author: CALOGERO, Chief Justice. KNOLL, Justice,

text:
    Stephen B. LACOSTE, et al. v. PENDLETON METHODIST HOSPITAL, L.L.C.
    Nos. 2007-CC-0008, 2007-CC-0016.
    Supreme Court of Louisiana.
    Sept. 5, 2007.
    Rehearing Denied Nov. 2, 2007.

      Roedel, Parsons, Koch, Blache, Balhoff & McCollister, David Alva Woolridge, Jr., Larry Michael Roedel, Baton Rouge, for applicant in No. (2007-CC-0008).
    Best Koeppel, Peter Stephan Koeppel, Laurence Edward Best, Peggy Wallace, New Orleans; Wilson & Bowling, David A. Bowling, New Orleans, Jennifer Lyn Dowty, for respondent in No. (2007-CC-0008).
    Kurt Stephen Blankenship, Mandeville, Robert Irby, Richard Engel Gruner, Jr., Mandeville, for amicus curiae, Tenet HealthSystem Memorial Medical Center, Inc.
    James Paul Waldron, Peter Elliot Sper-ling, Bruce A. Cranner, New Orleans, for amici curiae, Lindy Boggs Medical Center and Meadowcrest Hospital.
    Best Koeppel, Peter Stephan Koeppel, Laurence Edward Best, Peggy Wallace, New Orleans, for applicant in No. (2007-CC-0016).
    Roedel, Parsons, Koch, Blache, Balhoff & McCollister, David Alva Woolridge, Jr., Larry Michael Roedel, Baton Rouge; Wilson & Bowling, David A. Bowling, New Orleans, Jennifer Lyn Dowty, for respondent in No. (2007-CC-0016).
   CALOGERO, Chief Justice.

11 Today we reiterate that the limitations on the legal liability of qualified health care providers in Louisiana, as set forth in the Louisiana Medical Malpractice Act (LMMA), are to be applied only and strictly to cases of medical malpractice as defined in the LMMA, because the LMMA’s limitations on such liability were created by special legislation in derogation of the general rights of Louisiana tort victims. In this civil action against a private hospital for survival and wrongful death damages, the plaintiffs contend their decedent, while a patient in the defendant’s hospital, died during a natural disaster as a result of the failure of the hospital to design, construct, and/or maintain a facility so as to provide sufficient emergency power to sustain life support systems and/or to prevent flood waters entering the structure, as well as the result of the failure of the hospital to implement an adequate evacuation plan, to have a facility available for the transfer of patients, and/or to have in place a plan to transfer patients in the event of a mandatory evacuation. We granted the writ applications in this case to examine whether such claims sound in general negligence or constitute medical malpractice under the parameters of the LMMA. For the reasons set forth below, we find the defendant health care provider | ¿was not entitled to a medical review panel for the claims set forth in the plaintiffs petition, as amended. Therefore, the district court correctly overruled the defendant’s dilatory exception of prematurity. We thus reverse the decision of the court of appeal and reinstate the ruling of the district court.

This case originated with a petition for damages filed by the plaintiffs, Stephen B. LaCoste, individually and as legal representative of his father, Belgarde LaCoste, his brother Neal LaCoste, and the estate of Althea LaCoste, and Jann L. Raymond, Corlis LaCoste, Linda L. Rogue, Dana L. Barthelemy, ánd D’Andrea L. Prater, in Civil District Court for the Parish of Orleans on March 21, 2006, naming'as defendant, Pendleton Methodist Hospital, L.L.C. (Pendleton Methodist). In the petition for damages, the plaintiffs alleged that Althea LaCoste was admitted to defendant’s hospital on or about August 28, 2005, at which time she was recovering from pneumonia and required the use of a ventilator. The plaintiffs alleged that, during Hurricane Katrina and its aftermath, the hospital lost electrical power and emergency power resulting in the failure of life support systems used to sustain the lives of individuals like Mrs. LaCoste, who were dependent on such systems. The plaintiffs alleged the loss of use of the emergency power and the defendant’s failure to implement an adequate evacuation plan were a direct and proximate cause of Mrs. LaCoste’s death. Specifically, the plaintiffs alleged negligent and intentional conduct of the defendant in: (a) designing, constructing and/or maintaining á facility in such a manner .that the hospital did not have sufficient emergency power to sustain life support systems; (b) designing, constructing and/or maintaining a facility in such a manner that allowed flood waters to enter the structure, thus endangering the safety of patients; and (c) failing to implement an adequate evacuation plan.

On May 8, 2006, the plaintiffs filed a first supplemental and amending petition |sfor damages naming as an additional defendant, Universal Health Services, Inc., and asserting additional acts of negligence by the defendants in failing to have a facility available for transfer of patients, and in failing to have in place a plan to transfer patients in the event of mandatory evacuation.

Pendleton Methodist, a qualified health care provider pursuant to the LMMA, filed a dilatory exception of prematurity to the plaintiffs’ petition for damages and to their first supplemental and amending petition for damages on the basis that the plaintiffs’ claims sounded in medical malpractice, thus falling within the parameters of the LMMA and, therefore, requiring review by a medical review panel before commencement of litigation in the state courts. The district court heard argument on the defendant’s exception on August 11, 2006. The district court denied the exception on August 21, 2006, reasoning that the plaintiffs’ allegations of wrongful conduct were not treatment related or caused by the dereliction of professional skill. The court reasoned that these allegations, rather than implicating medical treatment | ¿or professional skill, instead “relate to deficient design of the hospital including lack of emergency power, failure to implement an evacuation plan and failure to have a facility to transfer patients.” The district court concluded that the plaintiffs’ allegations do not invoke the coverage of the LMMA. The district court then overruled the defendant’s exception of prematurity.

The Louisiana Patients’ Compensation Fund Oversight Board (PCF) notified the parties that the allegations contained in the plaintiffs’ request for a medical review panel and petitions were not within the scope of medical malpractice as defined in the LMMA. Subsequently, the PCF filed a petition of intervention in the district court aligning itself with the plaintiffs in opposition to the defendant’s exception of prematurity.

The defendant applied to the court of appeal for supervisory writs from the district court’s denial of its exception of prematurity. The court of appeal granted the writ in part and sustained Pendleton Methodist’s exception as to all allegations save those sounding in intentional tort. The court of appeal found that the plaintiffs’ claims as set forth in the original and amending petitions, “relating to the handling of Ms. LaCoste once admitted to Methodist, the medical treatment she received, the evaluations made of her during her stay in Methodist, and her presentation to the health care provider which determined whether and when she should be evacuated from Methodist,” were “all medical in nature and fall within the provisions and purview of the LMMA.”

The court of appeal further found that whether the emergency electric-generating equipment, which powered the hospital equipment, was adequate, as well as the decision to evacuate or not, also fell within the purview of the LMMA. The court of appeal reasoned that a failure to have appropriate or working back-up |Requipment was equivalent to a failure to have necessary medical supplies with which to treat a patient. The court found that the underlying issues were the condition of the patient and the treatment provided to the patient during and after a natural disaster. The court reasoned that these issues related to patient care, i.e., whether the defendant hospital breached the applicable standard of care respecting the best care for patients when faced with a natural disaster, and further noted that expert evidence would be necessary to answer such a question. The court then dismissed without prejudice that part of the plaintiffs’ petition containing allegations regarding the electrical generating equipment and evacuation plan, and it remanded the case for further proceedings on the petition’s allegations of intentional tort. LaCoste v. Pendleton Methodist Hosp., L.L.C., 06-1268, pp. 7-8 (La.App. 4 Cir. 12/6/06), 947 So.2d 150, 155.

We granted the consolidated writ applications of the plaintiffs and the PCF. LaCoste v. Pendleton Methodist Hosp., L.L.C., 07-0008, 07-0016 (La.2/2/07), 948 So.2d 184, 185. The issue thus presented in this case is whether the plaintiffs’ claims in their original and amending petitions sound in medical malpractice, and thus fall within the purview of the LMMA, or whether they sound in general negligence.

