Richard Dupuy and His Wife, Melissa Dupuy v. Nmc Operating Company, L.L.C. D/B/A the Spine Hospital of Louisiana, Formerly, the Neuromedical Center Hospital

Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #015

FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 15th day of March, 2016, are as follows:

BY CRICHTON, J.:

2015-CC-1754 RICHARD DUPUY AND HIS WIFE, MELISSA DUPUY v. NMC OPERATING
COMPANY, L.L.C. D/B/A THE SPINE HOSPITAL OF LOUISIANA, FORMERLY,
THE NEUROMEDICAL CENTER HOSPITAL (Parish of E. Baton Rouge)

For the reasons set forth above, we hold that the plaintiffs’
claims that the Hospital failed to properly maintain and service
equipment used in the sterilization of surgical instruments falls
within the Louisiana Medical Malpractice Act. We therefore find
that the district court erred in denying the Hospital’s second
exception of prematurity in part and find that the district court
should have granted the Hospital’s second exception of
prematurity in its entirety. The ruling of the district court is
reversed.
REVERSED.
03/15/16

SUPREME COURT OF LOUISIANA

NO. 2015-CC-1754

RICHARD DUPUY AND HIS WIFE, MELISSA DUPUY

VERSUS

NMC OPERATING COMPANY, L.L.C. D/B/A THE SPINE HOSPITAL OF
LOUISIANA, FORMERLY, THE NEUROMEDICAL CENTER HOSPITAL

ON SUPERVISORY WRITS TO THE NINETEENTH JUDICIAL
DISTRICT COURT FOR THE PARISH OF EAST BATON ROUGE

CRICHTON, Justice.

This case concerns injuries plaintiff Richard Dupuy sustained post-

operatively based on a hospital’s alleged failure to properly maintain and service

equipment utilized in the sterilization of surgical instruments. The issue before the

Court is whether the plaintiffs’ claims that the hospital failed to properly maintain

and service equipment utilized in the sterilization of surgical instruments fall

within the Louisiana Medical Malpractice Act (“MMA”). For the reasons set forth

below, we find the claims do fall within the MMA and reverse the ruling of the

district court.

FACTS

Plaintiffs Richard and Melissa Dupuy (the wife of Richard Dupuy) filed suit

against NMC Operating Co., L.L.C., d/b/a The Spine Hospital of Louisiana

(“Hospital”). 1 They allege that Mr. Dupuy developed a post-operative infection,

osteomyelitis, following spine surgery, and the infecting organism was

mycobacterium fortuitum. The plaintiffs filed a petition alleging, inter alia, that

the Hospital “fail[ed] to properly sterilize and/or clean surgical instrumentation”

used in the surgical procedure, and/or that “the nursing staff and/or employees” of

1On July 1, 2014, the NeuroMedical Center Surgical Hospital changed its name to The Spine
Hospital of Louisiana. Plaintiffs amended their petition to reflect the name change.

1
the Hospital failed to use proper aseptic technique before surgery. They sought

damages for Richard Dupuy’s medical expenses, pain and suffering, mental

anguish, loss of earnings capacity, disability, and loss of enjoyment of life, and for

Melissa Dupuy’s loss of society, support, and companionship.

The Hospital filed an exception of prematurity, arguing that the Hospital is a

“qualified health care provider” under the MMA and the plaintiffs’ claims had not

first been presented to a medical review panel as required by La. R.S. 40:1231.8. 2

Before a hearing on that exception, the parties took the deposition of an infectious

disease specialist that treated Mr. Dupuy following his surgery. The specialist

testified that she was unable to pinpoint a specific cause of Mr. Dupuy’s infection,

noting that multiple “materials” could be the source. 3

Shortly thereafter, the plaintiffs filed a first supplemental and amended

petition, in which they added the following allegation in paragraph 2A:

The defendant, NMC Operating Company, LLC, d/b/a The Spine
Hospital of Louisiana, formerly, The NeuroMedical Center Surgical
Hospital, failed to properly maintain and service all equipment
utilized in the sterilization process including but not limited to, the
washers and sterilizers used to sterilize the equipment used in Richard
Dupuy’s surgery of April 14, 2014.
In response, the Hospital filed a second exception of prematurity on the same

grounds. The plaintiffs then filed a second supplemental and amended petition,

alleging that, “in the absence of contamination from surgical instrumentation,

materials or the surgical suite,” the “likely source” of the infection was Floseal, a

hemostatic matrix used in the procedure, which was manufactured by Baxter

Healthcare Corporation, a manufacturer as defined in La. R.S. 9:2800.53.

