Yevonne Sawyers v. Naomi Heights Nursing Home & Rehabilitation Center, LLC

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

19-331

YEVONNE SAWYERS, ET AL.

VERSUS

NAOMI HEIGHTS NURSING HOME & REHABILITATION CENTER,
L.L.C., ET AL.

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ON APPLICTION FOR SUPERVISORY WRIT FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 255,006 F
HONORABLE GEORGE C. METOYER, DISTRICT JUDGE

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JOHN E. CONERY
JUDGE

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Court composed of Sylvia R. Cooks, John E. Conery, and Van H. Kyzar, Judges.

WRIT DENIED.

Brent P. Frederick
Michael T. Beckers
Danielle N. Goren
Frederick & Beckers, LLC
112 Founders Drive, Suite 101
Baton Rouge, Louisiana 70810
(225) 372-6000
COUNSEL FOR PLAINTIFFS/RESPONDENTS:
Yevonne Sawyers, Individually and on behalf of Cecilia Sullivan
Patricia Hall, Individually and on behalf of Cecilia Sullivan

Walter F. Clawson
400 Travis Street, Suite 908
Shreveport, Louisiana 71101
(318) 424-1600
COUNSEL FOR RELATOR:
Louisiana Patient’s Compensation Fund
Louisiana Patient’s Compensation Fund Oversight Board

CONERY, Judge.

Relators, the Louisiana Patients’ Compensation Fund and the Louisiana

Patient’s Compensation Oversight Board, seek a supervisory writ from the judgment

of the Ninth Judicial District Court, Parish of Rapides, the Honorable George

Clarence Metoyer, Jr., presiding, which denied Relators’ motion in limine. We deny

the writ, finding no abuse of discretion.

FACTS AND PROCEDURAL HISTORY

This case involves a medical malpractice wrongful death and survival action

filed by Plaintiffs, Yevonne Sawyers and Patricia Hall, individually and on behalf

of their deceased mother, Cecilia Sullivan. Plaintiffs alleged that Ms. Sullivan

received substandard medical care from Naomi Heights Nursing and Development

Center, L.L.C. (Naomi Heights), and Guardian Hospice Care, L.L.C. (Guardian

Hospice), ultimately resulting in the development of a chronic decubitus ulcer, Stage

IV, and sepsis, resulting in her prolonged suffering and ultimately death. Following

periods of admissions to the hospital for treatment of her conditions, Ms. Sullivan

was transferred to another facility for palliative care on November 6, 2013, and she

died on November 16, 2013.

Prior to her transfer from Naomi Heights, and prompted by Plaintiffs, the

Louisiana Department of Health and Hospitals (DHH) conducted an unannounced

investigation of the nursing home on July 26, 2013. That investigation resulted in

Naomi Heights being cited for various deficient practices in violation of federal and

state regulations for nursing homes. DHH also conducted an unannounced

investigation of Guardian Hospice on August 21, 2013. It cited Guardian Hospice

for the failure to coordinate with the nursing home for the proper care of a patient

who had developed a pressure sore, in violation of state and federal regulations.

Plaintiffs contend that both Naomi Heights and Guardian Hospice have admitted the

deficiencies contained in the DHH reports.

Relators filed the motion in limine under review seeking to have Plaintiffs

prohibited from introducing into the record or making any reference to any records

which DHH has on Ms. Sullivan or any DHH complaint surveys conducted during

the time when Ms. Sullivan was a resident of Naomi Heights and Guardian Hospice,

“including but not limited to the period of April 10, 2013, to November 6, 2013.”

Following a hearing, the trial court denied Relators’ motion in limine, thus allowing

admission of the records at trial

As “[a]n interlocutory judgment is appealable only when expressly provided

by law[,]” Relators now seek review of that ruling by this application for supervisory

writ. La.Code Civ.P. art. 2083(C). See La.Code Civ.P. art. 1841. See also Lalla v.

Calamar, N.V., 08-0952 (La.App. 4 Cir. 2/11/09), 5 So.3d 927.

ASSIGNMENT OF ERROR

1. The Trial Court erred in denying [Relators’] Motion in Limine
seeking to exclude various DHH Surveys/Reports.

LAW AND DISCUSSION

Relators contend that the documents at issue include a Statement of

Deficiencies and Plan of Correction generated by DHH in compliant surveys

conducted on July 20, 2013, and August 14, 20, and 21, 2013, and that those

documents are comprised of factual findings resulting from the investigation of

particular incidents occurring at Naomi Heights on April 10 and 16, 2013. Relators

assert that such documents are inadmissible under the statutory and jurisprudential

rules governing hearsay evidence.

