Paula Patterson, Jon Crumpler and Carey Crumpler. Individually and On Behalf of Their Mother, Anita Carey v. Claiborne Operator Group, LLC, and Paramount Healthcare Consultants, LLC, Both D/B/A Claiborne Rehabilitation Center

Judgment rendered November 15, 2023.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 55,264-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

PAULA PATTERSON, JON Plaintiffs-Appellants
CRUMPLER AND CAREY
CRUMPLER, INDIVIDUALLY
AND ON BEHALF OF THEIR
MOTHER, ANITA CAREY,
DECEASED

versus

CLAIBORNE OPERATOR Defendants-Appellees
GROUP, L.L.C., AND
PARAMOUNT HEALTHCARE
CONSULTANTS, L.L.C., BOTH
D/B/A CLAIBORNE
REHABILITATION CENTER

*****
Appealed from the
Second Judicial District Court for the
Parish of Claiborne, Louisiana
Trial Court No. 42671

Honorable Walter E. May, Jr., Judge

*****

KOSMITIS BOND, APLC Counsel for Appellants
By: Georgia Patricia Kosmitis

HUDSON, POTTS & BERNSTEIN, LLP Counsel for Appellees
By: Gordon L. James
Donald H. Zeigler III
Sara G. White
*****

Before STEPHENS, HUNTER, and ELLENDER, JJ.

STEPHENS, J.

This is an appeal by plaintiffs in a medical malpractice action from the

trial court’s judgment granting a dilatory exception of prematurity filed by

defendants and denying plaintiffs leave to amend their petition. For the

reasons set forth below, we reverse the trial court’s judgment in part.

FACTS/PROCEDURAL BACKGROUND

Mrs. Anita Carey was admitted to Claiborne Rehabilitation Center

(“CRC”), a nursing home/long term care rehabilitation center on May 21,

2021. While there, she is alleged to have sustained bed sores from not being

kept clean, dry, turned, and fed. Mrs. Carey was admitted to the hospital on

October 30, 2021. She was found to have an infected Stage IV pressure

injury with inflammation, infection, dehydration to the point of acute renal

failure and brain damage, malnutrition, and sepsis. Unable to recover from

her injuries, Mrs. Carey died on December 12, 2021.

On May 3, 2022, plaintiffs, Paula Patterson, John Crumpler, and

Carey Crumpler, Individually and on Behalf of Their Mother, Anita Carey

(“Mrs. Carey”) (collectively “plaintiffs”), filed a request to form a medical

review panel to review the conduct of Claiborne Operator Group, L.L.C. and

Paramount Healthcare Consultants, L.L.C., d/b/a Claiborne Rehabilitation

Center (“CRC”), concerning care and treatment received by Mrs. Carey

while in the nursing home/long term care facility. Two weeks later,

plaintiffs filed a petition for damages in the Second Judicial District Court,

seeking tort damages for acts not covered by the LMMA.

Plaintiffs have made, inter alia, allegations that CRC knowingly and

intentionally accepted more residents than their staff could care for, and that

this intentional failure to have a sufficient number of trained personnel to

provide the basic necessities of food, water, bathing, and hygiene caused

Mrs. Carey to sustain damages, including the loss of dignity, loss of respect,

and abuse. According to plaintiffs’ petition, CRC knew they did not have

sufficient personnel per resident yet they continued to accept residents

knowing they were not able to meet their needs. It is plaintiffs’ position that

these “custodial claims” are not medical treatment and therefore fall outside

of the LMMA. Plaintiffs also argue that CRC’s knowledge that they were

understaffed is an intentional decision not to provide adequate basic care,

which constitutes intentional conduct as an utter disregard for their

residents’ rights.

CRC disputes all of plaintiffs’ allegations. On June 8, 2022, CRC

filed an exception of prematurity, claiming that they are members of the La.

Patients’ Compensation Fund, and all of plaintiffs’ claims against them were

premature and must first be presented to a medical review panel. Plaintiffs

opposed the exception, arguing that while some of their claims fell under the

LMMA, those raised in their petition filed in the district court should be

analyzed independently. The trial court granted the exception of

prematurity, finding that all of plaintiffs’ claims should be “handled in the

normal fashion.” The trial court denied plaintiffs’ request to amend their

petition. This appeal was filed by plaintiffs.

