Is failed evacuation plan medical liability?

Just what is medical malpractice? The definition can vary from one state to the next because state statute -- rather than federal -- defines tort law, and individual state courts interpret them.

Some mistakes, such as operating on the wrong limb, seem to fit medical malpractice by anyone's definition. But such clear cases are rare. And as medical malpractice plaintiff and defense lawyers know, the nuances of state statutes and the common law that interprets those statutes are where the rubber meets the road.

Is it medical malpractice when a physician fails to detect cancer? When a patient contracts an infection during a stay in a hospital? How about when a patient slips on a wet floor during physical therapy or a helicopter transporting a patient experiences a mechanical failure? Often, it is a state supreme court that answers these types of questions.

Indeed, the Louisiana Supreme Court has undertaken just such an endeavor after a ruling by the Court of Appeal of Louisiana, Fourth Circuit, in LaCoste v. Pendleton Methodist Hospital. The appellate court said negligence claims brought by the family of a woman who died at Pendleton Methodist Hospital in the wake of Hurricane Katrina fell within the purview of the Louisiana Medical Malpractice Act. The hospital wants the case to fall within the act so the LaCostes will have to go through a hearing process before proceeding any further in the courts.

Althea LaCoste was recovering from pneumonia and needed a ventilator to help her breathe when her family took her to Pendleton Methodist Hospital the day before Hurricane Katrina struck New Orleans. She was admitted. The hospital lost power during the hurricane, and its backup generator also failed. Hospital staff were forced to evacuate many patients after the Hurricane, but LaCoste was not evacuated. She died at the hospital.

Her family is alleging that her ventilator system became inoperable because the hospital did not have power and that Pendleton had an inadequate evacuation plan that resulted in LaCoste's death.

They are suing under a premises liability theory, the tort theory used to sue businesses for accidents on their premises, such as slip-and-fall cases. The family argues that business decisions not related to patient care are to blame for the death.

Pendleton first raised its claim that the lawsuit was governed by the state medical malpractice act in the Civil District Court, Orleans Parish in August 2006, but the district court disagreed. The judge ruled that the hospital's alleged wrongful acts were not treatment-related or caused by a dereliction of professional skill but were due to the deficient design of the hospital, court records show.

Pendleton appealed to the Fourth Circuit, and in a December 2006 ruling, the appeals court overturned the lower court. It ruled that although the LaCoste family was "attempting to fly below the radar" of the malpractice act, failure to evacuate patients and failure to provide emergency power to patients sounded like medical malpractice as it is defined under the act.

The Fourth Circuit noted in its ruling that attorneys for LaCoste filed a petition for review, as the liability act requires. The court said that claim "militates to the conclusion that the plaintiffs on some level believe that some portion of their claims sounds in medical malpractice." LaCoste's attorneys said they filed the medical malpractice complaint because they feared running out of time to do so before a final court ruling on the issue of whether the original claim would be required to go before a review panel under the act.

Under the LMMA, all medical liability lawsuits must go to the state's Patient's Compensation Fund Oversight Board and be reviewed by a medical panel that usually consists of three health care professionals and an attorney. The panel has one year to review the lawsuit before any court action can be taken. A lawsuit can go forward even if the panel doesn't think malpractice has been committed, but the panel's report can be introduced into evidence at trial.

Should the Louisiana Supreme Court uphold the Fourth Circuit, the LaCoste family's lawsuit would go to the Patient's Compensation Fund Oversight Board for review. Compensation fund officials have taken a particular interest in the case, filing a petition for intervention in the trial court with a view toward filing a brief with the Fourth Circuit if Pendleton Hospital lost at the trial court and appealed. The oversight board has taken the position that the LaCoste family's claims do not fit within the LMMA.

Decision will set tone for others

The fund's interest in the case is not surprising. The lawsuit is one of more than 200 of a similar nature filed in the wake of the hurricane. If the Supreme Court upholds the Fourth Circuit, the Patient Compensation Fund could be flooded with petitions for panel hearings.

The Louisiana Supreme Court has outlined a six-factor test for deciding if a claim sounds like medical malpractice and first must be presented to the medical review panel. The factors are whether:

• The particular wrong is "treatment-related" or caused by a dereliction of professional skill.
• The wrong requires expert medical evidence to determine whether the appropriate standard of care was breached.
• The pertinent act or omission involved assessment of the patient's condition.
• 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.
• The injury still would have occurred if the patient had not sought treatment.
• The tort alleged was intentional.

All of these factors must be met for a claim to fall within the medical malpractice act.

Open for interpretation

There is plenty of room for interpretation in these factors, as briefs filed by both parties to the Supreme Court show. Consequently, it isn't mystifying how both lower courts could consider these factors and come to polar opposite conclusions.

In its appellate brief, the LaCoste family maintains that the absence of "standard-of-care language" in their brief is due to the fact that the health care professionals who treated LaCoste were constrained in their efforts by the corporate business decisions made by Pendleton.

In addition, they argued, the wrong in this case cannot be judged through expert medical evidence. Instead, they say, an engineer, plant operations expert or architect are the kinds of experts needed to testify to the issues. Further, they argued, there are no allegations against any individual physician, and their allegations involving the defective design of the hospital and failure to form an evacuation plan are outside the physician-patient relationship.

Pendleton, however, argued in its appellate brief that notwithstanding the omission of the standard-of-care terminology, "the thrust of the lawsuit is that the failure to deliver appropriate life support, a form of medical care, is what caused the hospital to be unable to save Mrs. LaCoste from her disease." The hospital argues that life-support systems are unique to hospitals and that any unintentional tort resulting in the failure of the hospital to properly deliver life support triggers coverage under the LMMA.

In addition, the hospital argued that emergency preparedness in the medical field is very different from emergency preparedness in other areas and that medical experts from the field of disaster medicine will be essential in determining the standard of care unique to implementing a program such as the hospital's emergency preparedness plan. It notes that there are peer review journals devoted to the topic such as the American Journal of Disaster Medicine and that the "extensive medical scholarship on the issues raised by the [plaintiff] proves that these claims will be the focus of medical experts since at their core, they involve medical issues."

The Louisiana Supreme Court heard oral arguments in early April and could issue a ruling as early as the end of May.