The Medical Malpractice Cure: Stitching Together the Coleman Factors

• Author: Sarah Nickel
• Position: J.D./D.C.L., 2018, Paul M. Hebert Law Center, Louisiana State University.
• Pages: 311-334

The Medical Malpractice Cure: Stitching Together the Coleman Factors TABLE OF CONTENTS Introduction .................................................................................. 311 I. The Enactment of the MMA: The Act’s Protections and Purposes ....................................................................................... 313 A. The Insurance Crisis .............................................................. 315 B. The Constitutionality of the Act ............................................ 317 II. The Origin of the Coleman Factors .............................................. 318 III. The Unreliable and Unpredictable Nature of the Coleman Factors ........................................................................... 321 A. LaCoste v. Pendleton Methodist Hospital, L.L.C. ................. 321 B. Dupuy v. NMC Operating Co., L.L.C. ...................................... 326 IV. The Medical Malpractice Cure ....................................................... 331 Conclusion .................................................................................... 334 INTRODUCTION A man enters a hospital for a routine outpatient procedure. All appears to go well, and the man is recovering at home with his wife and children when he begins to feel ill. He returns to the hospital and discovers that he has developed a post-operative infection because of unsterilized tools used during the procedure. The improper sterilization did not result from negligence on the part of a doctor or nurse but rather from the service and maintenance of the equipment used in the sterilization process. The man, a husband and a father, dies because of the infection. His family soon learns that Louisiana jurisprudence may classify the family’s claim as one of “malpractice,” sweeping it under the protections of the Louisiana Medical Malpractice Act 1 (“MMA”) and capping recovery at $500,000. 2 The average person probably associates “malpractice” with a medical professional erring in a professional capacity. Even scholars recognize that “[t]he significance of the term ‘malpractice’ is that it is used to differentiate Copyright 2017, by SARAH NICKEL. 1. See Dupuy v. NMC Operating Co., 187 So. 3d 436 (La. 2015). 2. LA. REV. STAT. § 40:1231.2(B)(1) (2017). 312 LOUISIANA LAW REVIEW [Vol. 78 professionals from nonprofessionals for purposes of applying certain statutory limitations of tort liability.” 3 The reality, however, is that medical professional involvement is not a necessary element of “malpractice” under the MMA. 4 When the Louisiana Legislature enacted the MMA, the Act gave certain advantages to health care providers, including limiting recovery for victims. 5 Because the Act is special legislation and deviates from the general rights of tort victims by limiting a tort victim’s recovery, the Act’s coverage should be construed strictly. 6 In an effort to assist courts in determining whether an injury constitutes “malpractice” under the MMA, the Louisiana Supreme Court in Coleman v. Deno set forth six factors. 7 Unfortunately, those factors have proven insufficient and unreliable as a test for malpractice as they are overly broad and open to varying interpretations. 8 In the hypothetical above, one court may apply the factors to find coverage under the MMA while another court, applying the same factors, may find general tort liability. 9 Based on this determination between malpractice and general tort liability, the victim either will be limited to $500,000 in damages or have no limit at all. 10 In light of Louisiana’s public policy, which seeks to protect tort victims’ right to recovery and construe the MMA strictly, Louisiana courts should adopt a new, narrower test for determining whether an act constitutes “malpractice” under the MMA. Part I of this Comment discusses the MMA’s enactment, including the public policy concerns behind the Act, and details the advantages and disadvantages it entails for both health care providers and tort victims. Part II introduces Coleman, the source of the six-factor test, and argues that these factors are an insufficient test for determining malpractice claims in 3. Coleman v. Deno, 813 So. 2d 303, 314–15 (La. 2002) (citing FRANK L. MARAIST & THOMAS C. GALLIGAN, JR., LOUISIANA TORT LAW § 21–22 (1st ed. 1996)). 4. In Dupuy v. NMC Operating Co., L.L.C., the Court rejected the plaintiff’s argument that Dupuy’s injury was not treatment-related because the “maintenance and service of sterilization equipment” was performed by “plant operations rather than physicians.” Instead, the Court found that “[t]he use of the broad term ‘health care provider,’ rather than simply ‘physician’ or ‘medical doctor,’ necessarily includes actions which are treatment related and undertaken by the Hospital in its capacity as a health care provider—even if those actions are not performed directly by a medical professional.” Dupuy, 187 So. 3d at 443. 