Jill Wendling, Individually and on Behalf of Husband Harold Avery Wendling v. Riverview Care Center, LLC D/B/A Riverview Care Center

Judgment rendered April 5, 2023.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 54,958-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

JILL WENDLING, Plaintiff-Appellant
INDIVIDUALLY and on behalf of
her deceased Husband, HAROLD
AVERY WENDLING

versus

RIVERVIEW CARE CENTER, Defendants-Appellees
LLC dba RIVERVIEW CARE
CENTER, DAVID BAILEY AND
SUSAN NUGENT

*****

Appealed from the
First Judicial District Court for the
Parish of Caddo, Louisiana
Trial Court No. 633,833

Honorable Craig Owen Marcotte, Judge

*****

JOHN CHARLES MILKOVICH Counsel for Appellant

LUNN IRION LAW FIRM, LLC Counsel for Appellees
By: Penny Nowell

*****

Before COX, ROBINSON, and ELLENDER, JJ.

ROBINSON, J.

The widow of a nursing home resident filed suit against the nursing

home and its supervisors after the resident died from sepsis allegedly caused

by decubitus wounds formed when the incontinent resident was often

allowed to remain in his own waste due to negligent diapering. The lawsuit

alleged medical malpractice claims as well as dignity-type claims related to

the negligent diapering. The widow had earlier requested the formation of a

Medical Review Panel (“MRP”).

The nursing home filed the exception of prematurity arguing that all

of the claims sounded in medical malpractice or were inextricably

interwoven with the medical malpractice claims. The trial court granted the

exception. Concluding that the dignity-type claims fall outside the reach of

the Louisiana Medical Malpractice Act (“LMMA”), we reverse the

judgment in part.

FACTS

Harold Wendling (“Harold”) was a resident at Riverview Care Center

(“Riverview”) in Bossier City from January 17, 2020, until November 23,

2020. He died the day after his discharge from Riverview from sepsis that

was allegedly caused by decubitus wounds.

Harold’s widow, Jill Wendling (“Wendling”), filed a request for the

formation of a MRP with the Division of Administration on October 21,

2021. Named as defendants were Riverview, David Bailey (Riverview’s

Director and/or Administrator), and Susan Nugent (Assistant Director of

Nursing and a wound care nurse at Riverview).

On November 19, 2021, Wendling, individually and on behalf of her

late husband, filed suit against Riverview, Bailey, Nugent, and Rose

Chepkoech (Director of Nursing at Riverview). Wendling alleged that the

acts and omissions by Riverview’s employees constituted a breach of the

standard of appropriate care, tortious conduct, negligent acts, negligent

omissions, and intentional and negligent infliction of mental distress. She

maintained that despite Harold’s requests to be changed, he remained in his

own waste for extended periods of time. More specifically, she alleged that

Riverview was delinquent, inadequate, and incompetent in failing to timely

clean Harold after bladder and bowel incontinence, change his diapers, and

monitor and treat his skin condition and wounds, and that these failures on a

continuous and persistent basis led to severe decubitus wounds and his

death. She also alleged that diapers were effectively rationed at Riverview

because they were kept under lock and key.

Regarding the treatment of Harold’s wounds, Wendling alleged that

Riverview was notified in November of 2020 that Harold had severe and

open decubitus wounds on his buttocks, yet Riverview did not obtain prompt

medical attention for him.

Wendling maintained that the negligent acts and omissions of the

defendants caused Harold to experience pain and suffering, emotional

anguish, mental distress, humiliation, embarrassment, indignity, a

breakdown in his skin condition, decubitus wounds, degradation of his

overall health, infection, sepsis, and death. She alleged that all the

defendants failed to exercise the standard of care required of every health

2

care provider under similar circumstances when rendering professional

services to Harold. She also asserted a loss of consortium claim.

Wendling contended that Bailey and Chepkoech exercised authority,

control, and power over staffing, provision of care, and employee conduct at

Riverview. She also contended that Nugent exercised some authority,

control, and power over those functions.