The dilatory exception of prematurity provided in La.Code Civ. Proc. art. 926 questions whether the cause of action has matured to the point where it is ripe for judicial determination, because an action will be deemed premature when it is brought before the right to enforce it has accrued. Williamson v. Hospital Service Dist. No.1 of Jefferson, 04-0451, p. 4 (La.12/1/04), 888 So.2d 782, 785; Spradlin v. Acadia-St. Landry Medical Foundation, 98-1977, p. 4 (La.2/29/00), 758 So.2d 116, 119; see also Frank L. Maraist & Thomas C. Galligan, Jr., Louisiana Tort Law § 21-3(f) (1996). |fiUnder the LMMA, a medical malpractice claim against a private qualified health care provider is subject to dismissal on an.exception of prematurity if such claim has not first been presented to a medical review panel. La.Rev.Stat. 40:1299.47(A); Williamson, 04-0451 at p. 4, 888 So.2d at 785. This exception is the proper procedural mechanism for a qualified health care provider to invoke when a medical malpractice plaintiff has failed to submit the claim for consideration by a medical review panel before filing suit against the provider. La.Code Civ. Proc. art. 926; Spradlin, 98-1977 at p. 4, 758 So.2d at 119; Frank L. Maraist & Harry T. Lemmon, 1 Louisiana Civil Law Treatise, Civil Procedure § 6.6, 116 (West 1999). In such situations, the exception of prematurity neither challenges nor attempts to defeat the elements of the plaintiffs cause of action; instead, the defendant asserts the plaintiff has failed to take some preliminary step necessary to make the controversy ripe for judicial involvement. Spradlin, 98-1977 at p. 4, 758 So.2d at 119; Maraist & Lemmon, supra. The burden of proving prematurity is on the exceptor, in this case the defendant hospital, who must show that it is entitled to a medical review panel because the allegations fall within' the LMMA. Williamson, 04-0451 at p. 4, 888 So.2d at 785 (finding alleged negligence of hospital in failing to repair wheelchair and in failing to make sure that wheelchair was in proper working condition did not arise from medical malpractice within meaning of LMMA); Spradlin, 98-1977 at p. 4, 758 So.2d at 119 (alleged patient “dumping” sounded in malpractice).

This court has steadfastly emphasized that the LMMA and its limitations on tort liability for a qualified health care provider apply only to claims “arising from medical malpractice,” and that all other tort liability on the part of the qualified health care provider is governed by general tort law. Coleman v. Deno, 01-1517, pp. 15-16 (La.1/25/02), 813 So.2d 303, 315 (finding claim for alleged wrongful transfer |7from one emergency room to another of a patient whose left arm was later amputated sounded in medical malpractice); Williamson, 04-0451 at p. 5, 888 So.2d at 786. This is so because, as we have oft repeated, the LMMA’s limitations on the liability of, health care providers were created by special legislation in derogation of the rights of tort victims. Williamson, 04-0451 at p. 5, 888 So.2d at 786; Sewell v. Doctors Hospital, 600 So.2d 577, 578 (La.1992) (finding strict liability for defects in hospital bed that collapsed resulting in injury to patient was not included within definition of medical malpractice, under the LMMA). In keeping with this concept, any ambiguity should be resolved in favor of the plaintiff and against finding that the tort alleged sounds in medical malpractice. The limitations of the LMMA, therefore, apply strictly to cases of malpractice as defined in the LMMA. Williamson, 04-0451 at p. 5, 888 So.2d at 786.

The LMMA defines “malpractice” as:

any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely and handling of a patient, including loading and unloading of a patient, and also includes all legal responsibility of a health care provider arising from acts or omissions during the procurement of blood or blood components, in the training or supervision of health care providers, or from defects in blood, tissue, transplants, drugs, and medicines, or from defects in or failures of prosthetic devices implanted in or used on or in the person of a patient.

La.Rev.Stat. 40:1299.41(A)(8).

The LMMA further defines “tort” and “health care” as follows:

“Tort” means any breach of duty or any negligent act or omission proximately causing injury or damage to another. The standard of care required of every health care provider, except a hospital, in rendering professional services or health care to a .patient, shall be to exercise that degree of skill ordinarily employed, under similar circumstances, by the members of his profession in good standing in the same community or locality, and to use reasonable care and diligence, along with his best judgment, in the application of his skill.

La.Rev.Stat. 40:1299.41(A)(7) (emphasis added).

“Health care” means any act or treatment performed or furnished, or-which should have been performed or furnished, by any health care provider for, to, or on behalf or a patient during the patient’s medical care, treatment, or confinement, or during or relating to or in connection with the procurement of human blood or blood components.

La.Rev.Stat. 40:1299.41(A)(9).

This court in Coleman v. Deno, pp. 17-18, 813 So.2d at 315-16, set forth-six factors to assist a court in determining whether a claim sounds in medical malpractice and must first be presented to a medical review panel:

(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.

In the instant case, the defendant hospital, which has the burden of proof as the exceptor, has chosen to rely on the allegations as set forth in the plaintiffs’ original and first supplemental and amending petitions, because the defendant put on no other evidence at the trial. Where no evidence is presented at trial of a dilatory exception, like prematurity, the court must render its decision on the exception based upon the facts as alleged in the petition, and all allegations therein must be accepted as true. Blakely v. Powers, 590 So.2d 1286, 1290 (La.App. 1st Cir.1991). Accordingly, we now apply the Coleman factors to the allegations asserted in the plaintiffs’ petition, as amended, which we accept as true for the purpose of resolving this dispute. Upon doing so, we conclude that the claims as asserted in the plaintiffs’ petition, as ^amended, do not fall within the purview of the LMMA, and thus the district court properly denied the defendant’s exception of prematurity.

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

The defendant asserts the petition essentially alleges that the hospital failed to maintain life-support systems, which directly invokes a relationship to patient treatment and constitutes an unintentional tort in the “failure to render services timely and the handling of a patient.” The defendant also maintains that the plaintiffs have retreated from their allegations regarding failure to transfer the decedent by focusing on the allegedly negligent pre-storm planning for a post-storm evacuation. Relying on Coleman itself, the defendant ultimately argues that transferring or not transferring a patient, which requires a doctor’s order, is treatment related and that the hospital’s decision “to shelter in place rather than transfer patients to other hospitals” as the storm approached is related to medical treatment. The plaintiffs counter that the district court correctly found the allegations of wrongful conduct are not treatment related and were not caused by the dereliction of professional medical skill. The plaintiffs contend that whether the hospital was designed, constructed or maintained in such a manner that it lacked sufficient emergency power is a premises liability issue, because neither the optimum location of generators in a protected location, from wind or flood waters, nor the adequacy of available fuel in the event of a power outage is related to treatment by or the skill of a medical professional.

We agree with the district court’s .reasoning that the plaintiffs’ allegations of misconduct do not relate to medical treatment or-the dereliction of professional medical skill; instead, they relate to deficient design of the hospital, including lack of emergency power, a failure to implement an evacuation plan, and a failure to have a facility to which a transfer of patients could be made. Though the appellate court 11 reasoned that the lack of sufficient back-up power is akin to a failure to have adequate equipment and, thus, a failure to provide medical treatment, reading the plaintiffs’ allegations in light of the strict application of the LMMA does not lead to the conclusion that they relate to medicine, medical care, or medical treatment. The language of the allegations, “designing,” “constructing,” “maintaining,” and “failing to implement” all suggest premises liability and general negligence rather than a dereliction of professional medical skill. The petition alleges that Mrs. LaCoste’s death resulted from a lack of “sufficient power,” inadequate protection from floodwaters, and a failure to implement an adequate evacuation plan, alleged wrongs that would involve administrative or engineering decisions regarding building design or maintenance and emergency preparedness. The petition as amended does not allege that her death was caused by a failure to render medical treatment as the result of a deficiency in professional medical skill.

