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Taylor v. Christus Health Southwestern Louisiana11/10/2004
Cooks, J., concurs and assigns reasons.
REVERSED.
John Henry Taylor and his wife, Brenda Taylor, filed suit against Christus Health Southwestern Louisiana, d/b/a Christus St. Patrick Hospital of Lake Charles ("Christus"), seeking damages for injuries sustained by Mr. Taylor while he was a patient at the hospital. Christus filed an exception of prematurity asserting plaintiffs' claims fall within the Medical Malpractice Act, and plaintiffs failed to file with the medical review panel as required under La.R.S. 40-:1299.41 et seq. The trial court overruled the exception, and Christus has appealed that adverse ruling. For the following reasons, we reverse.
The allegations of the petition state that Mr. Taylor was a patient at Christus Hospital on November 28 and 29, 2002. An angioplasty was performed, and Mr. Taylor was recuperating in a hospital room. Because he wanted to take a shower, he started removing the monitor leads which were attached to his body. A nurse's aide entered the room, asked what he was doing, then left, stating "she would return shortly with some help." The petition alleges Mr. Taylor waited for the aide to return, but when she did not, he proceeded to shower on his own in the bathroom located in his room. Mr. Taylor slipped and fell when he exited the shower, suffering a broken hip. At the time suit was filed, Mr. Taylor was anticipating a total hip replacement.
The original petition asserted two acts of negligence on the part of the hospital: failing to properly monitor Mr. Taylor and failing to equip the hospital room with a bath mat on the interior or exterior of the shower. Subsequent to the filing of the defendant's exception of prematurity, the plaintiffs amended their petition so as to remove the factual assertion concerning the aide's offer to get assistance and the allegation of negligence in failing to adequately monitor the patient. Several weeks later, the plaintiffs filed a second amending petition whereby they reasserted the allegations of the original petition and urged negligence in the failure to assist Mr. Taylor in the shower. A hearing on the defendant's exception was held, and the trial court issued its ruling in the plaintiffs' favor. Nevertheless, the plaintiffs subsequently filed a third amending petition, once again removing the allegations of negligence in failing to properly monitor or assist Mr. Taylor.
In this appeal, the plaintiffs contend the filing of the third amended petition renders moot the allegation of negligence in failing to monitor or assist Mr. Taylor. We disagree. At issue herein are the allegations of the second amending petition. We decline to consider any pleadings filed after the signing of the judgment before us in this appeal.
The term "malpractice" is defined in the Medical Malpractice Act, La.R. S. 40:1299.41(A)(8), 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 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.
Similarly, "health care" is defined at La.R. S. 40:1299.41(A)(9) as: any act, or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf
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