2 Redesignated from R.S. 40:1299.47 by H.C.R. 84 of 2015; Acts 2015 No. 323.
3 She testified that “the most likely source was an instrument or material or something used
during that procedure.” She then added: “Most likely, there are, you know, pieces of metal or
instruments, but if there was other gauze, we use cloths sometimes, if there were, you know,
using those to get some blood or things like that during the surgery, if they’re trying to clean it
up, that can also be a source. I cannot be specific as to what.”

2
 After a hearing, the district court granted the exception of prematurity as to

the original petition in its entirety. With respect to the first supplemental and

amended petition, however, the district court granted the exception in part and

denied it in part, dismissing the petition except for the allegations contained in

paragraph 2A. 4 The Court of Appeal, First Circuit, denied the Hospital’s writ

without comment. 5 We granted the writ on October 30, 2015. Dupuy v. NMC

Operating Co., L.L.C. d/b/a The Spine Hospital of La., 2015-1754 (La. 10/30/15), -

-- So. 3d --- , 2015 WL 7721788.

According to the Hospital, the district court misapplied the factors in

Coleman v. Deno, 01-1517 (La. 1/25/02), 813 So. 2d 303, and failed to follow

jurisprudence holding that one of the obligations a hospital owes a patient is to

provide clean and sterile facilities. Plaintiffs, on the other hand, maintain that

coverage under the MMA must be strictly construed, and argue that the Coleman

factors point in favor of tort liability and against coverage under the MMA.

LEGAL BACKGROUND

The dilatory exception of prematurity 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. Williamson v. Hospital Service Dist. No. 1 of Jefferson, 04-

0451, p.4 (La. 12/1/04), 888 So. 2d 782, 785. See also Frank L. Maraist, 1 La. Civ.

Law Treatise, Civ. Proc. § 6:6 (2d ed.) (updated Nov. 2015). Under the MMA, a

medical malpractice claim against a qualified health care provider is subject to

dismissal on a timely exception of prematurity if such claim has not first been

reviewed by a pre-suit medical review panel. La. R.S. 40:1231.8. See also

4 Because the second supplemental and amended petition contained no new allegations against
the Hospital (the new allegations were only against Baxter), the Hospital’s exception of
prematurity on the second supplemental petition was granted with consent of the parties.
5 Judge McDonald dissented, writing: “One of the obligations of a hospital to a patient is to
provide clean and sterile facilities; thus, the allegations contained in paragraph 2A constitute
medical malpractice, and should be reviewed by a medical review panel prior to being filed in
civil court. La. R.S. 40:1299.47(A); See Cashio v. Baton Rouge Gen. Hosp., 378 So. 2d 182 (La.
App. 1 Cir. 11/12/79). . . .”

3
Williamson, 04-0451, p.4, 888 So. 2d at 785; Spradlin v. Acadia-St. Landry Med.

Found., 98-1977, p.4 (La. 2/29/00), 758 So. 2d 116, 119. In such situations, a

defendant’s exception of prematurity neither challenges nor attempts to defeat any

of the elements of the plaintiff's cause of action, but instead asserts that the plaintiff

has failed to take some preliminary step necessary to make the controversy ripe for

judicial involvement. Id. The burden of proving prematurity is on the moving

party, in this case the Hospital, which must show that it is entitled to a medical

review panel, because the allegations fall within the MMA. Williamson, 04-0451,

p.4, 888 So. 2d at 785.