Furthermore, the plaintiffs do not allege a “failure to transfer,” but rather, they allege that the defendant failed to implement an adequate evacuation plan, failed to have in place a plan to transfer patients in the event of a mandatory evacuation, and failed to have a facility available for the transfer of patients. While a failure to transfer may relate to medical malpractice in another case, a lack of any possibility of transferring a patient because the hospital failed to have in place and to implement an adequate evacuation plan, failed to have adequate emergency power if the decision to shelter in place was made, and failed to design or maintain a building that protected against floodwa-ters is not “treatment related” or the result of a dereliction of professional medical skill, based on the factual allegations to which our review is limited. There is no allegation in the instant petition that the hospital’s medical personnel failed to order a transfer of the decedent to another facility. As we [T1 cautioned in Williamson, “[a]n expansive reading of the definition of medical malpractice contained in the MMA runs counter to our previous holdings that coverage of the Medical Malpractice Act should be strictly construed.... ” Williamson, p. 8, 888 So.2d at 787.

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

The defendant asserts that expert medical evidence is necessary because emergency preparedness in the field of health care is vastly different from ordinary emergency preparedness, and medical experts will be essential in determining the standard of care unique to the implementation of a program such as the hospital’s emergency preparedness plan. The plaintiffs counter that they have not named as defendants any medical professionals who might be accused of breaching the standard of professional medical care. They point out that “standard of care” is not an expression used in the allegation of wrongful conduct, and contend that a medical professional would not be qualified or necessary to provide evidence of the design of a facility’s back-up emergency power; instead, an architect or engineer or other similarly trained individual could testify as to a duty and breach thereof by the hospital.

Expert medical evidence may be necessary to establish causation with regard to the death of Mrs. LaCoste; however, we can discern no requirement for such expert medical evidence to establish the alleged wrongful conduct on the part of the hospital with regard to its failure to maintain adequate emergency power or its failure to protect the facility against floodwaters. The defendant’s reliance on Taylor v. Christus Health Southwestern Louisiana, 04-0627 (La.App. 3 Cir. 11/10/04), 886 So.2d 696, in which the court found that medical evidence would be required to establish the proper equipping of a hospital room’s private bathroom, is unavailing. Improving a claim based on the complete inability to transfer a patient because of a lack of emergency power, a poorly designed building, or inadequate protection from floodwaters does not require expert medical evidence in our view. Furthermore, while it is certainly conceivable that some particulars of a hospital emergency evacuation plan might' reasonably require expert medical evidence, such as under what conditions a patient should or may be transported, the allegations presently before us are that the defendant failed to implement an evacuation plan, failed to have a facility available to receive transferred patients, and failed to have a pian in place in case of a mandatory evacuation. The plaintiffs have not alleged that Mrs. LaCoste’s death was caused by individuals with medical training, such as doctors and nurses, who failed to exercise proper medical skills or procedures. Accordingly, there has been no showing, based on the allegations in the petition as amended, that expert medical evidence is necessary to determine whether a particular duty owed to Mrs. LaCoste by the defendant hospital exists or whether that duty was breached.

Not every unintentional tort committed by a qualified health care provider falls within the purview of the LMMA; only those torts that constitute medical malpractice do so. Williamson, p. 9, 888 So.2d at 788. Though the defendant has suggested possible qualities for medical experts who might be nominated to the panel and who could determine the merits of the plaintiffs’ claims,' it is the Louisiana court that decides whether a tort claim against a qualified medical provider must first be presented to the medical review panel. Thus, the court must determine whether a delict sounds in general negligence or falls within the purview of the LMMA. In this case, the district court resolved that decision in favor of the plaintiffs.

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

The defendant contends that a decision “to ride out the storm” was made by |1sthe hospital prior to Mrs. LaCoste’s admission to the hospital, such that an assessment of her condition by hospital personnel was necessary when she presented herself as the storm approached to weigh the risk of rejecting her admission and requiring her to seek treatment elsewhere. The defendant argues that the real crux of the plaintiffs’ allegation is that the hospital should never have admitted Mrs. LaCoste, because, as the defendant explains, the failure-to-evacuate contention and the failure-to-transfer contention are simply other ways of saying that the hospital was negligent in admitting and treating her. The plaintiff asserts the allegations.of poor design or inadequate emergency power have no relation to the assessment of Mrs. La-Coste’s condition, or any other patient’s condition for that matter. The plaintiffs assert their allegations are directed to what, if any, arrangements the hospital had made before the storm, which do not involve the assessment of any particular patient’s condition.

This factor weighs in favor of finding that the allegations sound in general negligence. Initially, it should be noted that our review is. limited to the allegations themselves, as the defendant did not put on evidence regarding when a decision not to evacuate was made by the hospital or when an assessment of Mrs. LaCoste’s condition was made by hospital personnel. Although Mrs. LaCoste may have been on a ventilator when the storm arrived, as alleged in the petition, the pertinent acts or omissions alleged by the plaintiffs were the decisions that would have been made not by medical doctors or nurses, but more logically by engineers or administrators in determining how to design or maintain the building, how much emergency power to have available, and how and when to implement an emergency evacuation. Such engineers or administrators would not have needed to assess Mrs. La-Coste’s medical condition, to determine whether sufficient emergency power would be available or an evacuation should be implemented. The necessary information, which was or should |14have been available to the defendant, was that patients, staff, and others were going to occupy the building during a hurricane, and that basic survival necessities would be required, including power and shelter from rising floodwaters. The defendant’s contention that the time crux of the petition’s allegations, i.e., that she should have been refused admittance to the hospital, is not convincing. The petition, as amended, does not make such an allegation, nor does it allege that Mrs. LaCoste would have been transferred except for a medical decision made by a doctor resulting in the patient’s death.

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

The defendant asserts that attempting to preserve the life of a patient is an activity that a hospital is exclusively licensed to perform. The plaintiffs contend that whether the hospital was properly designed or whether it had adequate emergency power are not issues involving a physician-patient relationship. The plaintiffs point out that there have been no allegations involving a particular physician, nurse, or other health care provider and that the hospital’s decisions affected all persons present in the hospital whether employee, patient, or visitor.

This factor also weighs in favor of the finding that the claims alleged in the petition sound in general negligence. Clearly, there is no allegation of an “incident” that occurred during the transfer of this patient, whether or not that transfer was attempted or completed. The incidents cited in the petition were the lack of sufficient emergency power, the building’s inadequate design and structure, and the failure to have in place and to implement a plan to transfer patients in the event of .a mandatory evacuation, including a location to which they would be transported. It is these incidents that .resulted in the complete inability to transfer the patient or to maintain |1Rher life-support system, and they did not involve a physician-patient relationship within the meaning of the LMMA. Furthermore, the defendant’s argument is not persuasive that the incident occurred within the scope of activities which a hospital is licensed to perform. As noted previously, there is no allegation in the petition that a medical decision by any physician or nurse resulted in the failure to transfer this patient and that such failure resulted in her death.

