A woman underwent surgery at a hospital. She was treated by two nurses on the floor of the hospital following surgery. She subsequently died. Her surviving sons sued two nurses and the hospital that employed them.
Pursuant to Louisiana’s Medical Malpractice Act (MMA), the sons instituted a medical review panel against the hospital and its nursing staff. The sons nominated a registered nurse as their medical review panel member. The hospital objected to the nomination as a violation of the MMA because the sons did not nominate a physician. The sons refused to nominate a physician, arguing that the alleged negligence was by two nurses and the relevant statute under the MMA allows for a “health care provider” of the same class and specialty to be selected by the complainant. The hospital filed a motion to compel the sons to comply with the MMA. The trial court noted that the sons were unable to offer further authority to the trial court to support their appointment of a nonphysician panel member. The First Judicial District Court, Caddo Parish, granted the hospital’s motion to compel compliance with the MMA. The court found that the MMA contemplated that only medical doctors serve on a medical review panel. The sons sought supervisory review of the judgment.
The Second Circuit Court of Appeal of Louisiana affirmed. The court noted that this was an issue of first impression. The court held that the action was one against one party defendant which is a hospital. Thus, the sons could not nominate a nurse as their medical review panel member.
All members of the medical review panel were required to be physicians. The sons' request to convene a medical review panel alleged no independent allegations against the hospital other than in its capacity as the employer of the nurses. The named nurses are not separately liable for any acts of negligence, only the hospital was, making the hospital the “one party defendant.” The court reasoned that the hospital was potentially only vicariously liable to the sons, which made the claim essentially a claim against one party defendant which is a hospital, which, in turn, required all of the panelists except the attorney to be physicians.
The Second Circuit Court of Appeal of Louisiana affirmed the trial court’s grant of the hospital’s motion to compel compliance with the MMA.
See: In re Vankregten, 2014 WL 462304 (La.App. 2 Cir., February 5, 2014)</c> (not designated for publication).