This Court has, on numerous occasions, observed that the MMA was

enacted by the Legislature in response to a “perceived medical malpractice

insurance ‘crisis.’” Williamson, 04-0451, p.4, 888 So. 2d at 785 (citations

omitted). The legislature intended the MMA to reduce or stabilize medical

malpractice insurance rates and to assure the availability of affordable medical

services to the public. Id. To achieve those goals, the MMA gives qualified health

care providers two advantages in actions against them for malpractice, namely, a

limit on the amount of damages and the requirement that the claim first be

reviewed by a medical review panel before commencing suit in a court of law. Id.

See also La. R.S. 40:1231.2(B); La. R.S. 40:1231.8.

This Court has also emphasized that the MMA and its limitations on tort

liability for a qualified health care provider apply strictly to claims “arising from

medical malpractice,” and that all other tort liability on the part of the qualified

health care provider is governed by general tort law. Williamson, 04-0451, p.5,

888 So. 2d at 786. See also Blevins v. Hamilton Med. Ctr., Inc. 07-0127, p.6 (La.

6/19/07), 959 So. 2d 440, 444. Because the MMA’s limitations on the liability of

health care providers are in derogation of the rights of tort victims, the MMA is to

4
be strictly construed. Williamson, 04-0451 at p.5, 888 So. 2d at 786; Blevins, 07-

0217, p.6, 959 So. 2d at 444.

In this case, the Hospital argues that Mr. Dupuy’s infection falls within the

definition of malpractice set forth in the MMA. The MMA defines malpractice as

follows:

“Malpractice” means 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, including loading and unloading of a patient, and also
includes all legal responsibility of a health care provider arising from
acts or omissions during the procurement of blood or blood
components, in the training or supervision of health care providers, or
from defects in blood, tissue, transplants, drugs, and medicines, or
from defects in or failures of prosthetic devices implanted in or used
on or in the person of a patient.

La. R.S. 40:1231.1(A)(13). “Health care,” in turn, is defined in the MMA 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. . . .” La. R.S. 40:1231.1(A)(9).

Cognizant of these principles, in Coleman v. Deno, 01-1517 (La. 1/25/02),

813 So. 2d 303, we set forth six factors to assist a court in determining whether

certain conduct by a qualified health care provider constitutes “malpractice” as

defined under the MMA:

(1) whether the particular wrong is “treatment related” or caused by a

dereliction of professional skill;

(2) whether the wrong requires expert medical evidence to determine

whether the appropriate standard of care was breached;

(3) whether the pertinent act or omission involved assessment of the patient's

condition;

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 (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

(6) whether the tort alleged was intentional.

01-1517, p.17, 813 So. 2d at 315-16. See also Williamson, 04-0451, p.6, 888 So.

2d at 786-87; Blevins, 07-0217, p.7, 959 So. 2d at 445.

As explained by this Court in Williamson, Blevins, and other cases, in a trial

of the exception of prematurity, a court analyzes the allegations of the petition

under the Coleman factors to determine whether the allegations sound in medical

malpractice. If the allegations sound in medical malpractice, the case must

proceed in accordance with the protocol set forth in the MMA. If, on the other

hand, the allegations sound in general negligence, the case should proceed under

general tort law. Williamson, 04-0451, p.11, 888 So. 2d at 789; Blevins, 07-0217,

pp.7-8, 959 So. 2d at 445.

ANALYSIS

We first turn to the question of whether the Hospital is a “health care

provider” under the MMA, as required by the definition of “malpractice.” La. R.S.

40:1231.1(A)(10), La. R.S. 40:1231.1(A)(13). The plaintiffs do not contest that

the Hospital is a qualified health care provider, and concede that this requirement

is satisfied. The plaintiffs instead contend that the allegations in paragraph 2A do

not fall within the MMA’s definition of “health care” such that they constitute

malpractice under La. R.S. 40:1231.1(A)(13). In order to determine whether the

allegations sound in malpractice and fall within the ambit of the MMA, we analyze

the factors set forth in Coleman v. Deno. Applying those factors, we conclude that

the plaintiffs’ allegation that the Hospital failed to properly maintain and service

6
all equipment utilized in the sterilization process, including, but not limited to, the

washers and sterilizers used to sterilize the equipment used in plaintiff’s surgery,

constitutes medical malpractice under the MMA.