Riverview, Bailey, and Nugent filed the exceptions of prematurity, lis

pendens, and improper venue.1 Regarding the exception of prematurity, they

argued that Riverview was a qualified health care provider and entitled to

have the allegations made against them reviewed by the MRP, which was

not set to expire until October 14, 2022. They further argued that as

Riverview employees, Bailey and Nugent were entitled to the same

protections.

Wendling argued in opposition to the exception of prematurity that it

should be denied as to the claims of rationing diapers, locking diaper storage

units, failing to timely clean and diaper Harold, forcing him to lie in his own

waste for extended periods of time, and chronically understaffing the

facility, as those claims may also sound in tort.

Davalisia Solomon testified on behalf of Wendling at the hearing on

the exceptions. Solomon had been a certified nursing assistant at Riverview

when Harold was there until she was later terminated. She testified that

Riverview had a diaper rationing system in effect, and the room where the

diapers were stored was locked. She believed diapers were rationed to save

1
Regarding the exception of lis pendens, the exceptors contended that an identical
suit had been filed in Bossier Parish on November 19, 2021, against Riverview, Bailey,
Chepkoech, and Nugent.

3

money, and as a result of the rationing system, they were continuously short

of diapers. She and the other staff members would have to get permission

from supervisors including Nugent and Chepkoech to gain access to the

room where the diapers were stored, and they would have to return the key

immediately after obtaining the diapers.

Solomon testified that the door remained locked but the key was not

left when Chepkoech and Nugent would leave the nursing home. If diapers

became scarce when Chepkoech and Nugent were not there, the employees

would try to reach them by phone, but were not always successful. Solomon

testified that sometimes she and other staff members would have to use bed

sheets or blankets as diapers, and that her supervisors were aware of this.

The trial court rendered judgment sustaining the exception of

prematurity. Wendling’s lawsuit was dismissed without prejudice. The

exceptions of lis pendens and improper venue were denied. Wendling has

appealed.

DISCUSSION

Wendling notes that she is appealing the judgment to the extent it

dismissed as premature the claims for Riverview’s neglect of the diapering,

changing, and hygiene of Harold, who she maintains was immobile and

incontinent.

Wendling frames the issue before this Court as being whether claims

for negligent diapering are strictly confined to the provisions of the LMMA

or may be brought in an action for breach of contract and/or a claim for

damages under La. C.C. art. 2315. She maintains that failing to change a

nursing home resident’s diaper for long periods of time is an act which falls

4

outside the provisions of the LMMA and does not require submission to a

MRP. She asserted in her petition that Riverview consistently and

continuously failed to timely change Harold’s diaper and bed linens, failed

to timely clean him after episodes of incontinence, forced him to lie in his

own waste for hours, rationed diapers, and kept diapers under lock and key.

Riverview counters that the allegations in Wendling’s petition fall

squarely within the scope of claims governed by the provisions of the

LMMA.

La. R.S. 40:1231.8(B)(1)(a)(i) states 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[.]”

Under the LMMA, a medical malpractice claim against a qualified

health care provider is subject to dismissal on a timely exception of

prematurity if such claim has not first been reviewed by a pre-suit medical

review panel. Dupuy v. NMC Operating Co., L.L.C., 15-1754 (La. 3/15/16),

187 So. 3d 436. In such situations, a defendant’s exception of prematurity

neither challenges nor attempts to defeat any of the elements of the

plaintiff’s cause of action; instead, the defendant contends that the plaintiff

has failed to take some preliminary step necessary to make the controversy

ripe for judicial involvement. Id.

The burden of proving prematurity is on the moving party, which in a

medical malpractice case, must show that it is entitled to a MRP because the

allegations fall within the scope of the LMMA. Kelleher v. University

5

Medical Center Management Corp., 21-00011 (La. 10/10/21), 332 So. 3d

654.

Where no evidence is presented at the trial of a dilatory exception,

such as prematurity, the court must render its decision on the exception

based upon the facts as alleged in the petition, and all allegations therein

must be accepted as true. LaCoste v. Pendleton Methodist Hosp., L.L.C., 07-

0008 (La. 9/5/07), 966 So. 2d 519. On the trial of the dilatory exception,

evidence may be introduced to support or controvert any of the objections

pleaded, when the grounds thereof do not appear from the petition. La.