(v) whether the injury would have occurred if the patient had not sought treatment

This factor is somewhat difficult to evaluate in the context of the factual alie-gations in this particular case. The defendant argues that the thrust of the plaintiffs’ petition is that Mrs. LaCoste did not receive the treatment she was presumably seeking when she presented herself to the hospital. Thus, the defendant asserts, this is a claim for an injury unique to Mrs. LaCoste’s status as a patient. The plaintiffs rely on this court’s caution in Williamson that, a “but for” rationale may be overly facile when considering this factor. 04-0451, p. 14, 888 So.2d at 790. In a general sense, any wrong that a patient suffers in a hospital or doctor’s office would not occur if the patient had not first entered the facility. Yet, many claims of medical malpractice resulting from omissions might not qualify as medical malpractice if this factor were applied singly and without relation to the other Coleman factors, because an omission, such as a failure to diagnose, ostensibly leaves a patient in the same position as she would have been in had she never sought treatment in the first place. The defendant’s argument that this is a, “failure to treat” case is subsumed in the first factor, which considers whether the particular wrong is treatment related or the result of a dereliction of professional skill Given that we have found that the particular wrongs alleged in the petition as amended were neither treatment related nor the result of .a dereliction of professional medical skill, the possibility that, had she not |1fibeen admitted to the hospital, Mrs. LaCoste might have lived or, conversely, that she would have nevertheless died as a result of her, pneumonia, or even that her condition would have remained the same, does not weigh greatly in favor of finding that the wrongful conduct alleged in the petition as amended was medical malpractice within the confines of the LMMA.

(vi) whether the alleged tort was intentional

This factor is not an issue in this case, as the court of appeal correctly found that the plaintiffs’ allegations of intentional tort need not be submitted to a medical review panel.

The LMMA, in derogation of the general rights of tort victims, grants qualified health care providers certain limitations on liability for unintentional torts that constitute medical malpractice as defined therein. We have applied, in light of the factors set forth in Coleman v. Deno, the LMMA’s definition of medical malpractice to the facts alleged in the petition as amended, and we conclude that the claims as alleged therein do not fall within the provisions of thé LMMA. Accordingly, because the claims need not be submitted to a medical review panel, the district' court correctly overruled the defendant’s dilatory exception óf prematurity. Therefore, the ruling of the court of appeal is reversed, and the ruling of the district court is reinstated. The case is remanded to the district court for further proceedings.

DECREE REVERSED; DISTRICT COURT JUDGMENT REINSTATED; REMANDED

VICTORY, J., dissents.

KNOLL, J., dissents and assigns reasons.

WEIMER, J., dissents for the reasons assigned by KNOLL, J.

KNOLL, Justice,

dissenting.

LI disagree with the majority opinion’s interpretation of the Coleman factors as applied to the definition of medical malpractice to the facts alleged in the plaintiffs’ petition and amending petition, thereby concluding the alleged claims do not fall within the provisions of the LMMA. To so conclude, the majority opinion reads the lack of sufficient power and the failure “to implement an adequate evacuation plan, fail[ure] to have in place a plan to transfer patients in the event of a mandatory evacuation, and fail[ure] to have a facility available for the transfer of patients” in a vacuum. See at p. 526. Clearly and most telling, Mrs. LaCoste died from the condition for which she was admitted because of lack of treatment and not because she suffered from-any other independent injury. To say,- as the majority opinion does, that to find the LMMA applies would give the LMMA an expansive reading, is incorrect. Rather, it is just the opposite; a strict application of the Coleman factors leads to the inescapable conclusion that Mrs. LaCoste died from lack of treatment. For the following reasons, I respectfully dissent.

Only what the plaintiffs allege is properly before us, and their allegations, though artfully drafted, present a case in which Mrs. LaCoste died from the hospital’s failure to provide life-sustaining care, ie., failure of treatment. Moreover, and 12importantly, she died from the illness for which she was admitted, and did not sustain any new injuries.

At the outset, I note with significance this suit is one against a qualified health care provider brought to recover for an injury unique to the decedent’s, Mrs. La-Coste’s, status as a patient. Mrs. LaCoste died, according to the petitions, because of the failure of the hospital to deliver proper life-support systems through the loss of use of emergency power and the defendant’s failure to implement an adequate evacuation plan. Although the plaintiffs assert their allegations sound in simple premises liability and general negligence of hospital administrators, I find the application of the Coleman factors demonstrate that the providing of or failing to provide a life-support system clearly sounds in malpractice as it is integral to' the rendering of care and treatment by the health care provider to the patient.

Application of the Coleman Factors

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

Because the wrong alleged is the failure to provide the proper ventilation care Mrs. LaCoste required, I find the allegations do relate to the patient’s treatment and an alleged dereliction of professional skill. Contrarily, plaintiffs assert that whether the hospital facility was designed, constructed and/or maintained in such a manner that it lacked sufficient emergency power is a premises liability issue as the location of generators or adequacy of fuel to operate generators in the event of power outages are not issues related to treatment or skill. The plaintiffs urge that the defendant’s failure in not ensuring sufficient emergency power is not an act or omission attributable to a particular doctor, nurse, or other individual health care provider. While this argument carries some persuasion, it fails to fully answer the eventual result the power failure caused, namely, the failure to provide treatment. This failure Lis attributable to the hospital that was obligated to provide the treatment for which the patient was admitted, in this case ventilation.

To say that it is only the power failure that plaintiffs rest their allegations upon is overly simplistic and reading the allegation in a vacuum. The power failure is inherently integral for the plaintiffs to prove their allegations for survival and wrongful death damages. This result is treatment related in that the ventilator could not function without power, which, according to the plaintiffs, ultimately caused Mrs. LaCoste’s death. To restrict the application of this factor to only the lack of power without including the result of what the lack of electricity caused is not applying this factor correctly. A proper analysis of this factor clearly demonstrates the wrong alleged is “treatment related.” Applying this Coleman factor, I find the alleged “treatment related” failure weighs in favor of the application of the LMMA.

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

The allegations focus on the alleged failure to evacuate the facility, which raise an issue that will likely be influenced by expert medical testimony. As defendant has persuasively argued, emergency preparedness in the field of health care is vastly dissimilar to emergency preparedness in other areas. Medical experts, specializing in the field of Disaster Medicine, including triage, will likely be essential in determining the standard of care unique to the implementation of a program such as defendant’s emergency plan. Moreover, only physicians can issue transfer and acceptance orders, and negligence regarding transfer decisions and planning in evacuations cannot likely be established without expert medical testimony. See e.g., Coleman, 01-1517 at p. 18, 813 So.2d at 316 (patient transfer case). The plaintiffs argue that it is the failure to have a plan for evacuation that caused the harm. This claim, however, cannot be analyzed in a vacuum, but must relate to the plan for | ¿evacuation of Mrs. LaCoste, who was a critical care patient dependent on a ventilator. It reasonably follows that this claim concerning the evacuation of a critical care patient would of necessity require expert testimony regarding the standard of care as it is not likely lay people could speak to the feasibility of accomplishing the specialized evacuation of this ventilated patient.

The plaintiffs further argue a medical professional is not qualified to provide evidence concerning whether the facility was deficiently designed, whether the generators should have been enclosed behind a retaining wall, or whether the hospital lacked sufficient power. According to the plaintiffs, the failure to make arrangements before the storm for post-storm evacuation of patients involved business decisions. However, expert medical testimony will be needed to explain the cause of the injury and any breach of care relating to the failure of treatment for Mrs. LaCoste as well as to explain the plan and implementation of any plan and evacuation procedures, which, according to the plaintiffs’ petition, would necessarily include transferring patients to other facilities. Therefore, I find this factor as well weighs in favor of the application of the LMMA.

(3)Whether the pertinent act or omission involved assessment of the patient’s condition?

Although the plaintiffs assert that the allegations that defendant lacked sufficient power, that the facility was poorly designed, and that defendant failed to implement an adequate evacuation plan with facilities for transfer of patients have nothing to do with assessment of any patient’s condition and are business decisions, I find the alleged wrongdoing inherently involved a medical assessment and evaluation of Mrs. LaCoste’s condition. Transporting a patient from one facility to another requires a physician’s order from the transferring facility and an admitting order from the receiving facility, which necessarily includes an assessment of the patient’s condition. See Coleman, 01-1517 at p. 18, 813 So.2d at 316. As the record demonstrates, the defendant evaluated Mrs. LaCoste’s condition when she was first admitted, and it likewise follows that any post-storm transfer would inevitably involve patient assessment and evaluation and potentially triage. It is also likely that a patient’s condition could affect the decision to evacuate if certain emergency equipment, such as a back-up ventilator, would be required. Further, failure to transfer is akin to the inverse of the alleged wrongdoing in Coleman involving the transfer of a patient, which this Court found sounded in malpractice. Significantly, Mrs. LaCoste’s initial assessment indicated the need for ventilation, and it was the failure to provide the assessed treatment that, according to the petition, resulted in her death. Again, I find this factor weighs in favor of application of the LMMA.

