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Dumas v. State12/19/2001
CARAWAY, J., dissents with reasons to follow.
This is a wrongful death case against the State of Louisiana as a result of an accident allegedly due to a defective road. The trial court struck the state's amended answer asserting medical malpractice as the cause of the death and seeking an apportionment of fault and damages against the medical provider. We granted the state's writ application to review the effect of the 1996 amendments concerning comparative fault on the jurisprudential rule that the original tortfeasor is liable for subsequent malpractice. We now affirm the trial court's ruling.
Facts
George Dumas, age 61, was injured on April 22, 1996, on a camping trip at Chemin-a-Haut State Park near Bastrop, Louisiana. He was thrown from a bicycle after allegedly hitting a pothole on a park road. Dumas, who received a large laceration to his right forehead and scalp, was taken to Morehouse General Hospital where he received medical treatment for his wounds. Dumas died six to seven hours later.
Dumas's wife and three adult children filed a petition for damages against the State of Louisiana through the Department of Culture, Recreation & Tourism and the Department of Transportation and Development alleging that: the state maintained and controlled the park roads; the pothole created an unreasonable risk of injury; the state had actual and constructive knowledge of the pothole; and, the state failed to repair or warn of the defect. The state answered the petition denying responsibility and alleged the fault of decedent, George Dumas.
The particular issue now before the court arose when the state filed an amended answer to its petition alleging that the cause of Dumas's death was in fact medical malpractice on the part of the anesthesiologist at Morehouse General. Dumas allegedly died after he aspirated the contents of his stomach following a routine surgical procedure to repair the scalp laceration. The state "affirmatively plead " the "fault of third parties in the medical treatment of George Dumas . . . as the cause of the death . . . for which the state is not jointly liable." It further asserted as an affirmative defense "the applicability of Louisiana's law of comparative fault, particularly the law of joint and divisible liability as enunciated in Louisiana Civil Code Articles 2323 A & B, and 2324 B."
Plaintiffs responded to the amended answer by filing a motion to strike on grounds that the allegations added therein are immaterial, irrelevant and insufficient. Specifically, plaintiffs argued that the state was attempting to introduce factual allegations and evidence of subsequent medical malpractice in violation of the jurisprudential rules that, as a matter of policy, the original tortfeasor is fully liable for subsequent malpractice as set forth in Weber v. Charity Hospital of Louisiana at New Orleans, 475 So.2d 1047 (La. 1985); and Lambert v. U.S.F. & G. Co., 629 So.2d 328 (La. 1993).
The trial court granted the motion to strike stating that the amendments to Civil Code Articles 2323 and 2324 did not legislatively overrule Weber and its progeny. We granted the state's writ application to review the matter.
Discussion
In 1977 the legislature amended article 2323 to impose a comparative fault regime. Thereafter in 1985, the supreme court decided Weber, supra. The jurisprudential rule handed down in Weber is clear. When a tort victim takes reasonable steps to obtain medical treatment, the original tortfeasor may be liable for subsequent medical malpractice.
In Weber, an automobile accident victim sustained further injury when she contracted hepatitis as a res
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