C.C.P. art. 930.

Because the question of whether a claim sounds in medical

malpractice is a question of law, appellate review of the trial court’s grant of

the dilatory exception of prematurity is de novo. Jackson v. Willis-Knighton

Health System, 54,405 (La. App. 2 Cir. 4/13/22), 337 So. 3d 625.

Malpractice is defined in La. R.S. 40:1231.1(A)(13), in relevant part,

as:

[A]ny unintentional tort or any breach of contract based on
health care or professional services rendered, or which should
have been rendered, by a health care provider, to a patient,
including failure to render services timely and the handling of a
patient, including loading and unloading of a patient, and also
includes all legal responsibility of a health care provider arising
from acts or omissions . . . in the training or supervision of
health care providers . . . .

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. 40:1231.1(A)(9). The LMMA also

provides a definition of a tort as being “any breach of duty or any negligent

6

act or omission proximately causing injury or damage to another.” La. R.S.

40:1231.1(A)(22).

As explained by the Louisiana Supreme Court in Sewell v. Doctors

Hosp., 600 So. 2d 577, 578 (La. 1992):

The Medical Malpractice Act’s limitations on the liability of a
health care provider are special legislation in derogation of the
rights of tort victims. As such, the coverage of the Act should
be strictly construed. These limitations apply only in cases of
liability for malpractice as defined in the Act. Any other
liability of the health care provider to the patient is not subject
to these limitations.

In Porter v. Southern Oaks Nursing & Rehabilitation Center, LLC,

49,807, p. 7 (La. App. 2 Cir. 5/20/15), 165 So. 3d 1197, 1201, writ denied,

15-1228 (La. 9/25/15), 182 So. 3d 935, this Court noted that “[t]he courts

have steadfastly held that MMA and its limitations on tort liability for

qualified healthcare providers apply only to claims arising from medical

malpractice, and that all other tort liability on the part of a qualified

healthcare provider is governed by general tort law.”

Not all negligent acts by a nursing home will constitute medical

malpractice under the LMMA. Richard v. Louisiana Extended Care

Centers, Inc., 02-0978 (La. 1/14/03), 835 So. 2d 460. 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. Id.

Nursing home residents present a special case, as the resident is not

always receiving medical care or treatment, but is always confined to the

facility. Campbell v. Nexion Health at Claiborne, Inc., 49,150 (La. App. 2

Cir. 10/1/14), 149 So. 3d 436.

7

In Coleman v. Deno, 01-1517 (La. 1/25/02), 813 So. 2d 303, the

Louisiana Supreme Court announced six factors to consider in determining

whether certain conduct by a qualified health care provider constitutes

“malpractice” as defined under the LMMA: (1) whether the particular wrong

is “treatment related” or caused by a dereliction of professional skill; (2)

whether the wrong requires expert medical evidence to determine whether

the appropriate standard of care was breached; (3) whether the pertinent act

or omission involved assessment of the patient’s condition; (4) 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; (5)

whether the injury would have occurred if the patient had not sought

treatment; and (6) whether the tort alleged was intentional.

La. R.S. 40:2010.8 sets forth what is known as the Nursing Home

Residents’ Bill of Rights (“NHRBR”). Among those rights is the right to be

treated “courteously, fairly, and with the fullest measure of dignity[.]” La.

R.S. 40:2010.8(A)(9). Prior to its amendment in 2003, La. R.S. 40:2010.9,

the civil enforcement provision of the NHRBR, stated, in relevant part and

with emphasis added:

A. Any resident whose rights, as specified in R.S. 40:2010.8,
are deprived or infringed upon shall have a cause of action
against any nursing home or health care facility responsible for
the violation. The action may be brought by the resident or his
curator, including a curator ad hoc. The action may be brought
in any court of competent jurisdiction to enforce such rights and
to recover actual damages for any deprivation or infringement
on the rights of a resident. Any plaintiff who prevails in such
action shall be entitled to recover reasonable attorney’s fees,
costs of the action, and damages, unless the court finds that the
losing plaintiff has acted in bad faith with malicious purpose,
and that there was an absence of a justiciable issue of either law
or fact, in which case the court shall award the prevailing party
his reasonable attorney fees.

