Jordan Bryant v. State of Louisiana, Dhh

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-423

JORDAN BRYANT

VERSUS

STATE OF LOUISIANA, DEPARTMENT
OF HEALTH AND HOSPITALS, ET AL.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 259,927
HONORABLE GEORGE C. METOYER, JR., DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Elizabeth A. Pickett, Shannon J. Gremillion, and John E. Conery,
Judges.

REVERSED.

Deirdre Renee Fuller
Fuller Law Firm, L.L.C.
602 Murray Street
Alexandria, LA 71301
(318) 448-3456
COUNSEL FOR PLAINTIFF/APPELLANT:
Jordan Bryant

Jeff Landry
Attorney General
Lewis O. Lauve, Jr.
Special Assistant Attorney General
3112 Jackson Street
Alexandria, LA 71301
(318) 449-1937
COUNSEL FOR DEFENDANT/APPELLEE:
Andrea Ford

Jeff Landry
Attorney General
Barbara Bell Melton
Special Assistant Attorney General
Nate W. Friedman
Special Assistant Attorney General
Faircloth Melton & Sobel, LLC
105 Yorktown Drive
Alexandria, LA 71301
(318) 619-7755
COUNSEL FOR DEFENDANT/APPELLEE:
Thaddeus Green

Jeff Landry
Attorney General
Leisa B. Lawson
Assistant Attorney General
900 Murray St., Suite B-100B
Alexandria, LA 71301
(318) 487-5944
COUNSEL FOR DEFENDANT/APPELLEE:
Department of Children and FamilyServices

Jeff Landry
Attorney General
Steven M. Oxenhandler
Special Assistant Attorney General
Michael J. O’Shee
Special Assistant Attorney General
Gold, Weems, Bruser, Sues & Rundell
P. O. Box 6118

Alexandria, LA 71307-6118
(318) 445-6471
COUNSEL FOR DEFENDANTS/APPELLEES:
State of Louisiana, Department of Health and Hospitals
Office for Citizens with Developmental Disabilities
Pinecrest Supports & Services Center

GREMILLION, Judge.

Plaintiff/Appellant, Mr. Jordan Bryant, appeals the dismissal of his personal

injury claim against the Defendants/Appellees, Andrea Ford, Thaddeus Green, and

the State of Louisiana through the Department of Health and Hospitals (DHH), the

Office for Citizens with Developmental Disabilities (OCDD), Pinecrest Supports &

Services Center (Pinecrest), and the Department of Children and Family Services

(DCFS) on exceptions of prematurity and prescription.

The facts alleged in Mr. Bryant’s original petition assert a very tragic incident

in which Ford and Green, employed at the time by Pinecrest, took Mr. Bryant, a

resident of Pinecrest, into his room and used excessive force to subdue him. As a

result, Mr. Bryant’s neck was broken, and he was rendered a quadriplegic. In his

petition, he alleged a number of negligent and intentional acts and omissions on the

defendants’ part, including allegations that sound as though at least part of his

demand is based upon medical malpractice. Prior to filing his suit, though, Mr.

Bryant did not request that his matter be submitted to a medical review panel (a panel)

pursuant to the Medical Liability for State Services Part of the Louisiana Medical

Malpractice Act (the Act), La.R.S. 40:1237.1 et seq., which, with certain exceptions,

requires that medical malpractice claims against the State first be submitted to a

panel.

The defendants filed exceptions of prematurity and prescription in which they

asserted that Mr. Bryant’s claim was premature because he did not convene a panel

and had prescribed because more than a year elapsed since his injury and he had not

initiated his claim properly. Mr. Bryant amended his petition several times in an

attempt to address the exceptions. At the hearing on the exceptions, no evidence

was introduced. No documentary evidence was attached to any of the defendants’

exceptions. The trial court granted the exceptions as to all defendants. This appeal

followed. Mr. Bryant asserts that the trial court erred in granting Appellees’

exceptions of prematurity and prescription because they failed to carry the requisite

burden of proof. He further asserts that the trial court erred in applying the Louisiana

Medical Malpractice Act to the allegations asserted in his petition. For the reasons

that follow, we reverse.

