LAUREN TROSTORFF v. TOURO INFIRMARY KEVIN CARTWRIGHT AND ERIKA RIGGIO (2026)

Plaintiff, Lauren Trostorff, appeals the trial court's judgment maintaining Defendants’, Touro Infirmary (“Touro”), Kevin D. Cartwright, M.D., and Erika Riggio, R.N., Dilatory Exceptions of Prematurity and dismissing Plaintiff's claims without prejudice. For the reasons that follow, we affirm the trial court's judgment.

FACTUAL HISTORY AND PROCEDURAL BACKGROUND

Danielle Trostorff (“Mrs. Trostorff”) began treatment with Dr. Cartwright on or about April 7, 2023. Dr. Cartwright ordered various tests throughout his course of treatment, but he was unable to formulate a conclusive diagnosis. Mrs. Trostorff's condition progressively worsened, and on April 24, 2023, Dr. Cartwright's nurse, Nurse Riggio, informed Mrs. Trostorff that a transesophageal echocardiogram (TEE) had been scheduled for Wednesday, April 26, 2023, at Touro Infirmary. However, when Mrs. Trostorff arrived at Touro on April 23, 2023, the TEE had not been properly scheduled. The TEE was rescheduled and performed two (2) days later on Friday, April 28, 2023.

Plaintiff filed suit on April 30, 2024, alleging wrongful death and survival actions arising out of the death of her mother, Mrs. Trostorff). Defendants filed Dilatory Exceptions of Prematurity contending that Plaintiff's claims were covered by the Louisiana Medical Malpractice Act (LMMA), La. R.S. 40:1231.1, et seq., which requires a medical review panel (MRP) proceeding be completed before a lawsuit may be filed. Plaintiff argued that Defendants’ acts and/or omissions that allegedly lead to her mother's death constitute “administrative negligence,” and, as such, the LMMA is not applicable.

Defendants’ exceptions were heard on April 25, 2025, and the trial court issued a judgment sustaining the exceptions and dismissing Plaintiff's claims without prejudice on May 29, 2025. This appeal timely followed.

DISCUSSION

On appeal, the Plaintiff/Appellant raises the following assignments of error: (1) the district court committed legal error by sustaining Defendants/Appellees’ Exceptions of Prematurity because the claims alleged by Plaintiff/Appellant are not “malpractice” as defined by the LMMA, La. R.S. 40:1231.1, et seq., and, accordingly are not premature or otherwise governed by the LMMA; (2) the district court committed legal error by failing to strictly construe the provisions of the LMMA so as to weigh any ambiguities in favor of Plaintiff/Appellant and against the application of the Act; and (3) the district court committed legal error sustaining Defendants/Appellees’ Exceptions of Prematurity because Defendants/Appellants failed to satisfy their burden of proving entitlement to the protections of the LMMA.

Typically, appellate courts will review a decision sustaining an exception of prematurity for manifest error. Landis Constr. Co. v. Reg'l Transit Auth., 15-0854, p. 6 (La. App. 4 Cir. 5/25/16), 195 So.3d 598, 602 (citations omitted). However, when the exception involves a question of law, then the appellate court will review the decision de novo. See Hawney v. Unique Furniture Source, Inc., 22-0268, p. 3 (La. App. 4 Cir. 11/2/22), 351 So.3d 806, 809. “The dilatory exception of prematurity ․ questions whether the cause of action has matured to the point where it is ripe for judicial determination.” Williamson v. Hosp. Serv. Dist. 1 of Jefferson, 2004-0451, p. 4 (La. 12/1/04), 888 So.2d 782, 785.

The first issue before this court is whether Defendants/Appellees’ acts and omissions are protected under the LMMA, or if those acts/omissions constitute administrative negligence outside of the LMMA. In Coleman v. Deno, 01-1517, 01-1519, 01-1521, pp. 17-18 (La. 1/25/02), 813 So.2d 303, 315-16 (internal citations omitted), the Louisiana Supreme Court considered six factors to determine whether conduct by qualified healthcare providers triggers the LMMA: (1) whether the particular wrong is treatment-related or caused by dereliction of professional skill; (2) whether the wrong requires expert medical evidence to determine whether appropriate standard of care was breached; (3) whether the pertinent act or omission involved assessment of patient's condition; (4) whether incident occurred in context of physician-patient relationship or was within scope of activities which a hospital is licensed to perform; (5) whether injury would have occurred if patient had not sought treatment; and (6) whether the tort alleged was intentional.