8

B. The remedies provided in this action are in addition to and
cumulative with other legal and administrative remedies
available to a resident and to the Department of Health and
Hospitals or other governmental agencies.

Following the amendment, a resident whose rights may have been deprived

or infringed upon can seek injunctive relief, but any recovery is limited to

attorney fees and costs. Actual damages can no longer be recovered under

the NHRBR.

In arguing that she was not required to submit negligent diapering

claims to a MRP, Wendling relies heavily on this Court’s opinion in Henry

v. West Monroe Guest House, Inc., 39,442 (La. App. 2 Cir. 3/2/05), 895 So.

2d 680. She maintains that Henry specifically found that changing a diaper

is not medical treatment, and that it recognized the distinction between the

failure to change diapers causing decubitus ulcers and the failure to change

diapers lessening a patient’s dignity.

A lawsuit was filed in Henry seeking damages for violations of the

rights of a nursing home resident who had died prior to the amendment to

the NHRBR. The petition alleged that the resident was left to lie in her own

urine and feces until it dried to her body, which led to physical and

emotional injuries including dehydration, malnutrition, contractures, bed

sores, and death. It was further alleged that the lack of care caused the

resident to lose her personal dignity. The plaintiffs had initiated a separate

proceeding for the formation of a MRP.

The nursing home in Henry filed the exception of prematurity on the

grounds that the cause of action was one of medical malpractice. The

plaintiffs contended that some of their claims arose from violations of the

9

resident’s rights under the NHRBR and did not sound in medical

malpractice. Those claims were that her rights were violated when she was

allowed to lie in her own waste for extended periods of time. The plaintiffs

conceded that their other claims were for medical malpractice.

Before considering the Coleman factors, this Court in Henry noted the

appeal only addressed the dignity claims. This Court then analyzed the

factors:

First, we find that changing a diaper is not medical treatment.
Many non-medical persons have done it without difficulty or
specialized medical training. Second, no medical expert is
needed to determine whether a diaper is in need of a changing.
Again, we are not discussing causation of decubitus ulcers, but
instead, the personal dignity of a nursing home resident. Third,
a medical assessment of the resident’s condition was not
necessary as Ms. Henry’s care plan called for a diaper change
every two hours, or as needed. This court has previously held
that complaints are not treatment related when the failure of the
nursing home arises from a failure to abide by the patient care
plan. See Terry v. Red River Center Corporation, 37,991 (La.
App. 2d Cir. 12/10/03), 862 So. 2d 1061, writ denied, 04-0094
(La. 03/19/04), 869 So. 2d 856. Similarly, the Fifth Circuit has
found that failure to abide by a care plan is not a medical
assessment. See Jordan v. Stonebridge, L.L.C., 03-588 (La.
App. 5th Cir. 11/25/03), 862 So. 2d 181, writ denied, 03-3520
(La. 03/19/04), 869 So. 2d 851. Fourth, changing a diaper is
something routinely performed by nurses aides, and not under
the direction of a physician. Fifth, Ms. Henry would have
suffered a loss of dignity for having dirty diapers, regardless of
her residence in the nursing home. Sixth, this factor is not
applicable in this case. Under this analysis, we find that
plaintiffs’ complaints fall under the NHRBR, and not the
MMA.

Id. at 4-5, 895 So. 2d at 683.

This Court in Henry also rejected the notion that the LMMA is the

exclusive remedy when any portion of the cause of action falls under the

LMMA. It found that the plaintiffs could maintain a LMMA claim and a

NHRBR claim “separately and simultaneously.” Id. at 6, 895 So. 2d at 684.

10

The causation of the decubitus ulcers was part of the malpractice claim and

was separate from the loss of dignity action which arose from the resident

having to lie in her own waste for extended periods of time. Accordingly,

the judgment granting the exception of prematurity was reversed in part, and

the plaintiffs in Henry were allowed to proceed with their NHRBR claim.

