The curatrix of a nursing home resident filed suit against the nursing home alleging the resident sustained serious injury as a result of an employee's negligent or tortious conduct. The defendant filed an exception of prematurity, arguing that the action was controlled by the Medical Malpractice Act insofar as it required initial submission to a medical review panel. The plaintiff alleged that a separate remedy existed under the Nursing Home Residents' Bill of Rights, falling outside the requirements of the Medical Malpractice Act. The trial court concluded that the matter is covered by the Medical Malpractice Act, requiring submission to the medical review panel. The plaintiff appeals. For the following reasons, we affirm in part, reverse in part, and remand.
Factual and Procedural Background
The petition instituting this matter alleged that Edna Deville was a resident of Senior Village Nursing Home in Opelousas, Louisiana, on March 16, 2001, when she allegedly sustained serious bodily injury. As a result of Ms. Deville's injuries, her representative filed this suit naming as defendant, Louisiana Extended Care Centers, Inc., the operator of Senior Village.
The defendant filed a "Petition for Judicial Review Under the Louisiana Medical Malpractice Act and/or Dilatory Exception of Prematurity," asserting that causes of action advanced by the petition involve claims of professional negligence or malpractice. Thus, the defendant argues, the matter must first be submitted to a medical review panel as is required by the Medical Malpractice Act, La.R.S. 40:1299.41, et seq. The trial court agreed, granting the exception of prematurity and dismissing the plaintiff's demands without prejudice.
The plaintiff appeals, assigning the following as error:
The plaintiff argues that the actions pursued in the petition arise under the Nursing Home Residents' Bill of Rights, which is argued to be a separate, distinct, and additional cause of action than any under the Medical Malpractice Act. In the plaintiff's brief, it is asserted that "[n]o conflict exists between the Nursing Home Patient's Bill of Rights and the Medical Malpractice Act as the nursing home patient is afforded a remedy `in addition to and cumulative with other legal' remedies available."
The Nursing Home Residents' Bill of Rights provides comprehensive guarantees
The plaintiff urges that Section B, which contains the language "in addition to and cumulative with other legal and administrative remedies," indicates that the action pursued against the defendant may proceed outside of the Medical Malpractice Act.
The defendant points to the similarly comprehensive language of the Medical Malpractice Act, specifically La.R.S. 40:1299.47, which requires that:
As is apparent from the above quoted excerpts, the statutes have areas of
Although the trial court correctly concluded that the statutes must be read together, requiring submission to the medical review panel for malpractice claims, the trial court's judgment applied the requirement to the entirety of the plaintiff's claim. We conclude that it is not applicable to this extent. Rather, the plaintiff's petition seeks damages related to both intentional and negligent conduct. La.R.S. 40:1299.41(A) defines "malpractice" as:
Addressing the scope of the Medical Malpractice Act, the Louisiana Supreme Court has explained:
Descant v. Adm'rs of Tulane Educ. Fund, 93-3098, p. 5 (La.7/5/94); 639 So.2d 246, 250.
The plaintiff's petition alleges liability due to negligent or intentional tort, asserting:
As La.R.S. 40:1299.41(A)(8) clearly applies to "unintentional tort or breach of contract" and the petition contains claims of negligent care and an intentional tort due
For the foregoing reasons, we affirm the granting of Community Care Center of Opelousas, L.L.C., d/b/a Senior Village Nursing Home's Petition for Judicial Review Under the Louisiana Medical Malpractice Act and/or Dilatory Exception of Prematurity insofar as it relates to assertions of unintentional tort and/or breach of contract. We further affirm the dismissal of the plaintiff's claim in this regard. We reverse that portion of the judgment dismissing the plaintiff's claim insofar as it relates to assertions of intentional tort. Costs of this proceeding are to be shared equally between the plaintiff and the defendant. This matter is remanded for proceedings consistent with this opinion.
COOKS, J., dissents in part and will assign written reasons.
COOKS, J., Dissenting.
I agree with the Majority in declaring what has been true since its adoption: The Medical Malpractice Act "applies to `unintentional tort or breach of contract." The Act, thus, clearly does not prevent plaintiff from seeking judicial redress of any intentional tort claims she may have against the medical provider without first invoking a medical review panel. The Majority's reversal of the trial court's dismissal of plaintiff's intentional tort claims is a result which had to follow even if the Nursing Home Residents' Bill of Rights was never enacted. Apparently finding an interpretation dilemma exists between the Medical Malpractice Act and the Nursing Home Residents' Bill of Rights, the majority notes "[w]here two statutes deal with the same subject matter, they should be harmonized if possible; however if there is a conflict, the statute specifically directed to the matter at issue must prevail." Straining to find harmony, the Majority opts to exclude from the Medical Malpractice Act conduct which was never included in the first place. In the end, the Majority's harmony is logically flawed; and, if allowed to stand, judicially overrules the legislature's declared intent to provide remedies by the adoption of the Nursing Home Residents' Bill of Rights "in addition to and cumulative with other legal and administrative remedies available to a resident and to the Department of Health and Hospital or other governmental agencies" for the violations of any resident's rights as specified in La. R.S. 40:2010.8. The rights delineated in this provision are numerous but include "the right to receive adequate and appropriate health care and protective and support services ..."
I am not at all convinced this provision, in particular, requires us to find harmony between the statutes or to declare a conflict exists. The legislature when adopting the Nursing Home Residents' Bill of Rights was clearly attempting to protect the rights of the elderly and other residents when housed at nursing homes to
(1) "Health care provider" means a person, partnership, limited liability partnership, limited liability company, corporation, facility, or institution licensed by this state to provide health care or professional services as a physician, hospital, nursing home, community blood center, tissue bank, dentist, registered or licensed practical nurse or certified nurse assistant, ambulance service under circumstances in which the provisions of R.S. 40:1299.39 are not applicable, certified registered nurse anesthetist, nurse midwife, licensed midwife, pharmacist, optometrist, podiatrist, chiropractor, physical therapist, occupational therapist, psychologist, social worker, licensed professional counselor, or any nonprofit facility considered tax-exempt under Section 501(c)(3), Internal Revenue Code, pursuant to 26 U.S.C. 501(c)(3), for the diagnosis and treatment of cancer or cancer-related diseases, whether or not such a facility is required to be licensed by this state, or any professional corporation a health care provider is authorized to form under the provisions of Title 12 of the Louisiana Revised Statutes of 1950, or any partnership, limited liability partnership, limited liability company, or corporation whose business is conducted principally by health care providers, or an officer, employee, partner, member, shareholder, or agent thereof acting in the course and scope of his employment.
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(4) "Hospital" means any hospital as defined in R.S. 40:2102; any "nursing home" or "home" as defined in R.S. 40:2009.2; or any physician's or dentist's offices or clinics containing facilities for the examination, diagnosis, treatment or care of human illnesses.