contraindicated for him to commence antibiotic treatment as that would
distort the blood cultures, and CHNO, as the receiving provider, would
want to perform its own cultures. Still further, Dr. Deno explained that
any of these treatments would have only delayed Coleman's arrival at CHNO,
which is less than a half hour drive from JESH. *fn6
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Given that Coleman was stable, in good condition, ambulatory, and
accompanied by his girlfriend, Dr. Deno saw no need to transfer by
ambulance; instead, he found it wholly appropriate for Coleman to
self-transport. While Coleman and his girlfriend both testified that Dr.
Deno approved their request to first go home--a forty-five minute
drive--and get pajamas and other personal belongings before going to CHNO,
Dr. Deno testified that he would have never authorized such a detour and
denied any such conversation took place. Moreover, Coleman signed the
discharge sheet instructing that he was to go "directly" to CHNO and to
bring with him the copies he was given of the JESH laboratory
work.
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Although Coleman was discharged from JESH at 10:00 p.m. on June 8th,
he did not arrive at CHNO until about 12:30 a.m. on June 9th. At 12:46
a.m., he was seen by the triage nurse. Coleman's chief complaint was left
arm edema. In accordance with CHNO accident room protocol, Coleman was
screened by a physician, who ordered blood work and cultures, which were
taken at 1:30 a.m. and showed a white blood count of 29.9. Left arm x-rays
were taken at 5:00 a.m. and showed a significant amount of soft tissue
swelling in the left forearm and elbow consistent with a history of
cellulitis; the x-rays, however, showed no sign of gas in the
tissue.
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At CHNO, Coleman gave two different versions of the cause of his arm
ailment. Initially, he gave the nurse a history of having a crushing type
injury on Sunday when he fell off a boat and was wedged between the wharf
and the boat. Subsequently, he gave a history of someone holding him down
in a car when he was intoxicated and injecting something in his left
arm.
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The attending physician's note dated June 9th described Coleman as
"alert, oriented and cooperative" and not in acute distress. The physician
further noted that Coleman told him the following: (i) that he had
swelling up to his elbow and by late in the evening it was extremely
painful and the swelling extended up into his arm; (ii) that the only
recent trauma to his arm occurred four days before his admission when some
people injected something into his arm while holding him down; (iii) that
his work involved unloading seafood in crates from a truck, but that he
did not work directly with the fish or oysters and that he denied any
recent cuts while working; and (iv) that he denied intravenous drug abuse.
The physician still further noted that Coleman's left arm was "swollen and
warm from the mid arm to lower forearm, with no fluctuant areas, no
streaking, positive axillary node and positive track marks." The
physician, apparently repeating the radiology results, noted the absence
of any "gas in tissue" and the presence of "soft tissue swelling." The
physician ordered that Coleman be admitted with a diagnosis of cellulitis
of the left arm and forearm. The physician also ordered intravenous
antibiotics (Nafcillin) treatment, which was initiated at 8:00 a.m. on
June 9th, over seven hours after he arrived at CHNO.
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On June 10th, the attending physician noted that Coleman was aferile
today (fever free), and enumerated the following three-part treatment
plan: (1) surgery consult, (2) blood count (CBC), and (3) continue
antibiotic (Nafcillin). On June 11th, the physician noted that Coleman
reported his arm appeared to be improving, and the hospital records note
that his arm appeared to be responding to the antibiotic treatment. The
nurse's notes, however, indicate that at 6:00 p.m. on June 10th his arm
had "visibl[bly] increase[d] in size," and at 6:00 a.m. on June 11th his
arm was emanating an extremely foul odor.
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Although on June 10th the attending physician recognized the need for
a surgical consult, such consult was not requested until the following
day. At 1:00 p.m. on June 11th, Dr. Clyde Redmond, then a surgical
resident at CHNO, first saw Coleman. Dr. Redmond testified that, although
over a decade elapsed between the treatment at issue and the trial of this
matter, he specifically recalled Coleman's case having occurred during the
week before his wedding. Specifically, Dr. Redmond stated that he recalled
June 11, 1988 was a Saturday, and he was leaving the hospital to go
shopping for clothes for his honeymoon that day when he spotted in the
surgical consult box the request regarding Coleman's case. That request,
which had just been placed in the box, described Coleman's case as an
admission on June 9th for left arm cellulitis with a white blood count of
29 and a temperature of 39E C. Dr. Redmond decided to delay his shopping
trip to check on this case.
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Upon examining Coleman's arm, Dr. Redmond found a much more advanced
infectious process than cellulitis. Moreover, he noted that Coleman's arm
was draining an extremely foul smelling pus. Dr. Redmond also found
crepitus, which is a tactile finding of gas in the tissue; he described
crepitus as similar in feeling to the bubble packing material used to ship
fragile things. X-rays taken at 2:00 p.m. of Coleman's forearm confirmed
that Coleman had "soft tissue swelling and some air within the soft
tissues, apparently secondary to cellulitis." Hence, at 4:10 p.m., Coleman
was taken to surgery.
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Upon opening Coleman's arm, Dr. Redmond discovered that the skin, fat
and bulk of the muscles in the arm were dead and determined that it was
necessary to perform an open left shoulder disartiulation, i.e., to
amputate the left arm at the shoulder. Before performing such a drastic
procedure, however, Dr. Redmond obtained an orthopedic consult. The
orthopedic surgeon who performed the consultation confirmed that an
amputation was necessary as a life saving measure. The orthopedic
surgeon's note states that Coleman's arm was emanating a foul smelling pus
and that although upon admission his diagnosis was cellulitis he
subsequently had developed a necrotizing fascitis.
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Although the initial operative diagnosis was a clostridium or gas
gangrene infection, the final laboratory results did not confirm that
diagnosis. The final laboratory reports indicated that the cultures from
surgery showed Coleman's arm was infected with peptostreptococcus, a
common infection among intravenous drug abusers, and with alpha and beta
streptococcus. Based on that final laboratory results, Dr. Redmond
testified at trial that Coleman developed a compartment syndrome at some
point between 4:00 p.m. on June 10th and 4:00 a.m. on June 11th, which
resulted in the loss of his arm. *fn7
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After several subsequent surgical procedures, Coleman was discharged
from CHNO on June 28, 1988.
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Procedural Background
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On April 17, 1989, Coleman requested a medical review panel under the
Medical Malpractice Act, La. R.S. 40:1299.41, et seq., seeking review of
his claim that three qualified private providers--Dr. Sherman, Dr. Deno
and JESH--negligently treated (or failed to treat) him on June 7 and 8,
1988. Simultaneously, Coleman filed a request for a medical review under
the Medical Liability for State Services Act, La. R.S. 40:1299.39, et seq,
seeking review of his claim that CHNO negligently treated (or failed to
treat) him from June 9 to 12, 1988. Coleman settled with CHNO pre-trial
for $25,000. Nonetheless, the issue of CHNO's fault was put before the
jury by way of special interrogatory.
