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 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, 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).