Price v. City of Bossier 680 So. 2d 1226

JiHIGHTOWER, Judge.

Arguing that their suit against a doctor and hospital for the alleged negligent misinterpretation of drug test results does not fall under the Medical Malpractice Act, Marla and Robert Price appeal a judgment sustaining an exception of prematurity. Rejecting plaintiffs’ contentions, we affirm.

Facts and Procedural History

Marla Price (“Price”), after a work accident and at the suggestion of her employer, Horseshoe Casino, submitted herself for the evaluation of an arm injury at Bossier Medical Center. Finding no fractures, the examining physician prescribed pain medication and a sling. Next, Price received instructions to go to the laboratory for drug screening. Such testing, required by Horseshoe’s *1227employment polices, did not appear to be medically necessary nor did Price solicit the procedure. On her consent form, she indicated she had recently used a pain reliever and a nasal spray. She also noted that she had eaten poppy seed dressing shortly before the test.

The initial screening at the medical center showed positive for morphine use. Mayo Medical Lab in Minnesota utilized another portion of the urine specimen to confirm this result, disclosing the presence of 434 ng/ml morphine.1 This latter report also included a notation, “Presence of morphine at low concentration (<2000 ng/ml) may be due to poppy seed ingestion.”

The hospital’s Medical Review Officer (“MRO”), Dr. Gary Mazzanti, thereafter signed the chain of custody form and made his final determination that the employee’s urine tested positive for morphine. Upon receipt of this information and pursuant to their established policy, Horseshoe discharged Price.2 According to her petition, she then voluntarily contracted for a second drug screen, with a different testing facility, which produced a negative finding.

| ^Approximately six months later, in August 1995, Price and her husband filed suit against the City of Bossier City d/b/a Bossier Medical Center and Dr. Mazzanti. Defendants responded with an exception of prematurity premised upon La. R.S. 40:1299.47B(l)(a)(i). Agreeing that the “nature of the services provided” required that the complaint initially be presented to a medical review panel, the lower court granted the exception and dismissed the Prices’ suit without prejudice. This appeal ensued.

Discussion

Plaintiffs seek to characterize their allegations as simply asserting various violations of the Drug Testing legislation, La. R.S. 49:1001, et seq., and the statutorily incorporated NIDA guidelines. Continuing, they argue that such narrowly viewed claims can indeed be resolved in district court. The Prices’ pleadings, however, when accurately and realistically read, ultimately complain that Dr. Mazzanti’s medical judgment and misinterpretation of the laboratory reports resulted in his decision to assign a positive result. Thus, the petition clearly states claims based upon medical malpractice.

According to La. R.S. 49:1001(10), an MRO must be a licensed physician, who has knowledge of substance abuse disorders and has appropriate medical training to interpret and evaluate an individual’s positive test result together with his or her medical history and any other relevant biomedical information. Our drug testing statute thus recognizes that the MRO will need to call upon his medical expertise in formulating evaluations. Drug testing obviously is not, as plaintiffs suggest, a mere mechanical following of statutory procedures. Although the statute and guidelines specify certain factors that the MRO should review when faced with a positive test result, no fixed rule can designate how a doctor should interpret an individual set of circumstances. Only through a physician’s training and expertise can such a determination be made. Thus, recognizing that Dr. Mazzanti’s duties required that he render services in accordance with not only drug testing legislation but also his medical training and expertise, the issue before us becomes whether his actions, or inactions, fall within the scope of the Louisiana Medical Malpractice Act.

|gThe Medical Malpractice Act, as suggested by its title, applies to claims arising from medical malpractice. La. R.S. 40:1299.41(1). “Malpractice” is defined as

any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely and the handling of a patient, including loading and unloading of a patient, and also includes all legal *1228responsibility of a health care provider arising from defects in blood, tissue, transplants, drugs and medicines, or from defects in or failures of prosthetic devices, implanted in or used on or in the person of a patient. [Emphasis added.]