DISCUSSION

Plaintiffs’ Argument

According to plaintiffs, an analysis of the Coleman1 factors shows that

not all of their allegations are medical malpractice.

1
Coleman v. Deno, 01-1517, pp. 17-18 (La. 1/25/02), 813 So. 2d 303, 315-16.
2

(1) Providing food, water, hygiene, cleanliness, and assistance
with turning and repositioning are not treatment related and
injuries caused from the provision of these necessities do not
result from the dereliction of any professional skill. Instead,
these necessities are provided by unlicensed staff and are
provided to all persons regardless of their medical condition;

(2) Medical evidence is not necessary to determine whether a
patient is to be provided with these basic necessities or whether
the failure to do so constitutes a breach of duty—all residents
require the basic necessities of life;

(3) The omission or act of not providing water, food, hygiene,
and bathing does not depend upon any assessment of the
patient’s condition; all residents require these basic necessities
of life and are to be provided these things;

(4) These basics do not require a physician’s order, but are to be
routinely provided by nursing aides and are not required to be
administered under the direction of a physician;

(5) Mrs. Carey would have suffered loss of dignity and harm
from not being provided food, water, hygiene/bathing, and
assistance regardless of her residence in the nursing home (and
in fact, had she been at home, would have been a concern of
Louisiana’s elder protective services); and

(6) The tort of placing profits above people and knowing they
did not have sufficient staff members per patient to provide the
basic necessities of life is intentional conduct; CRC knew that
harm would result to residents as they continued to accept
patients regardless of having insufficient staff to provide the
basic necessities; this excludes these particular claims from
protection of the LMMA.

Applying the Coleman factors, Louisiana courts have found various

acts of nursing home negligence to be outside of the LMMA, such as: failure

to clean and turn the patient and allowing her to lie in her own waste;

complaints arising from a failure to abide by the patient care plan; and, most

recently, dignity type claims such as the ones in this case.

According to plaintiffs, they have explicitly alleged custodial

negligence claims that this Court has previously found are not medical

malpractice. Plaintiffs averred that CRC did not care for Mrs. Carey’s

3

hygiene, but left her to sit in her own waste and develop E. Coli infections

caused by her excrement coming in contact with her ulcer and urethra.

Plaintiffs further contend that in their petition, they alleged that CRC failed

to abide by Mrs. Carey’s care plan by, inter alia, failing to reposition her,

and by providing inadequate hydration and nutrition.

The trial court did not address these allegations distinctly and

separately so as to resolve ambiguities in favor of plaintiffs. Instead, the

lower court did the opposite—it broadly construed the LMMA to encompass

all of plaintiffs’ allegations as a whole, concluding that “all of the factors

when you consider… Coleman versus Deno … what we’re dealing with,

here, is an effort to bootstrap this, uh, by making these allegations that really

are, uh, of no … impact,” before granting CRC’s exception of prematurity.

It is clear, urge plaintiffs, that the trial court rejected the law and concluded

that they were attempting to circumvent the LMMA rather than reviewing

the specific allegations of plaintiffs’ petition to determine whether each one

fell outside of the LMMA.

Because the trial court failed to assess whether there was any

ambiguity or utilize the Coleman factors but instead lumped together all of

plaintiffs’ claims together as falling under the LMMA, the trial court erred.

Plaintiffs next urge that the trial court erred in stating that allegations

of intentional conduct by health care providers would still fall under the

LMMA. The trial court held that, regardless of CRC’s state of mind, all

malpractice actions fall under the LMMA. The court stated, “If by putting—

by writing the words gross and intentional in your pleadings, that somehow

gets it outside of medical malpractice, we won’t have any more medical

malpractice statutes.” This reasoning suggests that intentional torts are
4

covered by the LMMA when in fact the opposite is true, and is an error of

law.

Plaintiffs asserted in their brief that claims of gross negligence such as

the ones they have made are clearly excluded from coverage of the LMMA,

even against a defendant such as CRC, who is a private or non-governmental

health care provider. While the LMMA explicitly excludes coverage for

“any act or omission of gross negligence or any willful or wanton act or

omission” in its section covering claims against public hospitals, La. R.S.

