Thomas Garner, Sr. v. Louisiana Medical Mutual Insurance Company (LAMMICO), TDC Specialty Insurance Company, Advanced Surgical Care of Baton Rouge, LLC, Jonathan Taylor, M.D., Chad Paul Gautreaux, CRNA, Kevin Anderson, M.D., and Gehl Davis, M.D.

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2022 CA 0778
C1 THOMAS GARNER, SR.
VERSUS
LOUISIANA MEDICAL MUTUAL INSURANCE COMPANY
LAMMICO), TDC SPECIALTY INSURANCE COMPANY,
ADVANCED SURGICAL CARE OF BATON ROUGE, LLC,
JONATHAN TAYLOR, M.D., CHAD PAUL GAUTREAUX, CRNA,
KEVIN ANDERSON, M.D., AND GEHL DAVIS, M.D.
DAVE OF JUDGMENT: MAR 2 9 2023
ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT
PARISH OF EAST BATON ROUGE, STATE OF LOUISIANA
NUMBER 710676, SECTION 24
HONORABLE DONALD R. JOHNSON, JUDGE
Hannah E. Mayeaux Counsel for Plaintiff A
- ppellant
Damon L. Beard Thomas Garner, Sr.
Todd A. Townsley
Sage L. Middleton
Lake Charles, Louisiana
Brandon Ashley Sues Counsel for Defendant -Appellee
Sarah Spruill Couvillon Advanced Surgical Care of Baton
Alexandria, Louisiana Rouge, LLC, and TDC Specialty
Insurance Company
Tara S. Bourgeois Counsel for Defendant -Appellee
Garrett S. Callaway Chad Paul Gautreaux, CRNA
Jonathan E. Thomas
Baton Rouge, Louisiana
Vance A. Gibbs Counsel for Defendant -Appellee
Jason R. Cashio Jonathan Taylor, M.D.
Baton Rouge, Louisiana
and
Karen M. Fontana Young
New Orleans, Louisiana
L. Adam Thames Counsel for Defendant -Appellee
Ann Michelle Halphen Kevin Anderson, M.D., and Gehl
Amy Collier Lambert Davis, M.D.
Baton Rouge, Louisiana
BEFORE: GUIDRY, C. J., CHUTZ, AND RESTER, JJ.
Disposition: AFFYRAMD.
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CHUTZ, J.
Plaintiff-appellant, Thomas Garner, Sr., appeals the trial court' s judgment
sustaining a dilatory exception raising the objection of prematurity and dismissing
his claims of medical malpractice against defendants -appellees, Advanced Surgical
Care of Baton Rouge (Advanced Surgical Care), its alleged insurer, TDC Specialty
Insurance Company, Jonathan Taylor, M.D., Chad Paul Gautreaux, CRNA, Kevin
Anderson, M.D., and Gehl Davis, M.D., based on a finding that Gamer filed this
lawsuit in district court prior to review of his claims and rendition of an opinion by
a medical review panel ( MRP) as required under the provisions of the Louisiana
Medical Malpractice Act (LMMA). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
According to the allegations of his petition, 71 -year- old Garner sought the
surgical removal of bilateral shoulder lipomas. On August 14, 2020, Dr. Taylor
undertook the surgical procedure at an Advanced Surgical Care facility. Shortly
after surgery commenced, the procedure was aborted when a spark of a Bovie
cautery ( an electrosurgical device) ignited beneath the drapes and Garner' s face
caught on fire.
According to Dr. Taylor' s operative report, the drapes were removed, and a
scrub tech threw ( what appeared to be) water onto Garner' s face, quenching the
flames. Saline and a bacitracin ointment were applied to Garner' s face, and the
surgical team cleaned and removed debris with gauze and saline. Dr. Taylor noted
that Garner sustained burns to his face and bilateral checks/maxillary areas as well
as to his upper and lower lips.
Garner was subsequently administered pain medication and transferred to
the burn unit at Baton Rouge General Medical Center. He was discharged the
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following day, on August 15, 2020, and continued to receive outpatient wound
care.
