MAY v. DIVERSIFIED HEALTHCARE-ABBEVILLE, LLC

J. LARRY VIDRINE, Judge Pro Tempore.

Plaintiffs-Appellants, the adult children of decedent, appeal the trial court's judgment sustaining a nursing home's dilatory exception on grounds of prematurity.

For the following reasons, we conclude that the nursing home, on the record presented, did not discharge its burden of establishing that the negligence alleged by Plaintiffs sounded in medical malpractice as required by the Louisiana Medical Malpractice Act, La. R.S. 40:1299.41, et seq. (the MMA). Therefore, we reverse the trial court and remand this matter to for further proceedings consistent with this opinion.

FACTS

The material facts established by the record are not in dispute.

Decedent, Shirley Landry, sustained serious burns caused by smoking in her bed at the 128-bed resident capacity Maison du Monde Nursing Home in Abbeville. Ms. Landry was eighty years old and resided at Maison du Monde following a stroke that left her paralyzed on the left side of her body. She was bed bound and unable to get out of bed without assistance. Defendants presented no evidence to show that Ms. Landry's cigarettes and lighter were placed beyond harm's way, or that there was a place where families or staff could do so overnight.

By Maison du Monde nursing home policy, Ms. Landry was permitted to keep smoking materials provided she was deemed to be a "safe smoker" by the nursing home's policy. The task of deeming a resident a "safe smoke" was delegated to the nursing home's social services director, Ms. Brett Bernard. Ms. Bernard had some time before received a Bachelor's degree in social work from Grambling State University, but never secured a State professional license in her field.

Citing the six factor test from Coleman v. Deno, 01-1517 (La. 1/25/02), 813 So.2d 303, 315, Plaintiffs maintain that the trial court erred in finding that Defendant had established that the MMA's provisions requiring utilization of a medical review panel had been triggered and proceeded to make its case accordingly. Defendant countered this argument by citing Coleman but did not offer much detail in support of its position.

The Louisiana Patient's Compensation Fund also intervened in this appeal, summarizing as follows the claims made by Plaintiffs:

APPLICABLE LAW

The LMMA defines "malpractice" as:

La. R.S. 40:1231.1(A)(13).

Thomas v. Reg'l Health Sys. of Acadiana, Inc., 19-507, 19-524 at pp. 6-8 (La. 1/29/20), ___ So.3d ___.

At the heart of this appeal is whether Plaintiffs' allegations sound in general tort, which is presumed unless proven otherwise, or in medical practice. La. R.S. 40:1231(10) defines the parties protected by the MMA to include licensed social workers and nursing homes. Ms. Bernard is not a licensed social worker, so she is not protected in her own right. However, she serves a licensed nursing home that is protected by the MMA at least with respect to claims sounding in malpractice pertaining to nursing homes falling within the MMA. Therefore, the question presented is whether the acts giving rise to this litigation constitute medical malpractice.

La.Rev.Stat. 40:1299.41 A(7) and (9) further define "tort" and "health care" as follows:

Coleman v. Deno, 01-1517, p. 16, 813 So.2d at 315.

In close cases, such distinctions are addressed by application of the six factor test first articulated in Coleman:

Coleman v. Deno, 813 So.2d at 315-16.2

Citing Coleman, the trial court determined that the negligence alleged by Plaintiffs fall within the MMA, but its Written Reasons offered no elaboration for its conclusion. Regardless, all parties agree that we are required to "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." Rivera v. Bolden's Tramp. Serv., Inc., 11-1669, p. 5 (La. App. 1 Cir. 6/28/12), 97 So.3d 1096, 1100-01, citing Hernandez v. Diversified Healthcare-Abbeville, LLC, 09-546 (La.App. 3rd Cir. 11/4/09), 24 So.3d 284, writ denied, 09-2629 (La. 2/12/10), 27 So.3d 849.

There is remarkably little insight to be gleaned from reported cases involving nursing home smokers in the context of the MMA. Dutrey v. Plaquemine Manor Nursing Home, 12-1295 (La.App. 1 Cir. 6/17/13), 205 So.3d 934, involved a nursing home patient who was severely burned when his shirt caught fire, ultimately resulting in his death. The patient in Dutrey was blind and had dementia yet was allowed to smoke a cigarette unsupervised. Noting that the Court's "independent research did not reveal any cases on point, the Dutrey court concluded that its reasoning in McKnight v. D & W Health Services, Inc., 02-2552 (La.App. 1 Cir. 11/7/03), 873 So.2d 18, provided valuable guidance given the circumstances presented by Dutrey:

Accordingly, in McKnight, this Court found the allegations supported the nursing home operator's right to a medical review panel under the MMA. See McKnight, 02-2552 at p. 6, 873 So.2d at 22, citing Price v. City of Bossier City, 96-2408, p. 2 n.2 (La. 5/20/97), 693 So.2d 1169, 1172-73 n.2.

