Richard Quinney v. the Summit of Alexandria

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

05-237

RICHARD QUINNEY

VERSUS

THE SUMMIT OF ALEXANDRIA, ET AL.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 217,649
HONORABLE ALFRED A. MANSOUR, DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of John D. Saunders, Oswald A. Decuir, and Marc T. Amy, Judges.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Lawrence B. Frieman
Juge, Napolitano, Guilbeau, Ruli, Frieman & Whiteley
3320 West Esplanade Avenue North
Metairie, LA 70002
(504) 831-7270
COUNSEL FOR DEFENDANTS/APPELLEES:
The Summit of Alexandria
Affiliated Nursing Homes, Inc.

Kimberly A. Ramsey
Nix, Patterson, & Roach, L.L.P.
401 Edwards Street, Suite 820
Shreveport, LA 71101
(318) 425-9255
COUNSEL FOR PLAINTIFF/APPELLANT:
Richard Quinney

AMY, Judge.

The plaintiff brought suit alleging, among other claims, violations of the

Nursing Home Residents Bill of Rights by the defendant nursing home and nursing

home operator. The plaintiff alleged that the nursing home failed to keep his father,

a resident, and his bed linens clean of bodily waste. The district court granted the

defendants’ exception of prematurity, requiring that the claims be brought before a

Medical Review Panel along with the defendants’ medical malpractice claims. For

the following reasons, we affirm in part, reverse in part, and remand for further

proceedings.

Factual and Procedural Background

Richard Quinney brought suit individually and on behalf of the estate of his

father, Edward Quinney, for damages he alleges that his father sustained while he was

a resident at a nursing home, The Summit of Alexandria, d/b/a The Summit

Retirement Center, Inc. (“The Summit”). In his original petition,1 Mr. Quinney

alleges that his father entered The Summit on August 15, 2003.2 The record

demonstrates that Edward Quinney was “bed-bound and unable to move himself” as

well as incontinent of bladder and of bowel. Richard Quinney alleges in his

amended petition that The Summit was “chronically understaffed” and unable to meet

the basic life needs of the residents. Specifically, the plaintiff alleges that Edward

Quinney was not turned and repositioned often enough to prevent the formation of

1
Mr. Quinney submitted an “Original Petition” on July 9, 2004. The defendants filed a
dilatory exception on August 26, 2004. The plaintiff thereafter filed a “First Supplemental and
Amending Petition” on September 17, 2004.
2
We note that the record is unclear as to the date in which Edward Quinney began his
residence at The Summit. At the hearing on the dilatory exception, the plaintiff’s counsel stated that
Edward Quinney entered The Summit in August, 2003. The original petition and both parties’
appellate briefs state that Edward Quinney began his residency at The Summit on August 15, 2003.
However, the amended petition states that Edward Quinney was admitted to The Summit in April,
2003.

pressure sores, was not provided with sufficient fluids or food to prevent dehydration

or malnutrition, and was not cleaned after each incontinent episode so as to prevent

urine and fecal contact with his skin for an extended period of time.

In his amended petition, Richard Quinney asserted multiple claims against

Affiliated Nursing Homes (“Affiliated”)3 and The Summit. He alleged violations of

the Nursing Home Residents’ Bill of Rights (“NHRBR”) as set forth in La.R.S.

40:2010.8. Mr. Quinney also asserted a negligence claim, which was “separate and

distinct from the medical malpractice claim[,]” for inadequate custodial care provided

to Edward Quinney after August 15, 2003. Relating specifically to Affiliated, Mr.

Quinney asserted negligence claims relating to corporate negligence and/or

misconduct as well as a medical malpractice claim.4

The defendants filed a dilatory exception of prematurity, stating that a plain

reading demonstrates that the conduct alleged by the plaintiff would be considered

malpractice under the Louisiana Medical Malpractice Act (“MMA”). In their

memorandum in support of the prematurity exception, the defendants reviewed the

MMA’s requirement that all medical malpractice actions brought against “qualified

health care providers” be submitted to a medical review panel prior to the filing of a

suit in district court. See La.R.S. 40:1299.41; La.R.S. 40:1299.47. The defendants

further averred that The Summit became a qualified health provider with the

Louisiana Patient’s Compensation Fund on November 29, 2003. Consequently, the

defendants argued that any of the plaintiff’s allegations occurring on or after

November 30, 2003 should be dismissed as premature.

