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Meseke v. St. Francis Medical Center10/26/2005
Before BROWN, GASKINS, and PEATROSS, JJ.
Defendant, St. Francis Medical Center, Inc., has appealed from the trial court's judgment denying its exception of prematurity which asserted that, under the provisions of the Louisiana Medical Malpractice Act ("LMMA"), the complaint filed by plaintiffs, the surviving spouse and children of Erich Meseke, first had to be presented to a medical review panel pursuant to the provisions of La. R.S. 40:1299.47. For the reasons set forth below, the judgment of the trial court is reversed, and the plaintiffs' petition is reversed and remanded for further proceedings consistent with this opinion.
Facts and Procedural Background
In December 2004, plaintiffs filed suit against St. Francis alleging that on January 17, 2004, Meseke, who had begun having serious lower right abdominal pain, sought medical intervention. He went to the emergency room at St. Francis at approximately 6:00 p.m. and remained there until a bed was made available to him in the main hospital. On the night of January 18, 2004, Meseke was allegedly in need of assistance to go to the bathroom, and he unsuccessfully attempted to call for assistance twice by using the nurse call button. He also allegedly yelled out for a nurse, but no one came. When Meseke tried to go to the restroom unassisted, he fell to the floor and suffered damages including a crushed vertebra which required surgical intervention. Meseke later died on March 8, 2004, and in an amending petition, plaintiffs asserted that his fall was causally linked with his death.
Paragraph six of plaintiffs' original petition, quoted below in pertinent part, sets forth the specific allegations of negligence:
That ST. FRANCIS MEDICAL CENTER, INC., through its employees, was negligent in causing the damages suffered by Mr. Meseke, including but not limited to failing to maintain adequate safeguards to prevent the fall at issue, in failing to promptly answer the repeated request for assistance, in failing to promptly notify the appropriate physicians of the fall of Mr. Meseke and failure to provide medical care consistent with the appropriate standards. . . .
On December 21, 2004, St. Francis filed an exception of prematurity in which the hospital admitted treating Meseke in January 2004. The exception noted that plaintiffs' petition for damages was filed after a medical review panel had been convened, but before it had rendered any opinion regarding the allegations of the petition. St. Francis requested that plaintiffs' petition be dismissed without prejudice as premature pursuant to the provisions of La. R.S. 40:1299.47, which provides that no action may be commenced against a qualified healthcare provider until the claimants' proposed complaint has been presented to a medical review panel. As noted above, this claim has been filed with a medical review panel which has not yet rendered a decision.
In a memorandum in opposition to the exception of prematurity, plaintiffs argued that Meseke simply needed to go to the bathroom and kept calling for help to assist him in getting there. Plaintiffs contended that there was no particular medical expertise involved in answering the call for restroom assistance and that the conduct at issue herein was no more medically rooted than a slip-and-fall at a grocery store. Plaintiffs relied on Rachal v. Tenet Healthcare Systems, 03-0630 (La. App. 4th Cir. 11/12/03), 860 So. 2d 1175, writ denied, 04-0205 (La. 03/26/04), 871 So. 2d 350, the facts of which involved a patient who repeatedly called for assistance to use the bathroom, and, when no one responded, slipped and fell when attempting to reach the bathroom without assistance. The Fourth
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