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On May 1, 1990, the medical review panel found that none of the
private providers breached the standard of care and that the conduct
Coleman complained of was not a factor in the resultant damages. Given
that adverse panel decision,*fn8 on July 27, 1990, Coleman filed the instant suit
naming as defendants the three qualified private providers. On March 27,
1991, Coleman filed a supplemental and amending petition alleging that
defendants violated the federal anti-dumping provisions.*fn9 Thereafter, Coleman settled his claim against JESH for
$10,000, and dismissed JESH pre-trial. The jury was not requested to
consider JESH's fault.
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In March 1999, this matter was tried before a jury. On the second day
of the trial in this matter, Dr. Deno filed a peremptory exception of no
cause of action and prescription to Coleman's federal dumping claim on the
basis that the applicable statutory provision, the federal Emergency
Medical Treatment and Active Labor Act, 42 U.S.C.§1395dd (EMTALA), applies
solely to hospitals, not physicians. Joined with those exceptions was a
motion in limine, seeking to exclude any reference to the EMTALA claim or
to Coleman's lack of insurance or finances to pay for private
hospitalization. The trial judge granted both the exception of no cause of
action and the motion in limine.
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Following an eleven-day trial, the jury found that both Dr. Deno's and
Dr. Sherman's conduct fell below the standard of care and apportioned
fault 80% to the former and 20% to the latter. The jury found neither
Coleman nor CHNO were at fault. The jury awarded $4,400,000 in general
damages, $500,000 in lost wages, earning capacity, and replacement of
personal services, and found Coleman in need of future medical care and
related benefits in an amount of $500,000. The jury also awarded
$1,000,000 in loss of consortium to Coleman's son.
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Ruling on the various post-trial motions filed by the parties, the
trial court granted Dr. Sherman's motion for judgment notwithstanding the
verdict (JNOV). The court also granted remittitur as to the claim of
Coleman's son reducing that award from $1,000,000 to $10,000. The court
found that interest was to be apportioned as provided in La. R.S.
40:1299.41, et seq. The court noted the jury's finding that Coleman was in
need of future medical care and related benefits in the amount of
$500,000, but did not enter judgment on this sum. The trial court thus
amended the judgment to find Dr. Deno solely at fault, but applied the MMA
to limit the damage award against him to $100,000.*fn10 The trial court noted the parties had stipulated
that Coleman settled with CHNO for $25,000 and JESH for $10,000. Rejecting
the contention of the PCF, a post-trial intervenor, that it was entitled
to a credit of $110,000 for those two pre-trial settlements, the trial
court entered judgment against the PCF for $400,000 plus interest in
accord with the MMA.
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On appeal, a divided five-judge panel affirmed in part, amended in
part, and reversed in part. 99-2998 (La. App. 4th Cir. 4/25/01), 787 So.
2d 446. First, the appellate court held that Coleman's amended petition
stated an intentional tort cause of action for improper transfer against
Dr. Deno outside the scope of the MMA and thus not subject to that Act's
limitations on damages. Second, the court affirmed the grant of JNOV
dismissing the claim against Dr. Sherman. Third, the court affirmed the
jury's finding of fault as to Dr. Deno's breach of the standard of care
for emergency physicians by failing to provide immediate antibiotic
treatment to Coleman. The court also affirmed the jury's finding that CHNO
did not breach its standard of care, reasoning that "the jury could have
concluded that the plaintiff's arm could have been saved if Dr. Deno had
treated him with antibiotics on June 8, 1988." 99-2998 at p. 34, 787 So.
2d at 471. The court further affirmed the jury's finding that Coleman was
in need of future medical care and benefits in the amount of $500,000, and
the trial court's judgment recognizing this finding of need without
entering a judgment on this sum. Finally, the court affirmed the quantum
awards, totaling $4,900,000, and allocated $500,000.00 to the malpractice
claim and $4,400,000.00 to the intentional tort claim.*fn11
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As to the entitlement to credits for the settlements with CHNO and
JESH, the court held that the PCF was entitled to a credit of $100,000.00
for the larger settlement of $25,000 with CHNO and a dollar-for-dollar
credit for the smaller settlement of $10,000 with JESH.
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The dissenting appellate court judges opined that Coleman had no cause
of action under either EMTALA because it provides a private right of
action only against participating hospitals or under the Louisiana
anti-dumping statute because it lacks an express private cause of action;
hence, the dissenters would have held that all of Coleman's claims fell
within the purview of the MMA. In addition, the dissenters found
"overwhelming evidence" of CHNO's fault and would have apportioned fault
equally between Dr. Deno and CHNO. 99-2998 at p. 18, 787 So. 2d at
493.
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Analysis
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We granted and consolidated the writ applications of plaintiff,
Coleman; defendant, Dr. Deno; and intervenor, the PCF. 01-1517 &
01-1519 (La. 9/14/01), 795 So. 2d 1220; 01-1521 (La. 9/14/01), 796 So. 2d
666. However, as we initially noted, the primary concern which prompted
our writ grant is Dr. Deno's argument that the court of appeal erred in
crafting an intentional tort of "patient dumping" to circumvent the MMA's
limitation of liability. Hence, we address that argument
first.
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Intentional Tort of Improper Transfer
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While the trial court granted Dr. Deno's exception of no cause of
action as to Coleman's "patient dumping" allegations, the court of appeal
characterized the claim as an intentional tort of improper patient
transfer based on Louisiana tort law, La. C.C. art. 2315. As such, the
court reasoned that it was not "malpractice" under the MMA. In so holding,
the appellate court concluded that Coleman plead two distinct causes of
action: (1) negligent failure to treat--malpractice, and (2) an
intentional tort based on EMTALA for transfer to CHNO because of lack of
funds--not malpractice. For the following reasons, we reverse the
appellate court's conclusion that Dr. Deno was additionally at fault under
general tort law for the intentional tort of "patient
dumping".
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The nature of the claim of improper transfer in this case is really a
claim of failure to properly diagnose, failure to stabilize, or both. That
is what the petition alleges, and that is what the evidence suggests to be
the basis of Coleman's claim. The court of appeal, with little analysis
and citing no authority, characterized such a claim as outside the scope
of "malpractice" under the MMA and thus justified the entire $4,900,000
jury award. In so doing, we hold that the appellate court erred both
procedurally and substantively.
