observing that, assuming a duty existed, a breach of the duty to properly medicate and supervise Jackson — who killed a probation officer — could constitute malpractice as to Jackson but not as to third parties with whom he might come in contact
How later courts described this case
- observing that, assuming a duty existed, a breach of the duty to properly medicate and supervise Jackson — who killed a probation officer — could constitute malpractice as to Jackson but not as to third parties with whom he might come in contact
- observing that any recovery by Estate’s claim will not benefit patient
Written by the judges who cited it.
The opinion
HOFFMAN, Judge,
dissenting.
I respectfully dissent.
The state of Louisiana has a virtually identical Medical Malpractice Act to Indiana's. A similar case decided by the Louisiana court applying the Act is Thomas v. LeJeune, Inc. (1987), La.App., 501 So.2d 1075 .
Defendant, Thomas, filed suit against Le-Jeune, a nightclub, when he stepped on a foreign object and fell, fracturing his ankle. LeJeune filed a third-party demand against the treating doctor and the medical center seeking indemnification and, in the alternative, contribution. LeJeune contended that the third-party defendants should be held accountable for the damages arising out of their treatment and postoperative care of Thomas.
Both third-party defendants filed exceptions of prematurity, based on the Louisiana Medical Malpractice Act, La.R.S. 40:1299.47(B)(1)(a)(i), which provides:
"No action against a health care provider . may be commenced in any court before the claimant's proposed complaint has been presented to a medical review panel...."
The trial court sustained the exception of prematurity and the Louisiana Court of Appeals affirmed.
The court stated: "It is recognized that, as a general rule under the cited statute, no action against a health care provider may be commenced in any court before the claimant's complaint has been presented to a medical review panel. DeRouen v. Kolb, 397 So.2d 791 (La.1981). Appellant contends, however, that the informal sereen-ing procedure by a medical review panel mandated by the Medical Malpractice Act only applies when the patient or claimant, or a representative of a patient or claimant, files suit against a health care provider. Here, of course, the party plaintiff, LeJeune, Inc., is not a patient of the third party defendants.
* * * * * %
Acceptance of LeJeune's argument would place a non-patient claimant in a *1263 medical malpractice action in a more favorable position than a patient claimant.
We subscribe to the holding of the cases cited above, concluding that all claims against health care providers for malpractice must first go through the Medical Malpractice Act procedure, regardless of whether the claimant is a patient or a non-patient." 501 So.2d at 1076, 1077 .
Similarly, the Estate's claims should be subject to the Act since the claim is one based on alleged malpractice to a patient, Jackson.
The Act should cover all claims against health care providers whether the claimant is a patient or nonpatient. This is regardless of whether the patient will derive some benefit from the nonpatient claim. The essential element is that the claim is based on alleged medical malpractice as in this case.
The Medical Malpractice Act covers not only the alleged malpractice in the treatment of Jackson, but also the alleged malpractice in failing to warn Gahl of the potential danger of coming into contact with Jackson. This recognition of the potential dangerousness of a patient is also a part of the physician's diagnosis of his patient. A failure to take the necessary steps to protect a victim after the diagnosis of a patient can result in professional negli-genee. Hedlund v. Superior Court of Orange Cty. (1983), 34 Cal.3d 695 , 194 Cal.Rptr. 805 , 669 P.2d 41, 45-46 .
The Estate's claim is derived from the medical diagnosis and care given to a patient, Jackson, and should be covered by the Medical Malpractice Act. The defendants' motion to dismiss should have been granted by the trial court.