Louisiana Supreme Court Overrules Decision Creating Intentional Tort of "Patient Dumping"

by Larry Weiss, MD JD FAAEM

As the March/April issue of Common Sense went to press, the Louisiana Supreme Court announced its decision in Coleman v. Deno, overruling the appellate court’s creation of a new intentional tort of "patient dumping." The Court had not yet released the text of its opinion, but voted 6-1 to overrule the court of appeal decision. Regarding any negligence on the part of Dr. Deno, the Court voted 4-3 to lower his liability to 25% of the total damages, and to remand the case back to the court of appeal to recalculate the total damages. Furthermore, the three dissenting justices argued that Dr. Deno had no liability at all, either for improper transfer or negligence. We will report on the Court’s official opinion in our "AAEMLa Update" in the next issue of Common Sense.

Very briefly, this case involved the transfer of a patient with arm cellulitis over a five mile distance. Two days later he developed gas in his wound and ended up with a disarticulation at his shoulder. In addition to being held liable for negligence in the amount of $500,000, the 4th Circuit Court of Appeal determined that the physician intentionally "dumped" the patient by transferring him to a public hospital, and levied an additional $4.4 million in damages even though the court admitted that the physician did not violate EMTALA. Dr. Deno transferred the patient in a stable condition, and the patient’s condition did not deteriorate en route.

Thanks to the direct support of my good friend and academic "chief," Keith Van Meter, and support from the national AAEM office, I had the distinct honor and privilege of writing the amicus curiae brief on behalf of AAEM and Van Meter & Associates. The brief argued that the physician could not possibly have "dumped" the patient if he did not violate EMTALA or the analogous state law. The brief also argued about the dangerous precedent this case would create. Malpractice insurance policies ordinarily do not cover intentional torts. The defendant physician in this case would have faced personal ruin if the Louisiana Supreme Court had not reversed the decision. Also, many indigent patients would not have access to our Charity Hospital system, as many emergency physicians stated they would not participate in patient transfers.

When the Court publishes its official decision, it will prominently list AAEM under the caption of the case as a "friend of the court." I’m proud to be a member of an organization that strongly committed itself to the defense of a beleaguered emergency physician. When I first contacted Bob McNamara about this case, he immediately gave his support and recognized its national importance, and he immediately contacted the AAEM Board to rally their support. The lead defense attorney specifically mentioned AAEM’s support at the beginning of his oral argument. I felt very proud to be an AAEM member at that moment. Every emergency physician should realize the value of an AAEM membership. We belong to an organization which has an uncompromising commitment to practicing emergency physicians and our patients.

1 Coleman v. Deno, No. 99-CA-2998 (La. App. 4th Cir., April 25, 2001)

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