ANALYSIS

The Act erects a framework within which all medical malpractice claims

against state health care providers must be pursued. “‘Malpractice’ means the failure

to exercise the reasonable standard of care specified and required by Subsection B

of this Section, in the provision of health care, when such failure proximately causes

injury to a patient, as provided in Subsection B of this Section.” La.R.S.

40:1237.1(A)(4). The definition of “State health care provider” is lengthy; however,

it essentially encompasses all state departments and agencies that provide health care

services, including their employees acting in the course and scope of their

employment. La.R.S. 40:1237.1(A)(9).

“No action against the state, its agencies, or a person covered by this Part, or

his insurer, may be commenced in any court before the claimant’s complaint has

been presented to a state medical review panel established pursuant to this Section.”

La.R.S. 40:1237.2(B)(1)(a)(i).

The defendants who interpose exceptions of prematurity bear the burden of

proof, including entitlement to review of the plaintiff’s action by a panel. Broussard

v. Lafayette Physical Rehabilitation Hosp., LLC, 15-1185 (La.App. 3 Cir. 5/4/16),

191 So.3d 1202. Because the defendants justify the trial court’s maintenance of their

exceptions on the basis of the allegations contained in Mr. Bryant’s petition and

amended petitions, we will examine those in detail. Defendants argue that, as a

matter of law, Mr. Bryant’s petition(s) allege medical malpractice claims.
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After receiving the exceptions, as mentioned above, Mr. Bryant sought to

address the exceptions by filing first, second, and third supplemental and amending

petitions. There exists a problem with these amended pleadings, though; for, while

Mr. Bryant prayed for leave of court to file these pleadings, no order allowed them.

No written consent of any party to these amendments appears in the record. See

La.Code Civ.P. art. 1151. We are without authority to consider them.

Mr. Bryant’s original petition alleges in part:

6.

On or about September 30, 2016, Andrea Ford and Thaddeus
Green, who were employed as staff at Pinecrest, took Jordan into his
room and used unreasonable physical force on him to subdue him,
which caused him significant bodily injury and rendered him
unconscious.

The petition goes on to allege that the defendants were negligent in several

particulars, including “Failing to adhere to the accepted standards of medical and

mental health practices required under the circumstances[,]” and “Intentionally

and/or negligently using excessive, unreasonable and unwarranted force to control

the behavior of Jordan Bryant[.]” The petition also alleges that Mr. Bryant was

treated for his injuries at Rapides Regional Medical Center. After release from

Rapides Regional, Mr. Bryant was sent to Meadowview Nursing Home in Minden,

Louisiana, where, he alleges, he was subjected to abuse and neglect. Bedsores he

developed at Meadowview resulted in Mr. Bryant having to undergo surgery at

Willis Knighten Medical Center in Shreveport, followed by return to Meadowview.

The question before us, then, is whether the petition on its face alleges a

medical malpractice claim. We note that, because no evidence was adduced at the

hearing on the defendants’ exceptions, our review owes no deference to the trial

court’s determination. Arton v. Tedesco, 14-1281 (La.App. 3 Cir. 4/29/15), 176

So.3d 1125, writ denied, 15-1065 (La. 9/11/15), 176 So.3d 1043.
3

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

(citations omitted), listed the six factors courts should consider in determining

whether conduct is “malpractice”:

“[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, and

[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.

From the information available to us, which is limited to the allegations of the

petition, we cannot say whether this incident was “treatment related,” but it is alleged

that it was “caused by a dereliction of professional skill,” per Coleman, as among

the allegations of the petition are those that allege that Pinecrest failed to adequately

train Ford and Green. Without more information about what specifically occurred

between Ford, Green, and Mr. Bryant, we have no means of determining whether

expert testimony will be required to prove that their conduct was substandard. The

allegations do not involve an instance in which Ford and Green were assessing Mr.