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Hearsay is defined as “a statement, other than one made by the declarant while

testifying at the present trial or hearing, offered in evidence to prove the truth of the

matter asserted.” La.Code Evid. art. 801(C). Pursuant to the hearsay rule set forth

in La.Code Evid. art. 802, “[h]earsay is not admissible except as otherwise provided

by this Code or other legislation.” Louisiana Code of Evidence Article 803(8)(a), in

pertinent part, provides that the following evidence is not excluded by the hearsay

rule:

(8) Public records and reports. (a) Records, reports, statements,
or data compilations, in any form, of a public office or agency setting
forth:

(i) Its regularly conducted and regularly recorded activities;

(ii) Matters observed pursuant to duty imposed by law and as to
which there was a duty to report; or

(iii) Factual findings resulting from an investigation made
pursuant to authority granted by law. Factual findings are conclusions
of fact reached by a governmental agency and may be based upon
information furnished to it by persons other than agents and employees
of that agency.

However, La.Code Evid. art. 803(8)(b)(iv) provides, in pertinent part, as follows:

(b) Except as specifically provided otherwise by legislation, the
following are excluded from this exception to the hearsay rule:

....

(iv) Factual findings resulting from investigation of a particular
complaint, case, or incident, including an investigation into the facts
and circumstances on which the present proceeding is based or an
investigation into a similar occurrence or occurrences.

Relators note that in interpreting La.Code Evid. arts. 803(8)(a) and

803(8)(b)(iv), the Louisiana Supreme Court has stated:

La.Code Evid. art. 803(8)(a)(iii) provides that records of a public
agency setting forth “[f]actual findings resulting from an investigation
made pursuant to authority granted by law” are exceptions to the
hearsay rule and are admissible at trial. However, La.Code Evid. art.

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803(8)(b)(iv) excludes from this exception to the hearsay rule “[f]actual
findings resulting from investigation of a particular complaint, case, or
incident, including an investigation into the facts and circumstances on
which the present proceeding is based....” Thus, while factual findings
of general investigations are admissible, those of particular incidents
are not admissible as public records.

Green v. Connor, 94-2120, pp. 1-2 (La. 10/7/94), 644 So.2d 618, 618.

Relators contend that the DHH records and surveys, which are the subject of

their motion in limine, are factual findings arising out of particular complaints and

investigations conducted by DHH on August 14, 20, and 21, 2013, with regard to

particular incidents that occurred at Naomi Heights on April 10 and 16, 2013. As

such, Relators assert that the reports and surveys at issue are expressly made

inadmissible by La.Code Evid. art. 803(8)(b)(iv).

In support of that assertion, Relators cite various cases, including McRay v.

Booker T. Washington Nursing Home, 30,399 (La.App. 2 Cir. 4/8/98), 711 So.2d

772. Relators also rely on a writ ruling in an unrelated case filed in this court. See

In Re: Medical Review Panel of Gertrude Theresa Juneau, 18-0958 (La.App. 3 Cir.

12/10/18) (an unpublished writ ruling). In Juneau, this court reversed a trial court’s

denial of a motion in limine and granted that motion based on its finding that the

DHH’s records and reports pertaining to the medical malpractice at issue in that case

should be excluded pursuant to La.Code Evid. art. 803(8)(B)(iv).

In response, Plaintiffs point out that, distinct from McRay and Juneau, they

have raised the argument that the DHH records and surveys are explicitly admissible

pursuant to La.R.S. 13:3715.3, which, in pertinent part, provides:

[G](4) Disclosure is deemed to be authorized in any of the
following circumstances:

....

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(e) In response to duly authorized discovery as contemplated by
the Louisiana Code of Civil Procedure, surveys, statements of
deficiencies, and records pertaining to the results of investigations of
surveys conducted by or on behalf of any governmental regulatory
agency may be discoverable and admissible in a civil action against a
healthcare provider if the surveys and related documents are directly
related to the type of injury allegedly sustained by the patient at issue
in the civil action and the deficiencies have either been admitted by the
healthcare provider or have been declared valid through the appellate
process established by the administrative agency in charge of reviewing
surveys. When a party seeks to admit into evidence surveys, statements
of deficiencies, and related documents, any party to a civil action may
request and the court, using its discretion, may conduct a voir dire of
the witness supporting the surveys and related documents to determine
whether the deficiency is based on reliable evidence.

