Lydia Eldridge v. Heritage Manor, L. L. C.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

06-718

LYDIA ELDRIDGE, ET AL.

VERSUS

HERITAGE MANOR, L.L.C., ET AL.

**********

APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 219,089
HONORABLE HARRY F. RANDOW, DISTRICT JUDGE

**********

J. DAVID PAINTER
JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, J. David Painter, and
James T. Genovese, Judges.

AFFIRMED.

Frederick B. Alexius
Jeremy C. Cedars
Post Office Drawer 1791
Alexandria, LA 71309-1791
Counsel for Defendant-Appellee:
Community Care Center of Alexandria, L.L.C.

Georgia P. Kosmitis
Adrienne L. Mouton
3316 Line Avenue
Shreveport, LA 71104
Counsel for Plaintiffs-Appellants:
Lydia Eldridge, et al.

PAINTER, Judge.

Plaintiffs, Lydia Eldridge, individually and on behalf of her sister, Oreliea

Metoyer, appeal the ruling of the district court which granted an exception of

prematurity in favor of Community Care Center of Alexandria, L.L.C. (Community

Care Center). The sole issue in this case is whether Plaintiffs’ allegations are covered

under La.R.S. 40:1299.41 et seq., the Louisiana Medical Malpractice Act (MMA),

such that they must first be submitted to a medical review panel. For the reasons that

follow, we affirm the ruling of the district court.

FACTUAL AND PROCEDURAL BACKGROUND

Oreliea Metoyer was admitted to Heritage Manor on June 19, 2001. Heritage

Manor of Alexandria II (incorrectly identified as Heritage Manor, L.L.C.) is a nursing

home facility that is operated by Community Care Center. On November 24, 2004,

Eldridge, individually and on behalf of her sister, Ms. Metoyer, filed suit against

Heritage Manor and Community Care Center. The suit was styled a “Petition for

Personal Injury.” The suit alleges that, at the time of her admission, Ms. Metoyer was

fifty-two years of age but was totally disabled due to a stroke and required twenty-

four hour professional nursing care since she was “totally dependant upon the nursing

staff for all activities of daily living and medical care.” In that petition, Plaintiffs

alleged the following:

It will be shown that the defendant [sic], Heritage Manor, L.L.C. and
Community Care Center[,] breached their duty and contract and
contributed to the damages and injuries of Ms. Metoyer and petitioners
and to the worsening of Ms. Metoyer’s overall condition and
deterioration in her status in the following ways:

1. Failed to properly care and treat their patient;
2. Failed to implement an adequate care plan to meet their patient’s
needs;

1

3. Failed to make routine inspections and take appropriate nursing
interventions;
4. Failed to provide adequate number of trained nursing staff;
5. Failed to properly monitor and respond to changes in the patient’s
condition, provide that information and change of status to the
family and physician;
6. Failed to provide adequate skin care to prevent and treat the
development of pressure sores, skin breakdown and infection;
7. Failed to provide adequate nail care, therapy, aids and devices to
prevent Ms. Metoyer’s fingernail from becoming embedded in her
palm;
8. Failed to provide necessary range of motion exercises and other
therapies and devices to prevent contractures;
9. Failed to obtain timely medical care and necessary consultations;
10. Failed to obtain and provide therapy and assistance devices and
safety;
11. Breached the duties owed to petitioner in accordance with
standards of care for professional practice and quality;
12. Failed to honor their contract to provide 24 hour professional
skilled nursing care;
13. Failed to adhere to quality care standards and allocate proper
funding for care and services to meet the needs of their patients.

More specifically, Plaintiffs alleged that Ms. Metoyer suffered events of

aspiration, dehydration to the point that her mouth bled, repeated urinary tract

infections due to inadequate fluid intake, decreases in her mental and physical well

being, suffered a broken finger that was unexplained by the nursing staff, and had a

fingernail that became entrenched in her hand due to the nursing home’s failure to

ensure that splints were properly utilized. Further, Plaintiffs alleged violations of

La.R.S. 40:2010.8, the [Nursing Home] Residents’ Bill of Rights. Based on these

allegations, Plaintiffs sought damages and attorney’s fees.

Defendants filed several exceptions. Heritage Manor filed an exception of no

cause of action based on the allegation that Community Care Center was the licensed

operator of the facility. Heritage Manor and Community Care Center filed an

exception of no right of action based on the limitation of recovery found in La.R.S.

40:2010.9. Community Care Center filed an exception prematurity based on its status

2

as a qualified health care provider under the MMA. Following a hearing, the district

court granted all of these exceptions.

