Veronica Thomas v. Nexion Health at Lafayette, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-609

VERONICA THOMAS

VERSUS

NEXION HEALTH AT LAFAYETTE, INC., ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 2013-3981
HONORABLE EDWARD B. BROUSSARD, DISTRICT JUDGE

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PHYLLIS M. KEATY
JUDGE

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Court composed of Shannon J. Gremillion, Phyllis M. Keaty, and John E. Conery,
Judges.

AFFIRMED.

Patrick Daniel
The Daniel Law Firm
Post Office Drawer 51709
Lafayette, Louisiana 70505-1709
(337) 232-7516
Counsel for Plaintiff/Appellant:
Veronica Thomas

Robert M. Kallam
John L. Woods
Craig R. Bordelon, II
Preis PLC
Post Office Drawer 94-C
Lafayette, Louisiana 70509
(337) 237-6062
Counsel for Defendant/Appellee:
Nexion Health at Lafayette, Inc.

Ian A. Macdonald
Jones Walker
Post Office Drawer 3408
Lafayette, Louisiana 70502-3408
(337) 593-7600
Counsel for Defendant/Appellee:
Acadian Ambulance Service, Inc.

KEATY, Judge.

In this medical malpractice case, Plaintiff, Veronica Thomas, appeals a

judgment rendered by the trial court sustaining an exception of prematurity filed by

Defendant, Nexion Health at Lafayette, Inc., d/b/a Lafayette Care Center,

dismissing her claims against it without prejudice. For the following reasons, we

affirm.

PROCEDURAL HISTORY

Thomas, a wheelchair-bound paraplegic, was injured while being

transported by van from a hospital to Nexion’s skilled nursing facility in Lafayette,

Louisiana, on August 17, 2012. Thereafter, she filed a petition for damages against

multiple defendants, including Nexion, seeking to recover for the injuries that she

sustained due to Defendants’ alleged negligence.

Nexion responded to the petition by filing a dilatory exception of

prematurity, alleging that because it was a qualified health care provider under the

Louisiana Medical Malpractice Act (the MMA or the Act) at the time of the

accident, Thomas’ claim had to be submitted to a medical review panel before it

could be filed in court. See La.R.S. 40:1299.47. According to the record, the

hearing on the exception was continued twice at Thomas’ request. Thereafter,

Thomas waited until the day before the rescheduled hearing to file her opposition

memorandum. At the hearing, Nexion’s counsel indicated that due to the late

filing, he was not prepared to counter all of the arguments asserted in Thomas’

opposition. Nevertheless, the trial court proceeded with the hearing and sustained

Nexion’s exception of prematurity in open court. Later that day, however, the trial

court recalled its interlocutory ruling based upon its finding that “the record was

not developed sufficiently to make the factual findings needed to decide the

exception,” which were “due in large part to plaintiff’s counsel’s failure to comply

with Rule 9.9.” A second hearing on the exception took place two weeks later, and

a judgment sustaining the exception of prematurity and dismissing Thomas’ claims

against Nexion without prejudice was signed on April 7, 2014. The trial court

provided written reasons for judgment on April 28, 2014.

Thomas now appeals, asserting in her sole assignment of error that the trial

court committed legal error by sustaining Nexion’s exception of prematurity “in

direct contravention of current case law.”

DISCUSSION

“The dilatory exception of prematurity is the proper procedural mechanism

for a qualified health care provider to invoke when a medical malpractice plaintiff

has failed to submit the claim for an opinion by a medical review panel before

filing suit against the provider.” Rivera v. Bolden’s Transp. Serv., Inc., 11-1669,

pp. 3-4 (La.App. 1 Cir. 6/28/12), 97 So.3d 1096, 1099. “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.Code Civ.P. art. 930.

“The burden is on the defendant to prove prematurity and initial immunity

from suit as a qualified health care provider under the Act. The defendant must

also show that it is entitled to a medical review panel, because the allegations fall

within the Act.” Rivera, 97 So.3d at 1099 (citation omitted).

The Act applies only to “malpractice”; all other tort liability on
the part of a qualified health care provider is governed by general tort
law. However, the fact that the plaintiff may have made allegations
sounding in both medical malpractice and general tort law does not
remove her petition from the penumbra of the Act, if a claim for
medical malpractice is stated. . . .