Here, the Coleman factors weigh in favor of applying the LMMA. Defendants/Appellees’ failure to schedule the TEE on April 26 is clearly treatment-related, as Dr. Cartwright ordered the diagnostic test to assess his patient's condition and determine a course of treatment. Nurse Reggio's/Touro's failure to properly schedule the test is directly related to treatment prescribed by Dr. Cartwright. Further, Plaintiff/Appellant asserts that her mother was “at imminent risk of a life-threatening cardiovascular event.” Expert medical evidence is necessary to test the veracity of this assertion and whether the appropriate standard of care was breached. The failure to schedule the TEE also involved an assessment of Plaintiff/Appellant's mother's condition. To wit, if Defendants/Appellees had determined the matter to be emergent, the TEE could have been expedited. The fourth factor also favors applying the LMMA. The incident occurred within the physician-patient relationship and within the scope of activities which a hospital is licensed to perform, as the TEE was ordered by Dr. Cartwright and conducted at Touro facilities. Plaintiff/Appellant concedes the last two elements favor application of the LMMA.

Every aspect of the claim is treatment-related, and a determination of whether the alleged failure to timely schedule the TEE was negligent necessarily involves an understanding of the patient's medical condition, Defendants/Appellees’ awareness of her clinical condition, what if any, degree of urgency was medically indicated for completion of the TEE, and what, if any, medical response was warranted based on the results of the TEE. Under Louisiana's system of fact pleading, it is the true nature of the underlying conduct at issue, not plaintiff's own self-serving characterization of the allegations, that determines whether the action sounds in malpractice. See Montalvo v. Sondes, 93-2813 (La. 5/23/94), 637 So.2d 127, 131. Based on the foregoing, Defendants/Appellees’ actions clearly fall under the purview of the LMMA.

Plaintiff/Appellant's second assignment of error alleging that the district court failed to strictly construe the provisions of the LMMA so as to weigh any ambiguities in favor of the plaintiff and against application of the LMMA is without merit. The Louisiana legislature enacted Act 342 of the 2025 Regular Legislative Session to expressly clarify that administrative acts associated with a patient's treatment fall within the LMMA's definitions. Specifically, Act 342 added language to both the definitions of “malpractice” and the definition of “health care” to confirm that these definitions “include[ ] all acts associated with the medical treatment of an individual, whether directly related to clinical care or performed in an administrative or managerial capacity for the delivery of such care.” “Procedural and interpretive laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary.” La. C.C. art. 6. If the legislature does not express whether a law is prospective or retroactive, the court makes the determination by categorizing the law as substantive, procedural, or interpretive. See Bienvenue v. Defendant 1, 23-01194, p. 2 (La. 6/12/24), 386 So.3d 280, 285.

Substantive laws establish new rules, rights, and duties or change existing ones. Procedural laws prescribe a method or remedy for enforcing a substantive right and relate to the form of proceedings or operation of the laws. Interpretive laws merely establish the meaning the interpreted law had from the time of its enactment.

Michel v. State, Div. of Admin. Law, 13-1419, pp. 10-11 (La. App. 1 Cir. 11/3/14), 167 So.3d 654, 661 (citations omitted).

In the instant case, the amendment to the LMMA's definitions of “malpractice” and “health care” merely confirm that the pre-existing broadly-worded definitions include administrative or managerial acts associated with medical treatment. Accordingly, the changes to the LMMA are retroactive and the defendants are entitled to the protections of the act. As such, the Plaintiff/Appellant's third assignment of error is without merit.

CONCLUSION

Considering the above and foregoing reasons, we affirm the district court's judgment maintaining the Defendants/Appellees’ dilatory exceptions of prematurity.

AFFIRMED

Judge Daniel L. Dysart