Justice Kimball on Tort Reform
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2007
- Over the strong dissenting opinion of Justice Jeannette Theriot Knoll, the majority opinion, written by Justice Pascal Calogero, in which Justice Kimball concurred, held (1) that limitations on the legal liability of Lousiana healthcare providers, as set forth in the Louisiana Medical Malpractice Act could be circumvented by an ordinary negligence cause of action; and (2) that such a cause of action was permissible where a New Orleans hospital lost power during Hurricane Katrina, resulting in the death of a patient on life support.
ISSUES:
- The issue before the Court was whether a claim against a New Orleans hospital was a claim for orginary negligence, as the plaintiffs wanted, or a claim for medical malpractice as the hospital wanted-- the difference being that under the LMMA (Lousiana's effort at Tort Reform aimed to protect doctors and hospitals), liability would be capped if the hospital's oversight constituted medical malpractice, but unlimited if it constituted ordinary negligence.
HOLDING:
- The Majority held that the hospital's failure to provide life-support to a patient on life-support, whether occasioned by a failure to move that patient prior to Hurricane Katrina or by a failure ensure that back up generators would work during a Hurricane constituted ordinary negligence rather than medical malpractice, meaning that the plaintiffs were able to circumvent Louisiana's damaged cap pertaining to medical malpractice actions, and seek unlimited damages from the hospital.
MAJORITY REASONING:
- (1) Tort reform such as the LMMA should be construed narrowly because it is "created by special legislation in derogation of the general rights of Louisiana tort victims."
- (2) Hospital's wrongful conduct in failing to provide power source to preserve life of patient on life support was not "treatment related or caused by the dereliction of professional skill."
- (3) Instead, the allegations against the hospital "relate to deficient design of the hospital including lack of emergency power, failure to implement an evacuation plan and failure to have a facility to transfer patients."
- (4) Limitations on tort liability apply only to claims "arising from medical malpractice," and all other tort liability is governed by general tort law."
- (5) With the deceased patient on a ventilator, the crucial decisions in this case would have been made by engineers or administrators, not by doctors.
DISSENT'S REASONING:
In upholding the defendant's death sentence, the dissenting opinion, written by Justice Jeannette Theriot Knoll, reasoned as follows:
- (1) "Because the wrong alleged is the failure to provide the proper ventilation care [the patient] required, I find the allegations do relate to the patient's treatment and an alleged dereliction of professional skill."
- (2) "To say that it is only the power failure that plaintiffs rest their allegations upon is overly simplistic and reading the allegation in a vacuum. The power failure is inherently integral for the plaintiffs to prove their allegations for survival and wrongful death damages. This result is treatment related in that the ventilator could not function without power, which, according to the plaintiffs, ultimately caused [the patient's] death."
- (3) "[O]nly physicians can issue transfer and acceptance orders, and negligence regarding transfer decisions and planning in evacuations cannot likely be established without expert medical testimony. This claim * * * cannot be analyzed in a vacuum, but must relate to the plan for evacuation of [the patient], who was a critical care patient dependent on a ventilator."
- (4) "Transporting a patient from one facility to another requires a physician's order from the transferring facility and an admitting order from the receiving facility, which necessarily includes an assessment of the patient's condition."
- (5) "Despite plaintiffs' assertions that the defective design of the hospital and failure to plan in advance for post-storm evacuation are not issues that involve the physician-patient relationship, * * * the omission in this case most likely occurred in the context of the physician-patient relationship. Transfer of a patient, especially one in need of critical care, is not conducted by an engineer, a design professional, or an administrator. Hospitals and their administrators do not admit, transfer, or discharge patients. Physicians are exclusively licensed to perform these functions, and decisions regarding transfers are no less medically oriented than decisions about the types of medicines a patient needs. Moreover, physicians and hospitals are licensed to perform life sustaining care, in this case the ventilation of a patient. It is the failure of the treatment and care for which the hospital was licensed to perform that is at issue in this case * * *."
POTENTIAL FLAWS IN THE COURT'S REASONING:
This case illustrates the tension over medical malpractice-related tort reform in Louisiana. Since the reform only caps damages in medical malpractice cases, plaintiff's lawyers are all to eager to fit their clients' claims into some category other than medical malpractice (such as ordinary negligence in this case). Meanwhile, judges antagonistic to tort reform or sympathetic to a plaintiff may be happy to effectively remove the cap for a particular plaintiff by agreeing that his case is in fact something other than a medical malpractice claim. In doing so, the court's can effectively remove the teeth from the Louisiana legislature's attempt to cap the medical industry's exposure to liability.