(1) Whether the particular wrong is "treatment related" or caused by a

dereliction of professional skill.

We find that the allegation at issue here, that the Hospital failed to properly

maintain and service the equipment utilized in the sterilization process, including,

but not limited to, the washers and sterilizers used to sterilize the equipment used

in Mr. Dupuy’s surgery, is “treatment related.” Other courts, applying the MMA,

have found infectious diseases acquired during surgical procedures to be

“treatment related,” regardless of the particular source of the infection. We find

those cases persuasive here. In Cashio v. Baton Rouge General Hospital, 378 So.

2d 182 (La. App. 1st Cir. 1979), the plaintiff died from a staph infection acquired

during coronary bypass surgery, and the hospital filed an exception of prematurity.

378 So. 2d at 183. Though the trial court found the claims were not covered by the

MMA and overruled the exception, the court of appeal reversed, finding: “While

we do not attempt to supply a universal definition of treatment, we do hold that it

does include the furnishing of a clean and sterile environment for all patients.” Id.

at 184. See also McBride v. Earl K. Long Memorial Hosp., 507 So. 2d 821 (La.

1987) (finding that a suit filed by a plaintiff who contacted a staph infection during

surgery was subject to the prescriptive limits of medical malpractice cases). More

recently, a federal district court considered a similar case related to inadequate

sanitizing procedures used for disinfecting endoscopes later used in medical

procedures. Taylor v. Ochsner Clinic Found., Civ. Nos. 11-1926, 11-2221, 2011

WL 6140885 (E.D. La. Dec. 9, 2011) (Vance, J). Taylor involved a consolidated

putative class action in which the plaintiffs alleged that the defendants failed to

disinfect endoscopes at the temperature recommended by the manufacturer, thus

7
exposing the plaintiffs to risks of infectious diseases. 2011 WL 6140885, at *1.

Analyzing the Coleman factors, the federal court found that this failure to disinfect

the medical equipment was treatment related, noting it involved the failure “to do

an act (i.e., properly sterilize endoscopes) for the patient during the patient’s care,

treatment, or confinement in the hospital.” Id., at *5. Like these courts before us,

we find that, under the facts presented here, the Hospital’s alleged failure to

“properly maintain and service all equipment used in the sterilization process” is

an extension of the general duty to render professional services related to medical

treatment and is “treatment related.” See La. R.S. 40:1231.1(A)(13) (definition of

malpractice includes failure to render “professional services”).

Of course, not every act that occurs in a Hospital is “treatment related”

under the MMA. See Russ Herman, 1 La. Prac. Pers. Inj. § 4:289 (updated Aug.

2015) (“If the tortious acts alleged do not relate to medical care or treatment, then

no recovery for medical malpractice may be had.”). Williamson and Blevins are

instructive to our analysis. 6 In Williamson, the issue was whether the failure of the

health care provider to properly maintain a wheelchair, which lost a wheel causing

injury to a patient after her discharge, was within the ambit of the MMA. We held

that these acts were not “treatment related,” because the acts at issue – “that the

hospital negligently failed to repair the wheelchair and placed it back into service

without verifying that it was properly repaired” – were not directly related to, nor

6 The Hospital argued that the case is entirely distinct from others involving medical malpractice,
because, in essence, the plaintiffs allege alternate theories of liability for one injury regarding the
source of the infection. See Richard v. La. Extended Care Centers, Inc., 02-0978, p.11 (La.
1/14/03), 835 So. 2d 460, 467-68 (“In general, any conduct by a hospital complained of by a
patient is properly within the scope of the MMA if it can reasonably be said that it comes within
the definitions of the Act, even though there are alternative theories of liability.”) (internal
brackets and quotation marks omitted). Specifically, the plaintiffs cannot pinpoint a cause of the
infection, and alternatively allege that the infection could have resulted from failure to properly
sterilize or clean surgical instruments, failure to properly maintain the sterilization equipment
used to sterilize the instruments, or the use of Floseal in the surgical procedure. According to the
Hospital, courts have held that, when there is a “dual characterization” of an action as medical
malpractice or tort, all of the allegations should be considered under the MMA. See Todd v.
Angeloz, 2002-1400 (La. App. 1 Cir. 3/28/03), 844 So. 2d 316, 320. See also Weimer, J., dissent
in Blevins, 07-0217, p.1, 959 So. 2d at 449. Because we find that the allegations of paragraph
2A are within the parameters of the MMA, we do not reach this question here.
8
did they involve, actual “treatment” of a patient. 04-0451, pp.11-12, 888 So. 2d at

