LMMA’s Medical Review Board and How “Medical Malpractice” is Defined

A person may file a medical malpractice claim when a health care provider unintentionally breaches a contract for service rendered. Medical malpractice claims may be filed when there is a failure to render timely services in the handling of a patient, including loading and unloading of a patient. In Matherne v. Jefferson Parish Hosp. Distr. No. 1 (2012), the Plaintiff, Mrs. Matherne, sought damages for an injury she received when she fell while a hospital employee was transporting her to a hospital bed; and in response to her complaint, the hospital argued the petition was premature because she did not first present the claim to the medical review panel.

Under the Louisiana Medical Malpractice Act (“LMMA”), if a claim is not first presented to a medical review board, a medical malpractice claim against a private health care provider is subject to dismissal on an exception of prematurity. According to La. Civ. L. Treatise, Tort Law § 15:5, the purpose of statutes requiring board review is to: separate frivolous claims from those with merit, alert claimants to the weaknesses of their position, reduce litigation costs, expedite the disposition of cases, and encourage settlement with meritorious cases.

The medical board review panel is composed of four members: three licensed health care providers and an attorney, whose role is purely advisory and cannot vote. The claimant and defendant each choose one health care provider panelist, and the third provider is chosen by the first two. Additionally, if only the defendant is a specialist, then all health care providers on the panel must be from that specialty. The panelists sign an oath of impartiality, review only written evidence, must request additional information from each party if necessary, and deliberate in private. Within thirty days of reviewing the claim or within 180 days of selection of the final panelist, a decision must be reached on whether the health care provider acted negligently by determining whether the standard of care was met and whether failure to follow the standard of care caused the injuries. The panel must give a written opinion delineating the reasons for its decision; this opinion is admissible at trial, but is not conclusive. At trial, the parties may also call the panelists as witnesses.

A plea for prescription may be filed when a medical malpractice claim is dismissed without prejudice for prematurity because it is as though the lawsuit was never filed. Prematurity measures whether the cause of action is ripe for judicial determination.

The burden of proving prematurity is on the mover; and therefore, the hospital must show that it is entitled to a review panel. In this case, the Louisiana Supreme Court first contemplated whether the claim fell within Louisiana’s statutory definition of medical malpractice for failure to render services timely and the handling of a patient, including loading and unloading of a patient.

The Court notes that LMMA applies only to claims “arising from medical malpractice,” and that all other liability is governed by general tort law. In  Coleman v. Deno, the court outlined a six-factor determination test for when an health care provider’s negligent conduct is malpractice covered by the LMMA: (1) whether the wrong is “treatment related” or caused by  failure to exercise professional judgement; (2) whether the wrong requires expert medical evidence to determine whether a standard of care was breached; (3) whether the patient’s condition was assessed; (4) whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities that a hospital is licensed to perform; (5) whether the treatment caused the injury or would have happened without medical care;  and (6) whether it was an intentional tort.

The Court applied the Coleman factors to the present case and determined that the act was covered by the LMMA: (1) the hospital’s fall prevention program, which requires a risk assessment for all patients, should have been implemented in treating the plaintiff; (2) medical evidence was deemed necessary to determine whether the standard of care was breached; (3)  the hospital required an assessment of all patients to determine their fall risk factor; (4) the injury occurred during the scope of licensed activities; (5) if the plaintiff had not sought treatment, the fall would not have occurred; and (6) the Plaintiff did not claim that the actions were intentional.

Although all the factors were satisfied, citing Jordan v. Stonebridge (2003), the patient insisted that her claim did not fit the definition of medical malpractice; however, the Court held that the case was not applicable, as the treatment was not received at the nursing home, and an assessment of the condition was not required. The Louisiana Supreme Court affirmed the lower court’s decision granting an exception of prematurity based on the application of the six Coleman factors.