40:1237.1(A)(9)(cc), and there is no identical provision in that part of the

LMMA covering private health care providers, plaintiffs point to Williams v.

State Dept. of Health and Hospitals, 97-0555 (La. 12/2/97), 703 So. 2d 579,

wherein the Louisiana Supreme Court observed that the LMMA “imparts to

the governmental tortfeasor the same limitation of liability that is provided

to the non-governmental tortfeasors who commit medical malpractice.”

Williams, p. 5, 703 So. 2d at 582.

However, at oral argument, plaintiffs abandoned this argument and

instead claimed that CRC, a licensed facility, knew the consequences of

failing to have sufficient staff and equipment to provide the basic custodial

necessities of food and water—the residents would not receive the

necessities and therefore suffer from indignities such as malnutrition and

dehydration, inter alia. Plaintiffs urge that the trial court’s interpretation of

the LMMA to include such allegations of intentional conduct is wrong and

should be reversed.

Finally, plaintiffs contend that the trial court erred in failing to allow

them leave to amend their petition pursuant to La. C. C. P. art. 933(B).

According to plaintiffs, they have alleged several claims that fall outside the
5

scope of the LMMA. They ask this Court to perform a de novo review,

reverse the trial court’s dismissal of all of their claims, and find that those

claims sounding in custodial negligence and intentional tort are not

premature as they do not fall under the LMMA. In the alternative, plaintiffs

ask that this Court vacate the trial court’s order and remand with instructions

to separate out plaintiffs’ claims sounding in malpractice from those that do

not and reinstate plaintiffs’ non-malpractice claims.

Defendants’ Argument

CRC first asserts that plaintiffs’ allegations consist of gross

negligence, not intentional torts and therefore fall under the LMMA. CRC

presented evidence that it was a qualified healthcare provider under La. R.S.

40:1231.8(B)(1)(a)(i) and that plaintiffs were required to submit all of their

claims to review by a medical review panel. It is CRC’s argument that

plaintiffs have failed to establish that their claims are outside of the LMMA

because the LMMA does not apply to allegations of gross negligence and

willful misconduct. See, McDowell v. Garden Court Healthcare, L.L.C.,

54,645 (La. App. 2 Cir. 8/10/22), 345 So. 3d 506, writ denied, 22-01364 (La.

11/16/22), 345 So. 3d 506; Morrow v. La. Medical Mutual Ins. Co., 22-1006

(La. App. 1 Cir. 2/24/23), 361 So. 3d 986; Whitehead v. Christus Health

Central La., 21-764 (La. App. 3 Cir. 6/8/22), 344 So. 3d 91; Wesco v.

Columbia Lakeland Medical Center, 03-0328 (La. App. 4 Cir. 9/10/03), 862

So. 2d 997, writ denied, 04-0525 (La. 4/20/04), 872 So. 2d 490.

CRC next urges that the trial court correctly found that plaintiffs have

alleged acts of medical malpractice, not acts of intentional tort, in their

petition. Under the factors set forth in Coleman, a review of plaintiffs’

6

allegations against CRC shows that the claims clearly are medical

malpractice.

Allegations Re: Consultations and Transfer of Patient

(1) The decision as to whether to consult a healthcare provider
to see a patient or transfer the patient to another facility is
treatment related and an act of professional skill.

(2) Medical expert evidence is necessary to determine whether
a consultation or transfer is necessary, and if so, what type of
consultation or transfer is required.

(3) The decision to consult a healthcare provider or transfer a
patient involves assessing the patient’s condition.

(4) A consultation or transfer occurs in the context of a patient-
healthcare provider relationship and involves an activity that
CRC was licensed to perform.

(5) A consultation or transfer would not have occurred had Mrs.
Carey not sought treatment with CRC.

(6) The decision to consult a healthcare provider or transfer
Mrs. Carey did not involve an intentional tort.

Each of the Coleman factors weighs in favor of the conclusion that

these allegations constitute medical malpractice under the LMMA.

Allegations Re: Development of Decubitus Ulcers

(1) The allegation regarding implementing interventions to
prevent decubitus ulcers concerns the medical care to treat this
condition.

