Richardson v. Advanced Cardiovascular Systems, Inc.

ORDER & REASONS

CHARLES SCHWARTZ, Jr., District Judge.

Before the Court is defendant Nick Mous-takas, M.D.’s Motion to Dismiss, pursuant to 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiffs filed formal opposition to said motion and both parties have filed supplemental motions to support their positions. The motion was set for oral hearing on September 14, 1994. However, the Court has determined that oral argument would not aid it in the disposition of this matter and deemed the motion submitted on the briefs. For the reasons herein stated below, the Court GRANTS Nick Moustakas, M.D.’s Motion for Summary Judgment, dismissing plaintiffs’ claims against him as premature.

The background and procedural mandates of the captioned matter have been recounted in this Court’s September 15,1994 Order and Reasons¹, attached hereto, and the Court incorporates same by reference.

In evaluating the pleadings in the captioned matter, the Court has considered exhibits attached to the pleadings in connection with this matter and therefore views the motion from defendant Dr. Moustakas as a Motion for Summary Judgment. The Court notes that contrary to the plaintiffs’ allegations in their Court-Permitted Supplemental Memorandum Opposing Motion for Summary Judgment, defendant, Dr. Moustakas has not filed a motion for summary judgment and therefore is not technically required to submit a statement of uncontested facts. Instead, the Court, under the discretionary power afforded to it under Rule 56 of the Federal Rules of Civil Procedure, has independently deemed the defendant’s motion as a motion for summary judgment.

Plaintiffs have produced no evidence to controvert defendants’ proof that at all pertinent times to the captioned matter, Dr. Moustakas was considered to be a “health care provider” as envisioned by the Louisiana Medical Malpractice Act.² As the Court has previously noted, for claims against a health care provider, a presuit medical panel review is statutorily required.

All malpractice claims against health care providers covered by this Part ... shall be reviewed by a medical review panel established as hereinafter provided for in this Section.³

No action against a health care provider covered by this Part, or his insurer, may be commenced in any court before the claimant’s proposed complaint has been presented to a medical review panel established pursuant to this Section.⁴

Malpractice is defined under the Act as:

any 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 ...⁵ (emphasis added).

“Tort” in the above definition refers to:

any breach of duty or any negligent act or omission proximately causing injury or damage to another. The standard of care required of every health care provider ... shall be to exercise that degree of skill ordinarily employed, under similar circumstances, by the members of his profession in good standing in the same community or locality, and to use reasonable care and diligence, along with his best judgment, in the application of his skill.⁶ mann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). In the Mt. Healthy ease, supra, the Supreme Court stated that the burden of proof was on the teacher to show that the conduct was constitutionally protected and that such conduct was a substantial factor in the Board’s decision. If the teacher meets this initial burden, then the board must show by a preponderance of the evidence that it would have made the same decision as to the teacher’s reemployment in the absence of the protected conduct.

Accordingly, Louisiana courts have consistently found on those occasions in which a plaintiff brings a claim covered by the Act in a court action before the claim has been presented to a medical review panel under the Act, the plaintiffs claim must be dismissed as premature.⁷ Dismissal of claims is required, rather than staying a decision pending the outcome of a medical review panel. Roberts v. Russo, 400 So.2d 354 (La. App. 4th Cir.1981).⁸

Plaintiffs attempt to escape the clear dictates of the Medical Malpractice Act by alleging claims of intentional tort. All of the specific allegations against Dr. Moustakas are precisely the type of claims envisioned by the Act for review by a panel of medical experts. As was the case with Mercy Hospital, insofar as plaintiffs’ claims relate to Dr. Moustakas, this Court is of the opinion that plaintiffs’ allegations of intentional tort are mere efforts to camouflage negligence claims which are not ripe for disposition by the Court at this time.⁹

Plaintiffs further complain that Dr. Moustakas and the defendant hospital, in contravention of medical protocol and the standard of care, created records after the fact to falsely indicate the standby status of Dr. Moustakas who had never, as required by the standard of care, obtained informed consent of the patient for his role.¹⁰ This claim, like the plaintiffs’ other claims, is one that alleges substandard care. Determinations of which medical procedures constitute the standard or a substandard care are to be evaluated by a medical review panel before the matter may be brought before a court. Therefore, the Court finds that this claim must also be dismissed as premature.