La. R.S. 40:1299.41A(8).

A “patient,” as stated within La. R.S. 40:1299.41A(3), is a natural person who receives, or should have received, health care from a licensed health care provider, under an express or implied contract. The Act also delineates “tort” to mean

any breach of duty or any negligent act or omission proximately causing injury or damage to another. The standard of care required of every health care provider, except a hospital, in rendering professional services or health care to a patient, shall be to exercise that degree of skill ordinarily employed, under similar circumstances, by the members of his profession in good standing in the same community or locality, and to use reasonable care and diligence, along with his best judgment, in the application of his skill.

La. R.S. 40:1299.41A(7).

Stiffly measured, the definition of “patient” might lead to the postulate that malpractice solely involves claims based on “health care” (La. R.S. 40:1299.41A(9)) to the exclusion of professional services. Such a limited sphere, plaintiffs suggest, would potentially include only conventional notions of treatment. The statute, however, specifically provides that torts or contractual breaches arising out of a provider’s rendition of professional services are covered by the Medical Malpractice Act. Accordingly, while Price did not receive, and did not intend to receive, any medical treatment or advice as a result of the drug screening, Dr. Mazzanti unquestionably furnished professional services that involved her.

Granted, inasmuch as the Act limits the liability of health care providers in derogation of general tort law, any ambiguities should be construed against coverage Uunder the statute. Hutchinson v. Patel, 93-2156 (La. 05/23/94), 637 So.2d 415. Our supreme court, nevertheless, has cautioned:

On the other hand, legislation is a solemn expression of legislative will, therefore interpretation of a law is primarily the search for the legislature’s intent. [Citations omitted.] Hence, when a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written, and no further interpretation may be made in search of the intent of the legislature. La. C.C. art. 9. When the language of the law is susceptible of different meanings, however, it must be interpreted as having the meaning that best conforms to the purpose of the law, and the meaning of ambiguous words must be sought by examining the context in which they occur and the text of the law as a whole. La. C.C. arts. 10 and 12_ If application of the foregoing rules of interpretation fails to illuminate definitively the legislature’s intent, only then should the rule of strict construction apply to the interpretation of laws in derogation of common rights such as the Medical Malpractice Act. [Citations omitted.]

Hutchinson, supra at 420,421.

In the present matter, a straightforward reading of the Act discloses the lawgiver’s intended inclusion of claims arising out of both treatment and professional services rendered on behalf of a patient. Although Horseshoe initiated the contact between Price and Dr. Mazzanti, she became a patient receiving, and expecting, professional services to be provided by this physician in an exercise of his best judgment, reasonable care, and due diligence. Cf. Pena v. Fann, 95-2709 (La.App. 4th Cir. 07/03/96), 677 So.2d 1091; Green v. Walker, 910 F.2d 291 (5th Cir.1990).

Conclusion

Accordingly, for the foregoing reasons, we affirm the judgment below at appellants’ costs.

AFFIRMED.

NORRIS, J., dissents with written reasons.

[NORRIS, Judge,

dissenting.

I respectfully dissent. The instant petition asserts procedural violations of the State *1229Drug Testing Law, R.S. 49:1001-1015, and not substantive medical malpractice claims. Overall, I do not see what purpose a medical review panel would serve in this case; there is no standard of care to be determined. In particular, there are several crucial points which bring this claim out of the ambit of the Medical Malpractice Act, R.S. 40:1299.41, et seq.

(1) Ms. Price was not a patient of Dr. Mazzanti’s or of Bossier Medical Center’s with respect to the drug test. Medical malpractice is predicated on a relationship between a health care provider and a patient. R.S. 40:1299.41 A(8); Hutchinson v. Patel, 93-2156 (La. 5/23/94), 637 So.2d 415. In deposition Dr. Mazzanti stated that he did not consider Ms. Price his patient or feel that he rendered her medical care. R. p. 70. Counsel for the defendants even stated at the hearing, “We acknowledge she wasn’t Dr. Mazzanti’s patient.” R. p. 149. On a factual basis the record does not meet the critical requirement that Ms. Price be a patient of the defendants’.

