                              Supreme Court of Louisiana

FOR IMMEDIATE NEWS RELEASE                                            NEWS RELEASE #017


FROM: CLERK OF SUPREME COURT OF LOUISIANA



The Opinions handed down on the 15th day of March, 2017, are as follows:



BY CLARK, J.:


2016-CC-1146     DARRIN COULON AND TESS COULON v. ENDURANCE RISK PARTNERS, INC., WEST
                 BANK SURGERY CENTER, L.L.C., AND MARK JUNEAU, M.D. (Parish of Jefferson)

                  Accordingly, we reverse the ruling that sustained the Surgery Center=s
                  exception of prematurity and remand for proceedings consistent with
                  this opinion.
                  REVERSED AND REMANDED.
03/15/17



                     SUPREME COURT OF LOUISIANA

                                No. 2016-CC-1146

                  DARRIN COULON AND TESS COULON

                                    VERSUS

     ENDURANCE RISK PARTNERS, INC., WEST BANK SURGERY
           CENTER, L.L.C., AND MARK JUNEAU, M.D.

   ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL
        DISTRICT COURT FOR THE PARISH OF JEFFERSON

CLARK, Justice

      This case concerns the pleading requirements of the Louisiana Medical

Malpractice Act [“LMMA”], La. R.S. 40:1231.1, et seq. The plaintiffs alleged that

an infection developed after negligent medical treatment was provided by the

defendants. Accordingly, they filed a Request for Medical Review Panel and,

subsequently, a lawsuit. We granted the plaintiffs’ writ application to determine

whether the medical review panel complaint was sufficient to survive an exception

of prematurity. For the reasons that follow, we find the brief descriptions of

malpractice contained in the complaint are broad enough to encompass the specific

allegations contained in the petition for damages. Thus, we reverse the lower

courts’ grant of the exception of prematurity and remand the matter for

proceedings consistent with this holding.


                   FACTS AND PROCEDURAL HISTORY

      In late 2011, Darrin Coulon underwent shoulder surgery at the West Bank

Surgery Center, (hereinafter “the Surgery Center”), which was performed by Dr.

Mark Juneau. Mr. Coulon developed an infection, necessitating several additional

surgeries and treatment to resolve. Thereafter, Mr. Coulon and his wife, Tess

Coulon, (hereinafter referred to as “the plaintiffs”), filed a pro se Request for
Medical Review Panel, (hereinafter “the complaint”), with regard to a claim for

medical malpractice arising out of the care and treatment provided by Dr. Juneau

and the Surgery Center. In the complaint and with respect to the Surgery Center,

the plaintiffs alleged:


      [The Surgery Center] failed to develop, maintain, and enforce proper
      policies and procedures to prevent surgical infections.
      [The Surgery Center is] responsible under the theory of respondeat
      superior for the actions of its employees acting within the course and
      scope of their employment.

The plaintiffs also filed a Submission of Evidence with their complaint, attaching

to it medical records, affidavits of the plaintiffs, and photographs.

      The medical review panel made a finding that “[t]he evidence does not

support the conclusion that the defendants, Jefferson Orthopedic Clinic [a party not

relevant to the instant legal issue], Dr. Mark Juneau, and [the Surgery Center],

failed to meet the applicable standard of care as charged in the complaint.” In its

opinion, the panel explained, in pertinent part:


            1. There is nothing in the records presented to the panel to
      review to indicate that [the Surgery Center] and/or its employees
      deviated from the standard of care.
            2. The center’s personnel properly monitored the patient and
      followed all physician orders in an appropriate and timely fashion.
      There is no evidence to indicate the facility had failed to maintain
      proper procedures to prevent surgical infections.


      After the panel rendered its opinion, the plaintiffs filed the instant suit for

damages against the Surgery Center. In their petition, the plaintiffs alleged the

Surgery Center failed to properly train and supervise the nurses who treated Mr.