Plaintiffs note that La.R.S. 13:3715.3(G)(4)(e) was enacted after McRay and

that it was not addressed in Juneau. They further argue that the statute was

specifically enacted to establish that in cases like this one, surveys, statements of

deficiencies, and records pertaining to investigations or surveys conducted by a

governmental regulatory agency such as DHH shall be admissible in civil actions

against healthcare providers. Relators argue, however, that Plaintiffs’ reliance on

La.R.S. 13:3715.3(G)(4)(e) is misplaced because that statute applies to peer review

proceedings, rather than to medical malpractice claims.

Plaintiffs assert that while the factual findings resulting from an investigation

of a particular complaint or incident would normally fall under the exclusions to the

business records exception to the hearsay rule set forth in La.Code Evid. art.

803(8)(B)(iv), the enactment of La.R.S. 13:3715.3(G)(4)(e) in 2001 created a

statutory exception to the hearsay rule for the admissibility of DHH’s records,

surveys, and statements of deficiencies, if those documents result from an

investigation related to the type of injury sustained by a patient in a civil action and

if the deficiencies contained in the documents have been admitted by the healthcare

provider. Plaintiffs maintain that both conditions for application of La.R.S.

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13:3715.3(G)(4)(e) are satisfied in the instant case, thus making the documents at

issue admissible.

Also, Plaintiffs point out that the jurisprudence has held that “[r]ules of

statutory construction provide that where two statutes deal with the same subject

matter, they should be harmonized if possible; however, if there is a conflict, the

statute specifically directed to the matter at issue must prevail as an exception to the

statute more general in character.” LeBreton v. Rabito, 97-2221, p. 7 (La. 7/8/98),

714 So.2d 1226, 1229 (citations omitted). Plaintiffs also note that the jurisprudence

has held that “[u]nder general rules of statutory construction, the latest expression of

the legislative will is considered controlling and prior enactments in conflict are

considered as tacitly repealed in the absence of an express repealing clause.”

Pumphrey v. City of New Orleans, 05-0979, p. 12 (La. 4/4/06), 925 So.2d 1202, 1210

(citations omitted). Given that principle, Plaintiffs argue that because La.R.S.

13:3715.3(G)(4)(e) is a more specific statute than La.Code Evid. art. 803(8)(B)(iv)

and because La.R.S. 13:3715.3(G)(4)(e) was enacted more recently than La.Code

Evid. art. 803(8)(B)(iv), that former provision should apply. Plaintiffs also contend

that the cases cited by Relators are not applicable because they did not involve

consideration of La.R.S. 13:3715.3(G)(4)(e).

Plaintiffs additionally assert that the admissibility of the DHH’s documents at

issue is warranted because the documents have already been authenticated by DHH.

As such, Plaintiffs contend that no testimony is needed for admission of the

documents. Nevertheless, Plaintiffs maintain that it is premature to hold the

documents inadmissible at this time because at trial, Plaintiffs could call a DHH

employee to provide testimony curing any admissibility issues by authenticating the

subject surveys and reports. Plaintiffs further note that both Naomi Heights and

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Guardian Hospice have admitted to the deficiencies contained in the DHH’s surveys.

Finally, Plaintiffs further suggest that, because Naomi Heights has filed DHH’s

report in its own business records at the nursing home, it has waived its right to

object to the admissibility of the documents. We agree.

We find that Plaintiffs correctly identify language in La.R.S.

13:3715.3(G)(4)(e) favoring a determination that the DHH reports and surveys at

issue are admissible as the statute allows for the admission of records and surveys

prepared be a government regulatory agency such as DHH under certain

preconditions. The exclusion of evidence under one rule, such as La.Code Evid. art.

803(8)(b)(iv), does not mean that that evidence cannot be expressly designated

admissible under another statutory provision, such as La.R.S. 13:3715.3(G)(4)(e).

To the extent that the provisions may arguably be in conflict, such conflict must be

decided in favor of the application of the more specific and the more recently enacted

law. See LeBreton, 714 So.2d 1226. See also Pumphrey, 925 So.2d 1202. Finally,

as noted by the trial court, Relators’ attempt to have the reports and surveys deemed

inadmissible is premature at this point.1

CONCLUSION

For the foregoing reasons, we find that the trial court did not abuse its

discretion when it denied Relators’ motion in limine. Therefore, this writ application

is denied.

WRIT DENIED.

1
On this point, the trial court determined that: “It is premature … to assume in what way
the reports will be presented to the jury, and for what matters they will be introduced for, if at all.
The hypothetical scenarios are endless at this point, and to deny the admissibility outright would
be prejudicial to the Plaintiff.”

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