This Court added that any claims regarding causation of physical trauma,

dehydration, malnutrition, contractures, decubitus ulcers, and death were to

be placed before the MRP.

In Furlow v. Woodlawn Manor, Inc., 39,485 (La. App. 2 Cir. 4/20/05),

900 So. 2d 336, writ denied, 05-1320 (La. 12/9/05), 916 So. 2d 1064, the

plaintiff’s late mother, who had been a double amputee confined to a

wheelchair, was a resident at Woodlawn through July of 2003. Furlow filed

suit against Woodlawn seeking damages for injuries to her mother while

there. She complained that the nursing home allowed her mother to lie for

hours in soiled bed linens, did not turn her to prevent pressure sores, and

allowed her to suffer falls. Furlow also filed a request for the formation of a

MRP. Woodlawn raised the exception of prematurity, arguing that the

allegations in the petition concerned medical malpractice. The trial court

granted the exception. After applying the Coleman factors, this Court

concluded that the allegations the nursing home had not properly kept the

resident clean were not covered under the LMMA. This Court reversed the

judgment granting the prematurity exception in part, on the issue of whether

the nursing home had violated the NHRBR by not keeping Furlow’s mother

clean of her own waste.

11

Applying the Coleman factors to the allegations at hand, we conclude

that Wendling’s negligent diapering claim falls outside the scope of the

LMMA. First, determining when to change diapers for an incontinent and

immobile nursing home resident and then actually changing them is not

medical treatment. It does not require specialized training. Second, expert

medical evidence is not needed to determine whether the standard of care

was breached when a patient is repeatedly allowed to lie in his own waste.

Third, an assessment of a resident’s condition is not necessary to determine

that a resident who has soiled himself needs to have his diaper changed.

Fourth, changing a soiled diaper is part of the nursing home’s custodial care

and is not normally performed under the supervision of a physician. Fifth,

the resident would have suffered a loss of dignity from remaining in dirty

diapers even if not at the nursing home. Sixth, although Wendling maintains

that Riverview intentionally rationed diapers and prolonged how long

Harold remained in his own waste, this factor is inapplicable.

Riverview contends that application of the Coleman factors shows

that Wendling’s claims fall within the scope of the LMMA, making the suit

premature. Riverview cites Evans v. Heritage Manor Stratmore Nursing &

Rehabilitation Center, L.L.C., 51,651 (La. App. 2 Cir. 9/27/17), 244 So. 3d

737, writ denied, 17-1826 (La. 12/15/17), 231 So. 3d 639, in support of its

argument that courts have moved away from the holdings of pre-amendment

NHRBR cases related to diapering. Riverview urges that this Court has

adopted the position that incontinent care is a part of medical or professional

care in a nursing home setting.

12

Evans, a bedridden stroke patient at a skilled nursing rehabilitation

facility, was struck in the face by a CNA who was attempting to change his

wet diaper and t-shirt while he resisted and struck her. Evans’ physician had

given standing orders to turn him often and to keep him clean and dry in

order to prevent the development of skin ulcers, pressure sores, and other

complications. Evans filed a request for a MRP. At the conclusion of the

MRP, he filed suit against the facility alleging that he was entitled to

damages under the LMMA and for breaches of fiduciary duty, failure to

provide contracted care, and failure to provide sufficient staff training

concerning the protections due patients under the NHRBR. Heritage Manor

filed an exception of prescription in which it argued that Evans’ claims

arising from the battery did not arise from medical treatment and were not

malpractice claims, and that the filing of the request for the MRP did not

interrupt or suspend prescription on the non-malpractice claims. The trial

court sustained the exception, finding that the claim had prescribed because

the CNA’s action was an intentional tort and not medical malpractice.