(2) Expert medical evidence will be needed to discuss how
pressure injuries develop, what steps should be taken to prevent
such injuries, and whether CRC’s conduct was sufficient.

(3) The determination of a patient’s status regarding pressure
injuries is connected to the assessment of the patient.

(4) Attempts to prevent decubitus ulcers involve activities CRC
was licensed to perform.

(5) Plaintiffs’ allegations are that CRC fell below the standard
of care in this regard—according to plaintiffs, the pressure
injuries would not have occurred had Mrs. Carey not sought
treatment at CRC. This satisfies the causation element.
7

(6) There is no allegation of an intentional tort.

Allegations Re: Nutrition, Hydration, Medication, and Diaper Changes

As they did with claims related to decubitus ulcers and pressure

injuries, Louisiana courts have applied the Coleman analysis to claims

related to improper hydration, medication, and diaper changes and have

found them all to constitute medical malpractice and thus fall under the

LMMA.

In the instant case, urges CRC, each of plaintiffs’ specific allegations

as to CRC consists of medical malpractice. Applying the Coleman analysis,

each factor weighs in CRC’s favor as to each of the allegations made by

plaintiffs in their petition. However, urges CRC, even should this Court find

that one or more factors weighs in favor of plaintiffs, this does not mean that

plaintiffs have met their burden of proof under Coleman. All factors must

be weighed—any factors that “theoretically” weigh in favor of plaintiffs

would be strongly outweighed by the other factors in CRC’s favor so as to

lead to the conclusion that plaintiffs’ claims are medical malpractice under

the LMMA.

Finally, CRC urges this Court to find that the trial court correctly

denied plaintiffs’ request to amend their petition. In this case, the grounds of

the exception of prematurity cannot be removed by amendment. According

to CRC, even if plaintiffs were given a chance to amend their petition, they

could not change the nature of the acts they have alleged to constitute

intentional torts.

8

Analysis

La. C.C.P. art. 926 sets forth the objections which may be raised

through the dilatory objection, including prematurity. A dilatory exception

of prematurity asks whether a cause of action is ripe for judicial

determination. Thomas v. Regional Health Systems of Acadiana, LLC, 19-

00507 (La. 1/29/20), 347 So. 3d 595; Williamson v. Hospital Service District

No. 1 of Jefferson, 04-0451 (La. 12/1/04), 888 So. 2d 782. The exception of

prematurity is the proper procedural mechanism for a qualified healthcare

provider to invoke when a medical malpractice plaintiff has failed to submit

a claim to the medical review panel before filing suit against the provider.

McDowell v. Garden Court Healthcare, LLC, 54,645 (La. App. 2 Cir.

8/10/22), 345 So. 3d 506, writ denied, 2201364 (La. 11/15/22), 349 So. 3d

999; White v. Glen Retirement System, 50,508 (La. App. 2 Cir. 4/27/16), 195

So. 3d 485.

In evaluating an exception of prematurity, a court may look to the

evidence offered at the hearing, as well as the allegations of the petition. La.

C.C.P. art. 926; Thomas, supra; Williamson, supra; LaCoste v. Pendleton

Methodist Hospital, L.L.C., 07-0008 (La. 9/5/07), 966 So. 2d 519. The party

asserting the prematurity exception has the burden of proving it is entitled to

a medical review panel because the allegations fall within the LMMA. Id.

La. C.C.P. art. 933(B) provides:

When the grounds of the other objections pleaded in the
dilatory exception may be removed by amendment of the
petition or other action by plaintiff, the judgment sustaining the
exception shall order plaintiff to remove them within the delay
allowed by the court, and the action, claim, demand, issue or
theory subject to the exception shall be dismissed only for a
noncompliance with this order.

