By Adam Thames
Partner, Taylor Porter
In October 2016, the Louisiana Supreme Court reversed course in the landmark decision of Billeaudeau v. Opelousas Gen. Hosp. Auth., 2016-0846 (La. 10/19/16), finding claims of negligent credentialing to fall under general negligence provisions of Louisiana law and thus specifically outside the monetary damages cap imposed by the Louisiana Medical Malpractice Act (“LMMA”). You can read more about that ruling and its impact on health care providers here. Recently, the Louisiana Third Circuit Court of Appeals extended Billeaudeau’s reach by finding claims of “negligent recredentialing” also fall outside the scope of protections afforded by the LMMA.
In Thomas v. Regional Health System of Acadiana, LLC, et. al, 18-215 (La. App. 3 Cir. 2/27/19), the trial court ruled that a patient’s claims against a hospital for negligent recredentialing of a physician fell under the LMMA (and were thus capped) because it was akin to the hospital’s ongoing supervision of a physician and closely related to treatment. In reversing the trial court’s decision, the Third Circuit primarily emphasized, as did the Supreme Court in Billeaudeau, that attempts by the Louisiana Legislature to include credentialing in the list of claims to be covered under the LMMA had repeatedly failed. The appellate court was also not persuaded by the argument that recredentialing of a physician was similar to ongoing supervision by the provider or any different at all from the initial credentialing process analyzed in Billeaudeau. Thus, the Third Circuit held that a patient’s claims for negligent recredentialing against the hospital could proceed, uncapped, under Louisiana’s general negligence provisions as opposed to the LMMA.
It is unlikely the Supreme Court will exercise its discretion to hear the Thomas case and even more unlikely that it will reverse the Third Circuit’s ruling. Without legislative action to amend the LMMA to include terms like hiring, retention, credentialing, and recredentialing within the definition of malpractice, uncapped credentialing claims will continue to be cause for concern for health care providers. In light of Billeaudeau and Thomas, it is critical for all health care providers to ensure that only qualified physicians are credentialed, and now recredentialed, before they are allowed to treat patients in their facilities.
Thomas v. Regional Health System of Acadiana, LLC
In Thomas, the plaintiff, Megan Thomas (“Mrs. Thomas”), contended that her infant daughter’s pediatric cardiologist, Dr. Geeta Dalal, incorrectly interpreted multiple echocardiograms and failed to diagnose a life threatening cardiac condition that had to later be corrected by a cardiac surgeon. Mrs. Thomas instituted a medical malpractice claim with the Louisiana Patient Compensation Fund against Dr. Dalal and the multiple hospitals where she was privileged and treated the infant. Mrs. Thomas also filed suit against the same parties in state court alleging liability under Louisiana’s general negligence law; not the LMMA. As to the hospitals where the infant was treated, Mrs. Thomas alleged that they were liable for her daughter’s injuries because they “… negligently credentialed Dr. Dalal and negligently provided her with privileges to practice in [their] hospitals.”
Dr. Dalal was initially credentialed, granted clinical privileges, and appointed to the medical staff in 1987. She was recredentialed every two years, which included peer review of her patient care, on an ongoing basis, through 2011 until she reached the age of 65 and then yearly recredentialed through her retirement in 2017. The hospitals seized on these facts and argued to the trial court that the Supreme Court’s holding in Billeaudeau only applied to claims for initial credentialing of a physician and not to recredentialing. The trial court agreed, finding that the recredentialing process was essentially akin to the hospitals’ “supervision” of Dr. Dalal. Because the LMMA defines malpractice to include claims related to the “training or supervision of health care providers” the trial court found that Mrs. Thomas’ recredentialing claims sounded in malpractice under the LMMA, not general negligence. Thus, the state court claims for negligent recredentialing were dismissed as premature prior to being reviewed by the Medical Review Panel.
The Court further found that recredentialing was not “treatment related” and did not involve ongoing supervision or training of Dr. Dalal by the hospital. The following passage from the court’s opinion is particularly pertinent to the Third Circuit’s decision to extend the scope of Billeaudeau:
“Credentialing is credentialing, whether it was done one time or multiple times, and it applies to both the initial credentialing process and recredentialing process. Just as a physician’s prior performance, including past claims for malpractice, are considered in the initial credentialing decision, they will also affect the subsequent credentialing decisions. That does not equate the credentialing or recredentialing process to a supervisory function. It continues to encompass the evaluation of the physician’s personal, educational, and skills background in determining whether a physician should be allowed to care for patients within the walls of that particular hospital.”
Historical Perspective of Louisiana Medical Malpractice Act
Under the LMMA, the amount of money a patient can recover due to the negligence of his or her health care provider is capped as long as the injury arises out of medical treatment. For decades, courts across Louisiana considered claims against health care providers for “negligent credentialing” to be medical malpractice and thus capped under the LMMA. Billeaudeau and Thomas are stark changes in the law that should be recognized by health care providers charged with credentialing physicians and physicians who sit on credentialing committees.
 Id. at p. 3.
 Id. at 11.
About Adam Thames: Adam Thames is a Partner at Taylor Porter and a member of the Firm’s Healthcare Practice Team. He devotes a significant portion of his practice to representing physicians, hospitals, dialysis clinics, nurses, and other healthcare providers in medical malpractice and other professional liability claims. Adam also has extensive experience litigating class action, products liability, personal injury, and insurance defense claims. He is ranked by his peers among the 2017 Louisiana Super Lawyers’ “Rising Stars.”
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