This Court disagreed with the trial court and found that the CNA’s

action qualified as medical malpractice as defined in the LMMA. In

reaching this conclusion, this Court pointed out that Henry could be

distinguished as it involved issues concerning only dignity claims. Next,

this Court applied the Coleman factors:

Applying the factors found in Coleman, supra, in the case at
bar, the particular wrong, i.e., injury during the changing of a
diaper which was necessary to prevent ulcers in a paralyzed
patient, was medical treatment related and/or caused by a
dereliction of professional skill. Expert medical evidence was
necessary to determine whether the appropriate standard of care
was breached as a result of the failure to safely change the
patient’s diaper when the point of changing him was to prevent

13

decubitus ulcers. The pertinent act or omission involved
assessment of the patient’s condition. The incident occurred
within the scope of activities which the nursing home and Ms.
Edwards were licensed to perform. Ms. Edwards’ act in
striking Plaintiff does not meet the definition of an intentional
act under White, supra, since she did not intend the
consequences of her act, but, instead, simply reacted to the
sudden action of Plaintiff resisting the care she was giving him.
It was more in the nature of gross negligence rather than an
intentional act and, thus, is susceptible to a claim for medical
malpractice.

Id. at 16, 244 So. 3d at 747. This Court also reasoned that the physician’s

order to keep Evans clean and dry was related to his health care and

necessary to his recovery. Finally, this Court noted that the fact that the

CNA was attempting to perform her duty and render medical care pursuant

to a treatment plan when she reacted poorly to being struck by Evans

brought that act under the protection of the LMMA.

Evans can be distinguished from the matter at hand as it did not

involve a negligent diapering claim where the resident suffered a loss of

dignity from the nursing home’s failure to change his diapers timely.

Rather, his cause of action arose from a battery which occurred during a

diaper change. This Court in Evans specifically distinguished Henry and

similar cases where the dignity of the person whose diaper was not changed

was at issue.

Riverview further argues that there are no cases which allow for the

recovery of damages for negligent incontinent care under La. C.C. art. 2315

for incidents occurring after August 15, 2003, the effective date of the

amendment to the enforcement provision of the NHRBR. Riverview

maintains that the amendment to the NHRBR would have no effect if

“dignity” claims were still allowed under Louisiana law. According to

14

Riverview, allegations concerning incontinence care become actionable only

when they cause injuries such as wounds.

La. R.S. 40:2010.9(B) states that “[t]he remedies provided in this

Section shall not be construed to restrict other legal and administrative

remedies available to a resident and to the Louisiana Department of Health

or other governmental agencies.”

Earlier cases from this Court have not addressed whether there is a

viable claim outside of the NHRBR following the 2003 amendment. In

Burks v. Christus Health Monroe, 39,540 (La. App. 2 Cir. 4/6/05), 899 So.

2d 775, writ denied, 05-1184 (La. 11/28/05), 916 So. 2d 146, a nursing

home resident was allegedly left to lie in her own urine and waste for hours

at a time while at the nursing home between March 2003 and December

2003. The petition sought damages under the NHRBR for conduct

occurring before August 15, 2003, and under a general negligence theory for

conduct afterwards. This Court reversed in part the judgment granting the

exception of prematurity on the issue of whether the nursing home violated

the NHRBR. This Court stated that it did not need to resolve the question of

whether the 2003 amendment to La. R.S. 40:2010.9 impacted the viability of

a plaintiff’s claim for damages under a general negligence theory for

conduct occurring on or after August 15, 2003.

More recently, in Butler-Bowie v. Olive Branch Senior Care Center,

52,520 (La. App. 2 Cir. 2/27/19), 266 So. 3d 478, a lawsuit was brought

alleging that an elderly man had died from complications related to

substandard medical treatment and care that he received while a live-in

resident at the defendant facility. The plaintiff asserted that several of her

15

allegations fell outside of the LMMA’s definition of health care. Those

allegations were inadequate custodial care, failure to protect from injury,

leaving the patient unattended, failure to provide adequate care and nutrition,

and failure to properly turn and move the patient. Affirming the judgment

sustaining the exception of no cause of action, this Court concluded after

analyzing the petition under the Coleman factors that all of the plaintiff’s

allegations fell under the LMMA. This Court also stated that there is no

longer a cause of action for damages under the NHRBR. We note that while

there was an allegation of inadequate custodial care in Butler, there was no

specific allegation of negligent diapering.