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Procedurally, neither Coleman's original nor amended petition alleges
an intentional tort. The original petition alleges only medical
malpractice; the amended petition alleges only negligence per se based on
EMTALA. Nor were the pleadings expanded at trial, as provided for in La.
C. Civ. P. art. 1154, to include such an alleged intentional tort. To the
contrary, the effect of the trial court's granting of Dr. Deno's combined
exception of no cause of action and motion in limine was to exclude any
mention before the jury of either the financial reasons for the transfer
or the EMTALA claim.*fn12 The court of appeal thus crafted an intentional tort
that was not plead, not prayed for in relief, not argued, not tried, and
not submitted to the jury.
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Substantively, the court of appeal reasoned that "[t]he 'patient
dumping' cause of action refers to an intentional tort where Dr. Deno
directed plaintiff's transfer to Charity for lack of finances or insurance
although it conflicted with JoEllen Smith Hospital's written policy."
99-2998 at p. 19, 787 So. 2d at 463. *fn13 Acknowledging that neither EMTALA nor the Louisiana
statutory counterpart provides a private cause of action against a
physician for patient dumping,*fn14 the court reasoned that it could "find no express
state law that excludes recovery under La. C.C. art. 2315, general tort
law, or La. R.S. 40:2113.4-40:2113.6 [the Louisiana anti-dumping statute]
against physicians for the intentional tort of patient dumping." Id.
(emphasis added). Stated otherwise, the court reasoned that no statutory
provision precludes a finding of liability under Louisiana tort law when a
physician engages in the exact misconduct targeted by those anti-dumping
statutes.
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While the court of appeal reasoned that plaintiff's reference to
anti-dumping statutes in his amended petition sufficed to state a cause of
action under Article 2315, the issue before us is whether that
characterization of plaintiff's assertions and the evidence in support
thereof as outside the scope of "malpractice" under the MMA was correct.
In resolving that issue, we begin by distinguishing this case from our
prior two decisions in which we have addressed "patient dumping"*fn15 claims under the EMTALA and the Louisiana statutory
counterpart. Spradlin v. Acadia-St. Landry Medical Foundation, 98-1977
(La. 2/29/00), 758 So. 2d 116; Fleming v. HCA Health Services of
Louisiana, Inc., 96-1968 (La. 4/8/97), 691 So. 2d 1216. In both those
prior cases the defendant was a hospital; the defendant in this case is an
emergency room physician. The significance of this distinction is
two-fold. First, the statutory duties imposed by EMTALA, and the Louisiana
statutory counterpart, apply only to participating hospitals, not
physicians.*fn16 Second, hospitals are distinct legal entities that
do not, in the traditional sense of the term, "practice" medicine;
whereas, physicians do "practice" their profession, and their negligence
in providing such professional services is termed "malpractice." Frank L.
Maraist & Thomas C. Galligan, Jr., Louisiana Tort Law § 21-2 (1996).
The significance of the term "malpractice" is that it is used to
differentiate professionals from nonprofessionals for purposes of applying
certain statutory limitations of tort liability. Id. The limitation of
tort liability at issue in this case is the MMA.
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The MMA applies only to "malpractice;" all other tort liability on the
part of a qualified heath care provider is governed by general tort law.
Spradlin, supra. "Malpractice" is defined by La. Rev. Stat. 40:1299.41A(8)
as follows:
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"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 . . . .
(Emphasis added).
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La. Rev. Stat. 40:1299.41 A(7) and (9) further define "tort" and
"health care" as follows:
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"Tort" means any breach of duty or any negligent act or omission
proximately causing injury or damage to another. The standard of care
required of every health care provider, except a hospital, in rendering
professional services or health care to a patient, shall be to exercise
the degree of skill ordinarily employed, under similar circumstances, by
the members of his profession in good standing in the same community or
locality, and to use reasonable care and diligence, along with his best
judgment, in the application of his skill.
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"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.
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Both statutory patient dumping claims and medical malpractice claims
are simply particularized forms of torts that often overlap. However, even
though all medical malpractice claims are personal injury claims, "the
opposite is not true: every personal injury claim is not a medical
malpractice claim." Scott E. Hamm, Note, Power v. Arlington Hospital: A
Federal Court End Run Around State Malpractice Limitations, 7 B.Y.U. J.
Pub. L., 335, 347-48 (1993). It follows then that the court of appeal in
this case legally erred in characterizing a claim for patient "dumping" as
always giving rise to an intentional tort and in reasoning that a bright
line can be drawn between medical malpractice claims and patient "dumping"
claims. Recognizing that the two claims can overlap, we determine in this
case that Coleman's claim of "dumping"--improper transfer--is one of
malpractice governed by the MMA.
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Standard for Defining a Medical Malpractice Claim
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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:
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"[1] whether the particular wrong is 'treatment related' or caused by
a dereliction of professional skill,
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[2] whether the wrong requires expert medical evidence to determine
whether the appropriate standard of care was breached, and
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[3] whether the pertinent act or omission involved assessment of the
patient's condition." Sewell v. Doctors Hospital, 600 So. 2d 577, 579 n. 3
(La. 1992)(quoting Holly P. Rockwell, Annotation, What Patient Claims
Against Doctor, Hospital, or Similar Health Care Provider Are Not Subject
to Statutes Specifically Governing Actions and Damages for Medical
Malpractice, 89 A.L.R.4th 887 (1991)).*fn17
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The latter annotation lists three additional factors that courts have
considered, and we now add those to our Sewell list; to wit:
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[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,
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[5] whether the injury would have occurred if the patient had not
sought treatment, and
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[6] whether the tort alleged was intentional. 89 A.L.R.4th at
898.
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Applying those six factors to the evidence in this case leads to the
inescapable conclusion that Coleman's claim of improper transfer against
Dr. Deno is within the scope of the MMA.
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(i) Whether the particular wrong is "treatment related" or caused by a
dereliction of professional skill
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Coleman contends that Dr. Deno's misconduct--which is the same as a
statutory patient dumping violation--does not involve a breach of
professional standard. Dr. Deno's "critical" fault, according to Coleman,
was beyond professional treatment in that he directed that Coleman be
transferred to CHNO after recognizing Coleman's need for immediate
hospitalization. Coleman further contends that, contrary to Dr. Deno's
suggestion, this transfer was not ordered for medical reasons--CHNO's
superior resources--but for economic reasons--Coleman's lack of insurance
or the finances to pay the hospital bill. Coleman characterizes this as
not a medical decision but rather an economic one.
