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Dumas v. State12/19/2001
ult of a tainted blood transfusion during surgical treatment for her injuries. The victim sued the driver of the automobile for the damages caused by the blood transfusion as well as the accident. The supreme court stated that an original tortfeasor may be held liable not only for the injuries he directly causes, but also for the tort victim's additional suffering caused by inappropriate medical treatment. Under a duty risk analysis, " he original tortfeasor's responsibility may extend to the risk involved in the human fallibility of physicians, surgeons, nurses, and hospital staff which is inherent to the necessity of seeking medical treatment." Id. at 1050.
The court went on to hold that the driver's liability was solidary with the hospital and the company that supplied the tainted blood, even though the liability of the hospital and blood supply company was imposed only for those damages resulting from the transfusion and not the automobile accident. It is the coextensiveness of the obligations for the same debt, and not the source of liability, which determines the solidarity of the obligation. Weber, supra at 1051, citing Narcise v. Illinois Central Gulf Railroad, 427 So.2d 1192 (La. 1983).
After the 1987 statutory amendment to Civil Code Article 2324(B), limiting solidary liability to a 50% cap, the supreme court decided Lambert, supra. The court in Lambert held that the 1987 statutory amendment to Civil Code Article 2324 reducing solidarity among solidary obligors only to the extent necessary for the injured party to recover 50% of his recoverable damages did not change the rule of Weber that the original tortfeasor may be liable not only for injuries he directly causes, but for additional injuries due to bad medical treatment. The court rejected the original tortfeasor's argument that the 1987 amendment changed his liability such that he was solidarily liable only to the extent necessary to insure that the victim received 50% of his recoverable damages, and therefore, it was necessary for the trial court to apportion fault among the solidary tortfeasors. The court stated that the original tortfeasor was liable for 100% of the victim's damages because he was the legal cause of 100% of the victim's harm and the amendment to article 2324 did not change this result. The imposition of solidary liability between the original tortfeasor and the subsequently treating health care providers permits the original tortfeasor to seek contribution from the health care providers. In that action, the apportionment of fault is necessary. Lambert, supra at 329.
La. Civil Code Articles 2323(A)&(B) and 2324(B) were amended in 1996, effective April 16, 1996, just six days prior to the accident at issue in this case. The state alleges that the amendments overrule the holdings of Weber and Lambert.
Art. 2323. Comparative Fault
(A) In any action for damages where a person suffers injury , death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined, regardless of whether the person is a party to the action or a non-party, and regardless of the person's insolvency, ability to pay, immunity by statute, including by not limited to the provisions of R.S. 23:1032, or that the other person's identity is not known or reasonably ascertainable. If a person suffers injury, death, or loss as a result partly of his own negligence and partly as a result of the fault of another person or persons, the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death, or loss.
(B) The provisions of Paragr
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