3
Mr. Quinney alleged that Affiliated Nursing Homes, Inc. “owned, operated, and/or
controlled” The Summit.
4
It appears that the parties do not contest that Affiliated is not currently a qualified health
care provider, nor was it at any time relevant to the instant matter.

2

Following a hearing, the district court granted the defendants’ exception with

regard to the plaintiff’s claims against The Summit for allegations which occurred on

or after November 29, 2003. However, the exception was denied for any allegations

which occurred prior to November 29, 2003 and for all allegations against Affiliated.

The plaintiff now appeals the granting of the exception, arguing that the alleged acts

and omissions constitute negligent violations actionable pursuant to the NHRBR, not

medical malpractice actionable solely under the MMA.

Discussion

The district court granted the defendants’ exception of prematurity, finding that

the claims made by the plaintiff fell solely within the authority of the MMA, and “any

and all allegations[,]” including those that the plaintiff brought under the authority

of the NHRBR, were premature. The district court’s determination as to which law

is applicable to the plaintiff’s claims is a question of law, which we will review de

novo to determine if the trial court’s ruling was legally correct. McKnight v. D&W

Health Services, 02-2552 (La.App. 2 Cir. 11/7/03), 873 So.2d 18; Cleland v. City of

Lake Charles, 02-805 (La.App. 3 Cir. 3/5/03), 840 So.2d 686, writ denied, 03-1380,

03-1385 (La.9/19/03), 853 So.2d 644, 645.

The plaintiff notes in his appellate brief that on July 8, 2004, he filed a request

for the formation of a Medical Review Panel with the Louisiana Patient’s

Compensation Fund in order to review his medical malpractice claims. However, he

avers that his appeal does not address those separate malpractice claims, but only

concerns violations of Edward Quinney’s rights under the NHRBR, which constitute

a separate and distinct cause of action. The plaintiff claims that Edward Quinney was

left to lie in his own bodily waste for extended periods of time, which should not be

classified as medical malpractice, but as a violation of the rights afforded him by the

3

NHRBR. The plaintiff asserts that the NHRBR provides a remedy “in addition to”

other rights and remedies provided under Louisiana law and, more specifically, the

MMA. The defendants, however, argue that the allegations made by the plaintiff

either constitute a medical malpractice claim in their own right, or are “inextricably

interwoven into the plaintiff’s medical malpractice claim.”

The MMA includes nursing homes within its definition of “hospitals” as types

of health care providers which are subject to its authority. La.R.S. 40:1299.41(A)(4).

The MMA also 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 established pursuant to this

Section.” La.R.S. 40:1299.47(B)(1)(a)(i). The Medical Review Panel reviews the

plaintiff’s negligence claims to determine whether the defendant acted within the

appropriate standards of care or committed some form of medical malpractice.

La.R.S. 40:1229.47(G).

In addition to regulation by the MMA, nursing homes were also made subject

to the NHRBR upon its adoption by the legislature in 1985. The legislative intent for

the bill of rights was stated in La.R.S. 40:2010.6 as follows:

The legislature finds that persons residing within nursing homes
are isolated from the community and often lack the means to assert their
rights as individual citizens. The legislature further recognizes the need
for these persons to live within the least restrictive environment possible
in order to retain their individuality and some personal freedom. It is
therefore the intent of the legislature to preserve the dignity and personal
integrity of residents of nursing homes through the recognition and
declaration of rights safeguarding against encroachments upon nursing
home residents’ right to self-determination. It is further the intent that
the provisions of R.S. 40:2010.6 through R.S. 40:2010.9 complement
and not duplicate or substitute for other survey and inspection programs
regarding nursing homes.

The NHRBR provisions require all nursing homes to “adopt and make public a

statement” of their residents’ rights and responsibilities, and then to treat residents in

4

accordance with the statement, which must include twenty-two enumerated rights.

La.R.S. 40:2010.8.5

The NHRBR is enforceable by the Department of Health and Hospitals or

through private action on the part of the aggrieved resident. La.R.S. 9:2010.6-

9:2010.9. Louisiana Revised Statutes 40:2010.9 provides for civil enforcement of a

violation of any of the enumerated rights, stating in relevant part:

A. Any resident who alleges that his rights, as specified in R.S.
40:2010.8, have been deprived or infringed upon may assert a cause of
action for injunctive relief against any nursing home or health care
facility responsible for the alleged 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 or to enjoin any deprivation or infringement on the rights of a
resident. Any plaintiff who prevails in such action shall be entitled to
recover reasonable attorney fees, and costs of the action, 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.