In Quinney v. Summit of Alexandria, 2005-237 (La. App. 3 Cir.

6/1/05), 903 So. 2d 1226, a nursing home resident was bed-bound, unable to

move himself, and incontinent of bladder and of bowel. His son sued the

nursing home alleging that his father was not repositioned enough to prevent

pressure sores, was given insufficient fluids and food, and was not cleaned

after each incontinent episode to prevent waste contact with his skin for an

extended time. In an amended petition against the nursing home and its

owner/operator, the son alleged violations of the NHRBR, as well as

asserted a negligence claim for inadequate custodial care after August 15,

2003. In particular, the plaintiff alleged in the amended petition that his

father’s personal dignity was violated when he was left to lie in his own

urine and waste for extended periods of time. The plaintiff maintained that

no medical malpractice claim was asserted in the amended petition. The

trial court granted the defendants’ exception of prematurity regarding claims

against the nursing home for conduct which occurred after the home became

16

a qualified health care provider on November 29, 2003.2 The appellate court

reversed the ruling on the exception regarding the non-malpractice claims

which occurred on or after November 29.

In his appellate brief, the plaintiff in Quinney maintained that the

appeal did not concern separate malpractice claims,3 but only violations of

his father’s rights under the NHRBR. He asserted that it was not medical

malpractice but a violation of rights under the NHRBR when his father was

left to lie in his own waste. The nursing home countered that the claim was

either a medical malpractice claim in its own right or was inextricably

interwoven into the medical malpractice claim.

The Quinney court noted that the claim in Henry was nearly identical

to the claim before it, and that the Henry court concluded that the plaintiffs

could maintain their LMMA claim and their NHRBR claim separately and

simultaneously. After applying the Coleman factors, the appellate court

concluded that the allegations that the nursing home failed to keep the

resident and his bed linens clean and free of his waste did not constitute a

malpractice claim under the LMMA. The plaintiff was allowed to pursue his

LMMA claim separately from and simultaneously with his other claims

including alleged violations of the NHRBR.

In Randall v. Concordia Nursing Home, 2007-101 (La. App. 3 Cir.

8/22/07), 965 So. 2d 559, writ denied, 07-2153 (La. 1/7/08), 973 So. 2d 726,

the plaintiff was awarded damages by a jury for the loss of his mother’s

dignity while she was a nursing home resident prior to the amendment to La.

2
The owner/operator of the nursing home was not a qualified health care
provider.
3
The plaintiff had filed a request for a MRP.

17

R.S. 40:2010.9. The plaintiff had earlier voluntarily dismissed his medical

malpractice action against the nursing home. On appeal, the nursing home

contended the trial court erred in denying its exception of no right of action.

The nursing home argued that the plaintiff had no right of action because the

negligence alleged in his petition was related to medical treatment and

should be considered part of his medical malpractice claim that was

dismissed. The Randall court noted that the plaintiff had asserted claims on

his mother’s behalf that she had suffered damages from being left to lie for

hours in her own waste, as well as for loss of dignity caused by inadequate

staffing levels at the nursing home. After examining the Coleman factors,

the Randall court concluded that allegations that the nursing home allowed

the plaintiff’s mother to lie in her own waste or failed to change her linens

did not sound in medical malpractice. The court further stated:

Moreover, it is clear from the current version of La. R.S.
40:2010.9(B) that causes of action for money damages based
upon other legal remedies, for example those based upon La.
C.C. art. 2315, are not barred. . . . Given that the plaintiff’s
petition asserted a survival action and wrongful death action
based upon La. C.C. art. 2315, and the plaintiff is a surviving
child of the decedent, Mrs. Randall, we find no merit in the
assertion that this plaintiff had no right of action against
Camelot.

Id. at 11, 965 So. 2d at 568.

In Davis v. St. Francisville Country Manor, LLC, 2005-0072 (La.