Coulon:


             Defendant, [the Surgery Center], is liable unto petitioners
      because Darrin Coulon’s injuries and damages were proximately and
      legally caused by the fault, including negligence of [the Surgery
                                           2
       Center] and its officers, agents, and/or employees, and those for
       whom it is legally responsible, including but not limited to, Darrin
       Coulon’s nurses, and/or surgical staff including the following
       negligent acts of omission and commission, among others, which may
       be shown at trial:
       a. Failure to develop and/or implement and/or enforce adequate
       policies and procedures to competently prevent and/or treat infection;
       b. Failure to insure a sterile surgical environment;
       c. Failure to supervise the nurses who treated Darrin Coulon;
       and
       d. Failure to train the nurses who treated Darrin Coulon.
[emphasis added].
       In response, the Surgery Center filed a partial exception of prematurity,

arguing the allegations regarding the failure to train and supervise the nurses was

premature as the plaintiffs did not allege these claims in their complaint to the

medical review panel. The plaintiffs opposed the exception. They contended that

the language alleged in the complaint was broad enough to encompass the claims

set forth in the petition.

       The trial court conducted a hearing and sustained the Surgery Center’s

exception of prematurity, thereby dismissing the plaintiffs’ malpractice action in

part. The trial court’s judgment provided:

       IT IS HEREBY ORDERD, ADJUDGED AND DECREED that [the
       Surgery Center’s] Exception of Prematurity is GRANTED, and
       plaintiffs’ claims alleged in their Petition for Damages at paragraph
       104, subsection (c) Failure to supervise the nurses who treated Darrin
       Coulon and at paragraph 104, subsection (d) Failure to train the nurses
       who treated Darrin Coulon, are dismissed without prejudice.
       The transcript of the hearing reveals the trial court agreed with the Surgery

Center’s argument that while the language in the petition does not need to be

identical to that contained in the complaint, the plaintiffs cannot bring “entirely

new theories of liability.”




                                          3
           The plaintiffs sought supervisory review. The court of appeal denied the

writ, stating, in pertinent part: 1


                  In their September 25, 2012 medical review panel request,
           Relators set forth a general allegation that Respondent was
           responsible under the theory of respondeat superior for the actions of
           its employees acting within the course and scope of their employment.
           Relators did not specify the employees for whom Respondent was
           responsible under respondeat superior. In their “Submission of
           Evidence,” Relators alleged Dr. Mark Juneau breached his standard of
           care of Mr. Coulon in various ways while employed with Respondent.
           The submission of evidence did not brief any argument regarding
           Respondent’s alleged failure to train and/or supervise its nurses. The
           medical review panel’s opinion and reasons found there was nothing
           presented to indicate that Respondent or its employees deviated from
           the standard of care. The medical review panel did not specifically
           address any allegation against Respondent in reference to an alleged
           failure to train and/or supervise its nurses.
                  Upon review, we find the dilatory exception of prematurity was
           properly sustained. A review of the documentation submitted to the
           medical review panel reveals that Relators did not present sufficient
           information for the panel concerning the nursing staff to determine
           whether Respondent was entitled to protection under the Medical
           Malpractice Act. Thus, we find that Relators failed to first present the
           claims that Respondent failed to supervise and train the nurses who
           treated Mr. Coulon, claims that sound in medical malpractice, to the
           medical review panel. Accordingly, the writ application is denied.
           The plaintiffs filed the instant writ application. This court granted the writ

to decide whether the exception of prematurity was properly sustained.2

                                                  DISCUSSION

           Prior to filing suit in a case where medical negligence is alleged, the LMMA

requires a medical review panel to be convened. See La. R.S. 40:1231.8(A)(1)(a)

(“All malpractice claims against health care providers . . . shall be reviewed by a

medical review panel”). See also La. R.S. 40:1231.8(B)(1)(a)(i)(“No action against

a health care provider. . . may be commenced in any court before the claimant’s

proposed complaint has been presented to a medical review panel”). The panel is

tasked with rendering “an expert opinion as to whether or not the evidence

1
    Coulon v. Endurance Risk Partners, Inc., et al., 16-264 (La. App. 5 Cir. 5/18/16), _So.3d _.
2
    Coulon v. Endurance Risk Partners, Inc., et al., 16-1146 (La. 11/7/16), _So.3d_.
                                                            4
supports the conclusion that the defendant or defendants acted or failed to act

within the appropriate standards of care.” La. R.S. 40:1231.8(G).

           “The dilatory exception of prematurity provided in La.Code Civ. Proc. art.