789-90. In other words, though the transportation of the patient may have been

related to treatment (an issue the Court did not directly address), the failure to

properly repair a wheelchair, thereby causing a wheel to fall off, was not treatment

related. In contrast, in this case, Mr. Dupuy allegedly contracted the bacteria due

to the Hospital’s failure to maintain equipment used to sterilize surgical

instruments used in the treatment for which he was admitted to the Hospital.

Ensuring the proper maintenance of functioning of sterilization equipment is tied

directly to the surgical treatment Mr. Dupuy received.

Likewise, in Blevins, the issue presented to the Court was whether the failure

of a health care provider to properly maintain a hospital bed, which rolled while

the patient was attempting to use the commode and resulted in a knee injury, fell

within the MMA. Blevins, 07-0217, 959 So. 2d 440. The Court found that the acts

alleged were not “treatment related,” because the patient was hospitalized to treat

an infection of the groin, but he fell and sustained an injury to his knee when he

put pressure on the bed and the bed rolled. 07-0217, p.8, 959 So. 2d at 446. As the

Court observed: “These two separate and distinct events occurred independently of

each other with one being treatment-related as to his groin infection and the other

being an injury sustained by a fall caused by a bed that improperly rolled.” 07-

0217, p.8, 959 So. 2d at 446. In this case, unlike in Williamson and Blevins, the

wrongful conduct complained of is directly related to – and, in fact, the alleged

infection occurred during – the treatment for which Mr. Dupuy was admitted to the

Hospital. Because we find that proper sterilization of surgical instruments is at

very core of the “treatment” of a patient, we find it is “treatment related.”

We also find that that the allegations of paragraph 2A relate to a dereliction

of professional skill. As we observed in Coleman, the significance of the term

“malpractice” is that it differentiates professionals from nonprofessionals for

9
purposes of applying these statutory limitations on tort liability. 01-1517, p. 15;

813 So. 2d at 315. Unlike in Williamson, where we observed that no “professional

skill” was exercised in repairing a wheelchair or determining whether to place it

back in service, or in Blevins, where we held that the failure to lock a bed does not

result from any “dereliction of professional skill,” here, there is a clear utilization

of professional medical skill in determining the sterilization requirements of

equipment used to ensure the safety of surgical instrumentation. Williamson, 04-

0451, pp.11-12, 88 So. 2d at 789-90; Blevins, 07-0217, p.9, 959 So. 2d at 446.

Plaintiffs make two separate arguments related to this factor of the Coleman

analysis, neither of which we find persuasive. First, they argue that the injuries

were not “treatment related,” because the alleged failure to maintain and service

the sterilization equipment occurred before Mr. Dupuy ever entered the Hospital.

But there is no requirement that an action must be contemporaneous with a

patient’s treatment in order to fall under the MMA. Indeed, the MMA itself

specifically states that failures in the “training and supervision” of healthcare

providers is within the definition of malpractice, and such training and supervision

necessarily occur before any treatment. La. R.S. 40:1231.1(A)(13). As noted by

the federal court in Taylor, under the plaintiffs’ interpretation, “any and all

preliminary safeguards rendered before a discrete incident of medical treatment

would fall outside the Act.” Civ. Nos. 11-1926, 11-2221, 2011 WL 6140885, at

*6. Likewise, courts have held that actions after treatment can be “treatment

related.” See, e.g., Flood v. Pendleton Mem’l Methodist Hosp., 02-0440 (La. App.