On August 13, 2021, Garner initiated a claim with the Commissioner of the
Division of Administration, requesting the formation of an MRP. That same day,
Garner also instituted this lawsuit in district court, naming as defendants Advanced
Surgical Care, its insurer, and Dr. Taylor. Additionally named as a defendant was
Nurse Gautreaux, whom Garner alleged performed a pre -induction assessment of
him; pre -oxygenated and sedated him; and drafted notes describing the surgery
room events. Garner also named Dr. Anderson, the anesthesia provider
supervising anesthesiologist) noted at the bottom of Garner' s anesthesia record,
and Dr. Davis, an anesthesiologist who visited Garner, signed Garner' s anesthesia
consent form, noted the pre -operative and post-operative anesthesia orders, and
initiated the pre- procedure check- in, as defendants in this lawsuit.'
In response to the lawsuit, these defendants filed dilatory exceptions
subsequently filed dilatory exceptions raising the objection of prematurity,
averring that because the MRP had not reviewed Garner' s claims and rendered its
opinion, Garner' s petition had been initiated too early. After a hearing on February
7, 2022, the trial court sustained the exceptions and dismissed Garner' s claims
without prejudice. Garner appeals.
DISCUSSION
The dilatory exception of prematurity provided for in La. C. C.P. art. 926( 1)
questions whether the cause of action has matured to the point where it is ripe for
judicial determination. Under the LMMA, a medical malpractice claim against a
1 Although Garner named as a defendant Louisiana Medical Mutual Insurance Company
LAMMICO), whom he averred is " a local insurance corporation," the petition is devoid of any
other allegations against this defendant. While nothing in the appellate record shows an
appearance by LAMMICO in this litigation, in correspondence to Garner from the Division of
Administration it appears that Nurse Gautreaux and Drs. Anderson and Davis are insured by
LAMMICO.
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qualified health care provider is subject to dismissal on a timely exception of
prematurity if the claim has not first been reviewed by a pre -suit MRP. In such
situations, an exception of prematurity neither challenges nor attempts to defeat
any of the elements of the plaintiffs cause of action but instead asserts that the
plaintiff has failed to take some preliminary step necessary to make the
controversy ripe for judicial involvement, The burden of proving prematurity is on
the moving party who, in a medical malpractice case, must show entitlement to an
MRP because the allegations fall within the scope of the LM14A. Whether a claim
sounds in medical malpractice is a question of law reviewed de novo. See Kelleher
v. Univ. Med Cir. Mgmt. Corp., 2021- 00011 ( La. 10/ 10/ 21), 332 So. 3d 654, 657.
Under La. R.S. 40: 1231. 8( B)( 1)( a)( i) of the LMMA, no action against a
health care provider under the LMMA, or against his insurer, " may be commenced
in any court before the claimant' s proposed complaint has been presented to [ an
MRP]." Any tort suit filed before completion of the MRP process is subject to
dismissal on an exception of prematurity. McDowell v. Garden Court Healthcare,
L.L,C,, 54,645 ( La. App. 2d Cir. 8/ 10122), 345 So. 3d 506, 510, writ denied, 2022-
01364 ( La. 11/ 16/ 22), 349 So. 3d 999, citing Blevins v, Hamilton Med Ctr. Inc.,
2007- 127 ( La. 6/ 29107), 959 So. 2d 440.
Each of the health -care -provider defendants placed into evidence certified
copies of their respective certificates of enrollment with the Louisiana Patients
Compensation Fund, thereby establishing that they are qualified health care
providers subject to the protections and benefits of the LMMA. See generally La.
R.S. 40; 1231. 2 ( setting forth the requirements for a health care provider' s
qualification under the LMMA).
On appeal, Garner asserts that because the acts giving rise to his entitlement
to damages occurred during a public health emergency, the provisions of the
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Louisiana Health Emergency Powers Act (LHEPA), La. R.S. 29:760- 775, apply to
his claim rather than those of the LMMA. Garner suggests the LHEPA sets up a
separate statutory scheme, which permits lawsuits for gross negligence and willful
conduct. He maintains the effect of the LHEPA is to prohibit the liability of a
health care provider from arising under the LIVIMA.