926 questions whether the cause of action has matured to the point where it is ripe

for judicial determination.” Moreno v. Entergy Corp., 2010-2268 (La. 2/18/11), 64

So. 3d 761, 762–63. In the context of medical malpractice cases, defendant health

care providers often use the exception of prematurity when there is a question of

whether the claim at issue falls within the definition of medical malpractice, so as

to require it to first be brought to a medical review panel. However, the parties in

the instant case do not dispute that the claims of “failure to train the nurses” and

“failure to supervise the nurses” sound in medical malpractice as defined by La.

R.S. 40:1231.1(A)(13).                Rather, the Surgery Center raised the exception of

prematurity to argue that these claims were new and separate claims from those

raised in the complaint. Accordingly, the Surgery Center avers the claims were not

first presented to the medical review panel and are properly subject to dismissal as

a result.

           In order to address this contention and the sufficiency of the plaintiffs’

complaint, we turn to La. R.S. 40:1231.8(A)(1)(b), which sets forth the required

content of a complaint: 3

                A request for review of a malpractice claim or a malpractice
           complaint shall contain, at a minimum, all of the following:

                   (i) A request for the formation of a medical review panel.
                 (ii) The name of only one patient for whom, or on whose
           behalf, the request for review is being filed; however, if the claim
           involves the care of a pregnant mother and her unborn child, then
           naming the mother as the patient shall be sufficient.
                   (iii) The names of the claimants.
                   (iv) The names of the defendant health care providers.

3
    These delineated requirements were added by amendment in 2003. See Acts 2003 No. 961 § 1.
                                                        5
             (v) The dates of the alleged malpractice.
           (vi) A brief description of the alleged malpractice as to each
      named defendant health care provider.
             (vii) A brief description of the alleged injuries.

      The instant case asks us to determine whether the plaintiffs satisfied subpart

(vi), namely, whether the plaintiffs provided in their complaint a “brief description

of the alleged malpractice as to each named defendant health care provider.” The

Surgery Center argues the plaintiffs’ claims regarding failure to train and supervise

the nurses were not included in the brief description(s) of the malpractice alleged

in their complaint. Conversely, the plaintiffs contend they sufficiently alleged in

their complaint that the Surgery Center’s act of malpractice was the failure to

prevent Mr. Coulon’s surgical infection under theories of both direct and vicarious

liability. This brief description, as alleged by the plaintiffs, encompassed the

causes of action that are at issue. For the reasons that follow, we agree.

       This court in the pre-amendment case of Perritt v. Dona, 2002-2601 (La.

7/2/03), 849 So.2d 56, 64, explained that the medical review panel claim is not a

fact pleading which requires the same specificity as a petition in a lawsuit. Rather,

“the claim need only present sufficient information for the panel to make a

determination as to whether the defendant is entitled to the protection of the Act.”

Id. at 65. We see nothing in the amendment to La. R.S. 40:1231.8(A)(1)(b) that

makes the pleading requirement any more onerous. It is still the duty of the

medical review panel to specify the health care provider’s standard of care and

determine thereafter if such standard was breached. Perritt, 849 So.2d at 65; La.

R.S. 40:1231.8(G).      The requirement of a “brief description of the alleged

malpractice” supports this conclusion and is in line with the history of the LMMA,

which favors a layman plaintiff’s access to medical expertise as a “filtering” or

“pre-screening” process against “frivolous” and “worthless” claims. Everett v.
                                           6
Goldman, 359 So.2d 1256, 1263 (La. 1978). Thus, the pertinent question posed is

whether the claims raised in the complaint contain enough information for the

medical review panel to consider and conclude that the Surgery Center was entitled

to the protections of the LMMA, as opposed to claims that sound in tort. Perritt,

849 So.2d at 65.

      For the reasons that follow, we find the plaintiffs’ allegations contained in

the complaint presented to the medical review panel are broad enough to

encompass the failure to train and supervise the nurses who cared for Mr. Coulon.

Specifically, we note that the complaint alleged direct liability for the Surgery

Center’s failure “to develop, maintain, and enforce proper policies and procedures

to prevent surgical infections” as well as vicarious liability under the theory of

“respondeat superior for the actions of its employees.” The underlying injury

alleged by the plaintiffs is infection. Thus, in alleging both direct and vicarious

liability, it is a natural conclusion that the plaintiffs were seeking panel review of

all the policies, procedures, and/or employee conduct that could have led to the

infection Mr. Coulon developed as a result of his treatment with Dr. Juneau and the

Surgery Center.