(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?

Despite plaintiffs’ assertions that the defective design of the hospital and failure to plan in advance for post-storm evacuation are not issues that involve the physician-patient relationship, I find the omission in this case most likely occurred in the context of the physician-patient relationship. Transfer of a patient, especially one in need of critical care, is not conducted by an engineer, a design professional, or an administrator. Hospitals and their administrators do not admit, transfer, or discharge patients. Physicians are exclusively licensed to perform these functions, and decisions regarding transfers are no less medically oriented than decisions about the types of medicines a patient needs. Moreover, physicians and hospitals are licensed to perform life sustaining care, in this case the ventilation of a patient. It is the failure of the treatment and care for which the hospital was licensed to perform that is at issue in this case and weighs this factor in favor the defendant’s position.

| n(5) Whether the injury would have occurred if the patient had not sought treatment?

If Mrs. LaCoste had not been taken to the hospital for treatment of pneumonia and placement on a ventilator, she would not have been subject to the alleged failure of lifesaving care. The claim for her wrongful death is based on failure to obtain or provide the treatment she sought. Moreover, such treatment and the equipment, ie., ventilator, employed are unlike the malfunctioning wheelchair in Williamson and the malfunctioning hospital bed in Sewell in that the treatment and the ventilator are not accessible to the visiting public or to any and all patients. They are for critical care patients, like Mrs. LaCoste, who require life sustaining care, contrary to plaintiffs contention that the wrongful conduct adversely affected everyone in the hospital, even those not seeking treatment.

Moreover, in Williamson, the injury caused by the defective wheelchair had nothing to do with the condition for which the patient sought treatment or with the treatment of the patient. The accident produced an independent cause of action and injury, which could have occurred even if the patient had not sought treatment. In this case, however, the lack of power accelerated the condition for which Mrs. LaCoste was admitted and sought treatment and, thus, directly affected the condition and treatment of this patient. Therefore, I find this factor as well weighs in favor of the defendant’s position.

(6) Whether the alleged tort was intentional?

This factor is not an issue in this case, as the court of appeal agreed that the plaintiffs’ intentional tort allegations need not be submitted to a medical review panel and correctly remanded the case for further proceedings on that issue.

Accordingly in my view, under the Coleman test, the totality of the allegations are weighted in favor of our finding that the plaintiffs’ claims sound in medical |7malpractice and fall within the purview of the LMMA, requiring this matter first be submitted to a medical review panel. Therefore, I find the court of appeal correctly sustained the exception of prematurity and remanded for further proceedings on the issue of intentional tort.

In conclusion, with the assistance of the Coleman factors, I have applied the LMMA’s definition of medical malpractice to the allegations set forth in plaintiffs’ petitions, and I conclude that the claims therein do fall within the provisions of the LMMA. Accordingly, I would affirm the judgment of the court of appeal granting the exception of prematurity and remand this matter for further proceedings on the issue of intentional tort.

      . As amended, the petitions specifically alleged:
      During Hurricane Katrina and its aftermath, Methodist Hospital lost the use of electrical power and emergency power resulting in the failure of life support systems used to sustain the lives of individuals like Mrs. LaCoste, who were dependent on said systems.
      The loss of use of emergency power and the failure of defendants to implement an adequate evacuation plan were a direct and proximate cause of Mrs. LaCoste’s wrongful death.
      The above described acts were caused through the negligence and intentional acts of defendants, their officers and agents in the following non-exclusive particulars:
      (a) by designing, constructing and/or maintaining a facility in such a manner that the hospital did not have sufficient emergency power to sustain life support systems;
      (b) by designing, constructing and/or maintaining a facility in such a manner that allowed flood waters to enter the structure, thus endangering the safety of patients;
      (c) failure to implement an adequate evacuation plan;
      (d) failure to have a facility available for transfer of patients; and
      (e) failure to have in place a plan to transfer patients in the event of mandatory evacuation.

      . As the appellate court noted, whether the case is one in medical malpractice or negligence will ultimately be decided at trial by the trier of fact. Today we are concerned only with whether the factual allegations contained in the petition as amended assert claims that fall within the purview of the LMMA and therefore must first be presented to a medical review panel under the procedures of the LMMA. That a fact-finder with more evidence before it may ultimately conclude that the defendant’s conduct was medical malpractice does not control our review of the instant exception of prematurity, which is, as we have explained, limited to the factual allegations in the amended pleadings.


source: Caselaw Access Project

license: Public Domain

text:
    T & S INVESTMENT PARTNERSHIP, et al. v. LOUISIANA PUBLIC SERVICE COMMISSION, et al.
    No. 2007-CA-1603.
    Supreme Court of Louisiana.
    Oct. 10, 2007.
   ORDER

Considering the motion by appellee, Southern Siding Co., Inc., to dismiss the appeal filed by appellant, the Louisiana Public Service Commission, and considering appellant’s response consenting to the motion to dismiss its appeal,

IT IS ORDERED that the motion to dismiss the appeal captioned T & S Investments Partnership, et al. v. Louisiana Public Service Commission, 07-CA-1603 be and hereby is granted.

IT IS FURTHER ORDERED that this matter be remanded to the district court for further proceedings.

/s/ Chet D. Traylor Justice, Supreme Court of Louisiana


text:
    In re CONFIDENTIAL PARTY.
    No. 2007-OB-1029.
    Supreme Court of Louisiana.
    Oct. 10, 2007.
   In re Applying for Motion for Hearing to Determine Current Validity of Claim to Inability to Defend. Office of Disciplinary Counsel, Nos. 00-PDB-204. 98-DB-015, 98-DB-039, 98-DB-022.

ORDER

Considering the Motion for Hearing to Determine Current Validity of Claim of Inability to Defend filed by the Office of Disciplinary Counsel, the findings and recommendation of the hearing committee, and the record herein,

IT IS HEREBY ORDERED that respondent shall remain on disability inactive status until such time as his disability has been removed and he is competent to be reinstated to active status pursuant to Supreme Court Rule XIX, § 22(G).

/s/John L. Weimer Justice, Supreme Court of Louisiana


author: PER CURIAM.

text:
    STATE of Louisiana v. Eric COLLINS.
    No. 2007-K-0310.
    Supreme Court of Louisiana.
    Oct. 12, 2007.
   PER CURIAM.

| ¶ Granted. The court of appeal erred in setting aside defendant’s conviction and sentence on grounds that “if this Court is unable to determine from the record whether one or both of the offenses charged [originally against defendant] were amended, and whether defendant has pled guilty to, and [was] sentenced on, one or two counts, the defendant could not have given a voluntary and knowing plea of guilty.” State v. Collins, 04-7000, p. 5 (La.App. 5th Cir.1/16/07), 951 So.2d 382, 384.