On March 11, 2020, Governor John Bel Edwards declared a public health
emergency for the State of Louisiana due to the Covid- 19 global pandemic. Within
the declaration, the governor invoked the LHEPA. Whitehead v. Christus Health
Cent. La., 2021- 764 ( La. App. 3d Cir. 6/ 8/ 22), 344 So. 3d 91, 94. Since the surgical
procedure giving rise to Garner' s injuries occurred on August 14, 2020, Garner has
correctly pointed out that the provisions of LHEPA were in effect. According to
La. R. S. 29: 771( B)( 2)( c)( i), ",[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."
Typically, the burden of proof that a plaintiff in a medical malpractice claim
must establish by a preponderance of the evidence is as set forth in La. R.S.
9: 2794( A) ( i. e., the standard of care applicable to the defendant; that the defendant
breached that standard of care; and there was a causal connection between the
breach and the resulting injury). La. R.S. 29: 771( B)( 2)( c)( i), however, provides a
heightened burden of proof ' against private health care providers during the event
of a public health emergency. Whitehead, 344 So. 3d at 94. Accord Hebert v
Louisiana Med Mut. Ins. Co. ( LAMMICO), 2022- 316 ( La. App. 3d Cir.
10/ 26/ 22), 353 So. 3d 846, 850. The " obvious purpose" of this modified burden of
proof is the need " to allow health cage providers to provide medical care and
treatment during a time of public health crisis without concerns of liability for a
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patient' s poor outcome, unless the treatment decisions were grossly negligent, or
the provider' s misconduct was willful." Whitehead, 344 So. 3d at 95. 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.Ian
Nevertheless, the LHEPA does not supplant the provisions of the LMNIA.
Under the provisions of the LMMA, La. R.S. 40: 1231. 1( A)( 13) defines
malpractice" as follows:
A]ny unintentional tort or any breach of contract 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, including
loading and unloading 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.
Given the definition set forth in La. R. S. 40: 1231. 1( A)( 13), the courts of this state
have determined that claims for the gross negligence of private health care
providers are covered under the LNR%
4A.2 Hebert, 353 So.3d at 851- 5, relying on
Whitehead, 344 So. 3d at 95, which cited Wesco v. Columbia Lakeland Med. Or.,
2003- 0328 ( La. App. 4th Cir. 9110103), 862 So.2d 997, 999, writ denied, 2004-
0525 ( La. 4/ 30/ 04), 872 So. 2d 490 and Flood Y. Pendleton Mem' l Methodist
Hasp., 2002- 0440 ( La. App. 4th Cir. 7117/ 02), 823 So.2d 1002, 1013, writ denied,
02- 2206 ( La. 11/ 8/ 02), 828 So.2d 1121). Accord McDowell, 345 So. 3d at 512- 13.
Without disputing that all of the health -care -provider defendants are private
health care providers and acknowledging that the recent state -court cases have
concluded that claims for gross negligence against private health care providers are
subject to the LMMA, Garner points out that the appellate decisions have
2 Compare and contrast La. R.S. 40: 1237. 1- 1240, the Medical Liability for State Services Act,
which excludes claims of gross negligence in certain situations against state health care providers
and other persons defined therein. See La. R. S. 40: 1237. 1( A)(9)( a)( iv)(ce); Bryant V. Dept of
Health and Hosps., 2018- 423 ( La. App. 3d Cir. 1116119), 264 So. 3d 521, 525- 26, writ denied,
2019- 264 ( La. 418119), 267 So. 3d 614.
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recognized that claims for intentional torts against private health care providers fall
outside the ambit of the MMA. See e. g., Hebert, 353 So. 3d at 850- 5; Whitehead,
344 So.3d at 96; McDowell, 345 So. 3d at 511. Based on the allegations of his
petition, Garner maintains that he has asserted intentional torts against the health-
care -provider defendants.
