The typical medical malpractice case starts with a Complaint filed with the Patient’s Compensation Fund. After the related administrative process is exhausted, a lawsuit seeking damages can then be filed in district court. Medical malpractice litigation involves chronic efforts by plaintiff attorneys to bypass the Louisiana Medical Malpractice Act (MMA) and to avoid federal court which is frequently seen as less favorable to plaintiffs than its state court counterpart. In Porter v. Stryker Corp., 2019 WL 3801635 (W.D. La. Aug. 12, 2019), the plaintiff sought to do both.
The case suggests that federal courts may be reluctant to allow plaintiff attorneys to add hospital defendants using allegations that properly fall within the Medical Malpractice Act as a conduit to bypass federal court for cases against other defendants.
Attempts to Bypass the MMA
The MMA mandates that malpractice complaints be submitted to a medical review panel before suit is filed in district court – a prerequisite that is often considered cumbersome, expensive, and time consuming by plaintiff attorneys. Efforts to bypass the MMA are common. In order to better understand this tactic, let’s look at the explanation below of federal diversity jurisdiction.
Efforts to Avoid Federal Court
A jurisdictional basis must exist for a case to remain in federal court. Diversity is one way to get federal court jurisdiction, and it exists when opposing parties are citizens of different states. Leave it to the lawyers to manipulate a seemingly simple concept into fodder for legal strategizing to achieve a perceived more favorable jurisdiction (i.e., stay out of federal court!). In the Porter case the lawsuit was filed in state court against the manufacturers/distributors of a robotic surgical device and the Louisiana hospital where the surgery was performed, thus combining a products liability action with a claim against a medical provider. The plaintiff was a citizen of Louisiana, as was the hospital. Therefore, with the hospital in the litigation, diversity jurisdiction would not exist as the plaintiff and the hospital were citizens of the same state, notwithstanding the citizenship of the manufacturer/distributor in another state. Alleging that the hospital was improperly joined (added as defendant) to destroy diversity jurisdiction (keep the case in state court), the manufacturer/distributor filed pleadings removing the case from state court to federal court. Plaintiff did not want to be in federal court, so a motion to remand to state court was filed. The argument was that the existence of the hospital (a Louisiana citizen like the plaintiff) in the litigation foreclosed the possibility of jurisdiction based on diversity – citizens of different states.
The court combined the issues involving the MMA with diversity jurisdiction and concluded that the claim against the hospital arose out of the MMA, which requires that administrative remedies be exhausted before recovery is allowed against the hospital. As such, because the administrative remedies had not been exhausted, the court deemed the hospital was improperly joined. When the hospital was deemed to be improperly joined, diversity existed between the plaintiff and the remaining defendant (out of state manufacturer/distributor) so the case remained in federal court.