Plaintiffs final allegation is that due to the intentional infliction of emotional distress by Dr. Moustakas, plaintiffs have suffered sev-erable damages as if they had come upon the scene of the event of [plaintiffs’ mother’s] death soon thereafter. This specious allegation has been previously dismissed against the defendant hospital and for the same reasons set forth in the attached Order and Reasons, this identical claim as against defendant Dr. Moustakas is also without merit.

Accordingly, for all of the foregoing reasons,

IT IS FURTHER ORDERED that defendant, Nick Moustakas, M.D.’s Motion for Summary Judgment is hereby GRANTED and plaintiffs’ claims against him are DISMISSED AS PREMATURE.

IT IS FURTHER ORDERED that plaintiffs’ claim for the intentional infliction of emotional distress against defendant, Nick Moustakas, M.D. is DISMISSED with prejudice.

1 . Via Order & Reasons entered September 15, 1994, this Court granted defendant Mercy Hospital’s Motion for Summary Judgment, dismissing plaintiff's claims as premature, since at all times pertinent to this matter, Mercy was and is a qualified health care provider within the meaning of Louisiana’s Medical Malpractice Act and that plaintiffs' had failed to first present their claims to a medical review panel as required by the Act.

2 . Exhibit A of Defendant's Motion to Dismiss (correspondence from State of Louisiana which lists Dr. Nick Moustakas as a health care provider enrolled in the Patients’ Compensation Fund); see also, La.R.S. 40:1299.41A(1) (definition of health care provider under the Louisiana Medical Malpractice Act).

3 . La.R.S. 40:1299.47A(1).

4 . La.R.S. 40:1299.47B(l)(a)(i).

5 . La.R.S. 40:1299.41A(8).

6 . La.R.S. 40:1299.41A(7).

7 . See, e.g., Miller v. Griffin-Alexander Drilling Co., 685 F.Supp. 960, 967 (W.D.La.1988), aff'd, 873 F.2d 809, 814 (5th Cir.1989); Everett v. Goldman, 359 So.2d 1256, 1271 (La.1978). See also, Renz v. Ochsner Foundation Hospital/Clinic, 420 So.2d 1008, 1009-10 (La.App. 5th Cir.1982) (maintaining a hospital’s exception of prematurity for a suit arising from injuries allegedly sustained as a result of the malfunction of a medical life support system following coronary bypass surgery); Cashio v. Baton Rouge General Hospital, 378 So.2d 182, 184-85 (La.App. 1st Cir.1979) (maintaining a hospital's exception of prematurity in a suit for the death of a patient from an infection allegedly acquired from non-sanitary conditions during a coronary bypass operation); Gobble v. Baton Rouge Hospital, 415 So.2d 425, 426 (La.App. 1st Cir.1982) (maintaining the Medical Malpractice Act applies to all claims alleging malpractice, including claims for injuries resulting in death).

8 .See also, Hodge v. Lafayette General Hospital, 399 So.2d 744 (La.App. 3rd Cir.1981) (sustaining exception of prematurity as to all defendants on the grounds that patient had not obtained an opinion of the medical review panel prior to suit claiming lack of informed consent, which is unintentional negligence, not intentional tort).

9 . The Court, in its above-referenced Order and Reasons which has been attached hereto, fully explained its reasoning for dismissing plaintiffs’ intentional tort claims against the defendant hospital, a health care provider. The Court perceives no difference in those allegations and the claims made against Dr. Moustakas.

10 . Plaintiffs' Petition for Wrongful Death, Paragraph XIV.