4 Cir. 7/17/02), 823 So. 2d 1002, 1009 (misfiling bone scan results is “treatment

related” because “the interpretation of the bone scan is a necessary step in

[plaintiff’s] cancer treatment program”), writ denied, 02-2206 (La. 11/8/02), 828

So. 2d 1121; Andre v. Binder, 1999-1952 (La. App. 1 Cir. 2/18/00), 753 So. 2d

397, 398 (failure to correct misdiagnosis of condition after receiving contrary

10
laboratory results arose out of patient care). We specifically reject the plaintiffs’

argument that the injury at issue must be contemporaneous with the act or omission

at issue to fall within the MMA.

Plaintiffs also argue that Mr. Dupuy’s injury was not “treatment related,”

because deposition testimony indicated the maintenance and service of sterilization

equipment at the Hospital may have been performed by plant operations rather

than physicians. 7 Even if this is the case, which appears to be contested, 8 this

argument does not convince us that this particular cause of action falls outside of

the MMA. Nothing in the statute’s plain language limits its application to direct

treatment by a physician. Indeed, the statute includes under the ambit of the MMA

injuries that are “based on health care or professional services rendered . . . by a

health care provider, to a patient. . .” La. R.S. 40:1231.1(A)(13). The use of the

broad term “health care provider,” rather than simply “physician” or “medical

doctor,” necessarily includes actions which are treatment related and undertaken by

the Hospital in its capacity as a health care provider – even if those actions are not

performed directly by a medical professional.

(2) Whether the wrong requires expert medical evidence to determine whether

the appropriate standard of care was breached.

We find that the allegations in paragraph 2A will require expert medical

evidence to determine whether the standard of care was breached. The plaintiffs

7 Plaintiffs also assert that the Hospital’s case must fail, because the Hospital failed to present
any evidence at the trial on the exception. However, a failure to present evidence is not fatal to
the Hospital’s case. See LaCoste v. Pendleton Methodist Hosp., L.L.C., 07-0008 (La. 9/5/07),
966 So. 2d 519, 525 (“Where no evidence is presented at trial of a dilatory exception, like
prematurity, the court must render its decision on the exception based upon the facts as alleged in
the petition, and all allegations therein must be accepted as true.”).
8 The amici curiae in this matter argued in their brief supporting the Hospital that this
explanation is incomplete, and that health care providers follow sterilization procedures that are
“complex and ongoing.” The information provided by amici is not in the record of the case and
we therefore do not consider it here as part of our analysis of the Coleman factors. See La. C.C.P.
art. 2164 (“The appellate court shall render any judgment which is just, legal, and proper upon
the record on appeal.”); B.W.S., Jr. v. Livingston Parish Sch. Bd., 06-1981 (La.8/16/06), 936
So.2d 181, 182 (“It is well-settled that appellate courts are limited to the record developed in the
trial court and are prohibited from receiving new evidence.”).
11
allege that the Hospital was negligent for failing to maintain certain equipment

required for proper sterilization of surgical equipment. We recognize that ordinary

laypersons would be capable of concluding that surgical instruments should be

properly sterilized before surgery. However, whether instruments were in fact

properly sterilized is a question that requires medical expertise. Plaintiffs will be

unable to prove their case without presenting medical experts to explain, for

instance, what the protocol for such maintenance entails and the necessity of

following that protocol to ensure proper sterilization. Likewise, a medical expert

would be necessary in this case to define the standard of care based on medical

guidelines; for instance, expert testimony could be required to set forth the level of

microbial material, if any, which is appropriate for the sterilization equipment or to

opine on when sterilization is compromised. Finally, a medical expert may be

required to assist the trier of fact in determining whether improperly maintained

sterilization equipment could even cause the transfer of mycobacterium fortuitum

and the ensuing osteomyelitis. 9

The facts presented here are distinct from those presented to us in

Williamson, where we found that, while expert testimony could be necessary to

establish the duty to maintain a wheelchair and a breach of that duty, expert

medical testimony was not necessary. Williamson, 04-0451 at p.13, 888 So. 2d at

790. See also Blevins, 07-0217, p.9, 959 So. 2d at 446 (finding no medical expert

will be needed to determine whether locking a hospital bed is negligent or to

determine proper procedures for locking a hospital bed). Here, there is no doubt

medical testimony would be required, and the plaintiffs would be unable to meet

their burden of proof without such testimony.

