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 OFJUDGMENT: 

### 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 - Appellant Damon L. Beard 

### Todd A.Townsley Sage L. Middleton Lake Charles, Louisiana 

### Brandon Ashley Sues Sarah Spruill Couvillon Alexandria, Louisiana

Tara S. Bourgeois 

### Garrett S. Callaway Jonathan E. Thomas Baton Rouge, Louisiana Thomas Garner, Sr.

Counsel for Defendant - Appellee Advanced Surgical Care ofBaton 

### Rouge,LLC, andTDC Specialty Insurance Company Counsel for Defendant - Appellee Chad Paul Gautreaux, CRNAVance A.Gibbs

Jason R. Cashio Baton Rouge, Louisiana and 

### Karen M.Fontana Young New Orleans, Louisiana L. Adam Thames Ann Michelle Halphen 

### Amy Collier Lambert Baton Rouge, Louisiana Counsel for Defendant - Appellee Jonathan Taylor, M.D.

Counsel for Defendant - Appellee Kevin Anderson, M.D.,and Gehl Davis, M.D.

BEFORE: GUIDRY, C.J., CHUTZ, AND RESTER,JJ. Disposition: AFFYRAMD.

2CHUTZ,J. Plaintiff-

appellant, Thomas Garner, Sr., appeals the trial court's judgment 

## sustaining a dilatory exception raising the objection ofprematurity and dismissing his claims ofmedical 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 priorto reviewofhisclaims and rendition ofan 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 ofthe 

## Division ofAdministration, requesting the formation ofan MRP. That same day, Garneralso institutedthis 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.Aftera hearing on February 7, 2022, the trial court sustained the exceptions and dismissed Garner's claims without prejudice. Garner appeals. DISCUSSION 

### The dilatory exception ofprematurity 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 ofany 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. 1i

## qualified health care provider is subject to dismissal on a timely exception of

prematurity ifthe 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 ofthe plaintiffs cause of action but instead asserts that the plaintiff has failed to take some preliminary step necessary to make the 

### controversy ripe forjudicial involvement, The burden ofproving prematurity is on the moving party who, in a medical malpractice case, must show entitlementto an 

### MRP because the allegations fall within the scope ofthe LM14A. Whether a claim 

### sounds in medical malpractice is a question oflaw 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 ofprematurity. 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 ofthe 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 ratherthan those ofthe LMMA.Garner suggests the LHEPA sets up a separate statutory scheme, which permits lawsuits for gross negligence and willful 

### conduct. He maintains the effect ofthe LHEPA is to prohibit the liability of a health care provider from arising underthe LIVIMA. On March 11, 2020, Governor John Bel Edwards declared a public health 

### emergency forthe State ofLouisiana 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 ofpublic 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 ofgross negligence orwillful

misconduct." 

### Typically,the burden ofproofthat 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 ofcare 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 ofproof 'against private health care providers duringthe 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" ofthis 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 ofpublic 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 apatient, 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 ofa health care provider arising from acts or omissions in the training or supervision ofhealth 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 underthe 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 ofthe 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 ofgross 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. 7

### recognized that claims for intentional torts against private health care providers fall

outside the ambit ofthe 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 healthcare - provider defendants. 

### Not every unintentional tort committed by a qualified health care provider 

### falls within the LMMA;onlythose "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 ofprofessional skill,

2) whether the wrong requires expert medical evidence to determine whether the appropriate standard ofcare was breached,

3) whether the pertinent act or omission involved assessment ofthe 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

N.6) whether the tort alleged was intentional.

McDowell,345 So.3d at 511. 

### On appeal, Garner does not make any assertions disputing thatthe 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 ofGarner'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 ofcare 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 ofeach healthcare - provider defendant in the events that caused Garner' s injuries involved 

### assessments ofGarner'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 ofeach ofthe 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 inthis context hasthe same meaning as an intentional tort; that is, the person who acts 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." Whitehead, 344 So.3d at 96, 

### quoting Bazleyv. 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 belowthe drapes by a sparkfrom 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 lawsuitwithoutprejudice. 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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