At issue in this case is whether plaintiff's allegation under the Nursing Home Residents' Bill of Rights, La. R.S. 40:2010.8, et seq. (the "NHRBR") that she was negligently allowed to fall out of her wheelchair at a nursing home must be submitted to a medical review panel pursuant to the provisions of the Louisiana Medical Malpractice Act, La. R.S. 40:1299.41, et seq. (the "MMA"). After reviewing the record and the applicable law, we affirm the judgment of the Third Circuit Court of Appeal holding that medical malpractice claims against a nursing home qualified under the MMA must be brought pursuant to the provisions of the MMA; however, we remand this case to the trial court to determine whether plaintiff's allegations of negligence are medical malpractice claims under Louisiana law.
FACTS AND PROCEDURAL HISTORY
The curatrix of Edna Deville, a 92-year-old double amputee, filed a petition on Ms. Deville's behalf alleging that while she was a resident of Senior Village Nursing Home in Opelousas, on March 16, 2001, she sustained serious bodily injury.
LECC filed a petition for judicial review under the MMA, and/or an exception of prematurity, asserting that the causes of action involve claims of professional negligence or malpractice, and therefore must first be submitted to a medical review panel as required by the MMA. The trial court granted the exception of prematurity and dismissed the plaintiff's demands without prejudice. The court of appeal affirmed in part and reversed in part, finding that plaintiff's claims of "unintentional tort and/or breach of contract" are governed by the MMA, but that her intentional tort claims are not, and thus remanded the matter for further proceedings. Richard v. La. Extended Care Ctrs., Inc., 01-1492 (La.App. 3 Cir. 3/6/02), 809 So.2d 1248. We granted plaintiff's writ application to determine whether medical malpractice claims against a nursing home that is a qualified health care provider under the MMA must be submitted to a medical review panel under the MMA or can be brought outside of the provisions of the MMA under the NHRBR. Richard v. La. Extended Care Ctrs., Inc., 02-0978 (La.6/14/02), 817 So.2d 1149.
Private nursing homes have been regulated by the state since 1958. See La. R.S. 40:2009.1. In 1978, the Legislature established formal complaint procedures available to "[a]ny person having knowledge of the alleged abuse or neglect of a patient of a nursing home, ... or who ... has knowledge that a nursing home patient is not receiving care and treatment to which he is entitled under state or federal laws ..." La. R.S. 40:2009.13. Complaints are investigated by the Department of Health and Human Resources, and, if made in good faith, render the complainant immune from civil liability that may be asserted as a result of the complaint. La. R.S. 40:2009.13(E), 40:2009.14, et seq.
La. R.S. 40:2010.6. The NHRBR requires that all nursing homes adopt and make public a statement of the rights and responsibilities of its residents and treat such residents in accordance with the following rights: (1) to civil and religious liberties; (2) to free communication, including use of mail, telephone, overnight visitation outside the nursing home with family and friends, flexible visitation hours; (3) to present grievances; (4) to manage one's own finances; (5) to be informed of what services he has to pay for without governmental assistance; (6) to be adequately informed of his medical condition and proposed treatment, and participate in the planning of such treatment, including the right to refuse treatment, unless otherwise indicated by the resident's physician; (7) "to receive adequate and appropriate health care and protective and support services, including services consistent with the resident care plan, with established and recognized practice standards within the community, and with rules promulgated by the Department of Health and Hospitals;" (8) to have privacy; (9) to be treated with dignity; (10) to be free from mental and physical abuse and from physical and chemical restraints, except in limited circumstances; (11) to be transferred and discharged under certain circumstances; (12) to select a personal physician; (13) to retain and use personal clothing and possessions; (14) to copies of rules and regulations; (15) to information concerning bed reservation in case of hospital stay; (16) to prompt response to all reasonable requests and inquires; (17) to withhold payment to physician if not visited; (18) to refuse medical research request; (19) to use tobacco; (20) to consume alcohol; (21) to reasonably retire and rise; (22) to have change in medical condition reported. La. R.S. 40:2010.8.
La. R.S. 40:2010.9 clearly provides for civil enforcement of any violation of La. R.S. 40:2010.8 as follows:
La. R.S. 40:2010.9.
