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Furlow v. Woodlawn Manor4/20/2005
Rosalind Furlow, individually and on behalf of the estate of Hazel White, appealed the judgment granting the defendant nursing home's exception of prematurity and dismissing her action for damages arising out of alleged violations of the Nursing Home Residents Bill of Rights Act ("NHRBRA"). For the reasons set forth below and in conformity with this court's recent opinions, the judgment is reversed in part and the matter remanded to the trial court for further proceedings.
FACTS
Alleging violations of the NHRBRA, Furlow, on February 22, 2004, sued Woodlawn Manor, Inc., d/b/a The Oaks, seeking damages for injuries to her deceased mother, Hazel White, a double amputee confined to a wheelchair. According to the petition, Ms. White was admitted into The Oaks in February of 2003 and remained there through July of 2003. While Ms. White was in residence, The Oaks was allegedly understaffed, resulting in the neglect of its patients. Furlow alleged that The Oaks was negligent by allowing Ms. White to lie for hours in soiled bed linens, failing to turn her to prevent the development of pressure sores, and letting her suffer injury-causing falls (presumably from her wheelchair). These negligent acts and omissions allegedly contributed to Ms. White's death.
At about the same time, Furlow forwarded to the Commissioner of Administration for the State of Louisiana a request for the formation of a medical review panel to evaluate the professional services and health care provided to Ms. White. Specifically, Furlow alleged that The Oaks failed:
* to properly assess and reassess Ms. White in her capacity as a patient;
* to develop and modify a plan of care to meet her changing needs; and
* to render proper professional services and health care treatment to prevent dehydration and pressure sores.
On April 14, 2004, The Oaks filed an exception of prematurity to the action filed in district court, and in the alternative, an exception of vagueness. The Oaks argued that the allegations in plaintiff's petition constituted medical malpractice. Because The Oaks was a qualified health care provider, defendant maintained that Furlow had to present her claims to a medical review panel prior to filing suit in district court as required by the Louisiana Medical Malpractice Act ("MMA"), La. R.S. 40:1299.41, et seq.
Asserting the negligence was not related to medical treatment but to custodial care, Furlow argued that the failure to turn Ms. White in her bed on a regular basis, to cleanse her of her own waste, and to ensure that she did not fall from her wheelchair was not related to medical treatment, but was the type of negligence for which the NHRBRA provided a cause of action separate and distinct from the remedies available through the MMA.
After hearing arguments on July 6, 2004, the trial court granted the exception of prematurity, finding that the allegations were subject to review by a medical review panel before being litigated in the district court. A written judgment granting the exception and dismissing the plaintiff's action was signed on July 27, 2004.
LAW
Plaintiff brought this action under the NHRBRA, which 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. The NHRBRA 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 to be free from mental and physical abuse. La. R.S. 4
Page 1 2 3 4 Louisiana Personal Injury Attorneys
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