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Womack v. Autumn Leaves Nursing & Rehabilitation Center5/11/2005
Before STEWART, GASKINS and DREW, JJ.
Plaintiffs, the adult children of Ms. Violet Nugent, seek review of a judgment dismissing without prejudice their action against a nursing home as premature. For the following reasons, we reverse in part and remand.
FACTS
Ms. Violet Nugent became a resident of the Autumn Leaves Nursing & Rehabilitation Center ("Autumn Leaves") in January 2003 when she was 71 years old. The nursing home is owned by Kisatchie Corporation and operated by Central Management Company, L.L.C. According to the original petition by Leshia Womack, Ms. Nugent's curator, the Autumn Leaves' staff neglected Ms. Nugent's care and consequently caused her to suffer numerous problems, including dehydration, malnutrition, contractures, bedsores, falls, and urinary tract infections. Moreover, the petition alleged that the Autumn Leaves' staff allowed Ms. Nugent to lie in her own bodily waste for extended periods of time. Finally, the petition alleged that the staff physically abused Ms. Nugent. In addition to other remedies, the plaintiff specifically sought damages under La. R.S. 40:2010.9, the civil remedy provision in the Nursing Home Resident's Bill of Rights ("NHRBR"). The plaintiff specified in her petition that "no claim for medical malpractice is being asserted in this petition." Further, the petition distinguished those acts occurring prior to August 15, 2003, from those acts occurring on or after that date and asserted that the later claims were founded in negligence.
All of the defendants cumulatively filed an exception of prematurity. They asserted that Autumn Leaves was a qualified provider under the Medical Malpractice Act ("MMA"), La. R.S. 40:1299.40 et seq., that the two other defendants were corporate entities of Autumn Leaves, and that the plaintiff's claims must be heard by a medical review panel prior to the filing of a lawsuit. The defendants also raised an exception of vagueness.
Ms. Nugent died on July 30, 2004. On September 13, 2004, an amending petition was filed adding Ms. Nugent's other two adult children as plaintiffs. Defendants again raised an exception of prematurity to this petition.
The trial court heard argument on the exception on September 21, 2004. At the hearing, the plaintiffs' attorney stated that:
e are contesting just the dignity [question] here today, the issues, specifically under Louisiana Revised Statute, Title 40:2010.8(A)(9), the right to be treated courteously, fairly, and with the fullest measure of dignity, and Louisiana Revised Statute, Title 40:2010.8(A)(10), the right to be free from mental and physical abuse. We are saying that those two rights have specifically been violated by Autumn Leaves' failure to clean Violet Nugent.
The court concluded that all of the facts alleged and claims made by the plaintiffs' petition must be heard by a medical review panel prior to the filing of a lawsuit and dismissed the plaintiffs' petition without prejudice. From the judgment dismissing their lawsuit, plaintiffs now appeal.
DISCUSSION
We observe that La. R.S. 40:2010.8 and La. R.S. 40:2010.9 were amended by Acts 2003, No. 506, ยง 1, effective August 15, 2003, and the plaintiffs' claims apparently arise from occurrences that took place both before and after the date of the amendment. Because the plaintiffs' petitions recognize the amendment and raise different theories for each time period, there is no need at this stage of the proceedings to address the effect of the amendment.
Almost identical claims were raised by plaintiffs in Vergil Henry, et al. v. West Monroe Guest House, Inc., et al., 39,442 (La. App. 2d Cir. 3/
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