Plaintiff, Bentheal L. McLemore, appeals a district court judgment sustaining a dilatory exception of prematurity filed by the defendant, Westwood Manor Nursing & Rehabilitation, LLC ("Westwood Manor").
On June 26, 2002, the plaintiff, Bentheal L. McLemore, filed suit against Westwood Manor. In his petition, McLemore alleged that on June 29, 2001, while he was a resident of Westwood Manor and under its exclusive care, custody, control and supervision, he was dropped by the certified nursing assistants and then placed in his bed without medical attention. According to plaintiff's petition, his left leg was severely broken when he was dropped and he experienced blood clots because of complications arising from the broken leg. Plaintiff's petition outlined several items of "negligence, fault and deviation from the standard of care":
On July 22, 2002, the defendant, Westwood Manor, filed a dilatory exception of prematurity, asserting that plaintiff's claim was premature because he had not presented it to a medical review panel as required by the Louisiana Medical Malpractice Act ("MMA"), LSA-R.S. 40:1299.47. After a hearing, the trial court granted the defendant's exception and dismissed the plaintiff's suit without prejudice. This appeal followed.
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 for decision by a medical review panel before filing suit against the provider. Spradlin v. Acadia-St. Landry Medical Foundation, 98-1977 (La.2/29/00), 758 So.2d 116. 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. Id.
Plaintiff argues that since he was not receiving medical care or treatment for any specific condition at the time of his injury, then his claims are not governed by the MMA and, therefore, the prior submission of his claims to a medical review panel was not required.
The pertinent legal principles applicable to this case are discussed in the Louisiana Supreme Court's recent opinion in Richard v. Louisiana Extended Care Centers, Inc., 2002-0978 (La.1/14/03), 835 So.2d 460. In that case, a nursing home patient was alleged to have been negligently allowed to fall out of her wheelchair. An important issue in the case was whether this allegation was a medical malpractice claim under the MMA.
In its analysis, the Supreme Court noted that the MMA defines "malpractice" as:
Next, the court noted that the nursing home's staff's alleged act of negligently allowing the nursing home resident to fall from her wheelchair clearly involved the
The Richard court went on to observe that in the case of a nursing home, a 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. Thus, while the alleged act in Richard did involve the handling of a patient under LSA-R.S. 40:1299.41(A)(8), the court stated that it did not necessarily constitute medical malpractice because the negligent act must be related to medical treatment. The court cited with approval the six-part test of Coleman v. Deno, 01-1517 (La.1/25/02), 813 So.2d 303, for determining whether a negligent act by a health care provider is covered under the MMA:
The court concluded its analysis by observing that the first issue, whether the plaintiff's allegations of wrongdoing were related to treatment and were caused by dereliction of professional skill, was a key issue that could not be determined on the record before the court. Likewise, many of the other Coleman factors could not be decided on that record. Accordingly, the Richard court remanded the case to the trial court for a determination of whether the allegations of negligence constituted allegations of medical malpractice under Coleman.
In the instant case, there is no dispute that the accident at issue occurred when McLemore was being transferred from his bed to a wheelchair in preparation for lunch. However, we observe that, unlike Richard, the allegations of the plaintiff's petition do not simply encompass the alleged "dropping" of McLemore. As previously noted, the plaintiff's petition additionally stated that after being dropped, McLemore then was placed in his bed "without medical attention." Furthermore, the itemized acts of fault not only include dropping McLemore, but failing to treat him, failing to provide appropriate care under the circumstances and failing to administer proper medical treatment. Thus, the allegations of wrongdoing not only include an unintentional tort concerning the handling of a patient, but also include failure to render appropriate treatment following the incident.
When reviewing the totality of the allegations of the plaintiff's petition in the
For the reasons set forth above, the judgment of the trial court is affirmed. Costs of this appeal are assessed to plaintiff, Bentheal L. McLemore.