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Porter v. Southern Oaks Nursing & Rehab. Ctr., LLC

Court of Appeals of Louisiana, Second Circuit

May 20, 2015

LESSIE PORTER, Plaintiff-Appellee

Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana. Trial Court No. 544,491. Honorable Roy L. Brun, Judge.

LUNN, IRION, SALLEY, CARLISLE & GARDNER By: Ronald E. Raney, Counsel for Appellant, Southern Oaks Nursing & Rehabilitation Ctr.

PATRICK R. JACKSON, Counsel for Appellee.

WALTER F. CLAWSON, Counsel for Appellee, Louisiana Patients Compensation Fund and The Louisiana Patient's Compensation Fund Oversight Board.



Page 1198

[49,807 La.App. 2 Cir. 1] MOORE, J.

[49,807 La.App. 2 Cir. 2] Southern Oaks Nursing & Rehabilitation Center LLC appeals a judgment in rule which found that the claims of the late Lessie Porter (now represented by her children) fell outside the coverage of the Louisiana Medical Malpractice Act (" MMA" ) and a partial summary judgment which found that Ms. Porter's claims were in tort, not in medical malpractice. For the reasons expressed, we affirm the judgment in rule but reverse the summary judgment and remand the case for further proceedings.

Factual and Procedural Background

In November 2009, Ms. Porter's family placed her in Southern Oaks for care of various mental and physical illnesses, including dementia. The dementia often made her agitated and combative; she repeatedly tried to " escape" from the facility. Medical records also described her as short (5'4" ) and heavy (201 lbs.).

On Thanksgiving evening, November 26, Ms. Porter was especially agitated, having twice left her room and crawled some distance down the hall; both times, attendants picked her up, got her in a wheelchair, rolled her back to her room and put her in bed. About 15 minutes later, she escaped again, but did not get as far. Attendants found her lying on her stomach in the doorway, " halfway in, halfway out." According to a Department of Health &

Page 1199

Hospitals report, the LPN on duty, Stephanie Mims-Bolden, apparently frustrated, said, " If she wants to stay on the floor, let her stay on the floor." Without obtaining a doctor's order, Nurse Mims-Bolden got a tranquilizer, injected Ms. Porter, and left her on the floor a few more minutes. Because of how Ms. Porter was positioned in the doorway, she could not be lifted in the normal manner, one attendant under each arm to [49,807 La.App. 2 Cir. 3] hoist her up. Nurse Mims-Bolden asked several CNAs to help drag Ms. Porter across the floor to her bed; one of them, Arshalon Powell, finally agreed. Together, they grabbed Ms. Porter's feet and lower legs, and dragged her across the polished-brick floor into her room, scratching her stomach and elbows. Nurse Mims-Bolden gave her another shot and locked her in; about 15 minutes later, Ms. Porter was found asleep on the floor. Nurse Mims-Bolden and another CNA then properly lifted her onto the bed, changed her diaper and tucked her in for the night.

Ms. Porter filed a request for medical review panel (" MRP" ) with the Patient's Compensation Fund (" PCF" ) in September 2010, alleging medical malpractice. However, a PCF compliance expert replied by letter that in the PCF's view, the allegations were " not within the scope of medical malpractice," so no MRP was ever convened.

Simultaneously, Ms. Porter filed the instant petition in the First Judicial District Court, alleging that Southern Oaks' staff failed to meet her needs, abused her, and abused her through negligence. She claimed damages for breach of contract, breach of the Nursing Home Residents' Bill of Rights, La. R.S. 40:2010.8, and breach of the standard of care; she also requested a jury trial.

Southern Oaks answered, initially raising denials, the affirmative defense that it was a qualified healthcare provider and subject to the protections of MMA, and an exception of no cause of action based on the exclusive remedy of injunction in R.S. 40:2010.9. Some months later, however, Southern Oaks amended its answer to admit liability, specifically that Ms. Porter was:

[49,807 La.App. 2 Cir. 4] dragged and/or lifted, while in a face down position, from the doorway area of her room to the interior of her room by employees of defendant, and * * * thereafter left unattended for a period of time[; ] employees failed to use appropriate procedures in moving and/or handling Ms. Porter * * *, and failed to timely and fully report the incident over the course of the next several days.

The parties also entered a stipulation as to these facts. Southern Oaks reserved its rights to a trial on the issue of damages only, and reiterated its affirmative ...

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