Plaintiff claims her rights under the NHRBR were violated in that she had the right to be free from physical abuse and the right to receive appropriate and adequate health care under La. R.S. 20:2010.8 and therefore, she has a cause of action against the nursing home under La. R.S. 40:2010.9, pursuant to which jurisdiction lies in the district court and under which she is entitled to actual damages, plus attorney fees and costs. Further, she claims that because La. R.S. 40:2010.9(B) provides that this remedy is "in addition to and cumulative with other legal and administrative rights available to a resident," she may bring this action regardless of any other remedies to which she may be entitled, such as the MMA. Defendant claims, and the lower courts summarily agreed, that plaintiff's negligence claims arise from "medical malpractice" and therefore must first proceed through a medical review panel under the provisions of the MMA. According to plaintiff, even if her claims are medical malpractice claims under the MMA, that does not prevent her from bringing these claims under the NRHBR and bypassing the medical review panel procedure.
As set out in La. R.S. 40:1299.47(B)(1)(a)(i), "[n]o action against a health care provider covered by this Part, or his insurer, may be commenced in any court before the claimant's proposed complaint has been presented to a medical review panel established pursuant to this Section."
Courts have expressed different views on whether a medical malpractice claim against a nursing home qualified under the MMA must be brought pursuant to the provisions of the MMA, or may be brought under the NHRBR. Two months after the Third Circuit issued the opinion in this case, ruling that plaintiff's negligence claims against the defendant had to be presented to a medical review panel under the MMA, another panel of the Third Circuit rendered a contrary opinion in a case where the nursing home allegedly allowed a patient to fall out of her wheelchair. Pender v. Natchitoches Parish Hospital, 01-1380 (La.App. 3 Cir. 5/15/02), 817 So.2d 1239. In Pender, the accident was allegedly caused by the staff allowing the resident to fall out of her wheelchair, despite knowledge that she required restraints and/or constant supervision. Based on the fact that the accident occurred when the resident was not receiving any specific medical treatment, the majority held the resident's claim did not fall within the confines of the MMA and was not governed by its procedural devices.
Likewise, two different sections of the federal court for the Eastern District of Louisiana have disagreed upon whether a claim for negligent care against a nursing home is covered by the provisions governing the MMA. In Schenck v. Living Centers-East, Inc., 917 F.Supp. 432 (E.D.La. 1996), a case alleging negligent care by the nursing home and asserting claims of breach of contract and violation of the NHRBR, the court held that the one-year statute of limitations applicable to medical malpractice claims did not apply to the breach of contract claim, holding that "nursing homes" were not health care providers under La. R.S. 9:5628. 917 F.Supp. at 436. Further, the court held that plaintiff's claim under the NHRBR was not duplicative of the tort claim and refused to dismiss it, on the basis that the remedies provided by the NHRBR are "in addition to and cumulative with other legal and administrative remedies available to a resident ...." Id. In Petre v. Living Centers-East, Inc., 935 F.Supp. 808 (E.D.La.1996), the court specifically expressed its disagreement with Schenck and held that because plaintiff's claim for negligent care "be it in contract or tort, ... is essentially one for medical malpractice," and because a nursing home is a "health care provider" under the MMA, the one-year statute of limitations applicable to medical malpractice claims, La. R.S. 9:5628, was applicable to the case.
Also, the Second Circuit, in a case involving whether suspension or interruption of prescription occurred by virtue of the filing of a medical review panel complaint, which also contained allegation of violation under the NHRBR, stated that:
Gorham v. HCA Health Services of Louisiana, 34,721 (La.App. 2 Cir. 5/17/01), 786 So.2d 348.
ABL Mgmt. v. Board of Supervisors, 00-798 (La.11/28/00), 773 So.2d 131, 135 (cites omitted); La. C.C. art. 13.
As this Court stated in Sewell v. Doctors Hosp.,
600 So.2d 577, 578 (La.1992).
In our view, the Legislature did not intend for the NHRBR to repeal, supplant, or replace the MMA's application to medical malpractice claims against nursing homes. First, "qualified health care providers," such as LECC in this case, have furnished the requisite financial responsibility and paid a surcharge to a state-created entity, entitling them coverage under the MMA
Second, the Legislature amended the MMA in 2001, sixteen years after the enactment of the NHRBR, to include "nursing
We find that the NHRBR and the MMA can be harmonized. The NHRBR contemplates matters far beyond the scope of the MMA. When the original bill was presented to the House, the sponsor of the bill stated that "this bill would provide a means for individuals residing in nursing homes of protecting their rights to live within the least restrictive environment possible in order to retain their individuality and some personal freedom." Minutes of Meeting, House Committee on Health and Welfare, June 7, 1985, pages 13-14. Because such residents "are isolated from the community and often lack the means to assert their rights as individual citizens," the Legislature provided that a successful claimant is entitled to attorneys' fees, in addition to costs and damages, in order to better enable residents to find legal representation. Accordingly, the NHRBR addresses twenty-two different rights of nursing home residents. Twenty-one of these rights could never be characterized as "malpractice." They include such varied rights as religious liberties, the right to be treated with dignity, the right to smoke and consume alcohol under certain circumstances, and the right to go to bed and rise in accordance with reasonable requests. Whereas the NHRBR encompasses nearly two dozen rights afforded residents in all nursing homes (not just the qualified ones), the MMA only relates to "malpractice" claims against qualified nursing homes. While there are many claims that a person can assert under the NHRBR that would not fall within the definition of medical malpractice and would, therefore, not be subject to review before a medical review panel, any claim of medical malpractice against a qualified health care provider is encompassed within the ambit of the MMA and must be reviewed by a medical review panel prior to suit.
