Larye Morrow v. Louisiana Medical Mutual Insurance Company (LAMMICO), Cusimano Plastic Surgery, LLC and Luke Anthony Cusimano, III, M.D. ( 2023 )


Menu:
  •                           STATE OF LOUISIANA
    COURT OF APPEAL
    FIRST CIRCUIT
    NO. 2022 CA 1006
    LARYE MORROW
    VERSUS
    LOUISIANA MEDICAL MUTUAL INSURANCE COMPANY
    LAMMICO), CUSIMANO PLASTIC SURGERY, LLC, AND
    LUKE ANTHONY CUSIMANO, III, M.D.
    Judgment Rendered:        FEB 2 4 2023
    Appealed from the
    19th Judicial District Court
    In and for the Parish of East Baton Rouge
    State of Louisiana
    Docket No. 715166
    The Honorable Donald R. Johnson, Judge Presiding
    Damon L. Beard                             Counsel for Plaintiff/Appellant,
    Todd A. Townsley                           Larye Morrow
    Sage Thibodeaux
    Hannah E. Mayeaux
    Lake Charles, Louisiana
    Vance A. Gibbs                             Counsel for Defendants/ Appellees,
    Jason R. Cashio                            Luke Anthony Cusimano, III, M.D.,
    Baton Rouge, Louisiana                     Cusimano Plastic Surgery, LLC,
    Karen M. Fontana Young                     and Louisiana Medical Mutual
    New Orleans, Louisiana                     Insurance Company
    BEFORE: GUIDRY, C. J., WOLFE, AND MILLER, JJ.
    MILLER, J.
    Larye   Morrow (" Ms.        Morrow")        appeals   a judgment,       which   sustained
    dilatory exceptions of prematurity in favor of the appellees,            Louisiana Medical
    Mutual Insurance Company ("          LAMMICO"),         Cusimano Plastic Surgery,          LLC
    Cusimano Plastic Surgery"), and Luke Anthony Cusimano,                        III, M.D. (" Dr.
    Cusimano").   For the following reasons, we affirm.
    FACTUAL AND PROCEDURAL HISTORY
    On January 20, 2021, Dr. Cusimano performed surgery on Ms. Morrow, and
    drains were placed in the pocket of her breasts and in the back of both breasts. On
    January 27,   2021,    Ms. Morrow presented to Dr. Cusimano for her first post-
    operative visit, and on February 5, 2021, Dr. Cusimano removed the drains from
    Ms. Morrow' s breasts. Due to continued pain, Ms. Morrow underwent chest x-rays
    which revealed a looped wire within the soft tissues of the posterior left chest wall.
    On   November     2,   2021,    Dr. Taylor    Theunissen performed         a    four c
    - entimeter
    excision and dissection through Ms. Morrow' s subcutaneous tissue and removed
    eighteen centimeters of drain tube previously placed by Dr. Cusimano.
    On January 20, 2022, Ms. Morrow filed a " Petition for Damages"                    against
    LAMMICO,      Cusimano Plastic Surgery,            and Dr. Cusimano.       She alleged that
    Cusimano Plastic Surgery and Dr.            Cusimano breached the applicable medical
    standards   and   committed       medical     malpractice.     Specifically,     Ms.   Morrow
    contended that Dr. Cusimano and his staff did not ensure that the drain was
    removed in its entirety and did not examine the portion of the drain that was
    removed to ensure the drain was not damaged or broken. She further alleged that
    Dr. Cusimano was insured by LAMMICO.
    On February 22,          2022, Dr.   Cusimano and LAMMICO filed a dilatory
    exception of prematurity, and on April 6, 2022, Cusimano Plastic Surgery filed an
    identical exception. The appellees contended that the medical review panel had not
    0)
    reviewed Ms. Morrow' s        allegations of medical malpractice nor rendered an
    opinion as required by La. R.S. 40: 1231. 5. Therefore, the appellees asserted that
    the allegations contained in Ms. Morrow' s petition were premature and the lawsuit
    should be dismissed. Dr. Cusimano, LAMMICO and Cusimano Plastic Surgery
    each attached three exhibits to their exceptions including Ms. Morrow' s petition,
    Dr.   Cusimano' s     Certificate   of    Enrollment    with    the   Louisiana     Patient' s
    Compensation Fund, and Ms. Morrow' s Medical Malpractice Complaint.
    On April   14, 2022, Ms. Morrow filed an opposition to the appellees'
    exceptions of prematurity. Ms. Morrow contended that the Louisiana Health
    Emergency Powers Act ("        LHEPA")     applied to this case and barred any claims
    against the listed health care providers under the Louisiana Medical Malpractice
    Act ("    LMMA")     while    the   Louisiana     Governor' s   declared   Public     Health
    Emergency was in effect.         Ms.     Morrow further argued that she brought            an
    intentional tort and/ or gross negligence or willful misconduct claim against
    LAMMICO, Cusimano Plastic Surgery, and Dr. Cusimano, which is governed by
    LHEPA and not LMMA. Ms. Morrow attached her petition to her opposition.
    The appellees'   exceptions were heard by the trial court on April 25, 2022.
    The trial court sustained the appellees'      exceptions of prematurity and dismissed
    Ms. Morrow' s claims without prejudice. The trial court signed a judgment to that
    effect on May 23, 2022. It is from this judgment that Ms. Morrow appeals.
    ASSIGNMENTS OF ERROR
    Ms. Morrow contends that ( 1)        the trial court erred in sustaining the
    appellees'   exceptions of prematurity requiring Ms.        Morrow' s gross negligence,
    willful misconduct, and intentional tort claims to be reviewed by a medical review
    panel because Title 40 does not govern intentional or gross acts; and ( 2) the trial
    court erred in sustaining the appellees' exceptions of prematurity because under a
    3
    Public Health Emergency, Title 29 governs Ms. Morrow' s claims and Title 40
    cannot form a basis for the appellees' liability.
    STANDARD OF REVIEW
    Louisiana Code        of Civil Procedure      article 926( A)( 1)   provides for the
    exception of prematurity. This exception questions whether the cause of action has
    matured to the point where it is ripe for judicial determination. Kelleher v.
    University Medical Center Management Corporation, 2021- 00011 (              La. 10110121),
    