A fair reading of the record in its entirety indicates that defendant, originally charged with both attempted armed robbery with a firearm and attempted second degree murder, entered a guilty plea to a single count of distribution of cocaine pursuant to a plea bargain in which the state amended the original count charging attempted second degree murder to charge the drug offense and dismissed the count charging attempted armed robbery with a firearm. See La.C.Cr.P. art. 487(B)(“Nothing contained herein shall be construed to prohibit the defendant 12from entering a plea of guilty to a crime non-responsive to the original indictment when such a plea is acceptable to the district attorney, and in such case, the district attorney shall not be required to file a new indictment to charge the crime to which the plea is offered.”). As part of the plea bargain, the trial court agreed to impose the mandatory minimum term of two years imprisonment at hard labor for the cocaine offense, La.R.S. 40:967(B)(b), conditioned on defendant’s testimony against his severed co-defendant. The court set sentencing on a date after the co-defendant’s trial. When defendant failed to testify against the co-defendant, the trial court sentenced him on the cocaine charge to 15 years imprisonment at hard labor, the first two years without benefit of parole, probation, or suspension of sentence, a term of years originally offered defendant during plea negotiations when he was still charged with attempted armed robbery with a firearm.

The transcript of the guilty plea colloquy and the waiver form executed by defendant and his attorney indicate that defendant was fully apprised of the charge to which he was pleading guilty and fully informed of the trial rights he was waiving by entering his guilty plea. Cf. Henderson v. Morgan, 426 U.S. 637, 647, 96 S.Ct. 2258, 2258, 49 L.Ed.2d 108 (1976)(“[I]t may be appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit.”). The record also indicates that defendant was clearly informed that the court would not consider itself bound by the agreement for a two-year sentence in the event that defendant did not hold up his end of the bargain by testifying against the co-defendant. Under these circumstances, the record shows that defendant entered a voluntary guilty plea to a single count of distribution of cocaine and that he had no Ubasis for withdrawing his plea on grounds that the sentence ultimately imposed by the court was greater than the two years conditionally promised him or that he could not have entered a knowing and intelligent plea because of the confusion over the disposition of the original charges.

The decision of the court of appeal is therefore reversed, defendant’s conviction and sentence are reinstated, and this case is remanded to the district court for execution of sentence. The district court is directed to correct the minutes to conform them to the events as they actually transpired with the taking of defendant’s guilty plea. State v. Lynch, 441 So.2d 732, 734 (La.1983)(“Since there is a discrepancy between the minutes and the transcript, the transcript must prevail.”) (citation omitted).

JOHNSON, J., would deny.


text:
    STATE of Louisiana v. John Melvin WATKINS.
    No. 2007-CJ-1487.
    Supreme Court of Louisiana.
    Oct. 12, 2007.
   In re Support Enforcement Services through; Caddo Parish District Attorney; Louisiana, State of et al.; Social Services Office of Family Support, Louisiana Department of; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Caddo, Caddo Parish Juvenile Court, No. 123766; to the Court of Appeal, Second Circuit, No. 42,060-JAC.

And, whereas, the Court has this date, pursuant to Article 5, Section 5, of the Constitution of Louisiana, made and issued the following order, to wit — '“It is ordered that the writ of review issue; that the District Court and the Court of Appeal send up the record in Duplicate of the case; and that counsel for all parties be notified.”

Now, therefore, the said District Court and the Court of Appeal is hereby commanded, in the name of the State of Louisiana and of this Honorable Court, to send up forthwith to this Court, at the City of New Orleans, the record in duplicate of the above entitled case.

Granted.


text:
    Eugene BELLARD v. AMERICAN CENTRAL INS. CO., et al.
    No. 2007-C-1399.
    Supreme Court of Louisiana.
    Oct. 12, 2007.
   In re: Bellard, Eugene; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. E, Nos. 2002-6060; to the Court of Appeal, Third Circuit, No. 06-958.

And, whereas, the Court has this date, pursuant to Article 5, Section 5, of the Constitution of Louisiana, made and issued the following order, to wit — “It is ordered that the writ of review issue; that the District Court and the Court of Appeal send up the record in Duplicate of the case; and that counsel for all parties be notified.”

Now, therefore, the said District Court and the Court of Appeal is hereby commanded, in the name of the State of Louisiana and of this Honorable Court, to send up forthwith to this Court, at the City of New Orleans, the record in duplicate of the above entitled case.

Granted.


text:
    Frances Orlando wife of/and Nicholas REGGIO v. E.T.I., ABC Inc. and City of New Orleans through New Orleans Aviation Board.
    No. 2007-C-1433.
    Supreme Court of Louisiana.
    Oct. 12, 2007.
   In re New Orleans, City of through New Orleans Aviation Board; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. E, Nos. 2003-3627; to the Court of Appeal, Fourth Circuit, No. 2007-CA-0049.

And, whereas, the Court has this date, pursuant to Article 5, Section 5, of the Constitution of Louisiana, made and issued the following order, to wit — “It is ordered that the writ of review issue; that the District Court and the Court of Appeal send up the record in Duplicate of the case; and that counsel for all parties be notified.”

Now, therefore, the said District Court and the Court of Appeal is hereby commanded, in the name of the State of Louisiana and of this Honorable Court, to send up forthwith to this Court, at the City of New Orleans, the record in duplicate of the above entitled case.

Granted.


text:
    In re Heather C. FORD.
    No. 2007-OB-1988.
    Supreme Court of Louisiana.
    Oct. 12, 2007.
   In re Ford, Heather C.; Committee on Bar Admissions; — Plaintiff(s); Applying for Joint Petition for Conditional Admission.

ON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

After reviewing the evidence and considering the law, we conclude petitioner, Heather C. Ford, is immediately eligible to be conditionally admitted to the practice of law in Louisiana, subject to a probationary period of two years. The probationary period may be extended upon recommendation of the Executive Director of the Lawyers Assistance Program. During the probationary period, petitioner shall comply with all of the terms and conditions of the contract executed by her with the Lawyers Assistance Program, and such other conditions as may be imposed upon her by the Executive Director of the Lawyers Assistance Program. Should petitioner fail to make a good faith effort to satisfy these conditions, or should she commit any misconduct during the period of probation, her conditional right to practice may be terminated or she may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.


author: PER CURIAM. KNOLL, J.,

text:
    In re David H. BERNSTEIN.
    No. 2007-B-1049.
    Supreme Court of Louisiana.
    Oct. 16, 2007.

      Charles Bennett Plattsmier, Baton Rouge, for applicant.
    Alston Law Firm, Elizabeth A. Alston, New Orleans, David Howard Bernstein, Metairie, for respondent.
   |,ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, David H. Bernstein, an attorney licensed to practice law in Louisiana. For the reasons that follow, we now disbar respondent.

UNDERLYING FACTS

The facts of this matter are largely undisputed. Respondent was employed by the New Orleans law firm of Lowe, Stein, Hoffman, Allweiss & Hauver (“Lowe Stein”) from 1987 to 1996. On several occasions during respondent’s tenure at the firm, his clients paid him directly for legal services rendered. Respondent cashed these checks and did not turn over the money to the Lowe Stein firm. To cover up his actions, respondent instructed the firm’s accounting department to write off the client’s bill in question. In one instance, respondent cashed a check made payable to him by a client but neglected to tell the accounting department to write off the bill. While respondent was on vacation, the firm issued a follow-up bill to the client, who called the accounting department and advised that the bill had already been paid. The accounting department requested that the client provide a copy of the check, and upon examination, it was apparent that respondent had endorsed the check and cashed it. When respondent returned from his vacation, his partners at Lowe Stein confronted him. Respondent initially denied any knowledge of the theft and blamed his secretary |gfor making a “mistake,” but after the partners told respondent they had proof he had taken the money, he admitted what he had done. Respondent was then dismissed from Lowe Stein; however, the firm took no other action against him and did not report the misconduct to the ODC. The firm also agreed that it would not disclose the matter to anyone else.