B. The remedies provided in this Section shall not be construed
to restrict other legal and administrative remedies available to a resident

5
In Richard v. Louisiana Extended Care Centers, Inc., 02-978, p.4 (La. 1/14/03), 835 So.2d
460, 463, the Louisiana Supreme Court summarized the rights enumerated by the NHRBR as
follows:
(1) to civil and religious liberties; (2) to free communication, including use of mail,
telephone, overnight visitation outside the nursing home with family and friends,
flexible visitation hours; (3) to present grievances; (4) to manage one’s own
finances; (5) to be informed of what services he has to pay for without governmental
assistance; (6) to be adequately informed of his medical condition and proposed
treatment, and participate in the planning of such treatment, including the right to
refuse treatment, unless otherwise indicated by the resident’s physician; (7) “to
receive adequate and appropriate health care and protective and support services,
including services consistent with the resident care plan, with established and
recognized practice standards within the community, and with rules promulgated by
the Department of Health and Hospitals;” (8) to have privacy; (9) to be treated with
dignity; (10) to be free from mental and physical abuse and from physical and
chemical restraints, except in limited circumstances; (11) to be transferred and
discharged under certain circumstances; (12) to select a personal physician; (13) to
retain and use personal clothing and possessions; (14) to copies of rules and
regulations; (15) to information concerning bed reservation in case of hospital stay;
(16) to prompt response to all reasonable requests and inquires; [sic] (17) to
withhold payment to physician if not visited; (18) to refuse medical research request;
(19) to use tobacco; (20) to consume alcohol; (21) to reasonably retire and rise; (22)
to have change in medical condition reported. La. R.S. 40:2010.8.

5

and to the Department of Health and Hospitals or other governmental
agencies.

The second circuit discussed the jurisprudence addressing claims against

nursing homes in Henry v. West Monroe Guest House, Inc., 39,442, p. 3-4 (La.App.

2 Cir. 3/2/05), 895 So.2d 680, 682-83, stating:

Several cases in Louisiana have discussed the fine line between
MMA claims and NHRBR claims. In Richard v. Louisiana Extended
Care Centers, Inc., 02-0978 (La.01/14/03), 835 So.2d 460, as in the case
at bar, the court dealt with a plaintiff alleging violations of the NHRBR,
while the defendant asserted that the claims fell under the MMA. In
discussing nursing home resident claims, the Richard court stated that
“the nursing home resident is not always receiving medical care or
treatment for any specific condition, but can always be said to be
‘confined’ to the nursing home. However, in our view, it was not the
intent of the legislature to have every ‘act, . . ., by any health care
provider . . . during the patient’s . . . confinement’ in a nursing home
covered by the MMA.” Id. at 468. The supreme court concluded that,
“not all negligent acts by a nursing home will constitute medical
malpractice under the MMA. 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. at 469.

In Coleman v. Deno, 01-1517 (La.01/25/02), 813 So.2d 303, the
supreme court set forth six factors to be considered in determining
whether plaintiffs’ claims lie in malpractice or the NHRBR. In
particular, [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.

The Henry court considered a claim nearly identical to the one made by the

plaintiff in the instant matter. In Henry, the plaintiffs alleged that their mother “was

left [by the defendant nursing home] to lie in her own urine and feces until it dried to

her body, causing her to suffer physical and emotional trauma[.]” Id. at 681-82. The

plaintiffs initiated a separate proceeding with a Medical Review Panel to investigate

6

medical malpractice claims, including dehydration, malnutrition, contractures, bed

sores, and death. As in the instant case, the trial court in Henry granted the

defendant’s prematurity exception so that the entire matter could be considered by the

medical review panel. Stating that the Medical Review Panel would consider all

malpractice aspects of the case, the second circuit considered only the plaintiff’s

dignity claim on appeal and applied the six factors set forth in Coleman, 813 So.2d

303, for determining whether a negligent act by a health care provider is covered by

the MMA. The court stated:

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 683. The Henry court concluded that the plaintiffs could maintain their MMA

claim and their NHRBR claim “separately and simultaneously[,]”and remanded the

NHRBR claim for further proceedings with instructions that the claims relating to

physical trauma and injuries were to be placed before the medical review panel. Id.

at 684. We also note that the second circuit has twice considered the same issue,

NHRBR dignity claims due to an alleged failure to keep a nursing home patient free

7

of his or her own waste, since Henry with the same results. See Furlow v. Woodlawn

Manor, 39,485 (La.App. 2 Cir. 4/20/05), __ So.2d __; Burks v. Chrustus Health

Monroe, 39,540 (La.App. 2 Cir. 4/6/05), __ So.2d __.

