JUDY RICHOUX ET AL v. WEST JEFFERSON HOLDINGS LLC ET AL (2025)

WRIT DENIED IN PART AND GRANTED IN PART

Relator, Alexis Waguespack, M.D., seeks review of the 24th Judicial District Court's August 22, 2024 judgment overruling her Dilatory Exception of Improper Cumulation of Actions. Dr. Waguespack argues that Plaintiffs’ Judy Richoux, et al., medical malpractice claims against Dr. Waguespack and seven other qualified health care providers after the death of their 82-year-old father, Mr. James A. Pepper after a surgical procedure on March 13, 2019 are improperly cumulated with their negligent credentialing claims against Louisiana Children's Medical Center d/b/a LCMC Health (“LCMC”) and West Jefferson Holdings, LLC d/b/a West Jefferson Medical Center (“WJMC”).

Plaintiffs allege that on March 13, 2019, Dr. Waguespack performed several surgical procedures on their father that they were told would take three to four hours. But, the surgery lasted 14 hours, during which their father lost a significant amount of blood. Plaintiffs contend that their father died of complications from the surgery on May 17, 2019. Plaintiffs also allege that Dr. Waguespack failed to disclose her substance abuse issues.

Thus, in addition to the medical malpractice claims, Plaintiffs included a negligent credentialing claim against co-defendants, LCMC and WJMC, regarding their credentialing of Dr. Waguespack. Plaintiffs claim LCMC and WJMC knew or should have known that Dr. Waguespack lacked the requisite skill and knowledge to conduct operative procedures because her operative times are far longer than other doctors and other surgeons previously had to correct or manage complications caused by Dr. Waguespack.

Dr. Waguespack maintains that the medical malpractice claims against her and the negligent credentialing claims against LCMC and WJMC are improperly cumulated because there is no community of interest between these claims. She contends that all of the alleged facts relating to the negligent credentialing claims occurred prior to the surgery at issue in the medical malpractice claims and that the legal issues are different. Alternatively, she argues that even if the claims are properly cumulated, the trial court erred by failing to order separate trials of these claims pursuant to La. C.C.P. art. 465. She contends that allowing Plaintiffs to provide evidence of negligent credentialing at the medical malpractice trial would be “severely and unduly prejudicial” to her.

In their Opposition, Plaintiffs counter that the district court did not commit manifest error when it overruled Dr. Waguespack's exception. They urge that there is significant factual and legal overlap between the medical malpractice and negligent credentialing claims and both require proof that medical negligence caused the late Mr. Pepper's injuries. Plaintiffs also aver that separating the two actions would “greatly complicate” the trial, and impose undue prejudice upon Plaintiffs. Further, they contend the trial court can resolve Dr. Waguespack's concerns through the use of jury instructions and other trial management techniques at its discretion.

La. C.C.P. art. 463 governs the situation at issue in this case - the joinder of two or more parties in the same suit either as plaintiffs or defendants. Articles 463 provides in pertinent part:

Two or more parties may be joined in the same suit, either as plaintiffs or as defendants, if:

(1)There is a community of interest between the parties joined;

(2)Each of the actions cumulated is within the jurisdiction of the court and is brought in the proper venue; and

(3)All of the actions cumulated are mutually consistent and employ the same form of procedure.

The test in determining whether the parties have a community of interest is whether the cumulated causes of action arise out of the same facts or whether they present the same factual or legal issues. Essentially, community of interest is present between different actions or parties, where enough factual overlap is present between the cases to make it commonsensical to litigate them together. Roache v. Alpha Tech. Servs., Inc., 10-1086 (La. App. 5 Cir. 6/29/11), 71 So.3d 520, 524, writ denied, 11-1622 (La. 9/30/11), 71 So.3d 294. La. C.C.P. art. 5051 provides that the articles of the Louisiana Code of Civil Procedure are to be construed liberally. See also Stevens v. Bd. of Trustees of Police Pension Fund of City of Shreveport, 309 So.2d 144, 147 (La. 1975) (describing the community of interest standard as liberal).