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Coleman's attempt to draw a distinction between Dr. Deno's
professional treatment--properly diagnosing his condition and properly
determining he needed intravenous antibiotic treatment--and Dr. Deno's
decision to transfer to CHNO for economic reasons is without merit. To the
extent Coleman relies on Spradlin to support this distinction, his
reliance is misplaced. Coleman incorrectly reads our decision in Spradlin
as "suggesting that a health care provider may be liable under the general
tort law of Louisiana for making a decision with regard to a patient that
is economically--rather than medically--driven." To the contrary, we
narrowly framed the issue before us in Spradlin as whether the MMA's
pre-suit medical review panel applies to an EMTALA claim joined with a
malpractice claim. In resolving that issue, we relied solely on federal
preemption to hold that the medical review panel requirement did not
apply; we did not address the nature of an EMTALA claim. *fn18
|
| [64] |
A similar argument was likewise rejected in Bolden v. Dunaway, 97-1425
(La. App. 1 12/28/98), 727 So. 2d 597, writ denied, 99-0275 (La. 3/26/99),
739 st So. 2d 801.*fn19 In Bolden, the plaintiffs alleged that "Dr.
Dunaway's non-medical related decision to leave the hospital and not
operate on his patient prepped for surgery because his fee was not in his
pocket, was a non-medical related intentional act not based on rendering
professional health care services as defined by LSA-R.S. 40:1299.41(8) and
therefore not covered by the medical malpractice act." 97-1425 at p. 3,
727 So. 2d at 599. Rejecting that contention and characterizing the
plaintiffs' claim as malpractice (failing to render professional
services), the court of appeal noted that "the legislature did not intend
for applicability of the Medical Malpractice Act to depend on the motives
of the doctors, be it greed or philanthropy, at the time of the alleged
wrongful acts." 97-1425 at p. 6, 727 So. 2d at 601.
|
| [65] |
Contrary to Coleman's suggestion that the decision to transfer can be
divorced from the other treatment decisions Dr. Deno made, we conclude
that the decision as to where Coleman should be treated--CHNO of JESH--was
a part of his medical treatment. See Vachon v. Broadlawns Medical
Foundation, 490 N.W. 2d 820 (Iowa 1992)(holding that decision of whether
patient should be transferred for care to charity hospital, which was the
only Level I full tertiary care center, or to private a hospital that was
closer was part of "treatment" of patient who developed compartment
syndrome).
|
| [66] |
(ii) Whether the wrong requires expert medical evidence to determine
whether the appropriate standard of care was breached
|
| [67] |
In discussing the need for expert evidence in medical malpractice
cases in Pfiffner v. Correa, 94-0924, 94-0963, and 94-0992 (La. 10/17/94),
643 So. 2d 1228, we cited as examples of "obvious negligence" for which no
expert testimony would be required to establish a physician's fault the
"[f]ailure to attend a patient when the circumstances demonstrate the
serious consequences of this failure, and failure of an on-call physician
to respond to an emergency when he knows or should know that his presence
is necessary." 643 So. 2d at 1234. These examples of obvious negligence in
refusing to treat a patient are distinguishable from the facts presented
in this case.
|
| [68] |
This was not a case in which the alleged wrongful conduct could be
evaluated based on common knowledge. Expert testimony was clearly required
both to establish whether the standard of care for an emergency physician
at a Level II Trauma Center was breached and to evaluate this claim.
Hindsight likewise establishes the need for expert testimony in this case
given the sheer number of experts that were called to
testify.
|
| [69] |
(iii) Whether the pertinent act or omission involved assessment of the
patient's condition
|
| [70] |
The decision to transfer clearly was based on an assessment of
Coleman's condition. As Dr. Deno stresses, the decision to transfer to
another trauma center was made after a complete medical evaluation
(including a physical and blood work) and after a determination that
Coleman's medical status was stable. Relevant to this decision was a
determination that the receiving facility (CHNO) had better access to
laboratory and radiology at the time of the transfer (in the middle of the
night) and was better able to care for Coleman's condition. Merely because
Dr. Deno also inquired into Coleman's financial status did not remove this
matter from the arena of medical malpractice.
|
| [71] |
(iv) 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
|
| [72] |
This transfer decision clearly occurred in the context of a
physician-client relationship between Dr. Deno and Coleman and clearly was
within the scope of the activities JESH is licensed to perform. As
discussed above, Coleman's attempt to divorce this transfer decision from
the treatment decisions Dr. Deno made is without merit.
|
| [73] |
(v) Whether the injury would have occurred if the patient had not
sought treatment
|
| [74] |
This injury allegedly caused by a delay in treatment due to an
allegedly improper, economically motivated transfer clearly is linked to
treatment. In an attempt to distant this decision from treatment, an
amicus analogizes Dr. Deno's transfer decision to that of "the cashier at
the hospital's window." That is simply not an accurate analogy. Coleman
concedes that Dr. Deno provided some treatment, including correctly
diagnosing cellulitis and correctly determining his need for inpatient
antibiotic treatment. Coleman contests Dr. Deno's failure to provide
enough treatment. Coleman's "patient dumping" claim is thus premised on
conduct that he urges would violate EMTALA's (and the parallel Louisiana
statutory counterpart's) duty on hospitals to stabilize a patient who
presents with an emergency medical condition. Common sense indicates that
a claim based on failure to provide enough treatment is clearly linked to
treatment.
|
| [75] |
(vi) Whether the tort alleged was intentional
|
| [76] |
For the reasons discussed, the court of appeal's characterization of
Coleman's dumping claim as an intentional tort is both procedurally and
substantively flawed. Indeed, the conduct in this case bears no
resemblance to the type of intentional dumping cited in Pfiffner, supra,
as examples of "obvious negligence" for which expert testimony would not
be required. 643 So. 2d at 1234.
|
| [77] |
Accordingly, we conclude that the entirety of the conduct on which
plaintiff's claim against Dr. Deno is based fits within the ambit of the
statutory definition of "malpractice," which expressly includes refusal to
treat and treatment "which should have been performed or furnished." La.
R.S. 40:1299.41 A(8) and (9). Coleman's claims are therefore entirely
governed by the limitations of the MMA. We now turn to the arguments
relative to the malpractice claims.
|
| [78] |
Coleman's Arguments
|
| [79] |
Coleman raises two assignments of error. First, given the evidentiary
basis supporting the jury's finding of fault on Dr. Sherman's part for
failing to diagnose and treat Coleman's arm infection on June 7, 1988,
Coleman contends that the lower courts erred in granting Dr. Sherman's
JNOV motion. Second, Coleman contends that the court of appeal erred in
giving the PCF a credit of $110,000 for the settlements with JESH and
CHNO. Given these settlements were each for less than $100,000 and given
that neither healthcare provider was found liable, Coleman contends the
PCF was not entitled to a credit.
|
| [80] |
As to the PCF's entitlement to a credit, we pretermit addressing this
issue given our decision to remand this case to the court of appeal on the
issues of quantum and application of the MMA's limitations to the ultimate
damage award. As to the granting of JNOV in Dr. Sherman's favor, we
readily reject plaintiff's argument and cite with approval the appellate
court's reasoning on this issue:
|
| [81] |
[P]laintiff did not complain to Dr. Sherman about his arm when Dr.