Admittedly, pathologists and other “downstream” physicians who lack a direct physician-patient relationship with the persons whose x-rays or biopsies they examine may nevertheless be subject to the Act. Knepper v. State, 359 So.2d 1127 (La.App. 3d Cir.1978). However, the pathologist in Knepper performed services at the request of a doctor who was serving as the plaintiffs physician; this meets the Act’s requirement of an express or implied contract between patient and physician. The instant record does not.

(2) Dr. Mazzanti’s services were not “health care” or “treatment” as required to bring his conduct under the Act, R.S. 40:1299.41 A(9), but merely a test or forensic procedure unrelated to health care. His function was essentially the same as that of the blood bank in Doe v. Medical Center of La., 612 So.2d 1050 (La.App. 4th Cir.), writ denied 613 So.2d 1005 (1993), which was found not to include a component of health care.

Again, certain forensic procedures (x-rays, IV administration) may fall under the Act. Knepper, supra; Cudges v. Our Lady of Lourdes Hosp., 514 So.2d 195 (La.App. 3d Cir.1987). And yet the services described in those cases were obviously ordered by the physician and related to his efforts to diagnose, treat and ultimately cure the patient; in short, they were a component of health care. Such is not the case with a drug test ordered by the employer solely to determine the presence of CDS in an employee’s system. This test neither prescribes nor contemplates any health care or treatment on the MRO’s part once the test is complete.

In this regard I also disagree with the-majority’s assertion that the urine test was given at the employer’s “suggestion,” as though it were optional. According to the petition Ms. Price was “directed” to the lab and “directed” to take the test. To characterize this as something she was free to undergo, or free forgo, is .to be blind to the realities of drug testing in today’s work place. See Elliott v. Laboratory Specialists Inc., 588 So.2d 175 (La.App. 5th Cir.1991), writ denied 592 So.2d 415 (1992).

(3)The majority’s extremely brief citation to Green v. Walker, 910 F.2d 291 (5th Cir.1990), and to Pena v. Fann, 95-2709 (La.App. 4th Cir. 7/3/96), 677 So.2d 1091, does not transmute this into a malpractice ease. In Green, the Fifth Circuit apparently acknowledged some relationship between an examining physician and his examinee in periodic, employment-based physicals; however, the court studiously avoided calling it a physician-patient relationship. In Pena, the court’s sparse discussion is derived primarily from a quotation from Green, and does not in my view address the issue adequately. The sounder, better-reasoned rule is that a physician-patient relationship is not formed when a doctor (¡examines a person solely to render an evaluation for an employer or potential employer. Thomas v. Kenton, 425 So.2d 396 (La.App. 3d Cir.1982); see also Hoover v. Williamson, 236 Md. 250, 203 A.2d 861 (1964); Heller v. Peekskill Community Hosp., 198 A.D.2d 265, 603 N.Y.S.2d 548 (2d Dept.1993).3 Such a relationship creates *1230a non-contractual duty based on La. C.C. art. 2315. Elliott v. Laboratory Specialists Inc., supra.

(4) The Medical Malpractice Act derogates from the general rights of tort victims and must be strictly construed against coverage. Hutchinson v. Patel, at p. 5, 637 So.2d at 420, and citations therein. Statutory provisions like the Drug Testing Law, which only peripherally or arguably affect health care, should not be construed to bring the conduct under malpractice in the absence of clear legislative intent to do so. Id. I see nothing in the Drug Testing Law evidencing an intent to exclude the tested employee from her tort rights and bring her under the Malpractice Act. I believe the majority has erred in so doing.

For these reasons I respectfully dissent.