    332 So. 3d 654
    , 657. The exception of prematurity subjects a medical malpractice
    claim against a qualified health care provider to dismissal if "such claim has not
    first been reviewed by a pre -suit medical review panel" as required by La. R.S.
    40: 1231. 8. 
    Id.
     In a medical malpractice matter such as this, the exceptor must
    demonstrate that they are entitled to a medical review panel because the allegations
    fall within the scope of the LMMA. 
    Id.
     The question of whether a medical
    malpractice claim is within that scope is a question of law subject to the de novo
    standard of review. 
    Id.
    DISCUSSION
    Ms. Morrow contends that her claims do not fall under the LMMA. First,
    Ms. Morrow argues that her petition alleges gross negligence, willful misconduct,
    and an intentional tort by Dr. Cusimano and Cusimano Plastic Surgery, that such
    claims fall outside of the LMMA, and that they do not require submission to a
    medical   review   panel.
    Secondly, Ms. Morrow directs attention to the LHEPA,
    noting that the subject treatment occurred during the Covid- 19 global pandemic
    and that the LHEPA governs instead of the LMMA in this instance.
    Typically,   La. R. S.   9: 2794( A) provides the burden of proof for medical
    malpractice based on the negligence of a physician. The underlying medical
    treatment at issue in this case occurred in 2021, well after the Governor' s March
    11, 2020 declaration of a public health emergency due to the pandemic. Louisiana
    4
    Revised Statutes 29: 771( 13)( 2)( c)( i) provides a heightened burden of proof against
    private health care providers during the event of a public health emergency. In this
    regard, La. R.S. 29: 771( B)( 2)( c)( i) provides that "[    d] uring a state of public health
    emergency, no health care provider shall be civilly liable for causing the death of,
    or injury to, any person or damage to any property except in the event of gross
    negligence or willful misconduct."           As the more specific statute, La. R.S. 29: 771
    prevails over the more general malpractice statutes during a state of public health
    emergency and provides the heightened burden of proof. Whitehead v. Christus
    Health Central Louisiana, 2021- 764 ( La. App. 3`` d Cir. 618122),         
    344 So. 3d 91
    , 95.
    Even during the time of a declared public health emergency, the medical
    malpractice      provisions     for private health care providers found in La. R.S.
    40: 1231. 1- 1231. 10 continue to apply. 
    Id.
     Nothing in LHEPA directly or indirectly
    abrogates      the    LMMA.      Louisiana   Revised   Statutes    40: 1231. 1( A)( 13)   defines
    malpractice by a private health care provider, in part, as follows:
    Malpractice" means any unintentional tort ...             based on health care
    or     professional    services   rendered,   or   which    should   have     been
    rendered, by a health care provider, to a patient, including failure to
    render services timely and the handling of a patient ...                and   also
    includes all legal responsibility of a health care provider arising from
    acts    or   omissions ...
    in the training or supervision of health care
    providers ....
    Cook v. Rigby, 2019- 1463 ( La. App. I" Cir. 4113121), 
    323 So. 3d 383
    , 391,                  writ
    denied, 2021- 00663 ( La. 9127121), 
    324 So. 3d 102
    . Given the definition provided
    by La. R.S. 40: 1231. 1( A)( 13), courts of this state have determined that claims for
    gross negligence of private health care providers are covered under the LMMA.
    Whitehead, 344 So. 3d at 95. Thus, Ms. Morrow' s claims of gross negligence
    and/ or wrongful misconduct fall within the type of treatment- related " unintentional
    tort"   described by La.        R. S. 40: 1231. 1( A)( 13) and must proceed to a pre- trial
    medical review panel.
    5
    Ms. Morrow also contends that she specifically alleged that the appellees'
    willful,   deliberate,    and intentional choices made it predictable or substantially