Sherman saw him. The plaintiff's primary complaint was chest pain. The
plaintiff's generalized symptoms did not develop into swelling in the area
of plaintiff's arm until after the plaintiff's initial visit to the
emergency room where Dr. Sherman examined him.
|
| [82] |
[R]esolving all reasonable inferences or factual questions in favor of
the plaintiff, the evidence points so strongly in favor of Dr. Sherman
that reasonable men could not find that his actions or inactions on June
7, 1988 proximately caused the ultimate loss of the plaintiff's left arm.
99-2998 at pp. 22-24, 787 So. 2d at 465-66.
|
| [83] |
We thus affirm the appellate court's holding that the trial court did
not err in granting Dr. Sherman's JNOV motion.
|
| [84] |
Dr. Deno's Arguments
|
| [85] |
Dr. Deno raises twenty assignments of error. We have already addressed
and agreed with his arguments relative to the characterization by the
court of appeal of Coleman's claim as an intentional tort of "patient
dumping." In the remaining assignments, Dr. Deno contends that the lower
courts were manifestly erroneous in finding that he breached the standard
of care for emergency physicians and that his breach was a proximate cause
of Coleman's harm. Dr. Deno argues that the same evidence that established
Dr. Sherman's entitlement to JNOV and CHNO's lack of fault likewise
supports a finding in his favor.
|
| [86] |
Initially we note that the appellate court's reasons in support of Dr.
Sherman's JNOV, and which we relied on, are clearly not applicable to the
claim against Dr. Deno. The presentation Coleman made to Dr. Sherman was
simply factually different from that confronting Dr. Deno. And, because we
are guided by the manifest error rule, we must also disagree with Dr.
Deno's argument that the jury was clearly wrong in finding fault on his
part. While we admit it is a close call, the evidence sufficiently
supports a finding of some fault by Dr. Deno, although not 100 % of the
fault. In failing to allocate any fault to CHNO, we find that the jury
manifestly erred.
|
| [87] |
Plaintiff presented two experts who both opined that Dr. Deno breached
the standard of care for an emergency room physician at a Level II Trauma
Center by failing to provide immediate antibiotic treatment.
|
| [88] |
Dr. Paul Blaylock, who was board-certified in both emergency and legal
medicine, testified that no valid medical reason existed for Dr. Deno to
send Coleman to CHNO, a Level I Trauma Center, at a time when his severe
arm infection required immediate attention. More particularly, Dr.
Blaylock testified that Dr. Deno should never have discharged Coleman
without treatment because "the risk of the infection getting worse, much
worse, was very high." Dr. Blaylock further testified that if Dr. Deno was
going to transfer Coleman, he should have called to assure that Coleman
could be directly admitted, should have commenced intravenous antibiotic
treatment, should have taken cultures (both blood and infection site), and
should have transferred by ambulance. Dr. Blaylock still further testified
that soft tissue infections are time related; "[t]he sooner you diagnose
the infection; the sooner you treat it, the better the progress." Dr.
Blaylock opined that Coleman's arm, to a medical probability, would have
been saved had proper medical treatment been provided when he was under
Dr. Deno's care.
|
| [89] |
Similarly, Dr. Neil Crane, who was board-certified in both internal
and infectious disease medicine, testified that on June 8th Dr. Deno was
confronted with a "necrotizing cellulitis"--an infection associated with a
progressive death of tissue. This type infection, Dr. Crane testified,
progresses exponentially; thus, the earlier the treatment, the better the
chance of achieving a good result. Dr. Crane further testified that on
June 8th when Coleman presented to Dr. Deno his condition was both "limb
threatening and life threatening," requiring immediate emergency
treatment. That treatment, Dr. Crane testified, included taking cultures
of fluid at the infection site, initiating intravenous antibiotic
treatment, and obtaining a surgical consult. Dr. Crane opined the
treatment delay Dr. Deno caused by sending Coleman to CHNO was significant
given the progressive nature of the infection and that appropriate
treatment by Dr. Deno would have salvaged Coleman's arm from
amputation.
|
| [90] |
While the jury also was presented with contrary expert testimony by
defendants' experts, the above testimony by plaintiff's experts is
sufficient to support the jury's finding of fault on Dr. Deno's part. In
this regard, we quote with approval the dissenting judge's statement that
"the record contains evidence that Mr. Coleman might not have lost his arm
had Dr. Deno started giving him intravenous antibiotics prior to his
transfer, then had him transferred by ambulance, rather than allowing Mr.
Coleman the opportunity to delay the time at which he reported to CHNO."
99-2998 at p. 18, 787 So. 2d at 493 (Plotkin, J., dissenting). We thus
conclude, as did the appellate court, that the jury was not manifestly
erroneous in finding some malpractice liability on Dr. Deno's part.
However, for those same reasons we find that the jury was clearly wrong in
not allocating any fault to CHNO.
|
| [91] |
Reallocation of Fault
|
| [92] |
As the dissenting judge aptly notes, the record contains "overwhelming
evidence" of CHNO's fault. Id.
|
| [93] |
Since the evidence was sufficient to support the jury's finding of
fault on Dr. Deno's part in failing to timely admininster intravenous
antibiotics, it was clear error for the jury not to find fault on CHNO's
part for the same reason. CHNO failed to administer intravenous
antibiotics until over seven hours after Coleman presented there. Such
failure to administer antibiotics timely is malpractice. Furthermore, the
evidence strongly suggests that CHNO is additionally at fault for the
delay in obtaining a surgical consult. Although the need for such a
consult was recognized on June 10th, Dr. Redmond was not consulted until
June 11th. As a result of that delay, Dr. Redmond testified that the short
window of opportunity for surgical intervention to treat the compartment
syndrome--four to six hours--was lost.*fn20 Other defense experts offered similar opinions
regarding the compartment syndrome causing the loss of Coleman's
arm.
|
| [94] |
For these reasons we conclude that an appropriate allocation of fault
is 25% to Dr. Deno and 75% to CHNO.
