Is Lack of La. Hospital Evacuation Plan Negligence or Malpractice?

A question that could shunt hundreds of Hurricane Katrina claims against hospitals away from court, putting them before a state malpractice panel, is up before the Louisiana Supreme Court.

The justices heard arguments April 12 in a lawsuit brought by Stephen B. Lacoste and his brother, Neal Lacoste, after their mother’s death at Methodist Hospital in 2005.

The question isn’t whether their claim that the hospital failed either to draw up or to use an adequate evacuation plan is valid, but whether it is fodder for a non-medical negligence lawsuit or for a medical malpractice claim.

Under Louisiana law, a panel of three medical professionals and one attorney must decide whether a malpractice claim is valid before it can be brought to court. Attorneys can file lawsuits even if the panelists don’t think there was any malpractice, but cannot do so before the panel has had its say.

The Louisiana Patients’ Compensation Fund Oversight Board, the state’s first stop for malpractice claims, said the Lacostes aren’t claiming malpractice. The hospital disagrees. Hospital attorneys argue that the board shouldn’t be in charge of deciding that question.

The Lacoste brothers’ mother, Althea Lacoste, had pneumonia. She was brought to the hospital in eastern New Orleans and put on a ventilator on Aug. 28, 2005, one day before the hurricane struck. She died because the hospital’s power – and the ventilator – went off during the weeks-long flood, the brothers say.

If the hospital had set up and used a good evacuation plan, that wouldn’t have happened, their suit contends. They also claim that the hospital was designed and built without proper emergency power and in a way that “allowed flood waters to enter.”

Attorneys for the hospital – one of two with more than 100 beds that have not reopened since the hurricane hit on Aug. 29, 2005 – and for three hospitals owned by Tenet Healthcare Corp. at the time of the flood say the case belongs before the oversight board.

A district judge ruled against them. But the state 4th Circuit Court of Appeal agreed that the claims amount to malpractice because they involve decisions that affected patient care.

The oversight board said it has received about 200 “hurricane” claims with allegations similar to those filed by the Lacostes.

On the Net:
Louisiana Patients Compensation Fund:
http://www.lapcf.louisiana.gov/index.htm
Louisiana Supreme court: http://www.lasc.org/