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Terry v. Red River Center Corp.12/10/2003
Plaintiffs appeal the trial court's grant of the defendant, Riverview Care Center's ("Riverview"), exception of prematurity. For the reasons expressed herein, we reverse and remand.
FACTS
Doris Lee ("Lee"), the mother of the plaintiffs, was a resident of the Riverview Care Center ("Riverview") in Bossier City. Lee had suffered health problems for many years and in a directive executed on August 13, 1996, she stated in part:
If at any time I should have an incurable injury, disease, or illness, or be in a continual comatose state with no reasonable chance of recovery, certified to be a terminal and irreversible condition by two physicians who have personally examined me, one of whom shall be my attending physician, and the physicians have determined that my death will occur whether or not life-sustaining procedures are utilized and where the application of life-sustaining procedures would serve only to prolong artificially the dying process, I direct that such procedures be withheld or withdrawn and that I be permitted to die naturally with only the administration of medication necessary to provide me with comfort care.
She also executed a second directive on June 8, 2001, which stated in part:
Comfort care will be provided which includes relief of pain, oral fluids, positioning, mouth care, treatment of fever, oxygen administration and suctioning.
*
Do not use a respirator.
Do not use dialysis.
Do not use feeding tube.
*
Do not use CPR.
Both directives were contained in Lee's chart at Riverview. On April 28, 2002, between 9:30 p.m. and 10:00 p.m., employees of Riverview found Lee in her room. They described her as "unresponsive" and stated that they "were unable to stimulate her." In opposition to her directives, these employees instituted efforts to revive Lee, including calling EMT's who began CPR, intubation, manual ventilation, chest compression, an EKG, and the insertion of a tube down Lee's left nostril. These procedures allegedly caused Lee to swell beyond recognition until her daughter, Veda Beth Terry arrived. Afterward, life support was discontinued, and Lee died.
Lee's children brought suit under the Nursing Home Residents Bill of Rights ("NHRBR"), La. R.S. 40:2010.8, et seq., alleging that Riverview's failure to follow Lee's directives caused her and her children to suffer damages. Riverview filed an exception of prematurity contending that this matter should go before a medical review panel before coming to trial because the matters are covered under the Medical Malpractice Act ("MMA"). The trial court agreed with Riverview and granted the exception, and this appeal ensued.
DISCUSSION
Exception of Prematurity
The dilatory exception 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 decision by a medical review panel before filing suit against the provider. Spradlin v. Acadia- St. Landry Medical Foundation, 98-1977 (La. 2/29/00), 758 So.2d 116. Accordingly, a claim against a private qualified health care provider is subject to dismissal on a timely filed exception of prematurity if such claim has not first been screened by a pre-suit medical review panel. Id. Nursing homes are defined as "hospitals" for the purposes of falling under the ambit of the MMA. La. R.S. 40:1299.41A(4).
Medical Malpractice
The plaintiffs assert that the trial court erred in granting Riverview's exception of prematurity because the conduct involved is not co
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