|
| [95] |
PCF's Arguments
|
| [96] |
The only issue raised by the PCF that we have not yet addressed is its
argument that the trial court erred in allowing plaintiff's witnesses to
testify regarding the cost of future medical care given that no specific
award can be made for such item. However, because this matter is to be
remanded to the court of appeal for a quantum review and for the
application of the MMA's limitation to the ultimate damage award, we
pretermit any discussion on this issue.
|
| [97] |
Damages
|
| [98] |
The most glaring error in the appellate court's analysis is in the
treatment of damages, especially general damages. The entirety of the
appellate court's review of the jury's $4,400,000 general damage award is
a paragraph. In that paragraph, the court notes that while the trial court
reviewed that part of the jury's award restricted by the MMA's cap, it did
not review the part not restricted by the cap. The appellate court,
without explanation, apparently allocated the entire award over the MMA's
$500,000 cap--$4,400,000--to general damages. As to whether that was an
excessive quantum award, the appellate court's reasoning was that it is
the purpose of the jury to make the "very difficult" decision of the value
of the loss of an arm. 99-2998 at p. 42, 787 So. 2d at 475.
|
| [99] |
The appellate court's one paragraph analysis of this sizeable general
damage award was not sufficient to constitute a meaningful review of
general damages. Indeed, the appellate court failed to make even the
initial inquiry required for a meaningful review of a general damage award
of "whether the particular effects of the particular injuries to the
particular plaintiff are such that there has been an abuse of the 'much
discretion' vested in the judge or jury." 1 Frank L. Maraist & Harry
T. Lemmon, Louisiana Civil Law Treatise: Civil Procedure § 14.14
(1999).
|
| [100] |
Given our conclusion with respect to the quantum review, coupled with
our reversal of the intentional tort (which the appellate court referred
to as the part "that is not restricted by the Act's cap" 99-2998 at p. 42,
787 So. 2d at 475), we deem it necessary to remand. On remand, the court
of appeal is instructed both to conduct a meaningful quantum review and to
render judgment in accordance with the limitations of the
MMA.
|
| [101] |
Decree
|
| [102] |
For the foregoing reasons, we affirm the finding of malpractice
liability on the part of Dr. Deno and the grant of judgment
notwithstanding the verdict dismissing the malpractice claim against Dr.
Sherman. We modify the fault allocation and hold that Dr. Deno was only
25% at fault. We remand this matter to the court of appeal for a review of
damages and for a rendering of judgment consistent with the views
expressed in this opinion.
|
| [103] |
JOHNSON, J., concurring in part and dissenting in part:
|
| [104] |
I join the majority in affirming the finding of medical malpractice
liability on the part of Dr. Deno, but I dissent from the majority's
finding that plaintiff's claim of "patient dumping" is one of medical
malpractice, rather than an intentional tort. This court has already
determined that "patient dumping" is governed not by the Medical
Malpractice Act, but rather by general tort law. See Spradlin v.
Acadia-St. Landry Med. Found., 98-1977 (La. 2/29/00), 758 So.2d 116.
Although the federal and state anti-dumping statute prohibit action by
hospitals and not physicians, a hospital can only act through
agents/employees and can be held accountable under a theory of vicarious
liability.
|
| [105] |
The court of appeal correctly concluded that the Medical Malpractice
Act only encompasses unintentional acts of negligence and contractual
issues. It is impossible for a physician to negligently or unintentionally
transfer an uninsured patient from a private hospital to a public hospital
because of an inability to pay. Therefore, it is clear that plaintiff's
claim for "patient dumping" falls outside the scope of the Medical
Malpractice Act.
|
| [106] |
Moreover, Dr. Deno's testimony that he transferred plaintiff from
JoEllen Smith to Charity Hospital because Charity has a better trauma
center is clearly pretextual and not worthy of belief. Plaintiff was
diagnosed with cellulitis of the arm and was not in need of trauma
treatment. He simply needed to be admitted to the hospital for intravenous
antibiotic treatment. Dr. Deno decided to transfer plaintiff to Charity
Hospital because he determined that plaintiff could not afford to pay for
inpatient treatment at JoEllen Smith, not because he wanted plaintiff to
have the benefit of a superior treatment facility. He therefore made an
economic and not a medical decision.
|
| [107] |
KNOLL, Justice, dissenting in part.
|
| [108] |
I concur with the majority opinion finding that the lower courts erred
in finding an intentional tort of "patient dumping." However, I disagree
with the majority's conclusion that there was no manifest error in the
jury's finding of malpractice against Dr. Deno. To the contrary, the
record clearly supports that Dr. Deno was not negligent in his medical
treatment of Coleman, and further, Coleman's allegations against Dr. Deno
should be dismissed for lack of causation.
|
| [109] |
Plaintiffs' experts testified in a conclusory fashion that the need to
amputate Mr. Coleman's arm resulted from Dr. Deno's fault. A review of the
record indicates that those experts, while they conceded the possibility
that Coleman's infection was the result of intravenous ("IV") drug abuse,
never sufficiently explained the pathogenesis that left the muscles in his
arm dead. Furthermore, plaintiffs' experts never satisfactorily addressed
how the administration of antibiotics by Dr. Deno during the period when
Coleman was under Dr. Deno's care would (not "could") have changed the
ultimate condition of Coleman's arm. Stated simply, Coleman failed to
prove the element of causation.
|
| [110] |
Verily, by spreading the net of his allegations far and wide for the
responsibility of his compartment syndrome which testimony showed
developed within mere hours, Coleman had given himself a somewhat unique
causation case to prove. Despite the short window of time in which a
compartment syndrome develops, Coleman sought to fault both Dr. Sherman,
who saw Coleman on June 7 when he presented with no complaint of arm pain
and relayed no history of being injected with IV drugs, and Dr. Deno, who
saw Coleman on June 8. However, Coleman was not diagnosed with a
compartment syndrome until June 11. It was essential for Coleman to
provide causation evidence that connected his compartment syndrom of June
11 to Dr. Deno who last saw Coleman on June 8. See Pfiffner v. Correa,
94-0294 (La. 10/17/94), 643 So. 2d 1228, 1229 (holding that "[a] plaintiff
must also establish, with adequate evidence, however, a causal connection
between a defendant's negligence and the plaintiff's injuries.") This
causation evidence is woefully lacking from the record.
|
| [111] |
Not implying any disparagement of the impressive qualifications of
Coleman's expert, Dr. Crane, his fields of expertise were limited to
"infectious diseases and internal medicine." It must be recalled that any
action or inaction by Dr. Deno was attenuated in both time and place from
the onset of the compartment syndrome, and *fn21 the testimony of Dr. Crane as an infectious diseases
specialist was speculative in the sense that Coleman had to do more than
connect Dr. Deno with the loss of Coleman's arm. Coleman also had to
provide the jury with a basis of opinion by which it could distinguish
between any fault by Dr. Deno and Charity Hospital. See LA. CIV. CODE art.
