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Williams v. Notami Hospitals of Louisiana11/4/2005
iew Regional Medical Center to have the bed alarm "on", failure to monitor the bed alarm and/or failure to respond to the bed alarm signal that would have indicated that petitioner was moving or attempting to climb over his bed railings. Petitioner further alleges that res ipsa loquitur is applicable.
The plaintiffs' first supplemental and amended petition for damages amended paragraph 5 to read as follows:
The sole and proximate cause of the fall of petitioner and his resulting injuries is due to the negligence and failure of the nursing personnel, employees and hospital, in the following particulars to wit:
1. Failure to judge petitioner as high risk for falls;
2. Failure to have adequate criteria to determine fall risk;
3. Failure to initiate an appropriate fall risk intervention at the time of admission;
4. Failure to have in place fall prevention protocols adequate to protect and prevent the fall of petitioner;
5. Failure to implement preventive strategies prior to his fall;
6. Failure to maintain the bed alarm system;
7. Failure to monitor the bed alarm;
8. Failure to have the bed alarm on;
9. Failure to respond to the bed alarm signal;
10. Failure to use wrist and/or vest restraints;
11. Failure to establish a regular toileting based on his recurrent diarrhea;
12. Failure to have a bedside commode;
13. Petitioners further allege that res ipsa loquitor (sic) is applicable.
LRMC contends that since alleged failure 8 (failure to have the bed alarm on) was the only claim presented to the medical review panel in plaintiffs' submission of evidence, that all of the other alleged failures associated with the fall must now be presented to the medical review panel. We disagree. The plaintiffs filed a complaint containing a general allegation of medical malpractice that caused Mr. Williams to sustain a fall during his January 2000 stay and a specific allegation regarding the failure of defendants to institute a fall prevention program, and in its' submission to the medical review panel, the plaintiff made specific allegations regarding the failure of defendants to use restraints. Then, after reviewing "all evidence" as required by the La. R.S. 40:1299.47(G), the medical review panel rendered its opinion.
LRMC has failed to present any evidence (or persuasive argument) that the allegations contained in the plaintiffs' first supplemental and amended petition for damages were not also encompassed by the claim of medical malpractice contained in plaintiffs' complaint filed with the Commissioner of the Division of Administration and their submission of evidence to the medical review panel. Moreover, we find that LRMC has also failed to show that the plaintiffs' allegation regarding the failure to institute a "fall prevention program" does not also encompass other aspects of fall risk assessments, such as bed alarms, restraints, toileting procedures and bedside commodes, as alleged in the plaintiffs' first supplemental and amended petition for damages.
In support of its position that the allegations contained in the plaintiffs first supplemental and amended petition are premature, LRMC relies on Lewis v. Grossman, 582 So.2d 991 (La. App. 1st Cir. 1991), wherein another panel of this court held that an amending and supplemental petition was premature. However, we find the defendant's reliance on Lewis misplaced. In Lewis, the plaintiff submitted a complaint to the medical review panel, which specifically claimed medical malpractice against Marshall Crossman, D.C., arising only
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