 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Taylor v. Christus Health Southwestern Louisiana11/10/2004
of a patient during the patient's medical care, treatment or confinement.
If the provisions of the Medical Malpractice Act apply in this case, then the plaintiffs' failure to request submission to a medical review panel prior to filing suit render the petition premature. La.R. S. 40:1299.47.
In determining whether the circumstances of this case, as alleged in the petition, fall under the confines of the definitions quoted above, we look to the jurisprudence. The Louisiana Supreme Court in Coleman v. Deno, 01-1517 (La. 1/25/02), 813 So.2d 303, articulated several considerations for determining whether a claim is governed by the medical malpractice statute. Those factors include, for instance, whether the alleged wrong is "treatment related" or caused by want of professional skill, involved an assessment of the patient's condition, or was within the scope of activities a hospital is licensed to perform. Also relevant is whether expert medical evidence will be required to determine the appropriate standard of care.
In Dominick v. Rehabilitation Hospital of New Orleans, 97-2310 (La.App. 4 Cir. 4/15/98), 714 So. 2d 739, the plaintiff slipped and fell on a wet floor in the hospital kitchen, while walking with a small walker and with the aid of a physical therapist. The plaintiff alleged negligence on the part of the hospital. The hospital's exception of prematurity was granted; the court held the injury occurred during the rendition of health care and was subject to statutory malpractice procedure, even though the plaintiff alleged alternative theories of liability.
In Harris v. Sternberg, 01-1827, 01-2170 (La.App. 4 Cir. 5/22/02), 819 So. 2d 1134, writ denied, 02-1617 (La. 9/30/02), 825 So. 2d 1198, the plaintiff fell off a scale in a doctor's office and alleged that the scale had not been properly secured by the doctor's staff. Applying the factors of Coleman v. Deno, the court found that the incident involved medical malpractice as the injury occurred during the rendition of medical services.
In support of their argument that the malpractice act does not apply in this case, the plaintiffs cite Stapler v. Alton Ochsner Medical Foundation, 525 So. 2d 1182 (La.App. 5 Cir. 1988), and Head v. Erath General Hospital, 458 So. 2d 579 (La.App. 3 Cir. 1984), writ denied, 462 So. 2d 650 (La.1985). In both cases, hospital patients were injured in slip and fall accidents, but both plaintiffs slipped on a foreign substance on the floor. The courts concluded that the accidents were not related to the rendition of medical services.
With regard to the particular facts alleged in this case, we find the failure of the hospital nursing staff to monitor or assist a post-surgical elderly patient who has expressed a desire to take a shower must be analyzed under the medical malpractice laws of this state. Likewise, with regard to the absence of a bath mat near the shower, we find the act of properly equipping a hospital room's private bathroom should be addressed within the confines of medical malpractice. The actions and inactions of the nursing staff will be considered. An assessment of Mr. Taylor's post-surgical status may be examined. Issues of hospital procedure might arise. Expert testimony on nursing practices and hospital equipment may be relevant. In short, the plaintiffs' allegations of negligence belong in the medical malpractice arena.
Accordingly, we find error in the judgment rendered below and reverse. The defendant's exception of prematurity is hereby maintained, and the plaintiffs' petition is dismissed at their cost.
REVERSED.
|