5. See § 40:1231.2(B)(1). 6. Blevins v. Hamilton Med. Ctr., Inc., 959 So. 2d 440, 444 (La. 2007). 7. Coleman, 813 So. 2d at 315. 8. See, e.g., LaCoste v. Pendleton Methodist Hosp., L.L.C., 966 So. 2d 519 (La. 2007). 9. See discussion infra Part III. 10. § 40:1231.2(B)(1). 2017] COMMENT 313 Louisiana. Part III discusses two Louisiana Supreme Court cases, including the recent decision of Dupuy v. NMC Operating Company, as examples of the unpredictability of the Coleman factors and of a court’s tendency to apply these factors broadly, contrary to Louisiana’s public policy on interpreting the MMA. Finally, Part IV recommends legislative action to remedy the test for determining whether a certain claim constitutes malpractice and proposes an alteration of the Coleman factors as an interim solution for Louisiana courts. I. THE ENACTMENT OF THE MMA: THE ACT’S PROTECTIONS AND PURPOSES The Louisiana Legislature enacted the MMA in 1975 in an effort to “stabilize medical malpractice insurance rates and to assure the availability of affordable medical services to the public.” 11 The Legislature attempted to accomplish these goals by reducing the number of medical malpractice lawsuits being filed and damages being awarded. 12 In furtherance of this effort, the MMA provides certain advantages to qualified “health care providers” 13 in malpractice actions. First, the Act provides a statutory limit 11. Hutchinson v. Patel, 637 So. 2d 415, 419 (La. 1994). 12. Felicia Scroggins, Differentiating Medical Malpractice and Personal Injury Claims in the Context of Statutory Protections: Lacoste v. Pendleton Methodist Hosp., L.L.C., 3 J. HEALTH & BIOMEDICAL L. 367, 367 (2008). 13. § 40:1231.1(A)(10) (defining “health care provider” as “a person, partnership, limited liability partnership, limited liability company, corporation, facility, or institution licensed or certified by this state to provide health care or professional services as a physician, hospital, nursing home, community blood center, tissue bank, dentist, a licensed dietician or licensed nutritionist employed by, referred by, or performing work under contract for, a health care provider or other person already covered by this Part, registered or licensed practical nurse or certified nurse assistant, offshore health service provider, ambulance service under circumstances in which the provisions of R.S. 40:1237.1 are not applicable, certified registered nurse anesthetist, nurse midwife, licensed midwife, nurse practitioner, clinical nurse specialist, pharmacist, optometrist, podiatrist, chiropractor, physical therapist, occupational therapist, psychologist, social worker, licensed professional counselor, licensed perfusionist, licensed respiratory therapist, licensed radiologic technologist, licensed clinical laboratory scientist, or any nonprofit facility considered tax-exempt under Section 501(c)(3), Internal Revenue Code, pursuant to 26 U.S.C. 501(c)(3), for the diagnosis and treatment of cancer or cancer-related diseases, whether or not such a facility is required to be licensed by this state, or any professional corporation a health care provider is authorized to form under the provisions of Title 12 of the Louisiana Revised Statutes of 1950, or any partnership, limited liability partnership, limited liability company, management company, or 314 LOUISIANA LAW REVIEW [Vol. 78 to recovery of $500,000 “for all malpractice 14 claims for injuries to or death of a patient, exclusive of future medical care and related benefits.” 15 Second, it requires that malpractice claims filed against health care providers covered by the MMA be reviewed by a medical review panel before the suit may be brought in a court of law. 16 The medical review panel consists of three Louisiana-licensed health care providers and one non-voting attorney chair-person. 17 The purpose of the panel is “to express its expert opinion as to whether or not the evidence supports the conclusion that the defendant or defendants acted or failed to act within the appropriate standards of care.” 18 Once the panel issues its opinion, the plaintiff chooses whether to file a lawsuit. 19 If the case goes to trial and the court determines that medical malpractice occurred, recovery still is limited by the damages cap. 20 These protections were enacted in response corporation whose business is conducted principally by health care providers, or an officer, employee, partner, member, shareholder, or agent thereof acting in the course and scope of his employment”). 14. § 40:1231.1(A)(13) (defining “malpractice” as “any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely and the handling of a patient, including loading and unloading of a patient, 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...