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:

Appealed from the 19th Judicial District Court In and for the Parish ofEast Baton Rouge

State of Louisiana Docket No. 715166 

### FEB 242023

The Honorable Donald R.Johnson,Judge Presiding

Damon L. Beard 

### Todd A.Townsley Sage Thibodeaux Hannah E. Mayeaux Lake Charles, Louisiana Vance A. Gibbs Jason R.Cashio Baton Rouge, Louisiana 

### Karen M.FontanaYoung New Orleans, Louisiana Counsel for Plaintiff/ Appellant, Larye Morrow

Counsel for Defendants/Appellees, 

### Luke Anthony Cusimano, III,M.D., Cusimano Plastic Surgery, LLC, and Louisiana Medical Mutual 

### 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"). 

### Forthe 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 ofher breasts and in the back ofboth 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 softtissues ofthe posterior left chest wall. On November 2, 2021, Dr. Taylor Theunissen performed a four - centimeter 

### excision and dissection through Ms. Morrow's subcutaneous tissue and removed 

### eighteen centimeters ofdraintube previously placedby 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 byLAMMICO. 

### On February 22, 2022, Dr. 

### Cusimano and LAMMICO filed a dilatory exception ofprematurity, and on April 6, 2022, Cusimano Plastic Surgery filed an identical exception. The appellees contended thatthe 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 ofprematurity and dismissed Ms. Morrow' s claims without prejudice. The trial court signed a judgment to that 

### effect on May23, 2022. It isfrom thisjudgmentthat 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 ofprematurity because under a

3

### Public Health Emergency, Title 29 governs Ms. Morrow's claims and Title 40



### cannotform a basis forthe appellees' liability. STANDARD OF REVIEW Louisiana Code of Civil Procedure article 926(A)(1) provides for the 

### exception ofprematurity. This exception questions whetherthe cause ofaction 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 ofprematurity subjects amedical 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 thattheyare entitledto amedical reviewpanel becausethe 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 ofreview. 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 ofthe 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 thatthe LHEPA governs instead ofthe 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 ofa public health emergency dueto the pandemic. Louisiana

4Revised Statutes 29:771( 13)( 2)( c)( i) provides a heightened burden of proof against



### private health care providers during the eventofapublic health emergency. Inthis regard, La. R.S. 29:771( B)(2)( c)( i) provides that "[ 

### d]uring a state ofpublic health 

### emergency, no health care provider shall be civilly liable forcausing the death of, or injury to, any person or damage to any property except in the event ofgross negligence or willful misconduct." As the more specific statute, La. R.S. 29:771 

### prevails overthe more general malpractice statutes during a state ofpublic 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 ofa declared public health emergency, the medical malpractice provisions for private health care providers found in La. R.S. 

### 40:1231. 1- 1231. 10 continueto apply. Id. Nothing in LHEPA directlyor indirectly abrogates the LMMA. Louisiana Revised Statutes 40: 1231. 1( A)(13) defines 

### malpractice byaprivate 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 ofahealth 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 ofthis 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/orwrongful misconduct fall within the type oftreatment-related " unintentional tort" 

### described by La. R.S. 40: 1231. 1( A)( 13) and must proceed to a pre-trial
medical review panel.

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### 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 ofhis 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 ofthe word ` intentional' will not create a cause ofaction." 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 properlydevelop,implement, evaluate, and update aplan ofcare forMs. Morrow; failure to consistently perform and document aproperassessment; 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 offactpleading distances Ms. Morrow's claims fromthe definition ofintentional tort provided in Bazley, 397 So. 2d 475.

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### At the outset, Ms. Morrow's allegations must be measured underthe 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 satisfythe 

## Coleman factors and thus fall underthe LMMA as they: ( 1) are treatment related 

### or caused by a dereliction ofskill; (2) will require expert medical evidence as to standard of care; ( 3) pertain to assessment ofthe patient' s condition; (4) occurred 

### within the context ofa physician - patient relationship orwithin 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 

## intentionalacts,as previouslydiscussed,these allegationsarenotlegally adequate. Accordingly,we determine that Ms. Morrow's claims fall underthe 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 oferror are without merit. CONCLUSION 

## Thejudgment sustaining the dilatory exceptions ofprematurity 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 ofthis appeal are assessed to Larye Morrow. AFFIRMED.

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