Louise M. Rivera appeals a judgment sustaining an exception raising the objection of prematurity and dismissing her claims, without prejudice, against Community Care Center of Covington, L.L.C., d/b/a Forest Manor Nursing Home (Forest Manor). For the following reasons, we reverse the judgment and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
On January 31, 2008, Ms. Rivera was being transported from Forest Manor to a medical facility as a wheelchair-bound passenger in a vehicle owned and operated by Bolden's Transportation Service, Inc. (Bolden's). During this trip, the driver of the vehicle had to suddenly and forcefully engage the brakes, stopping the vehicle and causing Ms. Rivera to fall out of the wheelchair and hit the floor. She had no seatbelt on and was not strapped in to her wheelchair, nor was the wheelchair fastened to the van. Ms. Rivera was injured as a result of her fall and filed suit against Bolden's, its owner, and its insurer. In a supplemental and amending petition, she named "Covington Nursing Home" as a defendant,
Forest Manor filed a dilatory exception raising the objection of prematurity, alleging that it was a qualified health care provider and that Ms. Rivera's claim was premature, because she had not presented it to a medical review panel, as required by
Under the Louisiana Medical Malpractice Act (the Act),
Louisiana Code of Civil Procedure article 926(A)(1) provides for the dilatory exception raising the objection of prematurity. Such an objection is intended to retard the progress of the action, rather than to defeat it. LSA-C.C.P. art. 923. An action is premature if it is brought before the right to enforce the claim sued on has accrued. See LSA-C.C.P. art. 423. The objection of prematurity raises the issue of whether the judicial right of action has yet to come into existence because some prerequisite condition has not been fulfilled. Bridges v. Smith, 01-2166 (La. App. 1st Cir.9/27/02), 832 So.2d 307, 310, writ denied, 02-2951 (La.2/14/03), 836 So.2d 121. Prematurity is determined by the facts existing at the time suit is filed. Houghton, 859 So.2d at 106.
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 an opinion by a medical review panel before filing suit against the provider. Spradlin v. Acadia-St. Landry Med. Found., 98-1977 (La.2/29/00), 758 So.2d 116, 119. If a lawsuit against a health care provider covered by the Act has been commenced in a court and the complaint has not been first presented to a medical review panel, the exception of prematurity must be sustained, and the claimant's suit must be dismissed. Dunn v. Bryant, 96-1765 (La.App. 1st Cir.9/19/97), 701 So.2d 696, 699, writ denied, 97-3046 (La.2/13/98), 709 So.2d 752.
The burden is on the defendant to prove prematurity and initial immunity from suit as a qualified health care provider under the Act. Id. The defendant must also show that it is entitled to a medical review panel, because the allegations fall within the Act. Hamilton v. Baton Rouge Health Care, 09-0849 (La. App. 1st Cir. 12/08/10), 52 So.3d 330, 333.
The Act applies only to "malpractice"; all other tort liability on the part of a qualified health care provider is governed by general tort law. Armand v. Lady of the Sea Gen. Hosp., 11-1083 (La. App. 1st Cir.12/21/11), 80 So.3d 1222, 1226, writ denied, 12-0230 (La.3/30/12), 85 So.3d 121. However, the fact that the plaintiff may have made allegations sounding in both medical malpractice and general tort law does not remove her petition from the penumbra of the Act, if a claim for medical malpractice is stated. See McKnight v. D & W Health Services, Inc., 02-2552 (La. App. 1st Cir.11/7/03), 873 So.2d 18, 23.
"Malpractice" is defined by LSA-R.S. 40:1299.41(A)(13), in pertinent part, as follows:
"Health care" is defined in LSA-R.S. 40:1299.41(A)(9), in pertinent part, as follows:
The supreme court has adopted a six-factor test for determining whether alleged negligent conduct by a qualified health care provider constitutes "malpractice," as opposed to other fault. The factors to be considered include:
See Coleman v. Deno, 01-1517 (La.1/25/02), 813 So.2d 303, 315-16.
The Act is in derogation of the rights of tort victims and its language must be strictly construed; any ambiguity must be resolved against coverage by the Act. Williamson v. Hosp. Serv. Dist. No. 1 of Jefferson, 04-0451 (La.12/1/04), 888 So.2d 782, 786-87. We conduct a de novo review of the trial court's grant of the dilatory exception of prematurity, as the issue of whether a claim sounds in medical malpractice involves a question of law. Hernandez v. Diversified Healthcare-Abbeville,
The only evidence introduced at the hearing in this matter was Forest Manor's certificate of enrollment as a qualified health care provider under the Act. Nursing homes are specifically listed as health care providers in LSA-R.S. 40:1299.41(A)(10), and there is no dispute that Forest Manor is a qualified health care provider.
No substantive evidence relating to Ms. Rivera's claims was introduced by either party. In the absence of evidence relating to the nature of her claims against Forest Manor and the issue of prematurity, the following relevant factual allegations of the petition and amended petition must be accepted as true.
Keeping in mind the statutory definitions and the six factors set out in the Coleman case, we examine the allegations in Ms. Rivera's petition to determine whether her claims arose out of medical malpractice, such that Forest Manor would be entitled to a medical review panel.