The important remaining issue is whether plaintiff's allegation that she was negligently allowed to fall from her wheelchair is a medical malpractice claim under the MMA. "In general, any conduct by a hospital complained of by a patient is properly within the scope of the [MMA] if it
The MMA defines "malpractice" as:
La. R.S. 40:1299.41(A)(8) (emphasis added).
As stated above, it is undisputed that LECC is a nursing home covered under the definition of "qualified health care provider" under the MMA. "Tort" is defined in the MMA as "any breach of duty or any negligent act or omission causing injury or damage to another." La. R.S. 40:1299.41(A)(7). "Patient" means "a natural person who receives or should have received health care from a licensed health care provider, under a contract express or implied." La. R.S. 40:1299.41(A)(3). "Health care" is defined as "any act, or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to or on behalf of a patient during the patient's medical care, treatment or confinement." La. R.S. 40:1299.41(A)(9).
It is clear that the nursing home's staff's alleged act of negligently allowing Ms. Deville to fall from her wheelchair involved the "handling of a patient, including loading and unloading of a patient," which comes directly under the MMA's definition of "malpractice." However, as this Court stated in Price, "[w]hile clearly an act of malpractice can occur in the rendition of professional services, the patient must still be in the process of receiving `health care' from the doctor or hospital when the negligent rendition of professional services occurs." 693 So.2d at 1172. "This means that the act or omission must have occurred `during the patient's medical care, treatment or confinement.'" Id. at 1172-73.
In the case of a nursing home, the nursing home resident is not always receiving medical care or treatment for any specific condition, but can always be said to be "confined" to the nursing home. However, in our view, it was not the intent of the legislature to have every "act, ..., by any health care provider ... during the patient's ... confinement" in a nursing home covered by the MMA. La. R.S. 40:1299.41(A)(9) (defining "health care" under the MMA). While the alleged act did involve the handling of a patient under La. R.S. 40:1299.41(A)(8), it does not necessarily constitute medical malpractice. As we have previously held in Coleman v. Deno, 01-1517 (La.1/25/02), 813 So.2d 303, 315-316, to be covered under the MMA, the negligent act must be related to medical treatment. In Coleman, we set forth a six-part test to determine whether a negligent act by a health care provider is covered under the MMA:
Thus, the first issue, whether plaintiff's allegations of wrongdoing are related to treatment and are caused by a dereliction of professional skill, is a key issue in this case. From the record before us, we cannot determine whether Ms. Deville was placed in the nursing home for any specific treatment of a particular condition, rather than 24-hour custodial shelter, or whether Ms. Deville was on her way to or from any medical treatment when the accident occurred. Likewise, many of the other Coleman factors cannot be decided on this record. Thus, we remand this case to the trial court for a determination of whether the allegations that Ms. Deville was negligently allowed to fall from her wheelchair constitute allegations of medical malpractice under Coleman.
La. R.S. 40:1299.47(B)(1)(a)(i) provides that "[n]o action against a health care provider covered by this Part, or his insurer, may be commenced in any court before the claimant's proposed complaint has been presented to a medical review panel established pursuant to this Section." The Legislature specifically included nursing homes such as LECC under the provisions of the MMA, mandating that malpractice claims against the LECC proceed according to the requirements of the MMA. The Legislature's enactment of the NHRBR was not intended to remove malpractice claims against qualified health care providers from the coverage of the MMA, but was instead intended to provide nursing home residents with important rights to preserve their dignity and personal integrity, and to provide a means by which they could enforce these rights. These rights however, do not include the right to bring a malpractice claim against the nursing home outside the confines of the MMA.
However, not all negligent acts by a nursing home will constitute medical malpractice under the MMA. To constitute a medical malpractice claim, the alleged negligent act must be related to the nursing home resident's medical treatment at the nursing home under the requirements of Louisiana law.
For the reasons expressed herein, the judgment of the court of appeal is affirmed in part and remanded to the trial court for a determination of whether plaintiff's allegations of negligence against the defendant are medical malpractice claims under Louisiana law.