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....

The Act is in derogation of the rights of tort victims and its
language must be strictly construed; any ambiguity must be resolved
against coverage by the Act. Williamson v. Hosp. Serv. Dist. No. 1 of
Jefferson, 04-0451 (La.12/1/04), 888 So.2d 782, 786-87. We conduct
a de novo review of the trial court’s grant of the dilatory exception of
prematurity, as the issue of whether a claim sounds in medical
malpractice involves a question of law.

Id. at 1100 (citations omitted).

The 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[.]” La.R.S. 40:1299.41(13) (emphasis added).

The following facts, which are not in dispute, were recited by the trial court

in its reasons for judgment:

Veronica Thomas brought this action against Nexion Health at
Lafayette, Inc. to recover damages for injuries that she sustained while
being transported in a van from a hospital to Nexion’s nursing home
facility in Lafayette. The plaintiff is a paraplegic and is bound to a
wheelchair. She had been accepted by Nexion as a patient upon her
release from the hospital and was being [] admitted to its facility
pursuant to a physician’s orders. A certified nurse’s assistant
employed by Nexion drove the van. Nexion . . . is a qualified health
care provider.

In her petition, Thomas alleged that Nexion’s employee negligently failed to

“use a motor vehicle restraint to secure [her] for transport in the van” and that due

to the reckless and unsafe operation of the van during her transport, she fell

backward and sustained injuries. Nexion admitted for the purpose of its exception

of prematurity that Thomas’ allegation that its employee operated the van in a

reckless and unsafe manner was properly before the trial court. On the other hand,

Nexion argued that because the Act’s definition of “Malpractice” includes “the

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handling of a patient, including loading and unloading of a patient,” Thomas’

allegations that it was negligent in failing to use a vehicle restraint to properly

secure her in the van had to be presented to a medical review panel before being

part of this lawsuit. La.R.S. 40:1299.41(13).

In opposition to the exception, Thomas insisted that “[t]he Act does not and

has never covered auto accidents,” nor claims of driver negligence and/or the

failure to use a seat belt to secure a patient during transport.

The trial court noted the following in its reasons for judgment (footnote

omitted):

The plaintiff concedes that the MMA would apply if she had
been injured while being loaded into or unloaded from the van, but
she argues that injuries occurring between those two events are not
covered. This argument ignores the plain language of La.R.S.
40:1299.41(A)(13), which indicates that “handling of a patient”
includes, but is more comprehensive than, “loading and unloading of a
patient.”

“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.” McMillian v. Westwood Manor Nursing Home, Inc.,
2012-54 (La. App. 3 Cir. 5/30/12), 92 So.3d 623, 625, reh’g denied
(July 18, 2012), writ denied, 2012-1857 (La. 11/9/12), 100 So. 3d 839.
The word “handling” in the MMA is unambiguous and requires no
further interpretation. McMillian, supra; Andrews v. Our Lady of the
Lake Ascension Cmty. Hosp., Inc., 2013-1237 (La.App. 1 Cir.
2/18/14), [142] So.3d [36].

The Court finds that a mobility-impaired patient, who is being
transported by a medically-trained driver from one health care facility
to another pursuant to a physician’s orders, is being “handled” within
the meaning of the MMA. Moreover, as in Andrews, supra, even if
the factors set forth in Coleman [v. Deno, 01-1517, 01-1519, 01-1521
(La. 1/25/02), 813 So.2d 303[ 1 ] were applied, the result would not
change. Nexion’s exception of prematurity is, therefore, sustained.