    certain harm would occur to her. Ms. Morrow argues that such claims of
    intentional acts must proceed outside the LMMA. An intentional tort requires that
    the provider either: "( 1)    consciously desires the physical result of his act[ j or ( 2)
    knows that the result is substantially certain to follow from his conduct, whatever
    his desire may be as to that result." Bazley v. Tortorich, 
    397 So. 2d 475
    , 481 (            La.
    1981).     However,      something more than a conclusory allegation of intentional
    conduct is required. Butler -Bowie v. Olive Branch Senior Care Center, 52, 520, p.
    10 ( La. App. 2nd Cir. 2127119),     
    266 So. 3d 478
    , 484. "[ T] he mere invocation of the
    word `` intentional' will not create a cause of action." Id. at 485.
    The allegations in Ms.      Morrow' s petition regarding intentional acts are
    conclusory and do not contain specific facts sufficient to establish that the
    appellees consciously desired the physical result of their acts or knew that the
    result was substantially certain to follow from their conduct. See Bazley, 397 So.
    2d at 481.     Rather, the conduct complained of was alleged to be a failure to
    advocate for Ms. Morrow and provide the care she needed; failure to ensure
    competency of the physicians and staff; failure to supervise staff; failure to
    properly assess,      evaluate,   diagnose,   monitor,   manage,   and treat Ms. Morrow;
    failure to properly develop, implement, evaluate, and update a plan of care for Ms.
    Morrow; failure to consistently perform and document a proper assessment; failure
    to complete the drain removal; failure to provide consistent medical record
    documentation; failure to utilize knowledge, education, and expertise in caring for
    Ms. Morrow;      failure to provide comprehensive counseling and obtain informed
    consent;
    failure to properly perform procedures;        and   other   acts   and   omissions.
    This deficiency of fact pleading distances Ms. Morrow' s claims from the definition
    of intentional tort provided in Bazley, 
    397 So. 2d 475
    .
    6
    At the outset, Ms. Morrow' s allegations must be measured under the factors
    of Coleman v. Deno, 2001- 1. 517, ( La. 1125102), 
    813 So. 2d 303
    . Ms. Morrow' s
    factual allegations relate to treatment errors or omissions by Cusimano Plastic
    Surgery and Dr. Cusimano, stemming from medical treatment and related care as
    defined in La. R.S. 40: 1231. 1( A)( 13).       Moreover, Ms. Morrow' s claims satisfy the
    Coleman factors and thus fall under the LMMA as they: ( 1)              are treatment related
    or caused by a dereliction of skill; ( 2)        will require expert medical evidence as to
    standard of care; (     3) pertain to assessment of the patient' s condition; ( 4) occurred
    within the context of a physician -patient relationship or within the hospital' s scope
    of activities; (   5)   will require consideration of whether the injury would have
    occurred   absent treatment;       and (   6)   are not sufficiently alleged to have been
    intentional. See Coleman, 813 So. 2d at 315- 16. While Ms. Morrow does allege
    intentional acts, as previously discussed, these allegations are not legally adequate.
    Accordingly, we determine that Ms. Morrow' s claims fall under the LMMA
    and therefore require pre- trial submission to a medical review panel. The trial court
    did not err in sustaining the appellees'              exceptions   of prematurity, and Ms.
    Morrow' s assignments of error are without merit.
    CONCLUSION
    The judgment sustaining the dilatory exceptions of prematurity in favor of
    the appellees, Louisiana Medical Mutual Insurance Company, Cusimano Plastic
    Surgery, LLC, and Luke Anthony Cusimano, 11I, M.D.,                and against the appellant,
    Larye Morrow, is affirmed. All costs of this appeal are assessed to Larye Morrow.
    AFFIRMED.
    7
    

Document Info

Docket Number: 2022CA1006

Filed Date: 2/24/2023

Precedential Status: Precedential

Modified Date: 2/24/2023