Michael & Kimberly D. McMillian v. Westwood Manor Nursing Home, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-54

MICHAEL & KIMBERLY D. MCMILLIAN

VERSUS

WESTWOOD MANOR NURSING HOME, INC.

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APPEAL FROM THE
THIRTY-SIXTH JUDICIAL DISTRICT COURT
PARISH OF BEAUREGARD, NO. C-2011-0531
HONORABLE MARTHA ANN O‟NEAL, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of James T. Genovese, Shannon J. Gremillion, and Phyllis M.
Keaty, Judges.

AFFIRMED.

Robert Justin Garon
Silbert & Garon, LLP
909 Poydras St., Suite 2130
New Orleans, LA 70112
(504) 581-6200
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Michael & Kimberly D. McMillian

David Richard Sobel
Provosty, Sadler, Delaunay, Fiorenza & Sobel
P. O. Drawer 1791
Alexandria, LA 71309-1791
(318) 445-3631
COUNSEL FOR DEFENDANT/APPELLEE:
Westwood Manor Nursing Home, Inc.

GREMILLION, Judge.

Plaintiffs/appellants, Michael McMillian and Kimberly D. McMillian,

appeal the trial court‟s grant of the exception of prematurity filed by

defendant/appellee, Westwood Manor Nursing Home, Inc. (“Westwood”). The

trial court maintained Westwood‟s exception because the McMillians had not first

submitted their claim to a medical review panel as required by the Medical

Malpractice Act (“MMA”), La.R.S. 40:1299.47. For the reasons that follow, we

affirm.

FACTS

Michael McMillian was a patient at Westwood following surgical

procedures on his skull. The McMillians alleged in their petition that on January

15, 2011, two attendants arrived to transfer Mr. McMillian from his geri-chair to

his bed. One attendant allegedly watched the other attempt to move McMillian.

The working attendant lost his balance, and McMillian struck the wall with his

head. The McMillians allege that Mr. McMillian had to undergo immediate

surgery as a result of this incident and that he sustained severe and permanent

injuries. The McMillians specifically alleged that Westwood failed to provide Mr.

McMillian with the appropriate degree of care when transferring him from his

chair to his bed, allowing only one aide to transfer Mr. McMillian, failing to

properly train its employees in the appropriate methods of transferring a patient

from chair to bed, allowing Mr. McMillian‟s head to strike the wall, and other acts

or omissions to be learned through discovery. They also alleged that Westwood

was vicariously liable under respondeat superior (Master-Servant liability).

Westwood filed an exception of prematurity in response to the petition.

Because Westwood is a “qualified Healthcare provider” for purposes of the act, it

maintained that all such claims as the McMillians‟ must first be submitted to a

medical review panel before suit can be filed. The trial court maintained

Westwood‟s exception. This appeal ensued.

ASSIGNMENT OF ERROR

The McMillians argue that the trial court erred in finding that Westwood met

its burden of proving that the alleged acts are governed by the Medical Malpractice

Act.

ANALYSIS

Louisiana Revised Statute 40:1299.47(B)(1)(a)(i) requires that all claims

against health care providers covered by the MMA must first be submitted to a

medical review panel. The exception of prematurity is the appropriate procedural

device to urge that a medical malpractice claim must first be submitted to a

medical review panel before suit can be filed. Spradlin v. Acadia-St. Landry Med.

Found., 98-1977 (La. 2/29/00), 758 So.2d 116. The burden of proof rests with the

exceptor. Williamson v. Hosp. Serv. Dist. No. 1 of Jefferson, 04-0451 (La.

12/1/04), 888 So.2d 782. The question before us is whether the McMillians‟

claims are for medical malpractice.

The Medical Malpractice Act defines “malpractice” as:

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 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 failures of
prosthetic devices implanted in or used on or in the person of a
patient.

La.R.S. 40:1299.41 (Emphasis added). The McMillians argue that the acts alleged

do not satisfy the test for determining whether an act is “malpractice” for purposes

of the MMA set forth by the Louisiana Supreme Court in Coleman v. Deno, 01-

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1517 (La. 1/25/02), 813 So.2d 303. In Coleman, the supreme court established a

six-part test to determine whether alleged acts are governed by the MMA: [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

act or omission involved assessment of the patient‟s condition; [4] whether the

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 had the patient not sought treatment; and [6] whether

the tort was intentional. Id.

We note that the allegations in the petition assert facts that fall squarely

within the definition of “malpractice” in La.R.S. 40:1299.41(A)(13). As a civilian

jurisdiction, we look first to the plain language of the statute, and only resort to

interpretive analysis when there is some ambiguity. La.Civ.Code art. 9. We find

no ambiguity in La.R.S. 40:1299.41(A)(13). Claims involving the handling of a

patient, including loading and unloading, are covered by the MMA and must be

submitted to a medical review panel.

CONCLUSION

The act of handling Mr. McMillian to transfer him from his geri-chair to his

bed is covered by the Medical Malpractice Act. Their claims must be submitted to

a medical review panel.

The judgment of the trial court is affirmed. Costs of this appeal are taxed to

plaintiffs/appellants, Michael McMillian and Kimberly D. McMillian.

AFFIRMED.

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