Swain v. Lambard

378 So.3d 909

55,377 (La.App. 2 Cir. 1/10/24)

Kevin SWAIN, Chris Swain, Pamela Russell, and Cynthia Diane Jordan, Each Individually and on Behalf of Their Mother, Lera Swain, Deceased, Plaintiffs-Appellants

v.Dr. Kelly LAMBARD, Dr. Tharwat Ghattas, Emachanel Johnson, NP, Willis Knighton Health System, d/b/a Willis Knighton South, Provider Health Services, and PMG OPCO - Guest House, LLC, Defendants-Appellees

No. 55,377-CA

Court of Appeal of Louisiana, Second Circuit.

Judgment Rendered January 10, 2024

Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana, Trial Court No. 637,104, Honorable Michael A. Pitman, Judge

KOSMITIS BOND, APLC, By: Georgia Patricia Kosmitis, Shreveport, Avery Elizabeth Bond, Counsel for Appellants

WATSON, BLANCHE, WILSON & POSNER, LLP, By: Adrien G. Busekist, Colin Thomas Munn, Counsel for Appellees, Willis-Knighton South, Willis-Knighton Health System, and Dr. Kelly Lambard, MD

PETTIETTE, ARMAND, DUNKRLMAN, WOODLEY & CROMWELL, Shreveport, By: Lawrence Wayne Pettiette, Jr., Joseph Samuel Woodley, Counsel for Appellees, Emachanel Johnson, NP, Provider Health Services, LLC, and Louisiana PHS, LLC

LUNN IRION LAW FIRM, LLC, Shreveport, By: Ronald Everett Raney, Patrick Wilier Woolbert, Counsel for Appellee, PMG OPCP-Guest House, LLC

PUGH, PUGH & PUGH, LLP, Shreveport, By: Robert Gahagan Pugh, Jr., Counsel for Appellee, Dr. Tharwat Ghattas, MD

Before STONE, STEPHENS, and HUNTER, JJ.

STONE, J.

₁This appeal arises from the First Judicial District Court, the Honorable Michael Pitman presiding. The plaintiffs filed a civil action and instituted medical review panel proceedings alleging, inter alia, that the death of their mother, Lera Swain ("Ms. Swain"), was due to the conduct of her healthcare providers. They named as defendants multiple health care providers, including PMG-OPCO Guest House, LLC ("Guest House"), the nursing home in which Ms. Swain resided from February 2016 until her discharge to hospice on July 7, 2021. The district court granted an exception of prematurity upon finding that all of the claims in the petition constituted allegations of "medical malpractice," and therefore are required to first be considered by the medical review panel before they may be brought in district court. Accordingly, the trial court dismissed the entire case without prejudice. The plaintiffs filed this appeal, arguing that the trial court erred in its classification of the claims against Guest House as claims of "medical malpractice." For the reasons stated herein, we amend and affirm the trial court judgment.

FACTS AND PROCEDURAL HISTORY

This paragraph is a narrative of the events based on the allegations of the petition and supplemental/amending petition. On June 6, 2021, while Ms. Swain was a resident at the Guest House, she became unresponsive and as a result was transferred to the hospital. She was found to be suffering from a urinary tract infection ("UTI") which had progressed into sepsis and then septic shock. On June 14, 2021, the hospital discharged Ms. Swain and transferred her back to the Guest House. Thereafter, she became severely dehydrated and suffered significant unplanned weight loss. Ms. Swain’s ₂legs became swollen and dark, and on June 21, 2021, she was returned to the emergency room; her treating physician there ordered that Ms. Swain be given one liter of fluid and antibiotics, and discharged Ms. Swain back to the Guest House. Ms. Swain never overcame the infection, and on July 8, 2021, she was discharged to hospice. She died on July 11, 2021.

The particular allegations concerned in this appeal are that: (1) the Guest House contractually agreed to provide, among other things, basic residential care in accordance with applicable regulations and licensure requirements to Ms. Lera Swain in exchange for $6,000 per month; (2) the Guest House did so despite the fact that the Guest House knew it could not adequately care for Ms. Swain; (3) neither the Guest House nor any of its representatives or affiliates ever disclosed to Ms. Swain or her family (the plaintiffs) or her representatives that the Guest House was unable to provide the required level of care to Ms. Swain; (4) the Guest House failed to provide Ms. Swain with adequate quantities of food and water needed for her maintenance, and for her recovery from her UTI/sepsis; (5) the Guest House failed to keep records of her intake of food and water, and her output of bodily waste; (6) the Guest House failed to properly care for Ms. Swain’s hygiene and cleanliness; (7) these actions, among others, led to dehydration, undernourishment, and ₃unplanned weight loss, which contributed to Ms. Swain’s continued inability to overcome her UTI/sepsis; (8) ultimately, Ms. Swain became septic, went into septic shock, and died as a result of the ongoing UTI/sepsis; and (9) the plaintiffs suffered pecuniary and nonpecuniary losses, including medical bills.

