The single issue presented by this appeal is whether the private right of action afforded to nursing home residents pursuant to La. R.S. 40:2010.8 and 2010.9 is a "strictly personal" right that may be brought only by nursing home residents or their curators. In the case at bar, the trial
In December 1997, the sons and daughters of Clara Gertrude Gibson filed a petition for damages against Monroe Manor Nursing Home, seeking general damages for alleged physical, mental and emotional abuse of their mother by employees of the nursing home. The petition was met by an exception of prescription and an exception of no cause of action filed on behalf of the nursing home. The plaintiffs then filed a supplemental and amending petition asserting a cause of action for breach of contract, and asserting a cause of action under the provisions of La. R.S. 40:2010.9. The nursing home then responded to the supplemental and amending petition by filing an exception of no right of action on the basis that the claim set forth under La. R.S. 40:2010.9 was strictly personal to Clara Gibson and not heritable.
In January 1999, the parties entered into a stipulation wherein the plaintiffs agreed to dismiss and strike all allegations and claims "based upon La. C.C. art. 2315.6 and/or any other claims based upon same or in any way seeking to recover damages for their own mental anguish, emotional distress, or suffering" as a result of the alleged injuries of Clara Gibson. However, the stipulation specifically reserved the rights of the plaintiffs under the "Patients Bill of Rights Law" (La. R.S. 40:2010.6, et seq.). In turn, the nursing home dismissed its exception of prescription as to the plaintiffs' survival action claims.
After considering the briefs, argument, and law concerning the exception of no right of action, the trial court granted the exception as to claims asserted under the Bill of Rights statutes. In oral reasons explaining the court's ruling, the court stated:
This appeal followed.
The legislative intent of the statutes that we now peruse is set forth in the provisions of La. R.S. 40:2010.6:
The provisions of La. R.S.2010.8(A) go on to set forth an extensive "bill of rights" for nursing home residents. Under the provisions of La. R.S. 40:2010.8(B), a sponsor
The provisions of La. R.S. 40:2010.8(D)(1) state that any violations of the residents' rights as set forth in La. R.S. 40:2010.6 et seq. constitute grounds for appropriate action by the Department of Health and Hospitals, and that residents have a private right of action to enforce these rights, as set forth in La. R.S. 40:2010.9.
The private right of action is further explained in the provisions of La. R.S. 40:2010.9:
The above referenced statutes provide a legal mechanism to help preserve the dignity and personal integrity of nursing home residents and to safeguard against encroachments upon their right to self determination by giving such residents or their curators a legal cause of action against a nursing home or healthcare facility. Such a cause of action not only benefits the individual resident who brings the
The question now before us is not who can bring such a private cause of action for civil enforcement against a nursing home or healthcare facility. The provisions of La. R.S. 40:2010.9 clearly answer that question: the action may be brought by the resident or his curator, including a curator ad hoc. Instead, the question we must answer is whether such a cause of action, plainly belonging to a resident, is heritable. The statutes discussed above simply do not address the question of heritability.
The question of heritability of obligations is addressed in Arts. 1765 and 1766 of the Louisiana Civil Code. Under the provisions of Art. 1765, every obligation is deemed heritable as to all parties, except when the contrary results from the terms or the nature of a contract. In contrast, under Art. 1766, when the performance is intended for the benefit of the obligee exclusively, the obligation is strictly personal (and thus not heritable) on the part of that obligee.
In the instant case, the obligation of nursing homes not to violate the statutory provisions establishing a bill of rights for nursing home residents is not an obligation intended for the benefit of any one obligee exclusively. Instead, the obligation is one owed to all such residents to further the legislative goals of preserving the dignity and personal integrity of the residents and safeguarding against encroachments upon the residents' right to self determination. Thus, we conclude that the obligation is heritable and may be enforced by a successor of the obligeeresident. We also observe that it would have been a simple matter for the legislature to have included specific language concerning heritability if the legislature had desired to create an exception to the general rule of heritability. Moreover, because the cause of action not only has a longer prescriptive period than a tort action, but also provides for reasonable attorney's fees, whereas a tort action does not, we do not view the cause of action for private enforcement to be the equivalent of a tort action. Thus, we conclude that the heirs would be in a better position by proceeding under the statutory action than by proceeding under Louisiana negligence law, including the survival action.
Finally, although we acknowledge that no case has decided the issue of heritability of such a cause of action, there are cases that either allude to the possibility of heritability or assume heritability without directly addressing the issue. See Rachal v. Peters, 28,655 (La.App.2d Cir.9/25/96), 680 So.2d 1280; Petre v. Living Centers-East, Inc., 935 F.Supp. 808 (E.D.La.1996); and Schenck v. Living Centers-East, Inc., 917 F.Supp. 432 (E.D.La.1996).
For the reasons set forth above, we conclude that the trial court erred in sustaining the exception of no right of action. Accordingly, the judgment of the trial court is reversed, and the case is remanded for further proceedings consistent with this opinion. Costs are assessed to appellee.
REVERSED AND REMANDED.