357 So. 2d 1331 | La. Ct. App. | 1978
Plaintiffs, Darryl Blappert and Albert Bowman, filed suit against defendants, Earl Lopez and his liability insurer, Criterion Insurance Company, seeking damages resulting from an automobile collision with defendant Lopez on February 14, 1975.
Defendants answered and denied that either plaintiff was injured as set forth in the petition. Accordingly, defendants filed a third party petition against Dr. Julius L. Levy, Jr. seeking indemnity on the ground that the treatment afforded by him to the plaintiffs was excessive, unreasonable and unnecessary in view of the nature of plaintiffs’ injuries.
Third party defendant filed exceptions of vagueness and no cause of action to the third party demand. The trial court maintained the exception of no right of action and dismissed the third party demand. From that judgment defendants have appealed.
The issue presented for our decision is whether a defendant in a court action has a right to file a third party demand against the plaintiff’s treating physician for indemnity because the physician overtreated and overcharged the plaintiff.
Third party plaintiff relies heavily on the case of Hillebrandt v. Holsum Bakeries, Inc.
No authority is cited, nor can we find any, to establish or deny a right to file a third party petition against a treating physician under the circumstances of this case. However, two points seem to require no authority. Neither a defendant nor his insurer in a tort suit is party to the physician-patient contract or relationship between the plaintiff and his physician. In addition, neither defendant nor his insurer are the legal subrogees of plaintiff until they are cast in judgment and make payment thereof.
Under all circumstances, we cannot hold that a defendant tort-feasor or his insurer has a right to file a third party demand against an injured party’s treating physician to establish overtreatment or overcharging.
The practical effect of allowing such a third party demand is to inhibit an injured
For the foregoing reasons, the judgment appealed from is affirmed, and the case is hereby remanded for further proceedings consistent with the views expressed herein. All costs of this appeal are to be paid by defendants; all other costs are to await the ultimate determination of the merits of this case.
AFFIRMED AND REMANDED.
. La.App., 267 So.2d 608.
. Id., at page 610.
.LSA-C.C. Art. 2161(3); Hutchinson v. Rice, 105 La. 474, 29 So. 898; Standard Motor Car Co. v. State Farm Mut. A. Ins. Co., La.App., 97 So.2d 435.