      The medical review panel understood the full scope of their review, as

evidenced by their opinion that there was no deviation from the standard of care on

the part of the Surgery Center and/or its employees in relation to Mr. Coulon’s

infection. In fact, it specifically noted the “personnel properly monitored the

patient and followed all physician orders in an appropriate and timely fashion.”

This conclusion encompasses the nurses’ actions in treating Mr. Coulon, either

under a theory of direct fault by the Surgery Center or imputed fault, which were

both alleged.



                                          7
      With regard to imputed fault, the foundation of liability under respondeat

superior is the employee’s tort.        FRANK L. MARAIST & THOMAS C.

GALLIGAN, JR. LOUISIANA TORT LAW § 13.02(2d ed. 2016). See also La.

Civ. Code art. 2320. In order for liability to attach to the employer under this

doctrine, there must be some fault on the part of the employee.       The allegations

that the Surgery Center failed to train and supervise its nurses presuppose some

negligent act by the nurses that caused Mr. Coulon harm, which the Surgery Center

should have prevented by proper training and supervision. Stated differently, while

the liability of an employer for negligent training and supervision is direct, for such

liability to attach there must have been conduct that caused damage, and this

conduct could only have been committed by an employee, i.e, a nurse. However,

such negligence by the nurses, as employees of the Surgery Center, was

specifically considered and rejected by the panel. Thus, it cannot be said now that

those allegations were never before the panel, nor can it be held that those

allegations were properly dismissed as premature.

      Moreover, the allegation that the Surgery Center failed to “develop,

maintain, and enforce proper policies and procedures to prevent surgical

infections,” which is a theory of direct liability, also speaks to the training and

supervising of the employees in whose hands the prevention of surgical infections

falls as a matter of practice. The use of the word “enforce” denotes the effective

carrying out of an action or course of action. Mirriam-Webster’s Collegiate

Dictionary 272 (1961) references the synonym “implement, mean[ing] to put into

effect or operation.” Quite logically, the enforcement of a policy or procedure

encompasses the training and supervising of the very employees who perform the

actions contemplated by the policy or procedure, i.e, the carrying out of such

policy or procedure. The Surgery Center avers the allegations of negligent training

                                          8
and supervision are brand new allegations that do not correlate to the allegation of

a failure to have proper policies and procedures to prevent infection. In particular,

it contends the new allegations do not specify in what manner or practice area the

nurses were not trained or supervised. However, by alleging in the complaint that

the injury incurred by Mr. Coulon was infection from surgery, the petition can

reasonably be understood to allege the Surgery Center is liable for failing to train

and supervise its nurses to prevent surgical infection. By definition, the enforcing

of the Surgery Center’s policies and procedures means putting those policies and

procedures into effect, in other words, training and supervising the employees to

execute those policies and procedures.

      Accordingly, we conclude the allegation that the Surgery Center did not

“enforce proper policies and procedures to prevent surgical infections”

encompassed the allegation that the Surgery Center did not adequately train and

supervise the nurses who treated Mr. Coulon. Thus, we find the plaintiffs’ petition

in full survives the exception of prematurity.

                                     CONCLUSION

      Based on the foregoing, we expressly adopt the plaintiffs’ alternative

argument that the language in the complaint was sufficient to include the

allegations contained in paragraphs (c) and (d) of the petition. The information

contained therein presented enough information for the panel to determine the

Surgery Center was “entitled to the protection of the [LMMA],” which affords it

the benefit of a medical review panel’s expert opinion regarding a specification of

the standard of care and a determination of whether that standard was breached.

Perritt, 849 So. 2d at 65. We find that the allegations taken separately, under

direct or vicarious liability, are sufficient to encompass the causes of action at



                                          9
issue. Additionally, we note that the coupling of the two allegations renders the

complaint more than sufficient to satisfy the pleading requirements of the Act.

      Accordingly, we reverse the ruling that sustained the Surgery Center’s

exception of prematurity and remand for proceedings consistent with this opinion.

REVERSED AND REMANDED.




                                         10
