SOL GOTHARD, Judge.
Plaintiffs appeal a decision of the trial court that maintained an exception of prematurity for failure to first present their claim to a medical review panel pursuant to the Medical Malpractice Act, LSA-R.S. 40:1299.41, et seq. For reasons that follow, we reverse.
The only issue for our review in this appeal is whether a plaintiff, who has stated a cause of action under the Nursing Home Residents' Bill of Rights Act embodied in LSA-R.S. 40:2010.8, et seq. (NHRBR), must first present the claim to a medical review panel. We find that, in enacting the NHRBR, the legislature clearly intended to establish an independent cause of action for offenses listed in the NHRBR, which is separate from, and in addition to, any medical malpractice claim a patient may have. We further find that the claims made in the petition filed in this action allege violations of the NHRBR.
The instant matter arises out of the death of Edward Hebert, who was a resident of Chateau Living Center (Chateau) from December 27, 2000 through April 4, 2001. The petition stated a claim pursuant to NHRBR and alleges that during his residency in Chateau, Mr. Hebert's health deteriorated and he was transferred to a hospital on April 4, 2001 with pneumonia, acute renal failure, sepsis, malnutrition, and other medical problems, directly related to the inadequate care provided by Chateau and its personnel. Mr. Hebert died on April 9, 2001.
Some of the allegations of negligence made in the petition include: 1) allowing decedent's health to deteriorate; 2) failure to properly nourish and hydrate decedent; 3) failure to properly monitor and/or respond to decedent's changing vital signs; 4) failure to properly supervise and monitor decedent; 5) hiring and retention of incompetent staff; 6) failure to properly train staff in the care of elderly patients; and, 7) all other acts of negligence which may be discovered and proven at trial.
This case presents a res nova issue for our review.
In enacting the act the legislative intent was as follows:
We find the legislature clearly intended to establish an independent cause of action for offenses listed in the NHRBR, which is separate from, and in addition to, any medical malpractice claims the patient may have. Therefore, we hold that an action arising under the NHRBR Law may be brought in district court without a requirement of submission to a medical review panel and we reverse the trial court on that issue.
Some of the allegations made against defendant in the instant case include failure to properly nourish and hydrate, and a failure to hire, train, supervise and retain competent staff. When, as in the instant case, it is alleged that a resident of a nursing home is sent to a hospital only after he is starved, dehydrated and allowed to deteriorate to the extent that he cannot be helped, a cause of action has been asserted under several sections of the NHRBR, at the very least as a violation of his right to be treated with dignity, but specifically as a violation of:
We believe the circumstances of this case as alleged in plaintiffs' petition represent exactly what the legislature had in mind when it enacted the NHRBR. We find the intent of the legislature was to create a cause of action for maltreatment of the ill that was allegedly suffered by Mr. Hebert. Because we find a cause of action stated under the NHRBR is a distinct and separate action from any medical malpractice claim, we reverse the trial court's judgment in which it granted the exception for prematurity for failure to present the claim to a medical review panel, and remand the matter for further proceedings consistent with this opinion.
DUFRESNE and CHEHARDY, JJ., dissents.
CHEHARDY, J., dissents:
I would affirm the trial court's finding of prematurity. Although it has been held that an action arising under the Nursing Home Bill of Rights may be brought in a district court without a requirement of submission to a medical review panel,
"Malpractice" is defined by La.R.S. 40:1299.41(A)(8) 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." Coleman
Whether conduct by a qualified health care provider constitutes "malpractice" as defined under the MMA is determined by the following factors: (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. Coleman, 01-1517, page 17, 813 So.2d at 315-316.
Reviewing plaintiffs' allegations in light of these factors establishes that the trial court did not err in finding that the allegations fit within the statutory definition of medical malpractice rather than the NHRBR.
First, the petition concerns the provision of medical treatment and alleges negligent care and want of professional skill by Chateau Living Center and its employees and that, as a result of inadequate care by defendants, decedent's health deteriorated. These allegations relate to Factor (1), "whether the particular wrong is "treatment related" or caused by a dereliction of professional skill."
Second, expert medical testimony is required to determine whether Chateau Living Center breached the applicable standard of care in monitoring requirements for nutrition, hydration and monitoring of the decedent. This satisfies Factor (2), "whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached."
Third, plaintiffs allege that defendants were responsible for monitoring and assessing decedent's condition and failed to provide such treatment. These allegations satisfy Factor (3), "whether the pertinent act or omission involved assessment of the patient's condition."
Fourth, plaintiffs allege that Chateau Living Center failed to provide services and activities it is licensed to perform. Chateau Living Center is a licensed nursing home facility and is required to provide services to its residents, pursuant to the Louisiana Administrative Code, including but not limited to service to persons requiring systematic nursing supervision because of illness or physical handicap. La.Admin.C. 48:I.7521(A)(2). Plaintiffs' allegations regarding failure to properly nourish and hydrate the decedent, failure to properly monitor his vital signs, and failure to hire, train, and retain competent staff satisfy Factor (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."
Fifth, plaintiffs assert that the decedent's medical condition deteriorated as a result of the alleged inadequate care and treatment, thus alleging a cause-and-effect relationship between the alleged failure of care and the injuries. These allegations satisfy Factor (5), "whether the injury would have occurred if the patient had not sought treatment."
Sixth, plaintiffs do not allege that any of defendants' actions were intentional, thus satisfying Factor (6), "whether the tort alleged was intentional."
Accordingly, I would affirm the judgment granting the exception of prematurity.
I agree with Judge Chehardy's dissent and would affirm the trial court's judgment granting the exception of prematurity.