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Jackson v. Desoto Retirement and Rehabilitation Center Inc.12/14/2005
Before BROWN, WILLIAMS and PEATROSS, JJ.
The defendant, DeSoto Retirement and Rehabilitation Center, Inc. ("DeSoto Retirement"), appeals a district court judgment overruling its dilatory exception of prematurity. At issue in this case is whether the plaintiff's allegation under the Nursing Home Residents' Bill of Rights, LSA-R.S. 40:2010.8, et seq. (the "NHRBR") that the nursing home's employees "caused [his brother] to fall/and or dropped him" must be submitted to a medical review panel pursuant to the provisions of the Louisiana Medical Malpractice Act, LSA-R.S. 40:1299.41, et seq. (the "MMA"). After reviewing the record and the applicable law, we reverse the district court's ruling and sustain the exception of prematurity.
FACTS
On December 9, 2004, the plaintiff, Fred Jackson, filed a petition for damages against DeSoto Retirement. In his petition, the plaintiff alleged that on August 14, 2004, his brother, Charlie Edwards, was a resident of DeSoto Retirement when DeSoto Retirement employees "caused Charlie Edwards to fall/and or dropped him which resulted in Charlie Edwards receiving a severe broken/fractured left hip which required closed reduction surgery." The petition further alleged that complications from this injury thereafter caused Mr. Edwards' death and that DeSoto Retirement negligently caused Mr. Edwards' injuries, damages and death.
On December 30, 2004, the plaintiff filed a first amended petition, stating that he "hereby amends and combines all of his previous etitions." The first amended petition omitted the allegation of negligence and substituted an allegation that the injuries to Mr. Edwards "were a direct result of the deprivation of his rights by [DeSoto Retirement], pursuant to R.S. 40:2010.6, R.S. 40:2010.7, R.S. 40:2010.8, and R.S. 40:2010.9 [NHRBR]."
In response, DeSoto Retirement filed dilatory exceptions of prematurity, vagueness and lack of procedural capacity. The exception of prematurity was based on the provisions of the MMA which require that allegations of malpractice first be reviewed by a medical review panel prior to the commencement of a lawsuit in district court. DeSoto Retirement contended that the plaintiff's cause of action arose "out of medical care and allegations of 'malpractice' as defined by the ."
A hearing on the matter was held on March 23, 2005, following which the district court granted the exceptions of vagueness and lack of procedural capacity, and permitted the plaintiff to amend his petition. The exception of prematurity was denied. This appeal followed.
DISCUSSION
LSA-C.C.P. art. 926 provides for the dilatory exception of prematurity. A suit is premature if it is brought before the right to enforce the claim has accrued. LSA-C.C.P. art. 423. Prematurity is determined by the facts existing at the time a suit is filed. Miller ex rel. Miller v. Nursing Homes Management, Inc., 38,198 (La. App. 2d Cir. 3/5/04), 867 So.2d 1000; Yokem v. Sisters of Charity of the Incarnate Word, 32,402 (La. App. 2d Cir. 6/16/99), 742 So.2d 906.
The MMA applies solely to claims arising from medical malpractice, which is defined in LSA-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 . . .. Under LSA-R.S 40:1299.41(A)(7), a tort is defined as any breach of duty or any negligent act or omission proximately causing injury or damage to another and every health care provider is required, in rendering professional services or health care to a patient, to exerci
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