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Dumas v. State12/19/2001
cident) may be recoverable only against one of the tortfeasors. Lambert's statement that the original tortfeasor's "liability for 100% of the victim's damages results because he is the legal cause of 100% of the victim's harm" did not mean that the negligent medical care provider in Lambert was not also a legal cause of that portion of the victim's damages that arose upon the act of malpractice. Likewise, the majority would not say, under the facts of this controversy, that the negligence of the medical provider who was responsible for Mr. Dumas' anesthesia may not be a legal cause of his death.
Since Weber and Lambert are based upon principles of solidarity between joint tortfeasors, they are no longer authority for our decision, because of the revision to Articles 2323 and 2324. These articles address the allocation of fault between joint tortfeasors, or, if that term may be questioned in this context involving separate occurrences, between "all persons causing or contributing to the injury ." The majority proceeds with a Weber/Lambert analysis when all has changed.
Second, amendments to the Code of Civil Procedure, which also have a bearing on this situation, suggest that the trial court cannot put on blinders and ignore a claim alleging fault of the medical provider. The trial court, in response to a peremptory exception or on its own motion, should conduct the process set forth under La. C.C.P. arts. 641 and 642 to determine whether joinder of the co-tortfeasor (or joint obligor) is feasible. Under the revision to La. C.C.P. art. 1812(C), the trial court, upon request of a party, is now mandated to submit special written questions to the jury concerning whether the fault of a non-party was a legal cause of the damages.
Finally, I do not think we can create a special analysis for Weber-type tortfeasors in the face of the new law without ignoring the law. In the language of La. C.C. art. 1788, defining the new relationship of the State and the medical care giver, these joint tortfeasors may owe one obligation for the decedent's death, "but neither is bound for the whole." How a fact finder allocates fault among tortfeasors for wrongful death is a mixed question of law and fact and should not be usurped by judges with preliminary legal pronouncements divorced from consideration of the facts. Moreover, as an initial inquiry, legal cause or scope of duty is also a mixed question of law and fact which the jury decides, not the trial court via a motion to strike. While, as a general rule, the State's duty can extend to guard against the risk of medical complications from the original injury , under the facts of cases like these, the jury should decide whether the particular risk created by the act of malpractice was included within the scope of the State's duty. I would reverse the trial court's ruling.
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