370 F2d 925 Mason v. Liberty Mutual Insurance Company

370 F.2d 925

Emmett MASON, Appellant,
v.
LIBERTY MUTUAL INSURANCE COMPANY, Appellee.

No. 22878.

United States Court of Appeals Fifth Circuit.

January 6, 1967.

Eldon E. Fallon, Kierr & Gainsburgh, New Orleans, La., for appellant.

John J. Weigel of Jones, Walker, Waechter, Poitevant, Carrere & Denegre, New Orleans, La., for appellee.

Before JONES, WISDOM and GOLDBERG, Circuit Judges.

PER CURIAM:

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Liberty Mutual Insurance Company issued a general liability policy of insurance to Touro Infirmary in New Orleans, Louisiana. The policy contained a provision excluding liability for injury, sickness or disease due to medical or surgical services or treatment, or any service of a professional nature. The appellant, Emmett Mason, brought an action in the Federal district court, asserting in his complaint that while a patient in Touro Infirmary he was given a hypodermic injection which resulted in a nerve degeneration and the loss of control of his right foot. By interrogatories it was developed that the injection was given by a student nurse in the presence of a surgeon and a supervisor of nurses. Liberty Mutual pleaded the exclusion clause and moved for a summary judgment. The summary judgment was granted. Mason has appealed. He makes the ingenious but unpersuasive argument that while the treatment which he was given might have been "of a professional nature" under some circumstances, nevertheless there was administrative, as distinguished from professional, negligence in permitting a student nurse to administer the treatment or to administer it in an improper manner. The law of Louisiana controls and its law is "that in determining whether or not a particular act or failure to act is of a professional nature we should look not to the title or the character of the party performing the act but to the act itself. * * *" D'Antoni v. Sara Mayo Hospital, La.App.1962, 144 So.2d 643. The act in this case, the giving of a hypodermic injection, is of a professional nature. The exclusion clause of the policy applies. The summary judgment was proper. It is affirmed.