Karen Kidd Aug. 6, 2016, 4:12pm


NEW ORLEANS – A little-reported medical malpractice lawsuit now before the Louisiana Supreme Court could decide whether a damages cap defined by state law covers certain negligence cases, a malpractice attorney based in Metairie said during a recent interview.

"It involves whether the 'cap' on medical malpractice lawsuits covers institutional negligence in credentialing and privileging doctors who practice at the hospital," Chip Wagar, founding partner with Wagar Richard Kutcher Tygier & Luminais in Metairie, said during a Louisiana Record email interview. "There are two other cases recently decided in the courts of appeal on the same issue that are being appealed to the Louisiana Supreme Court and likely will be consolidated with it. It’s a big deal."

Depending on how the state Supreme Court rules, the case, Billeaudeau v. Opelousas General Hospital System, et al, could decide that the damages limitation established under state statute does not apply in such cases, Wager said.

"The cap is the limit on damages for medical malpractice that has been imposed by law in Louisiana, essentially without change, since 1975," he said. "The cap is $500,000 for any damages other than medical expense. It makes no difference how many people are claiming (e.g. two parents for a dead child, five children for a dead parent, etc.) nor how serious the injury is. This is the limit and it hasn’t been raised since 1975."

Wager has filed an amicus brief with the Louisiana Supreme Court in the Billeaudeau case on behalf of the Louisiana Association for Justice.

"I do not pretend to know how the Supreme Court will rule on the Billeaudeau case and possibly these other cases," Wager said. "So far, all the district judges and courts of appeal that have considered the issue have decided that institutional negligence in credentialing and privileging doctors is not medical malpractice as defined by the Louisiana Medical Malpractice Act and is not subject to the cap or other provisions of the Act. This means that the victim of medical malpractice by a doctor who a court decides should not have been allowed to perform surgery could recover uncapped damages against the hospital, for example. Obviously, the hospitals and other medical institutions want it deemed to be malpractice and capped."

The Billeaudeau case stems from a medical episode suffered by Brandi Billeaudeau, the adult daughter of Joseph and Veronica Billeaudeau, who collapsed in her parents’ home June 20, 2010, according to court records. Brandi Billeaudeau, who has Down syndrome, was taken to Opelousas General, where an emergency room physician, Dr. Kondilo Skirlis-Zavala, diagnosed a focal motor seizure. The physician ordered anti-seizure medication and a CT scan, which came back normal.

Brandi Billeaudeau's parents disagreed with the emergency room physician's diagnosis, opining their daughter had suffered a stroke and requested she be given t-plasminogen activator, a treatment for stroke victims. When their request was declined, the couple asked that their daughter be transported to Our Lady of Lourdes Regional Medical Center in Lafayette, where their daughter received the t-plasminogen activator. That treatment came about four hours after Brandi Billeaudeau suffered what ultimately was determined to be a stroke.

Joseph and Veronica Billeaudeau, individually and on behalf of their daughter, filed a general negligence case against Opelousas General, Dr. Skirlis-Zavala and the Shumacher Group of Louisiana, claiming their daughter's treatment attempts violated provisions in the Louisiana Medical Malpractice Act of 1975.

The Billeaudeaus claimed Opelousas General had been negligent in granting credentials to Dr. Skirlis-Zavala. Opelousas General, the Billeaudeaus argued, should not have allowed Dr. Skirlis-Zavala privileges in its emergency department because she lacked experience and training required by the health care system's own by-laws that govern the granting of such privileges. The Billeaudeaus also alleged that Opelousas General failed to follow-up on a qualified reference given by an emergency medicine physician and two malpractice claims filed against Skirlis-Zavala before she sought privileges at Opelousas General.

The Billeaudeaus claim their case is not subject to the cap of damages provisions of the MMA. They filed a motion for partial summary judgment asking the trial court to declare that their negligent credentialing claims are not subject to MMA's damages cap because the decision to grant credentials to Skirlis-Zavala was administrative, not medical.

The trial court granted that motion. Opelousas General's subsequent writ of supervisory review to the 3rd Circuit was denied. With that, Opelousas General appealed the entire case to the 3rd Circuit, citing errors it claims were made by the lower court. Opelousas General claimed the district court erred when it concluded the negligent credentialing, coupled with a negligent supervision claim, did not fall under the MMA. Opelousas General cited Coleman v. Deno, a case decided by the Louisiana Supreme Court in 2002, to bolster its argument that the negligent claims do fall under the MMA. The trial court compounded the error by misapplying state statutes, Opelousas General claimed.

Opelousas General's arguments failed to sway the majority on the 3rd Circuit, which handed down its ruling April 6, affirming the trial court's decision about the Billeaudeaus' negligence claims.

"If Brandi’s parents had not sought treatment for her at Opelousas General, this claim would never have been filed," Judge Elizabeth Pickett wrote in the court's majority opinion. "We find this to be a peculiarly circular type of analysis. While Brandi’s alleged injuries relate to the treatment provided by Dr. Skirlis-Zavala, the credentialing decisions of Opelousas General are not necessarily tied to the treatment of Brandi. We agree with the trial court that it is difficult to apply this factor to this case, but conclude that it weighs against treating the claim as malpractice."

Opelousas General appealed to the Louisiana State Supreme Court. On June 28, the state high court granted writ in the case, which presently is on the high court's official docket for the 2 p.m. session Thursday, Sept. 8.

The Billeaudeau case is similar to two others, Martinez v. Ochsner Medical Center decided by the Louisiana 4th Circuit Court of Appeal on June 29; and Fuselier v. Lake Charles Memorial Hospital, decided by the Louisiana 3rd Circuit Court of Appeal on June 20. Wager, who is counsel of record for the plaintiff the Fuselier case, predicted these two cases will be consolidated with the Billeaudeau case.

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