Dutrey v. Plaquemine Manor Nursing Home, 12-1295, pp. 17-18 (La. App. 1 Cir. 6/17/13), 205 So.3d 934, 947. Under those circumstances, the Dutrey court concluded that the MMA provisions applied.

Aside from Dutrey, Richard v. Louisiana Extended Care Centers, Inc., 02-978 (La. 1/14/03), 835 So.2d 460, contains perhaps the only reference by a Louisiana court to a nursing home smoker in the context of the MMA. In Richard, the Louisiana Supreme Court observed that of the twenty-two different rights enumerated by the Nursing Home Residents' Bill of Rights, a resident's right to smoke is one that "could never be characterized as `malpractice.'" Id., at 467.

Thus, it is against this backdrop and Defendant's burden of proof that we consider de novo whether the MMA was properly found by the trial court to govern.

Given the six Coleman factors and the evidence in this case, we find that plaintiff's claim fall outside the scope of the MMA, and Defendant has not proven otherwise.

(i) whether the particular wrong is "treatment related" or caused by a dereliction of professional skill

Under the circumstances demonstrated by the record, we conclude that the harm sustained by decedent was neither treatment related nor caused by the dereliction of professional medical skill.

The circumstances presented by this controversy contrast in several material respects with those of Dutrey and McKnight.

Dutrey involved a licensed medical professional, a Licensed Practical Nurse "assigned to decedent" who was alleged to have provided substandard care by failing to properly supervise her patient's condition, conduct and state of mind.

This case does not concern the provision of medical care by such a licensed health professional, but rather the nonmedical care of an unlicensed social worker. Second, while this case concerns a nursing home resident who was frail, it does not concern one who was either blind or demented. Underscoring the medical services component required by the MMA, the Supreme Court in Richard, citing Price v. City of Bossier of Bossier City, 96-2408 (La. 5/20/97), 693 So.2d 1169, stated:

Richard 835 So. 2d at 468.

The record in this case does not establish that decedent was receiving health care when she was injured.

As with LaCoste v. Pendleton Methodist Hosp., L.L.C., 07-8 (La. 9/5/07), 966 So.2d 519, Plaintiffs' "allegations of misconduct ill this civil suit do not relate to medical treatment or the dereliction of professional medical skill." In short, this case does not involve a medical injury per se, nor does it include injuries falling within the constellation of the MMA, such as the "treatment related" infectious diseases acquired during surgery and arising from a medical provider's obligation to furnish a clean and sterile environment. Dupuy, 187 So.3d at 440.

Nor can it be said that the injury was caused by a dereliction of the sort of professional skill the MMA or Coleman and its progeny envisioned. To the contrary, the record shows that Defendant went out of its way, for whatever its reasons, to steer the supervision and enforcement of its voluntary smoking policy away from licensed medical professional personnel including physicians and its own Director of Nursing, licensed Registered Nurse Sophia Ditch, and instead placed it in the hands of unlicensed social worker, Ms. Bernard. Here is the Director of Nursing's testimony:

Nor did Defendant produce testimony to establish involvement by any licensed physician. In fact, Ms. Bernard's testimony leaves the clear impression that she did not even know who decedent's treating physician was until she was called to testify and saw his name:

Under these circumstances, plus the Fire Marshall's report indicating that decedent's room contained a sprinkler system that did not activate, neither we nor Defendant can now say that the injuries sustained by decedent were `treatment related' or caused by a dereliction of `professional skill' within the meaning of the Medical Malpractice Act." Williamson, 888 So.2d at 790.

Moreover, since Ms. Bernard never secured her professional license in social work, by its own definition, her conduct was not covered by the MMA pursuant to La. R.S. 40:1231(10) for the nonmedical professional services she provided as a social worker. See generally, O'Brien v. Rizvi, 04-2252, 04-2257 (La. 4/12/05), 898 So.2d 360; Aziz v. Burnell, 21-130 (La.App.3 Cir. 11/3/21), 330 So.3d 695, writ denied, 21-1790 (La. 2/15/22), ___ So.3d ___.

(ii) whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached

We further conclude that Defendant failed to establish that expert medical evidence will be required to determine whether Defendant, through its social worker, breached the appropriate nonmedical standard of care applicable to Plaintiffs' claims.

LaCoste, 966 So. 2d at 527.

Regardless of which party might ultimately prevail on the merits, Defendant has not established that expert testimony, medical or otherwise, will be required to establish the appropriate standard of care. Lacoste, at 526-527. See also, Cambridge Mut. Fire Ins. Co. v. State Farm Fire & Cas. Co., 405 So.2d 587, 588 (La. Ct. App. 1981).

