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Wild v. NS'NG12/30/2004
This matter comes before this court on a writ of certiorari granted to consider the correctness of the trial court's judgment sustaining the dilatory exception raising the objection of prematurity filed by defendant, NS'NG, Inc. d/b/a Hammond Nursing Home (HNH).
FACTS AND PROCEDURAL HISTORY
Plaintiffs, Shirley Hoover Wild, Juanita Hoover Kristoph, Joan Hoover Baumbach, Glenn Hoover, and Rudolph Hoover, Jr., are the surviving major children of Rudolph Hoover, Sr., who, at the time of his death, was a ninety-six-year-old resident of HNH.
On April 14, 2003, the same day he was released from an in-patient hospital stay for pneumonia, Mr. Hoover walked out of HNH through an unlocked exit door. Mr. Hoover fell; the plaintiffs allege he tripped over a cement drop-off leading to an area of uneven, broken pavement. Mr. Hoover died the next day, April 15, 2003. Dr. Merlin Allen, the Medical Director of HNH, stated that autopsy results indicate Mr. Hoover's death was the result of heart failure.
On July 25, 2003, plaintiffs filed a complaint with the Louisiana Patient's Compensation Fund, alleging medical negligence in HNH's failure to properly monitor and care for Mr. Hoover, including the failure to properly assess and mitigate the risk of his elopement from the facility.
On July 28, 2003, plaintiffs filed this suit in district court, asserting a cause of action in premises liability due to HNH's alleged negligence in failing to alleviate an unreasonably dangerous condition on its premises. In response, HNH filed a dilatory exception raising the objection of prematurity, asserting that, because it is a qualified healthcare provider under the Louisiana Medical Malpractice Act (MMA), all claims against it must first be submitted to a medical review panel, as provided for in LSA-R.S. 40:1299.47. The trial court sustained HNH's exception, and plaintiffs filed an application for supervisory relief. This court granted a writ of certiorari so that it can be determined whether the claims raised in plaintiffs' district court petition are allegations of medical malpractice and, therefore, must first be presented to a medical review panel.
DISCUSSION
Under the MMA, LSA-R.S. 40:1299.41, et seq., all medical malpractice claims against a qualified health care provider such as HNH must first be submitted to a medical review panel for consideration. The dilatory exception raising the objection 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. Houghton v. Our Lady of the Lake Hosp., Inc., 03-0135 (La.App. 1 Cir. 7/16/03), 859 So.2d 103, 106. Whether the lawsuit is premature is to be determined by the facts existing at the time the lawsuit is filed. Houghton, 859 So.2d at 109. The burden of proving prematurity is on the exceptor, in this case HNH; therefore, HNH must show that it is entitled to a medical review panel. Williamson v. Hospital Service District No. 1 of Jefferson, 04-0451 (La.12/01/04), ___ So.2d ___, ___.
Plaintiffs submit their district court suit is not premature, as their district court action is solely under a general tort law theory of recovery, namely premises liability under LSA-C.C. arts. 2317, 2317.1, and 2322. Plaintiffs allege Mr. Hoover left the nursing home through an "unmarked and unsafe drop-off adjacent to an area of severely cracked, displaced and uneven concrete or similar surface material." Plaintiffs specify HNH was negligent in failing to adequately maintain the surface, having a dangerous drop-off at the th
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