Medical Malpractice Claim Arises from Failure to Follow DNR

A do-not-resuscitate order (“DNR”) is a formalized direction to medical personnel that they are forbidden from performing life-saving efforts on an individual who is in need of care. In Jones v. Ruston Louisiana Hospital Company, the decedent filed a DNR, which was kept on record,  with the Northern Louisiana Medical Center (“NLMC”) in Ruston, Louisiana. In July of 2009, the decedent was admitted to the NLMC for medical treatment; and six days later, despite the very clear instructions of the DNR, NLMC employees resuscitated him when he went into cardiac arrest. Thereafter, the decedent suffered unnecessary and extensive physical disabilities, requiring rehabilitative treatment for two months until his death.

The decedent’s family members (the “Plaintiffs”) posthumously brought suit against NLMC for the following four claims: (1) reimbursement for medical expenses in connection with his rehabilitation care; (2) physical and mental pain and suffering; (3) loss of enjoyment of life and cognitive decline; and (4) bystander recovery. However, the NLMC fired back with a procedural defect argument that the Plaintiffs skipped a crucial step in bringing the lawsuit. An “exception of prematurity” was filed based on the Louisiana Medical Malpractice Act (“LMMA”), which requires that a case be brought before a medical review panel prior to claims being filed in court when the defendant is a qualified healthcare provider. This exception applies when the underlying alleged conduct of the defendant exists under the LMMA umbrella. Specifically, and most importantly in this case, the claim must be for medical malpractice claim and not general tort liability.

The issue at hand was whether the Plaintiffs’ claims were based on medical malpractice or general tort law. In order to resolve this issue, the court relied on Coleman v. Deno (2002), which established the following six factors: (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.

At first glance, when considering the circumstances and the prongs of the test, it is easy to conclude that the case must be based on medical malpractice. The defendant is a hospital, the decedent died and the conduct complained of was performed by medical personnel; however, upon a closer look, the case is not medical malpractice by any means. In a similar case, Terry v. Red River Center Corp., 862 So. 2d 1061, the decedent was living in a nursing home and had a DNR on file. When she had trouble breathing, the medical personnel treated her, despite her opposite wishes. The court found that the mere fact that she was treated at a hospital did not bring the case under the throngs of medical malpractice. Instead, the claim was a general tort of negligence, since the defendants did not abide by the directive. Furthermore, the case was not based on the medical personnel erroneously performing treatment below the standard of care, but rather in failing to follow the DNR.

The Court of Appeals likened the case-at-hand to Terry and decided that a medical review panel was not required, as the case was based on general tort law, not medical malpractice. Therefore, the exception for prematurity was improper and the case will continue to the Third Judicial District Court for the Parish of Lincoln, Louisiana.

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