AMY, Judge.
The plaintiffs filed suit, alleging that their minor child suffered damages as a result of a physician's failure to test his brother for a genetic disorder. The defendants filed an exception of prematurity, arguing that the plaintiffs had failed to exhaust the remedies available in the Louisiana Medical Malpractice Act (MMA) prior to the institution of suit. The trial court determined that the child was a "patient" for the purposes of the MMA and granted the exception. The intervenor, the Louisiana Patient's Compensation Fund Oversight Board, appeals, asserting that the trial court erred in granting the exception. For the following reasons, we reverse the trial court's grant of the exception of prematurity and remand for further proceedings.
This suit arises from allegations that one of the defendants, Dr. Martin C. Young, committed medical malpractice. The basic facts of this case are not in dispute. Mickey and Amy Atkinson consulted Dr. Young for treatment of their son Gabriel's deep-skin pigmentation condition. Dr. Young diagnosed Gabriel with idiopathic Addison's Disease, but did not test him to determine the cause of the disease.
After Gabriel's condition did not improve, the Atkinsons sought a second opinion from Dr. Janna Flint. Dr. Flint had Gabriel tested for a rare and potentially fatal cause of idiopathic Addison's Disease-X-linked Adrenoleukodystrophy ("X-ALD"). According to the parties' arguments at the hearing on the exception of prematurity, X-ALD is a genetic disorder that, if left untreated, results in coma and/or death by age thirteen. Gabriel tested positive for X-ALD. Because X-ALD is an X-linked genetic disorder, Dr. Flint "immediately recommended" that the Atkinsons' other sons, Evan and Luke, be tested for the disease. The youngest son, Luke, tested positive.
The Atkinsons, individually and on behalf of Gabriel, Evan, and Luke, sued Dr. Young and his insurance companies, seeking damages for Dr. Young's alleged failure to test Luke for X-ALD.
After a hearing, the trial court found that "through Gabriel, Luke was also a patient" of Dr. Young and granted the exception. The Oversight Board appeals, asserting the following assignments of error:
Louisiana Revised Statutes 40:1299.41 through 40:1299.49 sets forth the MMA, which limits liability for "qualified health care providers" and provides a procedural framework for the litigation of medical malpractice claims. See Delcambre v. Blood Systems, Inc., 04-561 (La.1/19/05), 893 So.2d 23. The MMA's procedural requirements and limitations of liability apply only to medical malpractice claims. Id. All other tort liability by a qualified health care provider is subject to the general law of torts. Id. We note that, because the provisions of the MMA are in derogation of the rights of tort victims, the act is strictly construed. Blevins v. Hamilton Med. Ctr., Inc., 07-127 (La.6/29/07), 959 So.2d 440.
One of the primary features of the MMA is that, when a plaintiff asserts a claim meeting the statutory requirements, unless the parties agree to waive the requirement, the plaintiff must submit his complaint to a medical review panel and may not file suit in any court until the medical review panel has rendered its expert opinion on the merits of the complaint. Delcambre, 893 So.2d 23. Thus, if the plaintiff fails to submit the claim to a medical review panel before the institution of suit, the appropriate procedural remedy is a timely filed exception of prematurity. Blevins, 959 So.2d 440.
At the hearing on an exception of prematurity, "evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition." La.Code Civ.P. art. 930. "The burden of proving prematurity is on the exceptor ... who must show that it is entitled to a medical review panel because the allegations fall
"Malpractice," as defined by the MMA, is:
La.R.S. 40:1299.41(A)(13) (emphasis added).
The MMA defines a "patient" as "a natural person, including a donor of human blood or blood components and a nursing home resident who receives or should have received health care from a licensed health care provider, under contract, expressed or implied." La.R.S. 40:1299.41(A)(15) (emphasis added). Further, "health care" is defined as "any act or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient's medical care, treatment, or confinement, or during or relating to or in connection with the procurement of human blood or blood components." La.R.S. 40:1299.41(A)(9) (emphasis added).
In Coleman v. Deno, 01-1517 (La.1/25/02), 813 So.2d 303, the supreme court enumerated a list of factors to be considered in determining whether alleged misconduct by a qualified health care provider constitutes "malpractice" under the MMA. The examining court should consider:
Id. at 315-16 (quoting, in part, Sewell v. Doctors Hospital, 600 So.2d 577 (La.1992)).
