Failure to Sterilize Surgical Instruments: Medical Malpractice or Regular Negligence?

Dupuy v. NMC Operating Co., L.L.C., — So.3d — (La. 2016), 2016 WL 1051523

This case involved a tort suit complaining about a hospital’s failure to properly maintain and service equipment utilized in the sterilization of surgical instruments. The Louisiana Supreme Court characterized this suit as alleging medical malpractice for purposes of state’s statutory requirement, La. R.S. 40:1231.8.2, that such suits be presented to a medical review panel before filing.

This decision applied the following multifactor test, set forth in Coleman v. Deno, 813 So.2d 303 (La. 2002):

(1) whether the particular wrong is “treatment related” or caused by a dereliction of professional skill;

(2) whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached;

(3) whether the pertinent act or omission involved assessment of the patient’s condition;

(4) whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital is licensed to perform;

(5) whether the injury would have occurred if the patient had not sought treatment; and

(6) whether the tort alleged was intentional.

The Court clarified that although “ordinary laypersons would be capable of concluding that surgical instruments should be properly sterilized before surgery …, whether instruments were in fact properly sterilized is a question that requires medical expertise.”