Not every unintentional tort committed by a qualified health care provider
falls within the LMMA; only those " arising from medical malpractice." McDowell,
345 So.3d at 510, citing Williamson v Hosp. Ser. Dist. No. I ofJefferson, 2004-
0451 ( La. 12/ 1/ 04), 888 So. 2d 782. The Louisiana Supreme Court has, without
exception,
emphasized the LMMA and its limitations on tort liability for a
qualified health care provider apply strictly to claims " arising from medical
malpractice,"
and all other tort liability on the part of the qualified health care
provider is governed by general tort law. McDowell, 345 So. 3d at 510, citing
Williamson, 888 So. 2d 782 and Coleman v. Deno, 2001- 1517 ( La. 1/ 25/ 02), 813
So. 2d 303.
The Louisiana Supreme Court has set forth a six -factor test for
determining whether particular conduct by a health care provider constitutes
malpractice" under the LMMA. These are:
1)
whether the particular wrong is " treatment related" or
caused by a dereliction of professional skill,
2) whether the wrong requires expert medical evidence to
determine whether the appropriate standard of care was breached,
3) whether the pertinent act or omission involved assessment
of the patient' s condition,
4) whether an incident occurred in the context of a physician -
patient relationship, or was within the scope of activities which a
hospital is licensed to perform,
5) whether the injury would have occurred if the patient had
not sought treatment, and
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6) whether the tort alleged was intentional.
McDowell, 345 So. 3d at 511.
On appeal, Garner does not make any assertions disputing that the first five
factors result in a determination that his claim against each health -care -provider
defendant sounds in medical malpractice under the LNO A, And our application of
these factors to the allegations of Garner' s petition confirms that. Since the injuries
occurred during surgery, the cause of the fire and each health -care -provider
defendant' s role are treatment related inquiries. Clearly, the appropriateness of
using the Bovie cautery device and each defendant' s actions and responsibilities in
its use requires medical expertise to establish whether any breaches in the standard
of care occurred. In his petition, as to each health care provider Garner averred that
the respective failure to " evaluate, assess, prepare, monitor, and treat" him before,
during, and after the surgical procedure were breaches in medical standards.
Importantly, these allegations show that the actions and omissions of each health-
care -provider defendant in the events that caused Garner' s injuries involved
assessments of Garner' s condition before, during, and after the attempted surgical
procedure. That the fire giving rise to the burns on Garner' s face occurred in the
context of patient -health care provider relationships or was within the scope of a
surgical procedure that Advanced Surgical Care was licensed to perform is an
undisputed factor. Similarly, but for the undertaking of lipoma removal surgical
procedure, Garner would not have had the injuries to his face. Thus, the first five
factors show the conduct of each of the health -care -provider defendants constituted
malpractice under the LMMA.
The issue of whether the allegations of each health -care -provider
defendant' s conduct set out in the petition suggest the intentional commission of
torts against Garner also establishes Garner' s claims sound in medical malpractice.
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That Garner claimed each health -care -provider defendant' s " willful, deliberate, and
intentional choices" made "
it predictable or substantially certain harm would
occur" to him is insufficient to constitute an intentional tort.
An intentional act in this context has the same meaning as an intentional tort;
that is, the person who acts 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." Whitehead, 344 So.3d at 96,
quoting Bazley v. Tortorich, 397 So.2d 475, 481 ( La. 1981).
Garner has not averred that any of the health -care -provider defendants
consciously desired either the ignition below the drapes by a spark from the Bovie
cautery or the burns to Garner' s face. And the petition contains no allegations that
any of the healthcare -provider defendants knew either the ignition below the
drapes by the spark from the Bovie cautery or the burns to Garner' s face were
substantially certain to follow because of any particularly -described conduct
committed by one of the health -care -provider defendants. Garner has simply
averred acts which occurred during a surgical procedure in conjunction with the
administration of medical treatment. As such, Garner' s petition fails to aver an
intentional tort and the provisions of the LMMA apply, including review of his
claims and rendition of an opinion by the MRP. Accordingly, the trial court
correctly sustained the defendants' dilatory exceptions raising the objection of
prematurity and dismissed Garner' s lawsuit without prejudice.
DECREE
For these reasons, the trial court' s judgment is affirmed. Appeal costs are
assessed against plaintiff-appellant, Thomas Garner, Sr.
AFFIRMED.
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