9

An action against health care providers, which includes nursing homes

and long-term care rehabilitation centers such as CRC, is subject to the

LMMA. La. R.S. 40:1231.1, et seq.; Perritt v. Dona, 02-2601 (La. 7/2/03),

849 So. 2d 56; Self v. Willis-Knighton Medical Center, 55,130 (La. App. 2

Cir. 8/9/23), ___ So. 3d ___, 2023 WL 5065300; Medical Review Panel for

Lane v. Nexion Health at Minden, Inc., 53,901 (La. App. 2 Cir. 8/11/21),

326 So. 3d 340, writ denied, 21-01410 (La. 11/23/21), 328 So. 3d 82. The

LMMA requires that all claims against health care providers arising from

medical malpractice be reviewed through a medical review panel before

proceeding to any other court. Perritt, 02-2601, p. 7, 849 So. 2d at 61, citing

Everett v. Goldman, 359 So. 2d 1256 (La. 1978); Self, supra. The filtering

process is done to pressure either the claimant to abandon a worthless claim

or the defendant to settle the case reasonably. Perritt, supra; Self, supra.

The LMMA and its limitations on tort liability for a qualified health

care provider apply strictly to claims arising from medical malpractice.

Blevins v. Hamilton Medical Center, Inc., 07-127 (La. 6/29/07), 959 So. 2d

440; Coleman, supra; Self, supra. All other tort liability on the part of the

qualified health care provider is governed by general tort law. Id.;

McDowell, supra. A tort suit that is subject to the LMMA filed before the

completion of the medical review panel process is subject to dismissal on an

exception of prematurity. Blevins, supra; Butler-Bowie v. Olive Branch

Senior Care Center, 52,520 (La. App. 2 Cir. 2/27/19), 266 So. 3d 478.

The LMMA defines “malpractice” 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
10

includes all legal responsibility of a health care provider arising
from acts or omissions during the procurement of blood or
blood components, in the training or supervision of health care
providers, or from defects in blood, tissue, transplants, drugs,
and medicines, or from defects in or failure of prosthetic
devices implanted in or used on or in the person of a patient.

La. R.S. 40:1231.1(A)(13). “Health care” is defined in the LMMA as “any

action 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). Whether a claim sounds in medical malpractice is a

question of law reviewed under a de novo standard. Thomas, 19-00507, p. 8,

347 So. 3d at 601; Jackson v. Willis Knighton Health System, 54,405, p. 5

(La. App. 2 Cir. 4/13/22), 337 So. 3d 625, 628; Matherne v. Jefferson Parish

Hospital District No. 1, 11-1147, p. 4 (La. App. 5 Cir. 5/8/12), 90 So. 3d

534, writ denied, 12-1545 (La. 10/12/12), 98 So. 3d 373. The six-factor test

for determining whether a claim is medical malpractice under the LMMA is

set forth in Coleman, supra:

(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.

In Richard v. Louisiana Extended Care Centers, Inc., 02-0978, p. 12

(La. 1/14/03), 835 So. 2d 460, 468, the Louisiana Supreme Court observed

that a “nursing home resident is not always receiving medical care or

11

treatment for any specific condition.” Thus, “the legislature did not intend

to have every act by any health care provider during the patient’s

confinement in a nursing home to be covered by the MMA.” Id. This is

evidenced by the explicit exclusion of intentional acts by the legislature.

Allegations of Intentional Acts

Paragraphs 22 and 23 of plaintiffs’ petition contain the allegations

that, prior to oral argument, plaintiffs claimed averred gross negligence. As

noted above, however, at oral argument, plaintiffs’ counsel abandoned that

argument and instead urged that those allegations could be amended to

allege intentional torts on the part of CRC. These two paragraphs aver:

22.

It will be shown that defendants, [CRC], knowingly and with
full disregard by failing to ensure adequate number of staff per
patients, failing to ensure that their staff was adequately trained,
failed to adequately hire, train staff appropriately in wound
care; represented to have wound care specialty, and yet, failed
to provide such specialty care to Mrs. Carey; failed to supervise
staff; and failed to allocate sufficient money to obtain and
maintain sufficient numbers of competent and knowledgeable
personnel/staff to carry out the needs for the patients they
accepted; failed to provide basic interventions for infection
control, repositioning, bathing, food, water, and medical care as
promised and expected; failed to inform the patient’s
family/responsible party of their inability to care for their
patient, Mrs. Carey, or others; failed to ensure adequate number
of patient-staff ratio to accommodate the needs of the patients
or inform the responsible parties of their inability to provide
such care, failed to provide care including those with
specialized needs of dementia care, dysphagia care, fall
prevention, pressure sore prevention, and specialized care as
required by plaintiff herein.

