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Burks v. Christus Health Monroe4/6/2005
The plaintiff, Elvie J. Burks, individually and on behalf of the estate of her mother, Sabie Rogers, appeals a trial court judgment sustaining an exception of prematurity in favor of the defendant, Christus Health Monroe d/b/a Christus St. Joseph's Home. We affirm in part and reverse in part the trial court judgment and remand for further proceedings.
FACTS
Sabie Rogers was a resident of Christus St. Joseph's Home (nursing home) between March 2003 and December 2003. Ms. Rogers died on December 19, 2003. On March 18, 2004, Ms. Burks filed suit for damages against the nursing home for its negligence and violation of the Nursing Home Resident's Bill of Rights (NHRBR) contained in La. R.S. 40:2010.9. The petition alleges that Ms. Rogers was deprived of her dignity and suffered physical and mental abuse by being allowed to lie in her own urine and waste for hours at a time without being cleaned; not being properly fed and hydrated; and being allowed to develop bed sores. The plaintiff sought attorney fees and all other relief allowed by law. She also asserted a survival action pursuant to La. C.C. art. 2315.1.
The petition claims damages under the NHRBR for any and all conduct occurring prior to August 15, 2003, the effective date of the amendment to the NHRBR which eliminated the right to seek damages for violation thereof and limited a claimant's remedies to injunctive relief. The petition seeks damages for any conduct occurring on or after August 15, 2003, under a general negligence theory.
According to her brief, Ms. Burks also filed a request for the formation of a medical review panel seeking review of the professional health care and services rendered to the plaintiff while a resident at the nursing home.
The nursing home filed an exception of prematurity and in the alternative, one of vagueness. According to the nursing home, it is a qualified health care provider under the Louisiana Medical Malpractice Act (MMA) contained in La. R.S. 40:1299.41, et seq., and because the plaintiff's claims constitute medical malpractice, she was obligated to seek an opinion from a medical review panel before filing suit in district court.
Ms. Burks opposed the exception on the basis that the negligent conduct alleged in her petition does not constitute medical malpractice, but rather asserts violations of the NHRBR that do not overlap into the area of medical malpractice regulated by the MMA.
The trial court granted the exception of prematurity, finding that the allegations in the petition were subject to review by a medical review panel before filing suit in the district court. The plaintiff appealed only that portion of the trial court judgment which granted the exception of prematurity as to her claims that the nursing home violated the provisions of the NHRBR by allowing Ms. Rogers to lie in her own waste for extended periods of time.
LEGAL PRINCIPLES
The plaintiff brought this action under both the NHRBR and a general negligence theory. The NHRBR was enacted "to preserve the dignity and personal integrity of residents of nursing homes through the recognition and declaration of rights safeguarding against encroachments upon nursing home residents' right to self-determination." La. R.S. 40:2010.6. To do so, the NHRBR requires nursing homes to treat their residents in accordance with certain enumerated rights, including but not limited to the right to be treated with dignity and the right to be free from mental and physical abuse. La. R.S. 40:2010.8(A)(9)(10).
The recently amended version of La. R.S. 40:2010.9 provides that any resident whose rights under the NHRBR have been violated may ass
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