“ ‘An exception of improper cumulation is ‘subject to a manifest error standard of review.’ ” Succession of Rachal, 21-621 (La. App. 4 Cir. 6/8/22), 342 So.3d 1012, 1021.

On the showing made, we find that the district court did not err in finding a community of interest between the two claims and overruling Dr. Waguespack's exception of improper cumulation under La. C.C.P. art. 463.

While no Louisiana court has addressed this exact issue in the context of negligent credentialing and medical malpractice claims, the Louisiana Supreme court has recently recognized in a case involving similar claims for negligent hiring, that if a plaintiff cannot prove fault on the part of the employee in causing his or her injury, the employer cannot be liable for negligent hiring. See Martin v. Thomas, 21-01490, (La. 6/29/22), 346 So.3d 238, 247. “[A]n employer can only be liable under theories of negligent hiring, supervision, training and retention, and negligent entrustment if the employee is at fault, and that the employer cannot be liable if the employee is not at fault. Id. (citing Libersat v. J & K Trucking, Inc., 00-192 (La. App. 3 Cir. 10/11/00), 772 So.2d 173, 179, writ denied, 01-458 (La. 4/12/01), 789 So.2d 598). However,

[t]he possibility that both the employee and employer may be at fault is not thus foreclosed or “subsumed.” Our traditional civil jury instruction on this point provided in part:

When I say that the injury must be shown to have been caused by the defendant's conduct, I don't mean that the law recognizes only one cause of an injury, consisting of only one factor or thing, or the conduct of only one person. On the contrary, a number of factors may operate at the same time, either independently or together, to cause injury or damage.

H. Alston Johnson III, Civil Jury Instructions, in 18 Louisiana Civil Law Treatise § 3:3 (3d ed. 2021). If no fault is shown on the part of the employee, the inquiry is ended, because there is no cause-in-fact or legal cause. But if fault is shown on the part of the employee, then the issue of whether there is also fault on the part of the employer remains an open question which must be decided according to the evidence on a case by case basis. The fault of both the employer and employee “shall be determined.” C.C. art. 2323.

Martin, supra at 247-48.

The same concepts must apply to medical malpractice and negligent credentialing claims. See also Billeaudeau v. Opelousas Gen. Hosp. Auth., 17-895 (La. App. 3 Cir. 4/18/18), 316 So.3d 1040, 1048, writ denied, 18-819 (La. 10/15/18), 253 So.3d 1299 (discussing the allocation of fault between parties and claims in medical malpractice and negligent credentialing claims). Plaintiffs must first prove that Dr. Waguespack committed malpractice before the fact-finder can reach the question of whether LCMC and WJMC committed negligent credentialing. Based on the foregoing and considering the liberal nature of the community of interest standard, we agree that there is sufficient overlap of the facts and law at issue in Plaintiffs’ medical malpractice and negligent credentialing claims to find cumulation of the parties is proper.

Second, although Plaintiff's negligent credentialing claim for the credentials initially issued to Dr. Waguespack are not covered under the Louisiana Medical Malpractice Act (“LMMA”), Plaintiffs also assert negligent re-credentialing claims; the Louisiana Supreme Court recently determined negligent re-credentialing claims fall under the LMMA. See Thomas v. Reg'l Health Sys. of Acadiana, LLC, 19-507 (La. 1/29/20), 347 So.3d 595; Billeaudeau v. Opelousas Gen. Hosp. Auth., 16-846 (La. 10/19/16), 218 So.3d 513, 528. In Thomas, the Court concluded, “allegations against the hospitals for negligent re-credentialing necessarily fall within the definition of ‘malpractice’ under the LMMA because they constitute an ‘unintentional tort ․ based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient ․ in the training or supervision of health care providers.’ ” 347 So.3d at 602, citing La. R.S. 40:1231.1(A)(13). Thus, we find this community of interest between the negligent re-credentialing claims against LCMC and WJMC and the medical malpractice claims against Dr. Waguespack provides additional grounds to maintain the district court's judgment overruling her dilatory exception of improper cumulation of actions.