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In Coleman, 813 So.2d at 315-16, the Louisiana Supreme Court set forth a six-part test
for determining whether a negligent act by a qualified health care is covered by the MMA:

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

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In Richard v. Louisiana Extended Care Centers, Inc., 02-978 (La. 1/14/03),

835 So.2d 460, the plaintiff, an elderly nursing home resident who was a double

amputee, filed suit alleging that she sustained severe injuries “when she was

viciously attacked by an employee of [the nursing home], or alternatively, allowed

to fall from her wheelchair.” Id. at 462. After the trial court granted the nursing

home’s exception of prematurity, this court “affirmed in part and reversed in part,

finding that plaintiff’s claims of ‘unintentional tort and/or breach of contract’ are

governed by the MMA, but that her intentional tort claims are not, and thus

remanded the matter for further proceedings.” See Richard v. La. Extended Care

Ctrs., Inc., 01-1492 (La.App. 3 Cir. 3/6/02), 809 So.2d 1248. Thereafter, the

supreme court granted writs “to determine whether medical malpractice claims

against a nursing home that is a qualified health care provider under the MMA

must be submitted to a medical review panel under the MMA or can be brought

outside of the provisions of the MMA under the [Nursing Home Residents’ Bill of

Rights] NHRBR.” Richard, 817 So.2d at 462. In its review, the supreme court

stated that “[i]t is clear that the nursing home’s staff’s alleged act of negligently

allowing Ms. Deville to fall from her wheelchair involved the ‘handling of a

patient, including loading and unloading of a patient,’ which comes directly under

[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.

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the MMA’s definition of ‘malpractice.’” Id. at 468. Nevertheless, it determined

that “it was not the intent of the legislature to have every ‘act, . . ., by any health

care provider . . . during the patient’s . . . confinement’ [to be] covered by the

MMA.” Id. Because it was unable to determine from the record whether the

plaintiff had been placed in the nursing home for treatment of a medical condition

rather than just as a “custodial shelter,” the supreme court remanded the matter to

the trial court for a determination of whether the plaintiff’s allegations constituted

medical malpractice under the MMA. Id. at 469.

On appeal, citing Hidalgo v. Wilson Certified Express, Inc., 94-1322

(La.App. 1 Cir. 5/14/96), 676 So.2d 114, Thomas claims that “[a]ccidents

involving transport vehicles and allegations surrounding transport of failure and

improper restraint are ALWAYS outside the []MMA.” Thomas’ reliance on

Hidalgo in misplaced. In that case, the plaintiffs’ vehicle was rear-ended on a

highway, necessitating that the wife be taken by ambulance to a hospital for the

treatment of the injuries she sustained in that collision. While en route to the

hospital, the ambulance rear-ended another vehicle, causing the wife additional

injuries. The plaintiffs later filed suit against various defendants involved in both

of the collisions, including the ambulance company and its driver, who excepted to

the petition on the basis of prematurity. On appeal, the first circuit affirmed the

trial court’s denial of the exception, finding that the plaintiffs “have not alleged

that any act or omission, related to the promotion of a patient’s health or to the

provider’s exercise of professional expertise or skill, caused or contributed to her

injuries, . . . [n]or have they alleged Acadian was negligent in loading

Mrs. Hidalgo into the ambulance or in failing to properly secure the stretcher or

backboard, or both, once loaded into the ambulance.” Id. at 118. In doing so, the

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first circuit noted that “[a]ny such allegations would be covered by the Act and

would have to first be brought to a medical review board before any evidence of

such actions could be admitted at the trial of this case. See Sewell v. Doctors

Hospital, 600 So.2d at 581 (Hall, J., concurring).” Id. n.7.

In the instant case, Thomas had been released by her doctor from the

hospital to Nexion’s nursing care facility, and the person sent by Nexion to

transport Thomas between the two facilities was a certified nursing assistant who

was trained to provide medical assistance to Thomas during that transport should

the need arise. Because Thomas alleged that Nexion’s employee was negligent in

not properly securing her in its van, we find no error in the trial court’s

determination that Thomas was being handled within the meaning of the Act, thus

entitling Nexion, a qualified health care provider, to have the claims against it in

that regard presented to a medical review panel before being filed in the trial court.

See Richard, 835 So.2d 460 and Hidalgo, 676 So.2d 114. Accordingly, we affirm

the trial court’s grant of Nexion’s exception of prematurity.

DECREE

For the foregoing reasons, the judgment rendered by the trial court

sustaining the exception of prematurity filed by Nexion Health at Lafayette, Inc.,

d/b/a Lafayette Care Center, and dismissing Veronica Thomas’ claims against it

without prejudice is affirmed. Costs of this appeal are assessed against Veronica

Thomas.

AFFIRMED.

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