Allegations Of Driving An Ambulance Too Slowly Are Within The Scope Of The Louisiana Medical Malpractice Act
In Encalade v. West Jefferson Medical Center Ambulance Service, _____ So. 3d ____, 2009 WL 4043311, 09-355 (La. App. 5 Cir. 11/24/09), the surviving spouse and children of a deceased patient filed a lawsuit in district court alleging that the patient’s death was caused by a paramedic’s alleged failure to drive an ambulance in excess of 45 miles per hour while transporting the patient from his home to the hospital. The defendant hospital filed an exception of prematurity because the plaintiffs failed to submit their claim to a medical review panel prior to filing their lawsuit. The plaintiffs argued that driving an ambulance too slowly constitutes a general negligence claim as opposed to a medical malpractice claim.
The trial court found that the plaintiffs’ allegation that the hospital was negligent for “failing to timely respond and transport Mr. Encalade to a health care facility” fell within the statutory definition of medical malpractice. The trial court found that the factors set forth by the Louisiana Supreme Court in Coleman v. Deno, 01-1517, (La. 1/25/02), 813 So.2d 303, 315 for determination of whether the alleged conduct of a qualified health care provider constitutes a claim of medical malpractice had been satisfied. The Louisiana Fifth Circuit Court of Appeal affirmed.
Both the trial court and the court of appeal distinguished this case from two earlier appellate decisions involving allegations of negligent emergency transportation. In Robinson v. Allen Parish Police Jury, 05-0394 (La. App. 3 Cir. 12/30/05), 918 So.2d 535, 539, the plaintiffs alleged that there was an unreasonable delay in transporting an accident victim to a hospital because the defendant’s helicopter had mechanical problems. In Robinson, the Third Circuit Court of Appeal held that allegations of a helicopter’s mechanical problems could not be characterized as a medical malpractice claim.
In Hidalgo v. Wilson Certified Express, Inc., 94-1322 (La. App. 1 Cir. 5/14/96), 676 So.2d 114, 119, the plaintiff was a patient who was being transported in an ambulance when the ambulance allegedly rear-ended another vehicle and caused a four car collision. The patient struck her head and sustained injuries in the accident. The First Circuit Court of Appeal held that the alleged negligence of the ambulance driver in causing the collision constituted a general tort claim outside the ambit of the Louisiana Medical Malpractice Act.
In contrast, the Encalade court found, as follows:
“The plaintiffs at bar are alleging that Norbert Encalade’s medical condition required urgent action on the part of the emergency medical technicians who assessed him at his home. The plaintiffs contend that Mr. Encalade’s medical condition was of such severity that he should have been transported by ambulance at a speed in excess of 45 miles per hour and with flashing emergency lights. The plaintiffs’ allegations fall within the scope of the Louisiana Medical Malpractice Act because it places squarely at issue the emergency medical technicians’ assessment of the patient’s medical condition and the nature of the response (flashing lights and the speed of emergency transport) required by the applicable standard of care.” Encalade, supra, at p. 2.
The Court of Appeal found no error in the trial court’s reasoning and affirmed the dismissal of the lawsuit against the hospital pending the completion of the medical review panel process.
Michael C. Luquet is a partner in the firm of Breazeale, Sachse & Wilson, L.L.P. in New Orleans, practicing in the area of medical malpractice litigation.