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In re Medical Review Panel Claim of Hume

Court of Appeals of Louisiana, Fourth Circuit

April 1, 2015

IN RE: MEDICAL REVIEW PANEL CLAIM OF: DELVIN LOUIS HUME (D), ET AL. CONSOLIDATED WITH: KATHRYN ALLRED HUME, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF HER LATE HUSBAND, DELVIN LOUIS HUME; DAVID LOUIS HUME; DARREN LADD HUME; WENDEE HUME DELANO; AND DAVID LEONARD HUME
v.
PRESTIGE CARE, L.L.C. D/B/A FERNCREST MANOR LIVING CENTER; ABC INSURANCE COMPANY, RIAZ UL HAQUE, M.D.; AND LOUISIANA MEDICAL MUTUAL INSURANCE COMPANY

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[Copyrighted Material Omitted]

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APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH. NO. 2010-08343, DIVISION " D-16" . Honorable Lloyd J. Medley, Judge.

Robert M. Hearin, Jr., HEARIN LAW OFFICES, L.L.C., New Orleans, LA AND J. Vance Robichaux, Jr., Brian D. Page, ROBICHAUX LAW FIRM, New Orleans, LA, COUNSEL FOR PLAINTIFFS/APPELLANTS, KATHRYN ALLRED HUME, ET AL.

Dorothy L. Tarver, TAGGART MORTON, LLC, New Orleans, LA, COUNSEL FOR DEFENDANT/APPELLEE, PRESTIGE CARE, L.L.C. D/B/A FERNCREST MANOR LIVING CENTER.

(Court composed of Judge Terri F. Love, Judge Edwin A. Lombard, Judge Joy Cossich Lobrano). LOBRANO, J., CONCURS IN THE RESULT.

OPINION

Terri F. Love, J.

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[2014-0844 La.App. 4 Cir. 1] This appeal arises from the medical malpractice suit brought by the decedent's surviving spouse and children. The decedent passed away from acute renal failure after becoming dehydrated while in a nursing home's care. After the lawsuit was filed, the nursing home filed an exception of prescription alleging that over one year had passed from the date of the alleged malpractice and the filing of the lawsuit. The trial court granted the exception finding that the surviving spouse was aware of the decedent's injuries and had sufficient information to excite her curiosity when she removed her husband from the nursing home. The trial court also found that the surviving spouse and children consulted with an attorney regarding the nursing home's malpractice within one year of the last date of the malpractice.

We find that the doctrine of contra non valentum applied to prevent the commencement of prescription. Further, we find that it was reasonable for the surviving spouse and children not to suspect that the nursing home committed malpractice because the acts of the nursing home were not the cause of the decedent's hospice care. Additionally, we find that the record lacks sufficient evidence to prove that the surviving spouse and children contacted an attorney [2014-0844 La.App. 4 Cir. 2] regarding the nursing home's actions within a year from the decedent's last day at the nursing home. Accordingly, we find that the lawsuit was filed within one year " from the date of discovery of the alleged act, omission, or neglect." Therefore, we reverse and remand for further proceedings.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On April 29, 2009, Delvin Hume was admitted to Prestige Care, L.L.C. d/b/a Ferncrest Manor Living Center (" Ferncrest" ) for a thirty-day respite stay while his wife, Kathryn Hume, underwent and recuperated from a corneal transplant. Mr. Hume suffered from numerous health afflictions, but was stable when he entered Ferncrest. His health conditions included diabetes mellitus, hyponatremia, cardiovascular heart disease, bipolar disorder, dementia without behavior disturbance, anorexia, iron deficiency anemia, a prosthetic right leg resulting from an above-the-knee amputation in 1999 due to peripheral vascular disease, a prosthetic right eye, a missing right fifth finger, a missing left fifth toe, and post-concussion syndrome following a fall in 2008. Mrs. Hume was Mr. Hume's primary caregiver.

" On May 2, 2009, Mrs. Hume found her husband lying on the floor of his room at Ferncrest after having apparently fallen out of his bed at an earlier undetermined time." " On May 3, 2009, a Ferncrest staff nurse refused to give Mr. Hume his prescribed diabetic medication, Glucophage, on the basis (later shown to be in error) that Mr. Hume had not been prescribed that medication." Later that day, Mrs. Hume removed Mr. Hume from Ferncrest. Mrs. Hume took her husband home under the guise of a pass, but had no intentions of returning Mr. Hume to Ferncrest. " Her primary reason for taking this action was that Mr. Hume was complaining about being in the nursing home, but she was also concerned about [2014-0844 La.App. 4 Cir. 3] his appearance, his fall from the bed and the mix-up in administering his diabetic medication." Later that day, Mr. Hume was " doing poorly," so his personal physician instructed Mrs. Hume to bring him to the emergency room. While in the hospital, Mr. Hume was diagnosed with an intestinal blockage and nodule in one of his lungs.

Mr. Hume was placed into home hospice care after leaving the hospital on May 12, 2009, because Mr. and Mrs. Hume, and

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medical professionals decided Mr. Hume would not survive the treatment required for the nodule in his lung. The diagnosis at the beginning of Mr. Hume's hospice care was stomach cancer. Mr. Hume passed away surrounded by his loved ones at home on May 24, 2009. Mr. Hume's death certificate reflects that his cause of death was acute renal failure and cardiovascular heart disease.

After Mr. Hume's death, the family's attorneys were conducting discovery in conjunction with a lawsuit regarding a previous slip and fall by Mr. Hume. They discovered that Mr. Hume's Ferncrest records indicated that Mr. Hume had a lack of urinary output during his respite care. The records also revealed that Mr. Hume was severely dehydrated when he was admitted to the hospital on May 3, 2009.

After discovering this information, Mrs. Hume and Mr. Hume's children[1] (collectively the " Humes" ) requested that a medical review panel (" MRP" ) be convened to review the actions of Ferncrest and Dr. Riaz Ul Haque. The MRP found that Dr. Haque met the applicable standard of care in his treatment of Mr. Hume. However, the MRP found that Ferncrest did not meet the applicable [2014-0844 La.App. 4 Cir. 4] standard of care. Specifically, the MRP found that it was " a deviation from the standard of care to not timely notify a physician of a patient's change in condition. The records do not indicate that the nursing staff recognized the patient's lack of urinary output for three days." The MRP also stated ...


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