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Rogers v. Hickory Manor Nursing & Rehabilitation5/11/2005
Before GASKINS, CARAWAY and MOORE, JJ.
The plaintiff, John E. Rogers, individually and on behalf of the estate of Almeda Holmes, appeals from a judgment sustaining an exception of prematurity in favor of the defendants, Hickory Manor Nursing Home and Rehabilitation, L.L.C., and Kistachie Corporation. We reverse in part the trial court judgment and remand for further proceedings.
FACTS
Almeda Holmes was a resident of Hickory Manor Nursing Home and Rehabilitation, L.L.C. (Hickory Manor) from January 2003 through January 2004. The plaintiff is Ms. Holmes' adult son and was her curator prior to her death on April 12, 2004. On February 5, 2004, he filed suit on behalf of his mother against Hickory Manor and Kisatchie Corporation, the alleged owner of the nursing home. According to the petition, Ms. Holmes suffered from dehydration, malnutrition, contractures, and bedsores during her stay at Hickory Manor; further, the petition alleged that the defendants allowed Ms. Holmes to lie in her own waste for extended periods of time. The plaintiff sought damages under the Nursing Home Resident's Bill of Rights (NHRBR) contained in La. R.S. 40:2010.9, arguing that the defendants caused Ms. Holmes to suffer unnecessary pain and suffering and loss of personal dignity. The plaintiff also filed a formal request for a medical review panel asking for review of his claims against the nursing home.
Hickory Manor filed an exception of prematurity, urging that it was entitled to a medical review panel for all of the plaintiff's claims because the alleged wrongdoing was medical malpractice and that Hickory Manor was a qualified health care provider under the Louisiana Medical Malpractice Act (MMA) contained in La. 40:1299.41, et seq. Kistachie filed exceptions of no right and no cause of action but did not raise an exception of prematurity.
Following Ms. Holmes' death, the plaintiff filed a supplemental and amending petition bringing suit individually and on behalf of the estate of his mother. He also added Central Management Company (Central) as a defendant. Central was sued as the operator of Hickory Manor.
On July 20, 2004, the trial court heard argument on the exception of prematurity. The plaintiff's attorney asked for a partial denial of the exception of prematurity insofar as it concerned the claims regarding the failure to clean Ms. Holmes after her episodes of incontinence.
The trial court granted the exception of prematurity on behalf of Hickory Manor and Kisatchie and dismissed all of the plaintiff's claims without prejudice. The plaintiff appealed only that portion of the trial court judgment which granted the exception of prematurity as to his claims that the nursing home violated the provisions of the NHRBR by allowing Ms. Holmes 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 assert a cause of action for injunctive relief, but lim
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