Bryant’s condition. The incident did not occur in the context of the doctor-patient

relationship, but the allegations do establish it in the context of those services for

which Pinecrest was established.

4

Pinecrest is not a hospital. It is a “developmental center” as defined in La.R.S.

28:451.2(9), which provides:

“Developmental center” means an administrative unit of the office
under its administration, supervision, and control through which the
office provides and develops developmental disabilities services and
system capacity building efforts. Developmental centers are
responsible for:

(a) Planning and providing living options and other developmental
disabilities services as determined by the office.

(b) Stimulating and supporting capacity building within the system
through resource centers, technical assistance, training, and other
means as determined by the office.

Pinecrest’s duty, pursuant to La.R.S. 28:451.4, is to provide “developmental

disability services,” also defined in La.R.S. 28:451.2(10) as “programs, services, and

supports for persons with developmental disabilities that include but are not limited

to information and referral services, support coordination services, system entry

services, development of the support profiles and plans, individual and family

support services, living options, habilitation services, and vocational services.”

These services are delivered to people with developmental disabilities, also defined

in La.R.S. 28:451.2, which represent disabilities that severely impact one’s ability

to care for himself, his ability to communicate, his learning capacity, or his mobility

and that requires “a combination and sequence of special, interdisciplinary, or

generic care, treatment, or other services which are of lifelong or extended duration

and are individually planned and coordinated.” Thus, medical care forms a

component of the services Pinecrest provides.

It is far from clear that Mr. Bryant “sought treatment” at all. He was present

at Pinecrest but alleges that he was taken by Green and Ford into his room to be

subdued and allegedly beaten.

5

Proof of these Coleman factors is the burden imposed on the defendants. They

submitted no evidence whatsoever and argue with vigor the first five factors as

though they are dispositive of the issue. We disagree and find, in the context of the

Act, the sixth Coleman factor, whether the petition alleges intentional tortious

conduct, to be of greater significance.

Within the definition of “State health care provider” in La.R.S. 40:1237.1(9)

is found subsection (a)(iv)(cc), which provides, “However, no person or entity

referenced in this item shall be considered a ‘state health care provider’ or ‘person

covered by this Part’ for any injury or death of the patient resulting from any act or

omission of gross negligence or any willful or wanton act or omission.” “The word

‘willful’ has been defined as proceeding from a conscious motion of the will;

voluntary; knowingly; deliberate; intending the result which actually comes to pass;

designed; intentional; purposeful; not accidental or involuntary. Black's Law

Dictionary 1599 (6th ed. 1990).” Grant v. Natchitoches Manor Nursing Home, 96-

1546, p. 4 (La.App. 3 Cir. 5/14/97), 696 So.2d 73, 76, writ denied, 97-1582 (La.

10/17/97), 701 So.2d 1330. We conclude that willful—and, by definition,

intentional—acts are not covered by the Act.

Mr. Bryant alleges that Green and Ford employed “excessive, unreasonable

and unwarranted force” in subduing him. This constitutes an intentional tort that is

not covered by the Act. Because the petition was filed within one year and was not

premature, the claim would not be prescribed regardless of the applicable statute, be

it La.Civ.Code arts. 3492, 3493.10, or 3496.1, or La.R.S. 9:2800.9, of which the

shortest prescriptive period is one year. The trial court erred in granting the

exceptions of prematurity and prescription.

The judgment of the trial court dismissing the petition of Jordan Bryant is

reversed and the matter remanded to the trial court for proceedings consistent with
6

this opinion. All costs of this proceeding, in the amount of $2,659.71, are taxed to

defendants/appellees, the State of Louisiana, Department Department of Health and

Hospitals, Office for Citizens with Developmental Disabilities, Pinecrest Supports

& Services Center, Department of Children and Family Services, Andrea Ford, and

Thaddeus Green.

REVERSED.

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