In its first assignment of error, the appellant contends that the trial court erred in finding that Luke was a patient of Dr. Young. The controlling question in this case is whether a minor sibling, who allegedly should have been tested for a genetic disorder by his brother's health care provider and who never received any testing or treatment from the health care provider, is a "patient" for purposes of the MMA.
Both the MMA and the Coleman factors clearly contemplate that the conduct occurs within the context of a patient-physician relationship. The supreme court examined who constitutes a patient in this context in Delcambre, 893 So.2d 23. The claimant in that case was a volunteer blood donor who suffered injuries to his arm while having blood drawn. In finding that the blood donor was not a patient,
Similarly, in Clark v. Baird, 97-1025 (La.App. 4 Cir. 5/20/98), 714 So.2d 840, writ denied, 98-1684 (La.10/9/98), 726 So.2d 31, the fourth circuit addressed whether the husband of a patient who, due to her doctor's negligence, was infected with Hepatitis C was a "patient" for the purposes of the MMA. The fourth circuit concluded that the husband was not a patient, stating "[h]e neither received health care from the defendants, nor did he have an express or implied contract with the defendants. He had no relationship with the defendants whatsoever." Id. at 845. See also Reed v. St. Charles Gen. Hosp., 01-1148 (La.App. 4 Cir. 3/27/02), 815 So.2d 319 (discussing whether a hospital patient's wife's claim was subject to the MMA in the context of an exception of prescription).
An exception of prematurity is based on the facts that existed at the time the lawsuit was filed. Blevins, 959 So.2d 440. Here, the evidence entered in support of the exception are the allegations made in the petition, the memorandums and exhibits filed in support of, and in opposition to, the exception of prematurity, and the exhibits filed at the hearing. Therein, the Atkinsons allege that only Gabriel received treatment from Dr. Young. They do not allege that they ever sought treatment for Luke, the subject of this litigation, from Dr. Young, or that he ever received any kind of treatment whatsoever from Dr. Young. Notably, the plaintiffs' letter requesting a medical review panel specifically refers to Luke as a "non-patient" of Dr. Young. Further, Dr. Young does not allege that he ever treated Luke or that the Atkinsons ever consulted him about treatment for Luke. Thus, based on the evidence submitted in support of the exception, we find that Dr. Young did not establish that Luke received any health care services from him.
That is not the case in this situation. Based on the evidence submitted at the hearing on the exception of prematurity, as discussed above, the Atkinsons did not seek Dr. Young's professional services for the diagnosis or treatment of Luke. Further, Dr. Young's failure to test Luke for X-ALD, the alleged negligent act or omission, did not occur during any "medical care, treatment or confinement" that related to Luke. La.R.S. 40:1299.41(A)(9). Thus, we find that Luke was not a person who "receive[d] or should have received health care" as contemplated by the MMA. La.R.S. 40:1299.41(A)(15).
On appeal, the appellees additionally argue that, because the Atkinsons had a contractual relationship with Dr. Young for the treatment of Gabriel, that contract extends to the treatment of Luke.
In Hutchinson v. Patel, 93-2156 (La.5/23/94), 637 So.2d 415, the supreme court noted a difference between an implied contractual relationship and the imposition of a duty of care with regard to a non-patient. The claimant in that case was a psychiatric patient's wife who was paralyzed after her husband shot her and then killed himself. She sued her husband's psychiatrist after he failed to warn her about her husband's threats of physical violence. The supreme court held that the "alleged `failure to warn' plaintiff
The evidence submitted in support of the exception of prematurity includes the petition, the memorandums and exhibits filed in support of, and in opposition to, the exception of prematurity, and the exhibits filed at the hearing. In their pleadings, the Atkinsons do not base their theory of liability on a contractual relationship allegedly extending to the treatment of Luke. Instead, the Atkinsons base liability on Dr. Young's alleged breach of the standard of care, which, they contend, included testing Gabriel for X-ALD and, if the result was positive, testing other male members of the Atkinson family for the genetic disorder. Dr. Young does not allege that the contractual relationship between the Atkinsons and Dr. Young contemplated anything other than the treatment of Gabriel. Like the Atkinsons, Dr. Young contends that any liability on his part stems from a breach of the duty of care in his treatment of Gabriel. Thus, we find the appellees' argument concerning an alleged contractual relationship extending to the treatment of Luke unpersuasive.
