Burks v. Christus Health MonroeBurks v. Christus Health Monroe
Provosty, Sadler, deLaunay, Fiorenza & Sobel by David R. Sobel, Jeremy C. Cedars, Alexandria, for Appellee.
GASKINS, J.
The plaintiff, Elvie J. Burks, individually and on behalf of the estate of her mother, Sabie Rogers, appeals a trial court judgment sustaining an exception of prematurity in favor of the defendant, Christus Health Monroe d/b/a Christus St. Joseph‘s Home. We affirm in part and reverse in part the trial court judgment and remand for further proceedings.
FACTS
Sabie Rogers was a resident of Christus St. Joseph‘s Home (nursing home) between March 2003 and December 2003. Ms. Rogers died on December 19, 2003. On March 18, 2004, Ms. Burks filed suit for damages against the nursing home for its negligence and violation of the Nursing Home Resident‘s Bill of Rights (NHRBR) contained in
The petition claims damages under the NHRBR for any and all conduct occurring prior to August 15, 2003, the effective date of the amendment to the NHRBR which eliminated the right to seek damages for violation thereof and limited a claimant‘s remedies to injunctive relief. The petition seeks damages for any conduct occurring on or after August 15, 2003, under a general negligence theory.
According to her brief, Ms. Burks also filed a request for the formation of a medical review panel seeking review of the professional health care and services rendered to the plaintiff while a resident at the nursing home.
The nursing home filed an exception of prematurity and in the alternative, one of vagueness. According to the nursing home, it is a qualified health care provider under the Louisiana Medical Malpractice Act (MMA) contained in
Ms. Burks opposed the exception on the basis that the negligent conduct alleged in her petition does not constitute medical malpractice, but rather asserts violations
The trial court granted the exception of prematurity, finding that the allegations in the petition were subject to review by a medical review panel before filing suit in the district court. The plaintiff appealed only that portion of the trial court judgment which granted the exception of prematurity as to her claims that the nursing home violated the provisions of the NHRBR by allowing Ms. Rogers to lie in her own waste for extended periods of time.
LEGAL PRINCIPLES
The plaintiff brought this action under both the NHRBR and a general negligence theory. The NHRBR was enacted “to preserve the dignity and personal integrity of residents of nursing homes through the recognition and declaration of rights safeguarding against encroachments upon nursing home residents’ right to self-determination.”
The recently amended version of
Substantive laws either establish new rules, rights, and duties or change existing ones. It is clear that the amendment to
The dilatory exception of prematurity is the proper procedural mechanism for a qualified health care provider to invoke when a medical malpractice plaintiff has failed to submit the claim to a medical review panel before filing suit against the provider. Accordingly, a claim against a private qualified health care provider is subject to dismissal on a timely filed exception of prematurity if such claim has not first been screened by a pre-suit medical review panel. Spradlin v. Acadia-St. Landry Medical Foundation, 1998-1977 (La.2/29/00), 758 So.2d 116; Henry v. West Monroe Guest House, Inc., 39,442 (La. App.2d Cir.3/2/05), 895 So.2d 680. Nursing homes are defined as “hospitals” for the purposes of the MMA.
DISCUSSION
The plaintiff in this matter appeals only that portion of the trial court‘s judgment which granted the exception of prematurity as to her claims that the nursing home violated the provisions of the NHRBR by allowing Ms. Rogers to lie in her own waste for extended periods of time due to failure to change her adult diapers and change her bed linens. She argues that the conduct of the nursing home in this regard does not constitute medical malpractice requiring review by a medical review panel.
The claims asserted in this case are substantially the same as those considered in Henry v. West Monroe Guest House, Inc., supra. This court in Henry applied the factors set forth in Coleman v. Deno, 2001-1517 (La.1/25/02), 813 So.2d 303, in determining whether a claim lies in malpractice or the NHRBR. Those factors are: (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 Henry, this court noted that we were not considering the causation of decubitus ulcers, but rather whether the personal dignity of a nursing home resident has been violated. We held that determining whether a diaper needs to be changed is not related to medical treatment. No medical expert is needed to ascertain whether a diaper is in need of changing. A medical assessment of the resident‘s condition was not necessary. We stated that changing diapers is a function routinely performed by nurses’ aides and is not done under the direction of a physician. Finally, the patient would have suffered a loss of dignity from having dirty diapers, regardless of her residence in a nursing home.
We held that the complaint regarding failure to change adult diapers fell under the NHRBR, not the MMA. We also noted that claims for violation of the NHRBR may be brought in district court separately from claims under the MMA. We reversed the ruling of the trial court on the exception of prematurity and allowed the plaintiffs to proceed with their NHRBR claims.
In the present case, for the reasons assigned in Henry, we find that the plaintiff has asserted claims under the NHRBR which do not require submission to a medical review panel. Accordingly, we reverse the trial court judgment which granted the nursing home‘s exception of prematurity. The plaintiff may proceed with her NHRBR claims. As in Henry, we note that any claims regarding causation of dehydration, malnutrition, and decubitus ulcers are to be placed before the medical review panel.
We need not resolve the question raised in the lower court of whether the amendment of
CONCLUSION
For the reasons stated above, we reverse in part the ruling of the trial court granting an exception of prematurity in favor of the defendant, Christus Health Monroe d/b/a/ Christus St. Joseph‘s Home, on the issue of whether the nursing home violated the provisions of the NHRBR by failing to keep Sabie Rogers clean of her own waste. The granting of the exception is affirmed as to all other claims. The case is remanded to the trial court for further proceedings. All costs of this appeal are assessed to the defendant.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.