This court has previously held that NHRBR claims may brought directly in

district court, separately from MMA claims and without having previously been

submitted to a Medical Review Panel. In Pender v. Natchitoches Parish Hospital,

01-1380 (La.App. 3 Cir. 5/15/02), 817 So.2d 1239 (Pender I), the plaintiffs brought

a NHRBR claim and a medical malpractice claim, in two separate petitions, for

damages sustained in relation to the death of their mother following her fall from a

wheelchair in the defendant nursing home. A panel of this court allowed the NHRBR

claim to continue without having been submitted to a Medical Review Panel, stating

that “the theory of recovery under La.R.S. 40: 2010.6 et seq. is separate and distinct

from the theories of recovery traditionally thought to comprise a medical malpractice

action.” Id. at 1243.6 The Louisiana Supreme Court considered the issue, and

Pender specifically, in Richard v. Louisiana Extended Care Centers, 02978 (La.

1/14/03), 835 So.2d 460. In Richard, the supreme court held that separate claims

6
The decision was based largely on the language of La.R.S. 40:2010.9, the civil enforcement
provision of the NHRBR, which stated that the remedies for alleged NHRBR violations were “in
addition to and cumulative with other legal and administrative remedies available to a resident[.]”

The legislature recently amended La.R.S. 40:2010.9 to state that the remedies provided for
“shall not be construed to restrict other legal and administrative remedies available to a resident[.]”
See Acts 2003, No. 506, §1, which became effective on August 15, 2003.

However, the Pender I decision also stated that the decision was based on additional grounds.
First, the court noted that remedies for NHRBR claims stand alone from regular tort claims. The
court also found that because the NHRBR is narrower and more focused than the MMA, the NHRBR
must prevail as an exception to the MMA. Third, the panel noted that the Pender plaintiffs did not
allege any acts of malpractice or even general negligence in their petition, but merely alleged the
NHRBR violations. Fourth, the court considered a statement made by the second circuit, which
indicated that a NHRBR action could be brought in a district court without having been submitted
to a Medical Review Panel. See Gorham v. HCA Health Services of Louisiana, 34,721, p.3 (La.App.
2 Cir. 5/17/01), 786 So.2d 348, 350. Finally, the Pender I court found that the allegations made by
the plaintiffs did not constitute “malpractice” within the scope of the MMA when the Coleman test
was applied.

8

could be brought under the NRHBR; however, medical malpractice claims brought

against a nursing home qualified under the MMA must be brought pursuant to the

provisions of the MMA. This court was then called upon to consider Pender again,

in light of the supreme court’s findings in Richard. In Pender v. Natchitoches Parish

Hosp., 01-1380 (La.App. 3 Cir. 5/7/03), 844 So.2d 1107 (Pender II), this court found

that a determination was required as to whether the acts of negligence alleged by the

plaintiffs constituted medical malpractice claims, thereby invoking the provisions of

the MMA. After listing the six Coleman factors, the Pender II court noted that

Coleman was decided following a full trial on the merits of the case; Pender had been

considered on the appeal of a prematurity exception. Pender II was remanded for a

full evidentiary hearing on the exceptions, which the court instructed be focused on

the applicability of the Coleman factors.

The plaintiff in the instant matter has restricted his claims to the NHRBR action

alone, “affirmatively stat[ing] that no claim for medical malpractice is being asserted”

within the claims made in the amended petition. Consequently, we must determine

whether the plaintiff’s allegations actually do constitute malpractice as defined by the

MMA, making them subject to a Medical Review Panel. As stated, the Louisiana

Supreme Court provided six factors for determining whether conduct by a qualified

health care provider constitutes “malpractice” as defined under the MMA7 in

Coleman, 813 So.2d 303. The plaintiff specifically alleged in his amended petition

7
La.R.S. 40:1299.41 defines malpractice as follows:

“Malpractice” means any 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, or from defects in
blood, tissue, transplants, drugs and medicines, or from defects in or failures of
prosthetic devices, implanted in or used on or in the person of a patient.

9

that Edward Quinney’s personal dignity was violated when he was left to lie in his

own urine and waste for extended periods of time without being cleaned.8

We consider first whether the plaintiff’s allegations are related to treatment or

caused by a dereliction in professional skill. In this instance, changing Mr. Quinney’s

bed linens, adult diaper, or generally cleaning him of his waste does not require any

specialized medical training or skill. The defendants have not met their burden of

demonstrating that the failure to clean Edward Quinney and his linens arose from any

particular condition for which he was receiving treatment at the nursing home.

