LOTTINGER, Chief Judge.
In this action, a former patient and her family have filed suit against a state hospital alleging both negligence and strict liability in connection with a 1982 transfusion of blood tainted with the Hepatitis C virus. The district court denied the hospital's dilatory exception raising the objection of prematurity. The hospital asserted this exception contending that with regard to their allegations of negligence, plaintiffs were required by law to submit their claims to a medical review panel. The hospital now appeals.
Plaintiff-respondent, Patricia Lange (hereinafter referred to as "Mrs. Lange"), alleges that she was admitted to Earl K. Long Medical Center (hereinafter referred to as "EKLMC") on January 15, 1982, in connection with the pregnancy and delivery of her child. Prior to her discharge on January 18, 1982, EKLMC purportedly administered three units of blood to Mrs. Lange. Mrs. Lange further alleges that on August 1, 1995, she learned for the first time that she was infected with and suffered from the Hepatitis C virus. Inasmuch as Mrs. Lange has denied receiving blood from any other source, her infection with the Hepatitis C virus has been attributed to the blood transfusions she received at EKLMC in 1982.
On June 25, 1996, Mrs. Lange and her husband, both individually, and on behalf of their minor children (hereinafter collectively referred to as "plaintiffs"), filed the instant suit against defendant-relator, EKLMC, setting forth claims grounded in both negligence and strict products liability. In response, EKLMC filed a Motion to Strike plaintiffs' allegations of mental anguish and emotional distress on the part of Mrs. Lange's husband and children, and also urged various exceptions raising objections of no cause of action, prematurity and lack of subject matter jurisdiction.
Subsequently, on January 14, 1997, plaintiffs filed a supplemental and amended petition alleging that within the past twelve months, Mrs. Lange's husband, Christopher Lange (hereinafter referred to as "Mr. Lange"), had been diagnosed with the Hepatitis C virus. It is further alleged that Mr. Lange's hepatitis infection resulted from contact with his infected wife.
Following a hearing on the motion and exceptions filed by EKLMC, the trial court rendered judgment denying said motion and exceptions. EKLMC applied for a supervisory writ from this court. Through 97 CW 0572 (La.App. 1st Cir. 5/29/94), we denied EKLMC's writ request, but ordered that this matter be remanded to the district court with instructions that it grant EKLMC an appeal as to the issue of prematurity.
ASSIGNMENT OF ERROR
On appeal, EKLMC asserts that the trial court erred in failing to hold that even when alternative theories of liability are alleged, a claim for negligent malpractice filed against the State after July 14, 1986,
LAW AND DISCUSSION
It is evident from a review of the allegations set forth within their petition that plaintiffs are seeking to recover damages against
As EKLMC points out in brief, the trial court's denial of its dilatory exception raising the objection of prematurity relates only to the negligence claims asserted by plaintiffs in their petition. Accordingly, this court's earlier opinion in Cedotal v. Community Blood Center of Louisiana 93-1167, (La.App. 1st Cir. 6/30/94); 644 So.2d 663, writ denied, 94-2433 (La.11/11/94); 645 So.2d 629,
Paragraph X of plaintiffs' original petition provides as follows:
In its appeal to this court, EKLMC asserts that plaintiffs' allegations of negligence constitute a medical malpractice action under the Malpractice Liability for State Services Act (hereinafter, "MLSSA"), La.R.S. 40:1299.39 et seq., and thus plaintiffs' claim was required to have been presented to a medical review panel in accordance with La. R.S. 40:1299.39.1 B(1)(a)(i).
The provisions of the MLSSA are applicable to malpractice claims against state health care providers, and are separate and apart from the "private" Medical Malpractice Act (hereinafter "MMA"), set forth under La.R.S. 40:1299.41 et seq. Because both statutes grant immunities or advantages to special classes in derogation of the general rights available to tort victims, the provisions of the MLSSA and MMA must be strictly construed. Kelty v. Brumfield, 93-1142, (La.2/25/94); 633 So.2d 1210, 1216.
There is no dispute that defendant, EKLMC, is a "state health care provider" as defined under § 1299.39A(1) of the MLSSA.
In response to EKLMC's assertion that their negligence claims must be presented to a medical review panel, plaintiffs point out that unlike the corresponding provisions of the MMA, the definition of "malpractice" under the MLSSA does not refer to, or encompass, liability for blood, blood products or blood transfusions. Accordingly, plaintiffs urge this court to follow the holding of Doe v. Medical Center of Louisiana, 612 So.2d 1050 (La.App. 4th Cir.), writ denied, 613 So.2d 1005 (La.1993).
Upon review of the relevant statutory history of the MLSSA (La.R.S. 40:1299.39 et seq.), we note that the statute was originally enacted by Act No. 66 of 1976, and has thereafter been amended numerous times. Under the original statute, "malpractice" was defined as follows:
This definition was amended, almost immediately, pursuant to Act No. 660 of 1976 to provide:
The aforementioned amendment to the MLSSA paralleled a similar amendment to the MMA
The 1978 amendment to the MLSSA removed all reference to blood from the definition of "malpractice" under the MLSSA, and essentially reenacted, almost verbatim, the definition of "malpractice" found in the original legislation. We must confess that we are ;somewhat mystified by what appears to be a legislative about-face, but nevertheless, reject EKLMC's explanation that the purpose behind the legislature's 1978 amendment of the malpractice definition was to broaden malpractice coverage under the MLSSA.
To the contrary, it is the opinion of this court that the legislature, by amending the MLSSA's definition of malpractice, made a policy decision to remove the liability for injuries resulting from defects in blood,
For this reason, the rules of strict construction necessitates a finding that liability on the part of a state health care provider for injuries to a patient resulting from defects in blood, blood products or blood transfusions is excluded from coverage under the MLSSA.
Accordingly, the judgment of the trial denying EKLMC's dilatory exception raising the objection of prematurity is hereby affirmed. All costs associated with this appeal are assessed against defendant, EKLMC.