9 See, e.g., Stoughton v. Borgess Med. Ctr., No. 242781, 2003 WL 22800971 (Mich. App.
11/25/03) (“[T]he manner of sterilization and the determination of when sterilization is
compromised, or sufficiently compromised to raise a medical concern, would be questions that
someone other than a layperson would have to answer.”).
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(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. 10

We find that the allegations at issue fall within the scope of activities the

Hospital was licensed to perform – indeed, they are directly linked with the

activities the Hospital is required to perform to retain its license to operate. In

1961, the Legislature created the Hospital Licensing Law, La. R.S. 41:2100, et

seq., the purpose of which was to “provide for the protection of the public health

through the development, establishment, and enforcement of standards for the care

of individuals in hospitals . . . which, in light of advancing knowledge, will

promote safe and adequate treatment of such individuals in hospitals.” La. R.S.

41:2101. As part of the law, the Legislature directed the Department of Health and

Hospitals to adopt “rules, regulations, and minimum standards” that must be met

by every licensed hospital, which shall have the effect of law. La. R.S. 40:2109.

Importantly, among these standards are those relating to “[s]anitary conditions,

practices and environment and sanitary and sterilization procedures and practices

designed to avoid sources and transmission of infections. . . .” La. R.S.

40:2109(B)(2). As a result, the plaintiffs’ allegations in paragraph 2A related to

failure to sterilize or clean surgical instruments and failure to maintain the

equipment used in the sterilization process are within the scope of activities a

hospital is required to perform. Indeed, the cited statutes make clear that

sterilization procedures designed to avoid sources and transmissions of infection

are fact required by law for a Hospital to maintain its operating license. 11 Cf.

10 The parties agree that factors three and six do not have relevance to this case. As a result, we
do not address them herein.
11 Though the parties focused on the second clause of this factor, we also find that the “incident
occurred” in the context of a physician-patient relationship. As noted above, the plaintiffs are
unable to determine the exact source of Mr. Dupuy’s infection. But the “incident” that caused
the infection – whatever the initial source of the mycobacterium fortuitum – was the spine
surgery itself, which places it within the context of a physician-patient relationship.

13
Williamson, 04-0451 at p.14, 888 So. 2d at 791 (pointing out that “none of the

standards set forth by the Louisiana Department of Health and Hospitals pertains

specifically to the use of wheelchairs”).

(5) Whether the injury would have occurred if the patient had not sought

treatment.

It is evident to us that this factor favors the Hospital. Quite obviously, had

Mr. Dupuy not sought treatment at the Hospital, he would not have contracted the

post-operative infection. Blevins is instructive here. In that case, we found that,

though the factor could have favored the defendant because the plaintiff was in the

hospital when the injury occurred, it was “just as reasonable to say that any visitor

to the hospital, even those not seeking treatment, who put pressure on this

particular bed, could have suffered injury.” Blevins, 07-0127, p.10, 959 So. 2d at

447. The contrary is true here. The nature of Mr. Dupuy’s injury is such that a

visitor to the Hospital could not have contracted osteomyelitis unless he or she

underwent a surgical procedure involving the allegedly unsterilized equipment

infected with mycobacterium fortuitum. Mr. Dupuy’s injury occurred during the

treatment that he purposefully entered the hospital to undergo.

Accordingly, pursuant to our analysis of this case using the factors set forth

in Coleman v. Deno, the plaintiffs’ allegations regarding failure to sterilize the

equipment used to sanitize surgical instruments fall under the MMA.

DECREE

For the reasons set forth above, we hold that the plaintiffs’ claims that the

Hospital failed to properly maintain and service equipment used in the sterilization

of surgical instruments falls within the Louisiana Medical Malpractice Act. We

therefore find that the district court erred in denying the Hospital’s second

exception of prematurity in part and find that the district court should have granted

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the Hospital’s second exception of prematurity in its entirety. The ruling of the

district court is reversed.

REVERSED.

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