After leaving Lowe Stein, respondent met with Jack Alltmont, the. managing partner of the law firm of Sessions Fish-man & Nathan (“Sessions Fishman”). Respondent told Mr. Alltmont that he was interested in making a move to the firm if there was an opportunity available to do so. During the discussion, Mr. Alltmont asked respondent why he was leaving Lowe Stein. Respondent did not tell Mr. Alltmont that he had been dismissed from his firm, but when Mr. Alltmont mentioned that he would be contacting Lowe Stein, respondent realized that he had little choice but to authorize Lowe Stein to discuss the details of his dismissal from the firm. Respondent did so, but not before telling Mr. Alltmont that he had only taken money from Lowe Stein on one occasion. After speaking to a partner of the Lowe Stein firm, Mr. Alltmont learned that respondent had taken the firm’s money more than once. Respondent was then interviewed a second time by Mr. Alltmont and the other partners of Sessions Fish-man. During the second interview, respondent assured the partners that “it would never happen again.”

Respondent did not take money belonging to Sessions Fishman for several years after he first started working for the firm in 1996. However, in 2001, respondent began sending clients billing statements on his personal letterhead 13stationery. These “letterhead billing statements’ were not handled through the Sessions Fishman accounting department, and indeed, the firm had no knowledge that respondent had done any work for these clients because he did not enter his hours in the firm’s timekeeping system. Respondent would then receive the check from the client, cash it, and keep the money for himself.

Early in 2004, Marguerite Bougere, a client of the Sessions Fishman firm for whom respondent had handled several legal matters, questioned the amount of the legal fees on a “letterhead billing statement” she received from respondent. Ms. Bougere consulted with a friend, attorney Edith Morris, who suggested that Ms. Bougere call the accounting department at Sessions Fishman to request copies of her detailed billing statements. Upon learning that the accounting department had never sent bills to Ms. Bougere, and further that Ms. Bougere had made her checks payable directly to respondent, Ms. Morris contacted Mr. Alltmont to alert him to the problem. A limited investigation by Mr. Allt-mont found that the firm had no record of any billings or collection activity regarding Ms. Bougere in the time frame covered by the “letterhead billing statements.” The law firm also discovered that respondent’s misconduct was not confined to the Boug-ere file, and that he had on multiple occasions created false billings “off the books” in order to collect fees from clients which he then converted to his own use.

Mr. Alltmont and others confronted respondent, who initially denied that he had ¿[one anything improper. Respondent eventually admitted his misconduct, and in March 2004 he was dismissed from Sessions Fishman. In April 2004, after | ¿respondent had accepted a position with his present law firm, Mr. Alltmont told respondent that if he did not report this matter to the ODC, the firm would have no choice but to do so.

By letter dated July 1, 2004, respondent’s counsel reported to the ODC that respondent suffers from a “condition of mental impairment,” specifically his “impulsive and uncontrollable urges to cash relatively small checks for payment of his legal services which should have been deposited into his former law firms’ accounts.”

DISCIPLINARY PROCEEDINGS

Following its investigation, the ODC filed one count of formal charges against respondent, alleging that his conduct violated Rules 8.4(a) (violation of the Rules of Professional Conduct) and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) of the Rules of Professional Conduct. Respondent answered the formal charges and admitted his misconduct, but requested a hearing in mitigation.

Prior to the hearing, respondent filed a memorandum characterizing his misconduct as “more in the nature of a breach of contract with his law firm.” Respondent asserted that this misconduct was caused by a mental disability, and he proposed that he be publicly reprimanded with indefinite probation and monitoring. The ODC sought permanent disbarment for respondent’s commission “of the most serious form of professional misconduct under our rules ... dishonesty, fraud, deceit and misrepresentation.”

| sMitigation Hearing

Because respondent did not dispute the ODC’s allegations of misconduct, the hearing before the committee was limited to the issue of mitigation. The committee received documentary evidence submitted by both respondent and the ODC.

The ODC presented testimony from five of respondent’s former law partners. These witnesses testified they believed that respondent was living beyond his means and that his lifestyle was not consistent with the income he earned as an attorney.

Respondent introduced medical reports and testimony in support of his contention that his misconduct was caused by a compulsive disorder. In particular, respondent relied on testimony from Chester Serignar, M.D., a psychiatrist who had treated him since March 2004. Dr. Scrig-nar diagnosed respondent as suffering from an impulse control disorder, not otherwise specified, and a major depressive disorder. Dr. Serignar testified on direct examination that impulse control disorders involve the frontal lobe of the brain as well as a “behavior component.” Dr. Serignar testified that in his opinion, respondent’s “diversion” of funds that should have gone to his law firms is not a purely criminal act, but was driven by an impulse to gain relief from the physiological discomfort he was then experiencing. Dr. Serignar acknowledged that there was “a certain amount of premeditation” involved in respondent’s conduct, but nevertheless there was no question in his mind that a causal relationship existed between respondent’s conduct and his impulse control disorder.

Respondent also presented testimony from Richard Roniger, M.D., a psychiatrist who evaluated him solely for purposes of the disciplinary hearing. Dr. Roniger diagnosed respondent as suffering from obsessive-compulsive disorder and Ifidysthymic disorder. Dr. Roniger testified that because the amount of money respondent took from the law firms was relatively insignificant compared to his income, he believed respondent was “seeking fulfillment,” rather than money. On cross-examination, however, Dr. Roniger admitted that he was unaware that respondent appeared to have been living a lifestyle that was substantially higher than he could afford on his salary.

In his own testimony before the committee, respondent admitted that he knew his actions were wrong. However, he explained that he diverted money from his law firms in order to make himself feel better when he had “bad feelings” inside of him. Respondent testified that he has changed immensely since he began treating with Dr. Serignar. He further testified he voluntarily signed a two-year, recovery agreement with the Lawyers Assistance Program (“LAP”) and regularly attended meetings with a depression support group in New Orleans sponsored by LAP.

Hearing Committee Report

' At the conclusion of the hearing, the hearing committee issued its report. The committee made a factual finding that respondent misappropriated approximately $15,000 from the Lowe Stein law firm and misappropriated approximately $15,000-$20,000 while employed at the Sessions Fishman firm. It further found members of the two affected law firms testified that they believed full restitution had been made by respondent for all misappropriated monies, though neither was absolutely certain in that regard. Based on these findings, the committee concluded that it was uncontroverted that respondent engaged in multiple violations of Rules 8.4(a) and 8.4(c) of the Rules of Professional Conduct.

The committee then turned to the issue of an appropriate sanction. The committee determined that the baseline sanction for respondent’s misconduct is 17disbarment. As aggravating factors, the committee recognized the following: substantial experience in the practice of law (admitted 1983) and multiple incidents of misconduct over a period of several years at two separate law firms. In mitigation, the committee found the following: absence of a prior disciplinary record; self-reported violations and a cooperative attitude toward the proceedings; diagnosed with obsessive-compulsive disorder, anxiety, and depression; continues to see a psychiatrist; actively participated in LAP; restitution has been made to the two affected law firms; misappropriation of funds involved law firms for which he was employed rather than clients; and remorse.

Under all these circumstances, and particularly considering the mitigating factors present, the committee recommended that respondent be suspended from the practice of law for two years and one day, with one year and one day deferred, followed by two years of supervised probation.

Both respondent and the ODC filed objections to the hearing committee’s report and recommendation.

Disciplinary Board Recommendation

Based on its review of the record, the disciplinary board found that the hearing committee’s factual findings were not manifestly erroneous and adopted these findings as its own. Like the committee, the board determined that respondent violated Rules 8.4(a) and 8.4(c) of the Rules of Professional Conduct, noting that he admitted to misappropriating funds in the amount of approximately $50,000 from two law firms over a period of fifteen years. The board concluded that such conduct involved dishonesty, deceit, and fraud.

| sTurning to the issue of an appropriate sanction, the board determined that the baseline sanction for respondent’s misconduct is disbarment under the ABA’s Standards for Imposing Lawyer Sanctions.

In mitigation, the board recognized the following factors: absence of a prior disciplinary record, personal or emotional problems, mental disability, and remorse. The board found the record supports the following aggravating factors: dishonest or selfish motive, a pattern of misconduct, multiple offenses, substantial experience in the practice of law, and illegal conduct.