2323. While not his burden, Dr. Deno provided the basis for the jury to
draw this distinction. Of all the experts who were not involved in
treating Coleman at the time of illness, Dr. Deno's expert, Dr. Nichols,
an expert in surgical infectious diseases, alone provided a sufficient
factual basis from which the jury could distinguish any fault among the
several treating physicians, fault that was attenuated according to
Coleman's own allegations. Dr. Nichols testified that Dr. Deno properly
diagnosed Coleman as having cellulitis and that even when arriving at
Charity, Coleman had no limb-threatening sepsis.
|
| [112] |
It is significant that Coleman's surgeon, Dr. Redmond, testified that
Coleman's condition was the result of three specific strains of strep
bacteria and no fault of Dr. Deno. Dr. Redmond, as the surgeon who
surgically examined Coleman's arm, was the one person who could best
evaluate how long before the surgery Coleman had developed the compartment
syndrome. Dr. Redmond testified that based on the condition of the tissues
he was examining as he explored the arm, the compartment syndrome began
merely hours earlier. The record evidence clearly establishes that the
compartment syndrome began on June 11, 1988, and the ultimate cause of
Coleman's condition did not develop until after Coleman left Dr. Deno's
care on June 8, 1988. Additionally, Dr. Redmond testified that even if Dr.
Deno had started antibiotics while Coleman was under Dr. Deno's care, that
would not have changed the course of Coleman's condition.
|
| [113] |
Notwithstanding, Coleman builds much of his own causation argument
upon his own testimony that Dr. Deno told him that it was acceptable for
him to delay reporting to Charity Hospital so he could go home and gather
belongings for his hospital stay. Even if one accepts as true Coleman's
assertion that his delay in reporting was critical in causing the death of
his arm muscles, his causation argument begins to unravel. Under Coleman's
analysis of delay=causation, his own decision to delay reporting to
Charity Hospital by some two and a half hours when he signed a statement
acknowledging Dr. Deno's orders to go "directly" to Charity Hospital a
mere ten to fifteen minutes away, was a superseding cause of his
condition. Indeed, Coleman's emphasis on delay=causation underscores that
Dr. Deno's care and treatment were blameless.
|
| [114] |
Although there is arguably a conflict between Coleman's self-serving
oral testimony and the written order to go "directly" to Charity which
Coleman signed, any conflict lies completely within the element of
causation for the delay, an element which Coleman had the burden to prove.
Stated differently, this is not even a case where on the one hand Coleman
testified that he was told that he could delay his reporting but on the
other hand Dr. Deno testified that he told him otherwise. Even in such a
situation, it would have been manifestly erroneous for the jury to
conclude that Dr. Deno caused the delay, because the conflict between the
testimony of the parties would be resolved against Coleman by his written
acknowledgment. See Rosell v. Esco, 549 So.2d 840, 844-45 (La. 1989)
(holding that "[w]here documents or objective evidence so contradict the
witness's story, or the story itself is so internally inconsistent or
implausible on its face, that a reasonable fact finder would not credit
the witness's story, the court of appeal may well find manifest error or
clear wrongness based upon a credibility determination.")
|
| [115] |
This is a case whereby Coleman's signature recognizing Dr. Deno's
order to go immediately to Charity, Coleman acknowledged that he was
ordered not to delay, and he later seeks to undermine his own
acknowledgment. Under this court's test for finding manifest error,
because Coleman is essentially contradicting himself, his delay=causation
argument is even more "internally inconsistent or implausible on its
face." See id.
|
| [116] |
While any one of the flaws in Coleman's arguments and his attempts to
carry his burden of proof shows that the jury's verdict against Dr. Deno
is insupportable, when the case is examined as a whole, one cannot
realistically ignore that the verdict based upon these manifold flaws
constitutes manifest error. Perhaps if the jury had found a modicum of
fault on the part of Charity Hospital, the institution which Coleman
himself had argued bore responsibility for failing to timely provide a
surgical consult, it might be possible to infer that the jury had reached
a reasoned decision. *fn22 Instead, the jury's finding of no fault by Charity
on such clear facts to the contrary compels the conclusion that the
numerous inflammatory references by Coleman to patient dumping skewed the
outcome of the verdict. In short, the jury's allocation of fault, in both
its positive and negative findings thereof, demonstrates that its finding
of fault against Dr. Deno was based solely upon the patient dumping theory
that this court today has resoundingly rejected.
|
| [117] |
Thus, finding both that plaintiffs failed to prove causation and that
the apportionment of fault to Dr. Deno was based upon an impermissible
theory of recovery, I conclude that the jury verdict of malpractice by Dr.
Deno was manifestly erroneous. For these reasons, I respectfully dissent.
|
| |
|
| |
Opinion Footnotes |
| |
|
| [118] |
*fn1 Retired Judge Robert L. Lobrano, assigned as Justice
Pro Tempore, participating in the decision.
|
| [119] |
*fn2 Cellulitis is an "[i]nflammation of cellular or
connective tissue." Steadman's Medical Dictionary 307 (26th ed.
1995).
|
| [120] |
*fn3 On both occasions that Coleman presented to JESH
emergency room, he signed a "Conditions of Services" agreement personally
obligating himself to pay for the medical services he received as an
outpatient.
|
| [121] |
*fn4 In his deposition, excerpts of which were proffered to
document the financially-based reason for the transfer, Dr. Deno explained
the meaning of the latter instruction: "It means I talked to Mr. Coleman
about whether or not he could afford private hospitalization. [As the
patient was without funds for private hospitalization,] . . . I called
Charity Hospital, spoke to the charge resident in the accident room and
said, 'Do you have a bed to admit this gentleman.'" At trial, Dr. Deno
testified that if no bed had been availabe at CHNO, he would have arranged
for treatment at JESH.
|
| [122] |
*fn5 On the CHNO emergency room walk-in clinic sheet, which
Coleman signed consenting to treatment, in a printed box designated "prior
treatment" was written "Admission Approved," apparently confirming that
Dr. Deno called and received advance approval for Coleman's
transfer.
|
| [123] |
*fn6 Various travel times are given in the record, ranging
from ten minutes to a half hour.
|
| [124] |
*fn7 Coleman contends that Dr. Redmond's trial testimony
was inconsistent with his earlier perpetuation deposition testimony. That
deposition was videotaped and played to the jury at trial. Our review of
that deposition reveals that on at least four occasions in the deposition
Dr. Redmond expressly states that the CHNO medical record he was provided
was incomplete in that it did not contain certain pathology
reports.
|
| [125] |
*fn8 While the parties in their arguments refer to an
adverse panel decision in the medical review proceeding against CHNO, no
evidence of that panel decision is in the record before us.
|
| [126] |
*fn9 Plaintiff's supplemental and amending petition cites
as the federal "anti-dumping" provision the Consolidated Omnibus Budget
Reconciliation Act of 1985 (COBRA). The court of appeal, however, points
out that "COBRA currently is known as the Emergency Medical Treatment and
Active Labor Act ('EMTALA')." 99-2998 at p. 6, n. 1 (La. App. 4th Cir.
