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
 
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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 Act1 (“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, 31415 (La. 2002) (citing FRANK L.
MARAIST & THOMAS C. GALLIGAN, JR., LOUISIANA TORT LAW § 2122 (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 providereven 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).

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