Alternatively, since the Court finds the actions were properly cumulated, Dr. Waguespack requests that the negligent credentialing and medical malpractice suits be tried separately pursuant to La. C.C.P. art. 465 ¹ , in the interest of justice. Dr. Waguespack is concerned that evidence of her alleged deficient treatment of other patients will confuse the jury, and lead them to erroneously conclude that her lack of skill or knowledge under La. R.S. 9:2754 ² caused Mr. Pepper's injuries and subsequent death. She explains that courts from other jurisdictions have found that the bifurcation of trials on medical malpractice claims and negligent credentialing/hiring claims is appropriate to avoid such prejudice. See, e.g., Schelling v. Humphrey, 123 Ohio St.3d 387, 916 N.E.2d 1029, 1037 (Ohio 2009); Johansen v. Vuocolo, 125 So.3d 197, 200 (Fla. 4th DCA 2013).

The evidence relevant to a determination of whether LCMC and WJMC committed medical malpractice through negligent recredentialing, or the general tort of negligent credentialing, may be irrelevant and/or prejudicial to Dr. Waguespack in relation to the other medical malpractice claims. We agree that the evidence regarding other patients’ outcomes would be unduly prejudicial and would potentially cause the fact-finder “to draw the improper inference that [Dr. Waguespack] lacked the proper training, knowledge, and skill to perform the surgery in question, and to conclude that [she] was unqualified and incompetent to perform this type of surgery.” Cerniglia v. French, 00-2768 (La. App. 4 Cir. 4/3/02), 816 So.2d 319, 324, writ denied sub nom. In re Med. Review Panel Proceedings, 02-1228 (La. 9/13/02), 824 So.2d 1171. Hence, we find that in the interests of justice, Plaintiffs’ medical malpractice claims against Dr. Waguespack, though properly cumulated, should be tried separately from their medical malpractice (negligent re-credentialing) and potential tort (negligent credentialing) claims against LCMC and WJMC.³ See La. C.C.P. art. 465; Aaron v. Landcraft, Inc., 04-1319 (La. App. 5 Cir. 3/15/05), 900 So.2d 920, 923.

Accordingly, the writ application is denied in part and granted in part. Although the trial court correctly denied Dr. Waguespack's exception of improper cumulation pursuant to La. C.C.P. art. 463, we remand the case with instructions to order separate trials of the cumulated actions pursuant to La. C.C.P. art. 465 in a manner to be determined by the trial court.

Gretna, Louisiana, this 22nd day of April, 2025.

MEJ

SJW

SUS

TSM

I respectfully disagree with the majority opinion that the trial court correctly denied the defendant's exception of improper cumulation.

A community of interest is necessary for actions to be cumulated. C.C.P. art. 463. The test to determine whether the parties have a community of interest is whether the cumulated causes of action arise out of the same facts or whether they present the same factual or legal issues. Element Pictures, L.L.C. v. LIFT (Louisiana Inst. of Film Tech.), L.L.C., 18-0054 (La. App. 4 Cir. 4/6/18), 317 So.3d 859, 862, writ denied, 18-0724 (La. 9/14/18), 252 So.3d 487. A community of interest is present between different actions or parties, with enough factual overlap between the cases to make it reasonable to litigate them together. Id.

There is insufficient overlap between the facts and evidence necessary to prove the two causes of action to create a community of interest. The medical malpractice claim against Dr. Waguespack does not arise from the same facts as the negligent credentialing claims against WJMC and LCMC, nor do the two claims present the same legal issues. The medical malpractice cause of action involves the specific care rendered by Dr. Waguespack to the decedent. The negligent credentialing claims include allegations that Dr. Waguespack's patients had a higher rate of complications in comparison to those of other physicians and that Dr. Waguespack had a history of malpractice, behavioral problems, and substance abuse.

