DRIVER v. WILLIS KNIGHTON PIERREMONT HEALTH CENTER (2025)

Writs granted. In this medical malpractice suit, the court of appeal found the jury's determination that plaintiffs failed to prove the applicable standard of care was manifestly erroneous, reversed the verdict, conducted de novo review, and rendered judgment in favor of plaintiffs and against defendants, Willis-Knighton Health Center and Nkunj Parikh, M.D. However, the appellate court failed to compare and allocate fault between the two defendants.

Louisiana Civil Code article 2323 provides that “[i]n any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined ․ regardless of the basis of liability.” Article 2323 requires the fault of every tortfeasor responsible for a plaintiff's injuries be compared, regardless of the legal theory of liability asserted. Dumas v. State ex rel. Dept. of Culture, Recreation & Tourism, 2002-0563 (La. 10/15/02), 828 So. 2d 530, 537. If the fact finder determines two tortfeasors negligently injured a plaintiff, the liability between them will be a joint and divisible obligation; they will not be solidarily liable, and each tortfeasor will be liable only for their portion of fault. Dumas, 828 So. 2d at 537. It is well-settled that the comparative fault regime applies to liability based on medical malpractice. Miller v. LAMMICO, 2007-1352 (La. 1/16/08), 973 So. 2d 693, 705. Further, comparative fault must be allocated prior to imposition of the Louisiana Medical Malpractice Act's damages cap. Miller, 973 So. 2d at 711.

The failure to apportion fault among the defendants constitutes legal error. Hoffman v. East Jefferson General Hosp., 2000-1216 (La. App. 5 Cir. 12/13/00), 778 So. 2d 33, 42, writ denied, 2001-0117 (La. 3/16/01), 787 So. 2d 314. Consequently, we vacate the judgment of the court of appeal and remand this matter to the court of appeal to perform the comparative fault analysis required by Article 2323. We express no opinion on the merits of any other argument raised in these writ applications.

WRITS GRANTED; JUDGMENT OF APPELLATE COURT VACATED; REMANDED TO APPELLATE COURT WITH INSTRUCTIONS.

Fault has been established. The only issue is who and how much.

PER CURIAM

Hughes, J., concurs and assigns reasons.