Plaintiffs did not object to the dismissal of Heritage Manor, L.L.C. as they

conceded that the wrong entity was named and that Community Care Center was the

correct entity to be named as Defendant. Plaintiffs also agreed that their claims were

only for the years 2003 and 2004, such that their recovery was limited to injunctive

relief as provided by the 2003 amendments to the [Nursing Home] Residents’ Bill of

Rights. Plaintiffs now appeal and assert as their sole assignment of error that the

district court erred in finding that their claims were premature and must be submitted

to a medical review panel. The granting of the exceptions of no right of action and

no cause of action in favor of Heritage Manor has not been briefed on appeal;

therefore, we consider these issues to be abandoned pursuant to Rule 2-12.4 of the

Uniform Rules – Courts of Appeal. For the reasons that follow, we affirm the

judgment of the district court.

DISCUSSION

Plaintiffs denominate their claims as ones for negligence, breach of contract for

services to be provided, breach of duties, and violation of rights. However, since

Plaintiffs conceded that Community Care Center’s exception of no right of action was

correct with respect to the fact that their recovery under the [Nursing Home]

Residents’ Bill of Rights would be limited to injunctive relief, they argue that many

of their claims were for violations of custodial duties and, thus, fall outside of the

MMA.

The dilatory exception of prematurity is provided for by La.Code Civ.P. art.

926. The burden of proving prematurity is on the exceptor such that Community Care

3

Center must show that it is entitled to a medical review panel. Williamson v. Hosp.

Service Dist. No. 1 of Jefferson, 04-451 (La. 12/1/04), 888 So.2d 782. Under the

MMA, a claim for medical malpractice against a qualified healthcare provider is

premature if it has not been reviewed by a medical review panel pursuant to the

provisions of La.R.S. 40:1299.47. It is undisputed that Community Care Center is a

qualified healthcare provider under the MMA. The sole issue in this appeal is

whether Plaintiffs’ claims are medical malpractice. This determination involves a

question of law, which we will review de novo to determine whether the district court

was legally correct in granting the dilatory exception of prematurity in favor of

Community Care Center. Quinney v. Summit of Alexandria, 05-237 (La.App. 3 Cir.

6/1/05), 903 So.2d 1226.

It is well settled that the MMA applies only to malpractice as it is defined in

La.R.S. 40:1299.41A(8):

“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.

In fashioning a standard for defining a medical malpractice claim, the supreme

court has said:

In determining whether certain conduct by a qualified health care
provider constitutes “malpractice” as defined under the MMA this court
has utilized the following three factors:

“[1] whether the particular wrong is ‘treatment related’ or
caused by a dereliction of professional skill,

4

[2] whether the wrong requires expert medical evidence to
determine whether the appropriate standard of care was
breached, and

[3] whether the pertinent act or omission involved
assessment of the patient's condition.”

Sewell v. Doctors Hospital, 600 So.2d 577, 579 n. 3 (La.1992)(quoting
Holly P. Rockwell, Annotation, What Patient Claims Against Doctor,
Hospital, or Similar Health Care Provider Are Not Subject to Statutes
Specifically Governing Actions and Damages for Medical Malpractice,
89 A.L.R.4th 887, 1991 WL 741765 (1991). The latter annotation lists
three additional factors that courts have considered, and we now add
those to our Sewell list; to wit:

[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.

89 A.L.R.4th at 898.

Coleman v. Deno, 01-1517, pp. 17-18 (La. 1/25/02), 813 So.2d 303, 315-316

(footnote ommitted).

Applying the Coleman test to the matter before us, we conclude, as did the

district court, that when reviewing the totality of the allegations of the petition in this

case, these allegations fall under care, treatment, and assessment so as to require this

matter to first be presented to a medical review panel. First, all of Plaintiffs’

allegations are related to treatment (or lack thereof) and contain statements

concerning “dereliction in professional skill.” Taking the allegations of Plaintiffs’

petition as true, Ms. Metoyer was admitted to the facility because she required

twenty-four hour nursing care. Second, we find that expert medical testimony would

be necessary to determine whether the applicable standard of care was breached with

5

respect to the care and treatment of Ms. Metoyer. This is not a case of obvious

negligence or where the alleged conduct could be evaluated based on common

knowledge, since the actions and/or inactions involve treatment modalties and the

need therefor. Third, all of the alleged actions and/or inactions involved the

assessment (or lack of assessment) of Ms. Metoyer’s condition. Fourth, the

allegations all involve actions and/or inactions taken within the scope of activities

which Community Care Center was licensed to perform. Fifth, as the supreme court

stated in Coleman, “[c]ommon sense indicates that a claim based on failure to provide

enough treatment is clearly linked to treatment.” Id at 318. Finally, there is no

allegation that any of the alleged tortious conduct was intentional.

DECREE

For the foregoing reasons, we conclude that the entirety of the conduct upon

which Plaintiffs’ base their claims against Community Care Center fits within the

statutory definition of “malpractice” and is, therefore, governed by the MMA.

Accordingly, the judgment of the district court is affirmed. All costs of this appeal

are assessed to Plaintiffs, Lydia Eldridge, individually and on behalf of her sister,

Oreliea Metoyer.

AFFIRMED.

6