App. 1 Cir. 2/10/06), 928 So. 2d 549, writ denied, 06-0604 (La. 5/26/06),

930 So. 2d 25, the First Circuit concluded that Davis had asserted claims

under the NHRBR and La. C.C. art. 2315 for alleged negligence by a

nursing home in failing to properly clean Allen, her late mother, of her own

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waste in a routine and timely manner. Accordingly, Davis was not required

to submit those claims to a MRP.

Davis filed a request for the formation of a MRP, then sued for

damages suffered by Allen while a resident at the nursing home from April

of 2003 until December of 2003. She not only alleged that the nursing home

was negligent in leaving Allen to lie in her own waste for extended periods

of time, but she also alleged that Allen had suffered pressure sores because

of inadequate positioning and turning. She further alleged that the nursing

home failed to sufficiently feed Allen or ensure that she received adequate

fluids, failed to provide sufficient staff to ensure that her custodial care

needs were met, and failed to treat her mother with the fullest measure of

dignity.

The nursing home filed the exceptions of prematurity and no cause of

action. Davis argued the alleged negligence was not medical treatment and

fell under the NHRBR instead of the LMMA, and that the 2003 amendment

to La. R.S. 40:2010.9 eliminating the recovery of damages was not applied

retroactively. Regarding the claim for damages suffered after the effective

date of the amendment to La. R.S. 40:2010.9, Davis argued that claim was

for damages caused by the nursing home’s negligence rather than medical

malpractice, and she was entitled to assert that claim under La. C.C. art.

2315. The trial court granted the exception of no cause of action in part,

finding that Davis had failed to state a claim for money damages under La.

R.S. 40:2010.9 because the 2003 amendment applied retroactively. The trial

court also granted the exception of prematurity.

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The Davis court first addressed the exception of no cause of action. It

concluded that the 2003 amendment to the NHRBR was not applied

retroactively. Regarding the negligence claims which occurred after the

effective date of the amendment, the Davis court concluded that Davis was

entitled to pursue damages for such negligence under general principles of

tort law. The portion of the judgment maintaining the exception of no cause

of action was reversed to the extent that it denied her claim for violations of

the NHRBR prior to August 15, 2003.

The Davis court then considered the issue of whether the claims for

damages based upon alleged negligence and violations of the NHRBR were

actually based upon medical malpractice and subject to the LMMA.

Although other negligent acts were alleged in her petition, Davis limited her

argument on appeal to be that the failure of the nursing home to clean her

mother on a regular basis caused her to lie in her own waste for extended

periods of time. After applying the Coleman factors, the First Circuit

concluded that the trial court erred in finding that the nursing home’s alleged

failure to timely clean and change her mother on a regular basis was medical

malpractice. Those claims of alleged negligence fell under the NHRBR and

La. C.C. art. 2315.

Based upon the rationale in Davis and Randall, we conclude that

Wendling may assert a claim for dignity-type damages from negligent

diapering under La. C.C. art. 2315.

Finally, Riverview contends that it is clear that Wendling’s claims are

not merely for “dignity” or “general tort” damages as she also brought

claims related to the development of skin wounds from negligent diapering,

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the failure to properly monitor for and treat those wounds, and the

progression of the wounds to sepsis and death. According to Riverview, the

“dignity” claims and the claims regarding the cleansing of skin are

inextricably dependent on and interwoven with the underlying malpractice

claims and alleged breaches of the standard of care related to the

development of wounds, sepsis, and death.

The mere fact that the claims share a factual basis – Harold remaining

in his own waste because of the alleged failure by Riverview to timely

change his diapers – does not preclude Wendling from seeking recovery for

dignity-type claims without first submitting them to the MRP. As noted

earlier, this Court determined in Henry that the plaintiffs were allowed to

maintain a LMMA claim and a NHRBR claim “separately and

simultaneously.”

CONCLUSION

For the foregoing reasons, the trial court erred in granting the

exception of prematurity regarding the dignity-type claims. We reverse the

judgment in part to allow Wendling to proceed in district court on her

dignity-type claims. All remaining claims involving physical injuries,

including but not limited to wounds, infections, medical treatment, sepsis,

and death, are relegated to the MRP proceeding.

At Riverview’s costs, the judgment is REVERSED IN PART and

REMANDED.

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