23.

It will be shown that defendants, [CRC], knew or should have
known that this pattern of under staffing and inadequate staffing
would and did cause harm to plaintiff, Mrs. Anita Carey.

12

As recognized by both the First and Third Circuits, the definition of

“intentional tort” as set forth by the Louisiana Supreme Court in Bazley v.

Tortorich, 397 So. 2d 475 (La. 1981), is applicable in medical malpractice

actions. Garner v. La. Medical Mutual Ins. Co., 22-0778, p. 10 (La. App. 1

Cir. 3/29/23), 364 So. 3d 508, 514; Whitehead, 21-764, p. 9, 344 So. 3d at

96; Cudges v. Our Lady of Lourdes Hospital, 514 So. 2d 195 (La. App. 3

Cir. 1987).

In Bazley, supra at 480-81, the Supreme Court, for purposes of civil

liability, found synonymous the terms “intentional act” and “intentional

tort.” The Court further defined intent as “that the person either (1)

consciously desires the physical result of his act, whatever the likelihood of

that result happening from his conduct; or (2) knows that that result is

substantially certain to follow from his conduct, whatever his desire may be

as to that result.” In White v. Monsanto, 585 So. 2d 1205, 1208 (La. 1991),

the Louisiana Supreme Court added, “[I]ntent has reference to the

consequences of an act rather than to the act itself. Only where the actor

entertained a desire to bring about the consequences that followed or where

the actor believed that the result was substantially certain to follow has an

act been characterized as intentional.”

In Garner, supra, the plaintiff filed suit against defendant healthcare

providers, alleging that he sustained burns to his face during a surgical

procedure to remove bilateral shoulder lipomas. Defendants filed an

exception of prematurity, which was sustained by the trial court, based upon

its finding that Garner’s claims were first required to be submitted to a

medical review panel. The First Circuit observed:

13

Garner has not averred that any of the health-care-provider
defendants consciously desired either the ignition below the
drapes by a spark from the Bovie cautery or the burns to
Garner’s face. And the petition contains no allegations that any
of the health-care-provider defendants knew either the ignition
below the drapes by the spark from the Bovie cautery or the
burns to Garner’s face were substantially certain to follow
because of any specifically described conduct committed by
one of the health-care-provider defendants. Garner has simply
averred acts which occurred during a surgical procedure in
conjunction with the administration of medical treatment. As
such, Garner’s petition fails to aver an intentional tort and the
provisions of the LMMA apply, including review of his claims
and rendition of an opinion by the medical review panel.

Id., p. 10, 364 So. 3d at 514-15.

In the instant case, there is no rational cure for the defects in

paragraphs 22 and 23 that would convert the assertions therein from gross

negligence to an intentional act. Our examination of the claims stated

therein shows that they are all related to an alleged failure to provide care,

which is the very essence of the LMMA. As noted by this Court in Butler-

Bowie, 52,520 at p. 9, 266 So. 3d at 484, although intent need be alleged

only generally, something more than a conclusory allegation of intentional

conduct is required to state a cause of action in tort. Simply alleging acts

that themselves fall squarely within the ambit of the LMMA, then labelling

CRC’s alleged failure to have adequate staff available to perform said acts as

intentional because CRC management intentionally under-or inadequately

staffed its facility will not morph the negligent acts or inactions of that staff

into intentional acts. See, e.g., Hernandez v. Diversified Healthcare-

Abbeville, LLC, 09-546 (La. App. 3 Cir. 11/4/09), 24 So. 3d 284, writ

denied, 09-2629 (La. 2/12/10), 27 So. 3d 849. Thus, plaintiffs’ claims

asserted therein are properly before the medical review panel and no

amendment will be allowed by this Court.

14

We will now examine plaintiffs’ custodial claims to see whether they

could be cured by amendment.

