
    Elvira Preston WILLIAMS, et al. v. STATE of Louisiana, Lallie Kemp Regional Medical Center, et al.
    No. 2000 CA 0365.
    Court of Appeal of Louisiana, First Circuit.
    June 22, 2001.
    Joseph H. Simpson, Amite, LA, John W. deGravelles, Baton Rouge, LA, for plaintiffs-appellees, Elvira Preston Williams, et al.
    Richard P. Ieyoub, Attorney General, Carey Rauhman Holliday, Assistant Attorney General, Baton Rouge, LA, for defendant-appellant, State of Louisiana, Lallie Kemp Regional Medical Center.
    BEFORE: PARRO, FITZSIMMONS, KUHN, GUIDRY, and DOWNING, JJ.
   J^FITZSIMMONS, Judge.

Amos Williams, Sr. died after surgery at a state operated hospital, Lallie Kemp Regional Medical Center (hospital). Plaintiffs, members of the Williams family, filed a suit for damages claiming medical malpractice. By supplemental and amending petition, plaintiffs added a claim of negligent hiring by the hospital. The trial court denied the hospital’s dilatory exception raising the objection of prematurity to the negligent hiring claim. The hospital appealed the denial of the exception of prematurity. We affirm.

Plaintiffs alleged that the hospital was negligent in hiring the surgeon who performed the operation on Mr. Williams. The hospital asserts that negligent hiring is malpractice, and must first be presented to a medical review panel. See La.R.S. 40:1299.39.1. Thus, the issue is whether the hospital’s alleged negligent hiring of the surgeon meets the applicable definition of medical malpractice.

Malpractice for state services is defined as “the failure to exercise the reasonable standard of care specified and required by Subsection B of this Section, in the provision of health care, when such failure proximately causes injury to a patient. ...” La.R.S. 40:1299.39A(4) (emphasis added). Health care is defined as “any act or treatment which was performed or furnished ... by any person covered. by this Part for, to, or on behalf of, a patient during the medical care, treatment or confinement of the patient.” La.R.S. 40:1299.39A(6) (emphasis added).

In this case, the alleged negligent hiring of the surgeon by the hospital was an independent, non-medical act that pre-dat-ed the surgical admission. The hiring or employment of the surgeon does not constitute “health care” by the hospital “during the medical care, treatment or confinement of the patient,” Mr. Williams. Garnica v. Louisiana State University Medical Center, 99-0113, pp. 3-8 (La.App. 4 Cir. 9/8/99), 744 So.2d 156, 158-160, writ denied, 99-2859 (La.12/17/99), 751 So.2d 879; cf. Armand v. State, Department of Health and Human Resources, 97-2958, p. 9 (La.App. 1 Cir. 2/23/99), 729 So.2d 1085, 1089 (when hospital actions involve treatment of a patient, the actions fall within the definition of medical malpractice) (Fitzsimmons, |3J., dissented on another issue, the sufficiency of the proof of negligence), writ denied, 99-0842 (La.5/14/99), 741 So.2d 661. Therefore, we find that the claim of negligent hiring, as alleged in this case, is not covered by the Malpractice Liability for State Services Act. We affirm the judgment. The costs of the appeal, $2,220.58, are assessed to defendant, State of Louisiana, Lallie Kemp Regional Medical Center.

AFFIRMED.

GUIDRY, J., dissents and assigns reasons.

PARRO, J., dissents and assigns reasons.

h GUIDRY, J.,

dissenting.

I disagree with the majority opinion finding the plaintiffs’ claims are not cognizable under the Louisiana Malpractice Liability for State Services Act, La.R.S. 40:1299.39, et seq. A review of the plaintiffs’ supplemental and amending petition reveals that the claims asserted by the plaintiffs are for the negligent hiring, continued employment and failure to discharge Dr. Prentiss Smith. Specifically, the plaintiffs allege that Dr. Smith has presented a history of providing substandard care both prior to and' during his employment at the defendant hospital. Furthermore, the plaintiffs assert that the defendant hospital had knowledge of Dr. Smith’s alleged practice of providing substandard care, yet nonetheless, hired, continued to employ and failed to terminate his employment in light of this information and continuing occurrences. Plaintiffs also assert that Dr. Smith’s treatment of the deceased was akin to the substandard care previously performed by Dr. Smith on previous occasions, all of which the defendant hospital had knowledge.

Although the focus of the majority’s opinion limits the alleged wrongdoing by the defendant hospital to a time “pre-dat-ing” the medical care, treatment and confinement of the deceased, the plaintiffs’ assertions, as found in the supplemental and amending petition, encompass a time inclusive of the date of medical care, ^treatment and confinement. In essence, the plaintiffs assert that the deceased was injured by the “employment” of Dr. Smith, which is inclusive of not only the hiring of Dr. Smith, but his continued employment up to the date of discharge. As such, the hospital’s acts of hiring, continuing to employ, and failing to discharge Dr. Smith directly involved and impacted the provision of health care afforded Mr. Williams during his medical care, treatment or confinement, thereby invoking the provisions of the state malpractice act.

Therefore, in accordance with the law of this circuit, as articulated in Armand v. State, Department of Health and Human Services, 97-2958 (La.App. 1st Cir.2/23/99), 729 So.2d 1085, writ denied, 99-0842 (La.5/14/99), 741 So.2d 661, since the hospital’s act of hiring Dr. Smith is alleged to have impacted the treatment of Mr. Williams, this action by the defendant hospital falls within the definition of medical malpractice and the provisions of La.R.S. 40:1299.39.1 apply.

For these reasons, I respectfully dissent.

|1PARRO,J.,

dissenting.

I respectfully dissent for the reasons expressed by Judge .Guidry here and in the Armand case. Armand v. State, Dep’t of Health and Human Resources, 97-2958 (La.App. 1st Cir.2/23/99), 729 So.2d 1085, 1089, writ denied, 99-0842 (La.5/14/99), 741 So.2d 661. In that case, this court determined that “administrative negligence” claims were included within the coverage of the state medical malpractice act when the .negligent acts, whether performed by physicians or others in an administrative or managerial capacity, were associated with medical treatment of a patient. The claims asserted here are “administrative negligence” claims. The only way “negligent hiring” or “negligent employment” of the physician in this case could have caused damage to the plaintiffs was through the medical treatment Dr. Smith provided to the decedent. As such, the plaintiffs’ claims against the hospital for “negligent hiring” fall within the provisions of the medical malpractice act and are premature unless first presented to a medical review panel. 
      
      . Subsection B refers to the standard of care set out in La.R.S. 9:2794.
     
      
      . I further note that the record before this court does not reveal whether any of the other claims asserting the negligence of Dr. Smith or the vicarious liability of the hospital have been presented to a medical review panel. The only assignment of error on this appeal concerned the trial court’s denial of the defendants' exception of prematurity as to the claims of "negligent hiring, employment, and retention” asserted in the plaintiffs' second supplemental and amending petition.
     