To prove medical malpractice, the plaintiff has to prove that the defendant “either lacked” the “degree of knowledge or skill or failed to use reasonable care and diligence” as other physicians licensed to practice in Louisiana “under similar circumstances.” La. R.S. 9:2794. To prevail, the plaintiff has to prove that the plaintiff's injuries were a result of the failure of the physician to exercise this degree of skill and care. Id. Hence, the medical malpractice claims against Dr. Waguespack require the plaintiff to prove the standard of care applicable to an orthopedic spine surgeon, that Dr. Waguespack deviated from the standard of care in her treatment of the decedent, and that the deviation from the standard of care caused the decedent's injuries.

The negligent credentialing claims against WJMC and LCMC require the plaintiffs to prove that, but for the facilities’ lack of care in the selection or retention of the doctor, the facilities would not have granted staff privileges, and the plaintiff would not have been injured. Whether WJMC and LCMC were negligent in granting or maintaining Dr. Waguespack's privileges involves consideration of facts that occurred before and are separate from her care of the decedent.

The trial judge erred in denying the exception of improper cumulation because there is not enough overlap between facts and evidence essential to prove the medical malpractice claim and the negligent credentialing claim to create a community of interest.

I concur with the majority's grant of this writ in part, ordering that the trial of the medical malpractice claim be tried separately from the negligent credentialing claim.

JJM

FIFTH CIRCUIT

101 DERBIGNY STREET (70053)

POST OFFICE BOX 489

GRETNA, LOUISIANA 70054

www.fifthcircuit.org

SUSAN M. CHEHARDY CHIEF JUDGE

FREDERICKA H. WICKER

JUDE G. GRAVOIS

MARC E. JOHNSON

STEPHEN J. WINDHORST

JOHN J. MOLAISON, JR.

SCOTT U. SCHLEGEL

TIMOTHY S. MARCEL

JUDGES

CURTIS B. PURSELL CLERK OF COURT

SUSAN S. BUCHHOLZ CHIEF DEPUTY CLERK

LINDA M. WISEMAN FIRST DEPUTY CLERK

MELISSA C. LEDET DIRECTOR OF CENTRAL STAFF

(504) 376-1400

(504) 376-1498 FAX

NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY

I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS DAY 04/22/2025 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

CURTIS B. PURSELL CLERK OF COURT

24-C-439

E-NOTIFIED

24th Judicial District Court (Clerk)

Honorable Danyelle M. Taylor (DISTRICT JUDGE)

Michael F. Nolan, Jr. (Respondent)

Mark E. Kaufman (Relator)

T. Carey Wicker, III (Respondent)

Conrad Meyer (Respondent)

Melissa M. Lessell (Respondent)

Michael S. Sepcich (Respondent)

Vincent E. Odom (Respondent)

Thomas C. Wicker, IV (Respondent)

MAILED

Davida F. Packer (Respondent)

Attorney at Law

1100 Poydras Street

Suite 2950

New Orleans, LA 70163

Bryan J. Knight (Relator)

Attorney at Law

201 St. Charles Avenue

Suite 3700

New Orleans, LA 70170

Casey B. Wendling (Respondent)

Attorney at Law

755 Magazine Street

New Orleans, LA 70130

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FOOTNOTES

1.   La. C.C.P. art. 465 provides:When the court is of the opinion that it would simplify the proceedings, would permit a more orderly disposition of the case, or would otherwise be in the interest of justice, at any time prior to trial, it may order a separate trial of cumulated actions, even if the cumulation is proper.

2.   La. R.S. § 9:2794 provides:A. In a malpractice action based on the negligence of a physician licensed under R.S. 37:1261 et seq., a dentist licensed under R.S. 37:751 et seq., an optometrist licensed under R.S. 37:1041 et seq., or a chiropractic physician licensed under R.S. 37:2801 et seq., the plaintiff shall have the burden of proving:(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, dentists, optometrists, or chiropractic physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians, dentists, optometrists, or chiropractic physicians within the involved medical specialty.(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

3.   We note that Plaintiffs expressed concerns about having dual tracks for discovery; however, ordering separate trials does not mean that the discovery proceedings must be separated.