(iii) whether the pertinent act or omission involved assessment of the patient's condition

In brief, Plaintiffs argue that the safe smoking assessment by Ms. Bernard did not involve the kind of medical assessment performed by healthcare providers utilizing specialized skills and knowledge, or to assess a patient's medical condition — a task she was neither qualified nor able to perform.

The evidence compels us to agree with this assertion. The testimony supplied by both Ms. Bernard and Nursing Director Ditch indicates that Ms. Bernard was charged with performing safe smoking assessments, which the evidence shows were simple instruments used to document residents' short-term and long-term memory. Relevant excerpts of Ms. Bernard's testimony follow.

With respect to the nature of the "short-term memory tests" performed:

With respect to the nature of "long-term memory tests" performed:

Clearly these assessments were not very complex, nor was the training Ms. Bernard received from her predecessor:

Moreover, the record does not make clear that the outcome of the assessments even had any impact on whether any nursing home resident, specifically including our decedent, was permitted to smoke in her room or to have cigarettes or combustible articles at her bedside.

At one point Ms. Bernard implied that a resident would pass the Safe Smoking Assessment even if a family member had to help her smoke:

At another point Ms. Bernard reaffirmed that a resident would be designated a "safe smoker" even if it were demonstrated that they could not safely light and smoke a cigarette alone:

This was even Ms. Bernard's opinion knowing decedent's compromised physical condition:

At still another point she said otherwise:

Considering the evidence presented, Defendant has not demonstrated that the assessments warrant any weight under Coleman.

(iv) 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

There is not any evidence in the record to demonstrate that the incident here occurred in the context of a physician-patient relationship.

Indeed, given the opportunity to present evidence to make this point, Defendant presented the testimony of two employees who confirmed that there was no physician involvement.

Likewise, Defendant cites no authority suggesting that nursing homes are required to perform Safe Smoker Assessments of any kind, let alone those as superficial as those revealed by the record before us.

(v) whether the injury would have occurred if the patient had not sought treatment

Defendant has not established that the injury decedent sustained had any connection to her medical treatment, if only because it did not establish that decedent received any medical treatment at the nursing home, certainly none related to smoking cessation or therapy that would result in her ability to safely smoke cigarettes.

Moreover, there is no reason to assume that decedent could not have as easily died at home as the same cause that took her life at the nursing home, smoking in bed unsupervised and unrestricted, with cigarettes and lighter nearby.

(vi) whether the tort alleged was intentional

Neither party alleges an intentional tort on the part of Defendant or its employees.

Conclusion

In view of the above, our de novo review of the record and application of Coleman analysis leads us to conclude that Defendants have not discharged their burden of establishing that the conduct on which plaintiff's claims are premised fit within the ambit of the MMA statutory definition of "malpractice."

This is not to say Plaintiffs will prevail on the merits, as even with our holding that Plaintiffs' cause of action is "ripe for judicial determination" per Thomas and its cited authority, will still have to bear the burden of establishing that Defendant was at fault in causing the accident, using a duty-risk analysis.

Jones v. Centerpoint Energy Entex, 11-2, p. 4 (La. App. 3 Cir. 5/25/11), 66 So.3d 539, 545, writ denied, 11-1964 (La. 11/14/11), 75 So.3d 946, cited by Mills v. Smith, 19-812 (La. App. 3 Cir. 4/8/20), ___ So.3d ___.

DECREE

For the foregoing reasons, the judgment of the trial court sustaining Defendant's dilatory exception is reversed, the dilatory exception is overruled, and this proceeding is remanded to the trial court for further proceedings consistent with this opinion, with costs taxed to the owner of Maison du Monde Nursing Home, Diversified Healthcare of Abbeville, LLC.

REVERSED AND REMANDED.

FITZGERALD, Judge, dissenting with reasons.

In my view, the trial court correctly affirmed the nursing home's exception of prematurity. The plaintiffs here claim that the nursing home failed to properly assess Shirly Landry's smoking ability. A "safe smoker" assessment necessarily entails an evaluation of the resident's mental acuity and physical limitations. This fits squarely within the scope of the Louisiana Medical Malpractice Act (the "MMA").

In addition, the plaintiffs allege that the nursing home was negligent in failing to ensure safe smoking by Shirly Landry, and in failing to ensure that Ms. Landry did not maintain possession of cigarettes and a lighter within reach of her bed. This involves an analysis of the degree of care, including supervision and monitoring, that the nursing home should have provided to Ms. Landry based on her medical conditions. And this, too, fits squarely within the scope of the MMA.