4/25/01), 787 So. 2d 446, 456. Likewise, the parties at trial and in
arguments refer to the applicable federal provision as
EMTALA.
|
| [127] |
*fn10 The trial court allocated that sum proportionately
between Coleman and his son.
|
| [128] |
*fn11 With respect to Coleman's son's claim, the court of
appeal held that the award of $10,000 for loss of consortium was included
in the amount of the judgment above the $500,000 cap against Dr. Deno and
was not allocated against the PCF.
|
| [129] |
*fn12 The first mention by Coleman of an intentional tort
was in this court where, in an attempt to support the appellate court's
creation of this new tort, he contends that Dr. Deno made a "deliberate
decision" to transfer based on non-medical reasons.
|
| [130] |
*fn13 Given that JESH's policy was never introduced into
evidence coupled with the fact that policy was not implemented until
several months after Coleman presented there, we do not find this hospital
policy relevant.
|
| [131] |
*fn14 The court of appeal did not overrule the trial
court's grant of Dr. Deno's exception of no cause of action as to the
EMTALA claim. Nor does Coleman contest that ruling.
|
| [132] |
*fn15 In Spradlin v. Acadia-St. Landry Medical Foundation,
98-1977 at p. 1, n. 1 (La. 2/29/00), 758 So. 2d 116, 117, we defined the
term patient "dumping," noting that "[p]atient 'dumping' by a private
hospital generally includes the refusal to treat patients with emergency
medical conditions who are uninsured and cannot pay for medical treatment
or the transfer of such patients to a public hospital."
|
| [133] |
*fn16 In Spradlin, we discussed the nature and purpose of
both EMTALA and the Louisiana statutory counterpart and the relationship
between those two "anti-dumping" statutes and the MMA. Simply stated,
EMTALA imposes two statutory obligations on participating hospitals; to
wit (i) to provide an appropriate medical screening, and (ii) to provide
individuals who are found to have an "emergency medical condition" with
treatment needed to "stabilize" that condition before transferring them to
another hospital or back home. To ensure compliance with those
obligations, EMTALA provides a private cause of action against
participating hospitals for two distinct types of dumping claims: (i)
failure to appropriately screen, and (ii) failure to stabilize an
emergency medical condition. Attempts to imply a private cause of action
against the physician have been rejected as inconsistent with EMTALA's
congressional history. Eberhardt v. City of Los Angeles, 62 F.3d 1253 (9th
Cir. 1995). Similarly, the Louisiana "anti-dumping" statutory scheme, La.
R.S. 40:2113.4-2113.6, establishes a duty on the part of certain hospitals
to provide emergency treatment to all persons residing in the territorial
area, regardless of the individual's indigence and lack of insurance. The
purpose for this type state statutory scheme was to overcome the common
law rule that hospitals had no duty to provide emergency treatment. Unlike
EMTALA, the Louisiana "anti-dumping" statutory provisions contain no
express private cause of action. On two prior occasions, we have left open
the question of whether the Louisiana statutory scheme, which includes its
own penalty provisions, can form the basis for a private cause of action
under general tort law, La. C.C. art. 2315. Spradlin, supra; Fleming v.
HCA Health Services of Louisiana,Inc., 96-1968 (La. 4/8/97), 691 So. 2d
1216. Today, we decline for a third time to decide that issue, which
factually is not before us given the defendant in this case is not a
hospital, but a physician.
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| [134] |
*fn17 In several recent decisions by this court, we have
classified various claims as outside the scope of the Act. In Sewell,
supra, we concluded that a strict liability claim for the collapse of a
bed was not malpractice. And, in Hutchinson v. Patel, 93-2156 (La.
5/23/94), 637 So.2d 415, we held that the claim of a patient's wife
against a hospital and psychiatrist for their alleged failure to warn or
to take other precautions to protect the wife against threats of violence
communicated to the psychiatrist by the patient-husband were not
malpractice.
|
| [135] |
*fn18 Coleman relies on several broad statements made by
the court of appeal in Spradlin v. Acadia St. Landry Medical Foundation,
97-845 (La. App. 3d Cir. 1/21/98), 711 So. 2d 699. However, we granted
certiorari in that case and repudiated in our decision in Spradlin those
broad statements. First, and foremost, we noted that "[t]he statement by
the court of appeal that EMTALA claims are not subject to the procedural
and substantive limitations of the state malpractice act was dicta, since
substantive limitations were not before the court." 98-1977 at p. 9, n.
10, 758 So. 2d at 122. Second, we noted that EMTALA "does not distinguish
between intentional and unintentional conduct." 98-1977 at p. 13, 758 So.
2d at 120. Third, we noted that the plaintiff's separate claim against the
emergency room physician for negligent diagnosis and treatment before the
decision to transfer was "a matter to be addressed in the separate medical
malpractice action." 98-1977 at p. 13, n. 12, 758 So. 2d at 124. Finally,
we noted that "[t]he statutory definition of malpractice and the federal
and state prohibition against patient 'dumping' often involve similar
conduct." 98-1977 at p. 4, 758 So. 2d at 119.
|
| [136] |
*fn19 Bolden was decided while Spradlin was pending before
this court and simply refers to Spradlin as "not applicable." 97-1425 at
p. 5, 727 So. 2d at 600.
|
| [137] |
*fn20 As noted in an earlier footnote, plaintiff stresses
that Dr. Redmond gave a perpetuation deposition for plaintiff, which was
played to the jury. During that deposition, Dr. Redmond makes no reference
to a compartment syndrome and did not criticize CHNO. As we noted,
however, Dr. Redmond did not have a complete copy of the CHNO medical
records when he gave that earlier deposition.
|
| [138] |
*fn21 While Dr. Deno treated Coleman at JoEllen Smith
Hospital, an x-ray at Charity Hospital when he was admitted revealed that
there was no gas in the arm tissues.
|
| [139] |
*fn22 Having settled with Charity Hospital, Coleman
downplayed any fault of Charity. However, the settlement did not relieve
the jury of its responsibility of apportioning fault to Charity. See LA.
CIV. CODE art.
2323.
|