The burden of proving the exception lies on the exceptor. Blevins, 959 So.2d 440. As discussed above, the evidence submitted in support of the exception of prematurity establishes that the Atkinsons only consulted Dr. Young "to diagnose or inform [them] of any physical condition" with regard to Gabriel, not Luke. Further, the evidence reveals that the Atkinsons did not request that Dr. Young treat Luke, nor is there any indication that the contractual relationship for the treatment of Gabriel contemplated that Dr. Young would be responsible for Luke's treatment, if any. Given that we must construe the provisions of the MMA strictly, we find that Dr. Young did not meet his burden of establishing that a "physician/patient" relationship existed with regard to Luke, based on the evidence submitted to the trial court. See Blevins, 959 So.2d 440. Therefore, we find the trial court erred in determining that Luke was a patient of Dr. Young.
Although a physician/patient relationship does not exist, a litigant's claim
In Trahan v. McManus, 97-1224 (La.3/2/99), 728 So.2d 1273, although finding that the plaintiffs in that case could not recover bystander damages, the supreme court stated that claims for mental anguish could fall under the purview of the MMA, provided that the claims arose from the injury to or death of a patient. The first circuit expounded on this principle in Bolden v. Dunaway, 97-1425 (La.App. 1 Cir. 12/28/98), 727 So.2d 597, writ denied, 99-275 (La.3/26/99), 739 So.2d 801. One of the plaintiffs in that case was the husband of a patient whose surgeon refused to perform surgery on her after she had been prepped for surgery. The first circuit held that the husband's claims, which included intentional infliction of emotional distress, were subject to the MMA because they were "clearly derivative" of the injuries to his wife.
In Jones v. Scriber, 30,693 (La.App. 2 Cir. 6/24/98), 716 So.2d 905, the plaintiff was injured in a horse-and-buggy/automobile accident. He sued the other driver's ophthalmologist, alleging that the ophthalmologist had committed malpractice in certifying that the other driver's vision was sufficient for him to drive. The second circuit noted that, although the plaintiff's injuries might be related to the ophthalmologist's negligence, the plaintiff's injuries did not "arise" from any injury to the other driver, i.e., the ophthalmologist's patient. Thus, the second circuit affirmed the trial court's denial of an exception of prematurity, finding that the claim was "a non-patient claim which does not arise from injuries to or death of [the ophthalmologist's] patient[.]" Id. at 906.
The plaintiffs are not claiming, at least in this litigation, that the damages that Luke suffered were in the nature of bystander damages or loss of consortium. Luke's claims are medical in nature. Although Luke's claims are related to Dr. Young's alleged breach of the duty of care with regard to Gabriel, they do not arise from the alleged injury to Gabriel and are thus not "derivative" of Gabriel's claim. They are similar to the claims in Clark, 714 So.2d 840, and Reed, 815 So.2d 319, where the claimants suffered injuries that, although the damages stemmed from an act of alleged medical malpractice, they occurred independently from the alleged malpractice. Thus, we find that the claim is not "derivative" for the purposes of the MMA.
In order to grant the exception of prematurity, the claim must be subject to the MMA. In Coleman, 813 So.2d 303, the supreme court enumerated a list of factors to be considered in determining whether alleged misconduct by a qualified health care provider constitutes "malpractice" under the MMA. The Coleman factors include a requirement that the alleged injury occur in the context of a physician/patient relationship. We have determined that the trial court erred in finding that Luke was a patient of Dr. Young. Further, although Luke's brother Gabriel was a patient of Dr. Young, we have determined that Luke's claim is not "derivative" of the alleged injury to Gabriel. Thus, Luke's claims do not comport with the Coleman factors and are not subject to the provisions of the MMA.
For the foregoing reasons, the trial court's grant of the exception of prematurity is reversed. One-half of the costs of this appeal are assessed to the plaintiffs/appellees, Mickey Atkinson and Amy Atkinson, individually and on behalf of their minor children, Luke Allen Atkinson, Gabriel Allen Atkinson, and Evan Kane Atkinson. The remaining one-half of the costs of this proceeding are assessed to the defendants/appellees, Healthcare Indemnity Insurance Company and Dr. Martin C. Young.
The plaintiffs filed a separate cause of action on behalf of Gabriel.