As described in the petition and supplemental petition, the essence of the allegations concerning the negligence of Forest Manor is that its employees failed to provide Ms. Rivera with a wheelchair that included a safety strap of some kind to secure her in the chair during transportation to a medical facility. This action or inaction is not treatment related or caused by a dereliction of professional skill, nor does it require medical expertise to determine whether the appropriate standard of care was breached. In addition, these allegations do not directly involve the "handling of a patient, including loading and unloading of a patient,"
Ms. Rivera was already dependent on a wheelchair, so there was no assessment of her condition involved in the decision to use this particular wheelchair to transport her. Also, the decision to send her to a medical facility had already been made; the petition does not allege any negligence regarding that decision or the decision for her to be seated in a wheelchair during the trip.
Nor was this incident related to her physician-patient relationship; the only relationship involved in this case was the relationship between certain employees of Forest Manor and Ms. Rivera. Although transporting a patient is within the scope of activities which a qualified health care provider may perform, there is no license needed for the allegedly negligent action or inaction complained of in this case, that is, determining whether a wheelchair-bound patient should be provided with a differently equipped wheelchair when being transported from one place to another.
Clearly, if Ms. Rivera had not been in the nursing home, any negligence of Forest Manor's staff would not have had any effect on her. But there is nothing in the petition to indicate that a medical condition brought Ms. Rivera to Forest Manor; it was just as likely that the normal infirmities of advanced age necessitated her residing there. Also, this accident could have occurred with any vehicular transport, whether medically related or not, if her wheelchair did not have a safety strap
Examining the jurisprudence, we find that the case most closely resembling the facts of this ease is the Louisiana Supreme Court case of Williamson, 888 So.2d 782. In that case, a wheel fell off a wheelchair while the patient in the chair was being moved by a medical center employee. The court construed the plaintiffs petition, as supplemented and amended, finding that the plaintiff alleged an unintentional tort, in that the hospital or its employee was negligent in failing to repair the wheelchair and failing to ensure that the wheelchair was in proper working condition before returning it to service. Applying the Coleman factors, the supreme court reasoned as follows:
Williamson, 888 So.2d at 789-91 (citations omitted). Certainly, the case before us does not involve the exact same factual circumstances, but, like the Williamson case, the allegations of negligence pertain to the condition of the equipment being used to transport the patient, not to the decision to transport, the means of transport, or an assessment of the patient's condition necessitating use of the equipment.
In another case involving the failure to provide a patient with equipment in proper working condition, the supreme court again concluded that the petition did not sound in medical malpractice. In Blevins v. Hamilton Med. Ctr., Inc., 07-127 (La.6/29/07), 959 So.2d 440, 447, the complaint was that the patient's bed moved as he tried to get out of it. The plaintiff alleged the causes of his fall were faulty equipment, the failure to keep the bed in the lowest position with the wheels locked, and the failure to properly instruct him on proper use and safety with regard to his bed. Applying the Coleman factors, the supreme court concluded that these complaints alleged general negligence, "as the wrongs alleged are not integral to the rendering of care and treatment by the health care provider to the patient in this case." Blevins, 959 So.2d at 447.
In a case involving a 92-year-old double amputee who fell from a wheelchair while being transported by nursing home staff, the supreme court concluded that it was clear that the plaintiffs allegation involved the "handling of a patient, including loading and unloading of a patient," which comes directly under the Act's definition of "malpractice." Richard v. Louisiana Extended Care Centers. Inc., 02-0978 (La.1/14/03), 835 So.2d 460, 468-69. However, the court further observed that although "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.... This means that the act or omission must have occurred `during the patient's medical care, treatment or confinement.'" Richard, 835 So.2d at 468, citing Price v. City of Bossier City. 96-2408 (La.5/20/97), 693 So.2d 1169, 1172-73. The court further noted that in the case of a nursing home, the nursing home resident is not always receiving medical care or treatment for any specific condition. Because there was nothing in the record to indicate whether that plaintiff was in the nursing home for medical treatment, or whether the fall occurred
Factual circumstances similar to those in Richard existed in Munson v. Lakewood Quarters, LP., 06-1428 (La.App. 1st Cir.7/18/07), 965 So.2d 448. There the allegations of the petition were simply that Ms. Munson, who was disabled and in need of close supervision and care, fell from her wheelchair when an employee of the defendants, while attempting to transport Ms. Munson from her room to the dining area, failed to adequately secure her in her wheelchair. The record did not disclose whether Ms. Munson was placed in the nursing home for any specific treatment of a particular condition, rather than 24-hour custodial shelter, or that she was on her way to or from any medical treatment when the accident occurred. Therefore, this court concluded that the nursing home had failed to carry its burden of proving that Ms. Munson's claim was governed by the Act and that it was accordingly entitled to a medical review panel. Munson, 965 So.2d at 454. As in Richard, the case was remanded for a full evidentiary hearing on whether the alleged negligence constituted medical malpractice under Coleman.
In the case before us, we likewise conclude that Forest Manor has failed to carry its burden of proving that Ms. Rivera's claim was governed by the Act, such that it was entitled to a medical review panel. However, this case does not involve the patient's fall from a wheelchair while inside the nursing home or while being pushed by a nursing home employee. Her fall occurred in a vehicle while she was being transported to a medical facility. Therefore, no additional evidence is needed to determine whether the decision of the nursing home to allow her to be transported in a wheelchair that was not equipped with a seatbelt or safety strap was within the ambit of the Act. Under the particular facts of this case, and having reviewed the jurisprudence and the Coleman factors as they relate to those facts, we conclude that Forest Manor has failed to prove that the negligent acts alleged by Ms. Rivera fell within the ambit of the Act, such that it would be entitled to a medical review panel.
Based on the above, we reverse the district court judgment that upheld the defendant's exception of prematurity, and remand this case to the district court for further proceedings in accord with this opinion. All costs of this appeal are assessed to Forest Manor.