DISCUSSION

[1] We begin by explaining the procedural framework of medical malpractice litigation under Louisiana law. The Louisiana Medical Malpractice Act ("LMMA"), La. R.S. 40:1231.1 et seq., requires that all claims arising from medical malpractice against a qualified health care provider first be processed by a medical review panel before such claims may be brought in court. In LaCoste v. Pendleton Methodist Hosp., L.L.C., 07-0008 (La. 9/5/07), 966 So. 2d 519, 523–24, the Louisiana Supreme Court reiterated that "the LMMA and its limitations on tort liability for a qualified health care provider apply only to claims ‘arising from medical malpractice,’ and that all other tort liability on the part of the qualified health care provider is governed by general tort law." Thus, "any ambiguity should be resolved in favor of the plaintiff and against finding that the tort alleged sounds in medical malpractice." Id.

₄Lacoste also explained the role of the dilatory exception of prematurity in relation to the LMMA:

The dilatory exception of prematurity provided in La.Code Civ. Proc. art. 926 questions whether the cause of action has matured to the point where it is ripe for judicial determination, because an action will be deemed premature when it is brought before the right to enforce it has accrued. Under the LMMA, a medical malpractice claim against a private qualified health care provider is subject to dismissal on an exception of prematurity if such claim has not first been presented to a medical review panel. This exception is the proper procedural mechanism for a qualified health care provider to invoke when a medical malpractice plaintiff has failed to submit the claim for consideration by a medical review panel before filing suit against the provider. In such situations, the exception of prematurity neither challenges nor attempts to defeat the elements of the plaintiff’s cause of action; instead, the defendant asserts the plaintiff has failed to take some preliminary step nec-essary to make the controversy ripe for judicial involvement.

Id.

[2–5] The burden of proving prematurity is on the exceptor. Id. To prevail on the exception, the exceptor must show that it is entitled to a medical review panel because the allegations fall within the LMMA. Where no evidence is presented at trial of a dilatory exception, such as prematurity, the court must render its decision on the exception based upon the facts as alleged in the petition, and all allegations therein must be accepted as true. Id. Louisiana uses a fact pleading system, under which "[n]o technical forms of pleading are required," and "[e]very ₅pleading shall be construed as to do substantial justice." La. C.C.P. arts. 854 & 865. "The plaintiff need not plead a theory of the case, but only facts that would support recovery." Celcog, L.L.C. v. Perkins, 54,254 (La. App. 2 Cir. 5/18/22), 340 So. 3d 1259, writ denied, 22-00959 (La. 11/1/22), 349 So. 3d 9, and cert. denied sub nom. Perkins v. Celcog, LLC, —— U.S. ——, 143 S. Ct. 1004, 215 L.Ed. 2d 139 (2023).

La. C.C.P. art. 933(B) provides the plaintiff an opportunity to amend the petition in response to the grant of a dilatory exception:

When the grounds of the … [objection] … pleaded in the dilatory exception may be removed by amendment of the petition or other action by plaintiff, the judgment sustaining the exception shall order plaintiff to remove them within the delay allowed by the court, and the action, claim, demand, issue or theory subject to the exception shall be dismissed only for a noncompliance with this order.

[6] Whether a claim sounds in medical malpractice is a question of law reviewed under a de novo standard. Thomas v. Regional Health Sys. of Acadiana, 19-00507, p. 8, (La. 1/29/20), 347 So. 3d 595, 601; Jackson v. Willis-Knighton Health System, 54,405, p. 5 (La. App. 2 Cir. 4/13/22), 337 So. 3d 625, 628; Matherne v. Jefferson Parish Hosp. District No. 1, 11-1147, p. 4 (La. App. 5 Cir. 5/8/12), 90 So. 3d 534, writ denied, 12-1545 (La. 10/12/12), 98 So. 3d 873.

₆La. R.S. 40:1231.1(A) provides several essential definitions for purposes of classifying a claim as medical malpractice or an ordinary tort:

(9) "Health care" means any act or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment, or confinement…

(13) "Malpractice" means any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely and the handling of a patient…

Thus, the LMMA only covers claims sounding in "unintentional tort" and "breach of contract" based on "healthcare or professional services" rendered, or which should have been rendered, by a healthcare provider to a patient. Id. Intentional torts and contract claims not based the healthcare provider’s failure to perform...