Although the defendants point to Edward Quinney’s incontinence, we find the

obligation to keep him clean and to change his soiled linens arose out of the nursing

home’s obligation to provide him continuous custodial care and not out of medical

treatment. See Furlow, __ So.2d __; Richard, 835 So.2d 460. Next, expert medical

testimony is not necessary to make a determination as to whether The Summit failed

to keep Edward Quinney and his linens clean of his waste and, if so, whether that

failure compromised his personal dignity.9 Third, a medical assessment was not

necessary to determine that Edward Quinney’s person needed to be kept clean and his

8
The plaintiff also generally referenced four subsections of the NHRBR’s listed rights in
La.R.S. 40:2010.8, as follows:

a) Failing to provide EDWARD QUINNEY privacy in meeting personal needs,
including privacy during toileting, bathing, and other activities of personal
hygiene. La. R.S. 40:2010.8(A)(8);

b) Failing to treat EDWARD QUINNEY courteously, fairly, and with the fullest
measure of dignity. La.R.S. 40:2010.8(A)(9);

c) Failing to allow EDWARD QUINNEY to be free from mental and physical
abuse. La. R.S. 40:2010.8(A)(10); and

d) Failing to allow EDWARD QUINNEY to rise and retire in accordance with
his reasonable requests. La.R.S. 40:2010.8(A)(21).
9
We note that this finding is limited to the plaintiff’s NHRBR dignity claim, as we are not
considering any claim regarding causation of pressure sores, contractures, or other alleged medical
conditions.

10

bed linens changed when they became soiled while he was residing at the defendant’s

nursing home. Fourth, the acts which form the basis of the dignity violations alleged

by the plaintiff do not relate to a physician-patient relationship involving Edward

Quinney. Bathing patients, changing bed linens, and checking adult diapers are

generally considered within the regular responsibilities of nursing home personnel,

without application of specialized medical knowledge as an element of the custodial

care for which the services of a nursing home are engaged; such tasks are not

generally performed under the direction and/or supervision of a physician.

The final two Coleman factors do not influence our analysis. Regarding the

fifth factor, Edward Quinney’s dignity obviously would have been violated if he had

been maintained in the condition alleged, no matter where he was residing. However,

we have already stated that the nursing home’s obligation to clean Edward Quinney

and his surroundings arose due to the nursing home’s custody of him, and not due to

medical treatment. The sixth factor is inapplicable to this matter because the plaintiff

has not alleged that any intentional torts were committed.

Consequently, we conclude that the plaintiff’s allegations that the defendants

failed to keep Edward Quinney’s person and his bed linens clean and free of Mr.

Quinney’s waste do not constitute a medical malpractice claim under the MMA, and

therefore may be considered by the trial court. The plaintiff may pursue his MMA

claim separately from and simultaneously with his other claims, including those

related to alleged violations of the rights afforded Edward Quinney by the NHRBR.

Our review of the record indicates that the parties do not dispute that Affiliated

has never been a qualified medical care provider and that The Summit was only

qualified after November 29, 2003. Therefore, we affirm the trial court’s decision to

deny the defendants’ exception of prematurity regarding any claims against

11

Affiliated and any claims against The Summit of Alexandria, Inc. d/b/a The Summit

Retirement Center, Inc., which occurred before November 29, 2003. Regarding those

claims against The Summit of Alexandria, Inc. d/b/a The Summit Retirement Center,

Inc., which occurred after November 29, 2003, we affirm the trial court’s decision to

grant the exception of prematurity regarding any claims which constitute medical

malpractice under the MMA; those claims are properly raised before a Medical

Review Panel. However, because we have concluded that the plaintiff’s claim that

Edward Quinney suffered indignities due to the defendants’ failure to clean his person

and his linens of his bodily waste does not constitute a medical malpractice claim, the

plaintiff is not required to bring that claim before a Medical Review Panel as required

by the MMA. Accordingly, we reverse the trial court’s ruling on the prematurity

exception regarding the plaintiff’s non-malpractice claims which occurred on or after

November 29, 2003, and remand the matter for further proceedings.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed in part,

reversed in part, and remanded for further proceedings. All costs of this proceeding

are assigned to the defendants, The Summit of Alexandria, d/b/a The Summit

Retirement Center and Affiliated Nursing Homes, Inc.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

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