Allegations Re: Consultations and Transfer of Patient

Consultations with other physicians and the transfer of Mrs. Carey to

another facility both fall within the LMMA, as they are treatment related;

would require medical expert evidence to determine whether either was

necessary; would involve the assessment of her condition to determine

whether either was needed and, if so, the particular specialty required for

consultation and/or transfer; would occur in the context of a healthcare

provider-patient relationship and would involve an activity which CRC was

licensed to perform; and, the decision of whether to have a consultation or

transfer is not an intentional tort. See, e.g., Benson v. Rapides Healthcare

System, L.L.C., 15-1083 (La. App. 3 Cir. 4/6/16), 188 So. 3d 1139, writ

denied, 16-1144 (La. 10/10/16), 207 So. 3d 404; Perkins v. Guidry, 15-1177

(La. App. 3 Cir. 5/4/16), 191 So. 3d 1182; Bonilla v. Jefferson Parish

Hospital Service District #2, 16-0234 (La. App. 1 Cir. 12/28/10), 210 So. 3d

540, writ denied, writ denied, 17-0187 (La. 4/7/17), 215 So. 3d 235. These

allegations belong before the medical review panel.

Allegations Re: Development of Decubitus Ulcers

A decubitus ulcer that forms as a result of improper care in a health

care setting is actionable as malpractice. Miller ex rel. Miller v. Nursing

Homes Mgmt, Inc., 38,198 (La. App. 2 Cir. 3/5/04), 867 So. 2d 1000, 1004;

Ladart v. Harahan Living Center, Inc., 13-923, pp. 7-8 (La. App. 5 Cir.

5/14/14), 142 So. 3d 103, 108. See also, Butler-Bowie, 52,520 at p. 9, 266

So. 3d at 484. This is because expert testimony is required to establish the

connection between the failure of the nursing staff to provide certain
15

equipment and/or care and the development of decubitus or pressure ulcers

in light of the patient’s medical history or condition would be beyond the

province of a layperson to assess. Ladart, 13-293 at p. 9, 142 So. 3d at 108;

Guardia v. Lakeview Regional Medical Center, 08-1639, pp. 6-7 (La. App. 1

Cir. 5/8/09), 13 So. 3d 625, 630. These claims are properly before the

medical review panel.

Allegations Re: Nutrition, Hydration, Medication, and Diaper Changes

Obviously, any claim related to medication will fall within the

purview of the LMMA as treatment related and therefore will be considered

first by the medical review panel. Regarding plaintiffs’ claims of inadequate

care as to nutrition we observe that not all such claims will arise pursuant to

a treatment plan or under a physician’s orders, e.g., such as for a patient with

a restricted diet due a diagnosis of colitis or diabetes. Likewise, failure to

properly hydrate residents also may arise outside of a treatment plan. If

plaintiffs can amend their petition to assert such claims, those would sound

in tort and not be required to first be presented to a medical review panel.

See, Mineo v. Underwriters at Lloyds, London, 07-0514, pp. 8-9 (La. App. 4

Cir. 10/22/08), 997 So. 2d 187, 193-94.

Regarding claims of negligent diapering and damages derived

therefrom, as this Court recognized in Wendling v Riverview Care Center,

LLC, 54,958 (La. App. 2 Cir. 4/5/23), 361 So. 3d 557, relying on Randall v.

Concordia Nursing Home, 07-101 (La. App. 3 Cir. 8/22/07), 965 So. 2d 559,

writ denied, 07-2153 (La. 1/7/08), 973 So. 2d 726, and Davis v. St.

Francisville Country Manor, LLC, 05-0072 (La. App. 1 Cir. 2/10/06), 928

So. 2d 549, writs denied, 06-0604 (La. 5/26/06), 930 So. 2d 25, 07-0481

(La. 4/27/07), 955 So. 2d 699, there can be a claim for dignity-type or tort
16

damages arising from negligent diapering under La. C.C. art. 2315 that may

be sought without first being submitted to the medical review panel,

notwithstanding the fact that they may share a factual basis with some of the

treatment-related claims. Wendling, 54,958 at pp. 25-26, 361 So. 3d at 569.

Plaintiffs will be given a chance to amend their petitions to make such

allegations, if they can do so.

CONCLUSION

For the reasons set forth above, the judgment of the trial court

granting the dilatory exception of prematurity is amended in part to order

plaintiffs, if they can, to cure their petition by removing the objections raised

by defendants as to the custodial claims asserted therein. The judgment is

affirmed as to all other claims, which are properly before the medical review

panel.

AMENDED IN PART, AND AS AMENDED, AFFIRMED.

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