Considering these factors as well as jurisprudence from this court, the board determined a downward deviation from the baseline sanction of disbarment was appropriate. Accordingly, the board recommended that respondent be suspended from the practice of law for three years. The board also recommended that respondent be assessed with all costs of these proceedings.

One board member dissented and would recommend that respondent be disbarred.

Both respondent and the ODC filed objections to the disciplinary board’s recommendation. Accordingly, the case was docketed for oral argument pursuant to Supreme Court Rule XIX, § 11(G)(1)(b).

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const. art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to- determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444 (La.1992). While we are not bound in any way by the findings and recommendations of the | shearing committee and disciplinary board, we have held the manifest error standard' is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

Because respondent has admitted that he violated the Rules of Professional Conduct as charged in the formal charges, the sole issue presented for our consideration is the appropriate sanction for respondent’s misconduct. In resolving that issue, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

It is clear that the baseline sanction for respondent’s misappropriation of funds is disbarment. See In re: Kelly, 98-0368 (La.6/5/98), 713 So.2d 458; Louisiana State Bar Ass’n v. Hinrichs, 486 So.2d 116 (La.1986). Respondent’s principal contention is that we should deviate downward from this baseline sanction due to evidence that he suffered from a mental condition during the time of the misconduct.

In In re: Stoller, 04-2758 (La.5/24/05), 902 So.2d 981, we discussed the appropriate analysis to be used under ABA Standard 9.32(i) in cases in which the respondent relies on a mental disability as a mitigating factor:

In essence, respondent argues that his condition constitutes a mental disability. In order to prove the mitigating factor of mental disability, ABA Standard 9.32(i) provides the lawyer must prove the following four factors by clear and convincing evidence:
(1) there is medical evidence that the respondent is affected by a chemical dependency or mental disability;
|in(2) the chemical dependency or mental disability caused the misconduct;
(3) the respondent’s recovery from the chemical dependency or mental disability is demonstrated by a meaningful and sustained period of successful rehabilitation; and
(4) the recovery arrested the misconduct and recurrence of that misconduct is unlikely.
The commentary1 to Standard 9.32 emphasizes the “careful analysis” that is required in considering issues of mental disability offered as mitigating factors in disciplinary proceedings, and that “direct causation between the disability” and the misconduct must be established. The commentary further discusses the weight to be assigned to this factor, indicating that “the greatest weight” should be assigned when the disability is the sole cause of the offense. If the disability is the principal cause of the offense, it should be given “very great weight”; if it is a substantial contributing cause of the offense, it should be given “great weight.” In all other cases in which the disability is considered as mitigating, the commentary indicates it should be given “little weight.”

In the instant case, respondent asserts that he has established a causal connection between his conduct and his impulse control disorder based on Dr. Scrignar’s testimony. He further relies on Dr. Scrignar’s opinion that he could not control his conduct.

While we recognize Dr. Scrignar’s testimony suggests that respondent’s disability was the sole cause of the misconduct, this testimony is not necessarily dis-positive of the causation issue. Rather, as the trier of fact in bar disciplinary cases, we determine the weight to be given to expert testimony. See, e.g., Curole v. Curole, 02-1891 (La.10/15/02), 828 So.2d 1094 (“A trial court may give whatever weight it deems appropriate to the testimony of any and all witnesses, including that of experts.”).

Based on our review of the record in its totality, we find Dr. Scrignar’s conclusion that respondent’s actions were beyond his control is at odds with many Inof the objective facts in this case. For example, although Dr. Scrignar testified respondent was not motivated by greed, the testimony of respondent’s law partners uniformly established that it appeared respondent was living beyond his means and that his lifestyle was not consistent with the income he earned. Additionally, the record reveals respondent’s methods of misappropriating funds evolved over time in order to allow him to avoid detection, suggesting his actions were not purely impulsive. See Stoller, 04-2758 at p. 12, 902 So.2d at 988 (“Respondent’s repeated and deliberate actions over this lengthy period of time belie his contention that his misconduct was an aberration.”). Finally, respondent himself admitted that he knew his actions were wrong when he testified, “[y]ou mull it over in your head so much that you rationalize any the moral implications of something you know is wrong.”

Considering all these facts, we are unable to find that respondent’s mental condition was the sole cause or even a principal or substantial cause of his misconduct. While respondent may have used his “lack of fulfillment” as a moral justification for his misappropriation, the record does not support the conclusion that there is any significant causal nexus between any mental disability and the misconduct. Accordingly, pursuant to ABA Standard 9.32(i), we give little weight to respondent’s alleged mental disability.

Reduced to their essentials, respondent’s actions demonstrate a fundamental lack of honesty which falls far below the standards expected of attorneys admitted to the bar of this state. We are particularly disturbed by the fact that after being dismissed from Lowe Stein, respondent sought employment at Sessions Fishman without disclosing the reason for his discharge. After the facts came to light, respondent represented to his law partners that “it would never happen again.” Of course, this representation turned out to be a lie.

1^.Candor and honesty are a lawyer’s stock in trade. In re: Stamps, 03-2985 (La.4/14/04), 874 So.2d 113 (citing In re Scavone, 106 N.J. 542, 524 A.2d 813 (1987)). The record of this case demonstrates to us that respondent has not acted with candor or honesty during his career as a lawyer. Considering the fifteen-year history of deceit and dishonesty evidenced by this record, we would be remiss in our duty to protect the public if we accepted respondent’s self-serving assertion that “it won’t happen again.”

In sum, we find no basis to deviate from the baseline sanction of disbarment. Accordingly, respondent must be disbarred.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that David H. Bernstein, Louisiana Bar Roll No. 1711, be and he hereby is disbarred. His name shall be stricken from the roll of attorneys and his license to practice law in the State of Louisiana shall be revoked. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

KNOLL, J., concurs in part and dissents in part and assigns reasons.

KNOLL, J.,

concurring in part and dissenting in part.

LI concur in the majority’s opinion insofar as it concludes that respondent’s egregious conduct warrants disbarment. However, I find respondent’s conduct merits permanent disbarment.

      . Respondent testified that he "panicked” when he was first confronted "out of the blue” and that caused him to blame his secretary.

      . Lowe Stein did not conduct an audit to determine the total amount of its loss attributable to respondent’s misconduct, but estimated that the dollar amount at issue was approximately $30,000. The firm also could not be certain how many times respondent took funds belonging to the firm; respondent guessed that he had done so on seven or eight occasions. When respondent departed Lowe Stein, the firm deducted the estimated amount of its loss from the amount owed to him for the value of his partnership interest.

      . At the time of this confrontation, respondent had checks in his desk drawer that he intended to cash, but had not yet had the opportunity to do so. Respondent immediately began creating time entries for the files of the clients in question, which he then delivered to the accounting department along with the checks.

      . Like Lowe Stein, Sessions Fishman did not conduct a comprehensive audit to quantify its loss due to respondent's misconduct. Through his counsel, respondent paid Sessions Fishman $2,000 in June 2004. This nominal sum was accepted by the firm as full restitution.

      . Dr. Serignar died in May 2007. Respondent's counsel informed this court at oral argument that respondent is continuing his treatment with another psychiatrist.

      . Respondent was referred to Dr. Roniger by his counsel. Dr. Roniger interviewed respondent twice and reviewed certain records, including those from the disciplinary proceeding and those maintained by Dr. Serignar.

      . Over one hundred and fifty years ago, Abraham Lincoln succinctly explained the fundamental commitment to honesty which must be made by all lawyers: "resolve to be honest at all events; and if in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer.” Abraham Lincoln, Fragment: Notes for a Law Lecture, July 1, 1850 in The Collected Works of Abraham Lincoln, Vol. II, p. 82 (Roy P. Basler et al. eds., 1953).