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Eusea v. Blanchard2/11/2005
In this medical malpractice case, Broadlawns Medical Center of Des Moines, Iowa (Broadlawns), and its excess liability Insurer, St. Paul Fire & Marine Insurance Company (St.Paul), appeal a judgment overruling their dilatory exception raising the objection of prematurity and holding that the lawsuit filed by Shirley Autin Eusea was not premature for failure to present her negligence claims against Broadlawns to a medical review panel before including them in the lawsuit. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
This is the third time this medical malpractice litigation has generated an appeal to this court. Dr. Roger J. Blanchard, Jr. was in a three-year family practice residency with Broadlawns, a portion of which was spent working in a "preceptorship" of his choice at the Ochsner Family Practice Clinic in Mathews, Louisiana. Ms. Eusea, a patient whom he treated there in 1995, filed a malpractice claim against him and others, claiming that as a result of Dr. Blanchard's failure to correctly diagnose and treat her strep infection, the lower portion of all four of her limbs had to be amputated due to septicemia and gangrene that set in.
The first case this court reviewed was a declaratory judgment action filed by St. Paul in the Nineteenth Judicial District Court. The issues in that action were: (1) whether Dr. Blanchard was a qualified health care provider under the Louisiana Medical Malpractice Act (the Act); (2) which of two insurers would be responsible for coverage for the malpractice claim asserted against him by Ms. Eusea; and (3) whether the insurer could avail itself of the $100,000 limitation on the doctor's individual liability limit under the Act. This court affirmed the trial court judgment in part, agreeing that Dr. Blanchard had qualified under the Act and that St. Paul was responsible for coverage, and amended the judgment in part, holding on rehearing that St. Paul was not entitled to the benefit of Dr. Blanchard's individual liability limit of $100,000, but was contractually obligated to provide coverage to Broadlawns and Dr. Blanchard to the full extent of its $30,000,000 policy. See St. Paul Fire & Marine Ins. Co. v. Eusea, 99-2117 (La.App. 1st Cir.9/22/00), 775 So.2d 32 (on rehearing ), writs denied, 01-0472 and 01-0536 (La.4/27/01), 791 So.2d 116 and 117 (Eusea I ).
In the second appeal to this court, after Ms. Eusea had named Broadlawns as a defendant in her malpractice suit, Broadlawns raised the issue of whether its contacts with this state were sufficient for a Louisiana court to have in personam jurisdiction over it. The Seventeenth Judicial District Court had sustained Broadlawns' exception raising the objection of lack of personal jurisdiction, and Ms. Eusea appealed. Finding that Broadlawns was subject to Louisiana's jurisdiction, we reversed the judgment and remanded the case. See Eusea v. Blanchard, 01-2229 (La.App. 1st Cir.12/20/02), 836 So.2d 333, writ denied, 03-0210 (La.3/28/03), 840 So.2d 575 (Eusea II ).
The issue in this appeal is whether Ms. Eusea's negligence claims against Broadlawns are premature, because she did not present them to a medical review panel before making those claims in this lawsuit. In 1999, Ms. Eusea presented her claims against some of the other health care providers to a medical review panel, but Dr. Blanchard waived his right to a medical review panel. Eventually Ms. Eusea amended her petition to allege, not just vicarious liability against Broadlawns for the negligence of its employee, Dr. Blanchard, but also to allege the hospital's negligence in providing education to him and/or guidelines for supervising him during his preceptorship in Louisiana. Broadlawns and St. Paul filed a
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