Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Washington v. Magnolia Manor Nursing Home and Rehabilitation, L.L.C.

Court of Appeals of Louisiana, Second Circuit

March 28, 2018

PHILLIP DERON WASHINGTON Plaintiff-Appellant
v.
MAGNOLIA MANOR NURSING HOME AND REHABILITATION, L.L.C., ET AL. Defendant-Appellee

          Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 597, 467-A Honorable Ramon Lafitte, Judge

          THE SINGLETON LAW FIRM Counsel for Appellant By: W. James Singleton Phillip Deron Washington

          CASTEN & PEARCE, APLC Counsel for Appellees By: Claude W. Bookter, Jr. State of Louisiana and Christopher Atkins, M.D.

          WATSON, BLANCHE, WILSON Counsel for Appellees & POSNER Willis Knighton Medical By: Randall L. Champagne Center and Jacquelyn M. William A. Fell Bowers, M.D.

          LUNN, IRION, SALLEY, CARLISLE Counsel for Appellee & GARDNER, APLC Magnolia Manor Nursing By: Ronald E. Raney and Rehabilitation

          Before BROWN, WILLIAMS, MOORE, COX, and GASKINS (Ad Hoc), JJ.

          GASKINS (AD HOC), JUDGE.

         In this medical malpractice lawsuit, Philip Deron Washington appeals a judgment granting defendants' exceptions of no right of action and dismissing his lawsuit because he failed to timely assert a filiation claim. Concluding that Washington timely asserted a filiation claim, we vacate the judgment and remand.

         FACTS

         Willie P. Pennywell ("Pennywell") was a resident at Magnolia Manor Nursing Home located in Shreveport. On February 27, 2014, Pennywell was taken to the Emergency Room at Willis Knighton Medical Center ("WKMC") after he was found bleeding from the mouth. Dr. Jacquelyn Bowers, the emergency room physician, consulted with Dr. Christopher Atkins, who extracted a deteriorated molar from Pennywell's mouth. Pennywell was discharged to Magnolia Manor later that day. Unfortunately, Pennywell died that night from asphyxia due to obstruction of air passages caused by clotted blood.

         On February 13, 2015, Phillip Washington Pennywell ("Washington") filed on behalf of Pennywell a request for a Medical Review Panel against WKMC, Magnolia Manor, and Dr. Bowers. Nowhere in the complaint did Washington state his relationship to Pennywell. On December 9, 2015, Washington filed an amended complaint in which he alleged for the first time that he was the child and sole heir of Pennywell. Dr. Atkins and University Health-Shreveport were named as additional defendants.

         On December 19, 2016, following the dissolution of the Medical Review Panel, Washington, now using the name "Phillip Deron Washington, " filed a medical malpractice lawsuit seeking survival and wrongful death damages against Dr. Atkins, Dr. Bowers, Magnolia Manor, Willis Knighton Medical Center, and the State of Louisiana.

         WKMC and Dr. Bowers filed the exception of no right of action. They argued that Washington was required to prove filiation to Pennywell by clear and convincing evidence in a civil proceeding instituted within one year of Pennywell's death. Attached to their memorandum in support of the exception was Washington's birth certificate, which listed no father. These defendants noted that the words "filiation, " "illegitimate, " and "acknowledgement" were not mentioned in the petition. They added that the petition did not state that Washington is Pennywell's illegitimate child, that he was ever formally or informally acknowledged by Pennywell, or that he is entitled to filiation.

         Dr. Atkins and the State of Louisiana also filed the exception of no right of action. They asserted that there were no allegations in the petition or documents attached to the petition that established Washington's right to sue or qualified him as a beneficiary under La. C.C. arts. 2315.1 or 2315.2. Magnolia Manor also filed the exception of no right of action, adopting the arguments of its codefendants.

         Washington argued in opposition to the exceptions of no right of action that he timely raised the issue of paternity because his December 14, 2015, amended medical complaint, which stated that he was the child and sole heir of Pennywell, related back to the original complaint. Washington asserted that this meant that he had instituted a civil proceeding alleging that he is the child and sole heir of Pennywell within one year of Pennywell's death. Washington noted that one method of establishing paternity is for the child to bring an action to prove filiation under La. C.C. art. 197. He then referred to the comments to that article, which provide that all relevant evidence is admissible to prove paternity and that an example of relevant evidence is an informal acknowledgement. Attached to Washington's opposition were what he considered to be evidence of informal acknowledgement, namely an affidavit from decedent's sister, and the programs from the funerals of Pennywell and Pennywell's mother. Washington also claimed that his mother was available to testify.

         Before considering the filiation issue, the trial court stated at the hearing on the exceptions that the issue was whether or not the amended complaint related back to the original complaint that was filed within the one-year period following Pennywell's death. The trial court subsequently granted the exceptions of no right of action. The court considered Ratliff v. LSU Bd. of Supervisors, 2009-0012 (La.App. 4 Cir. 5/7/10), 38 So.3d 1068, writs denied, 2010-1312 (La. 9/24/10), 45 So.3d 1079 and 2010-1314 (La. 9/24/10), 45 So.3d 1080, where the appellate court held that the petition for filiation clearly related back to the supplemental and amended petition because it arose out of the same factual situation set forth therein. The trial court noted that if there had been some indication in the original complaint that Washington was Pennywell's child, then the court could reason that the amended complaint raised a filiation complaint that related back. However, based on the supreme court's ruling in Naghi v. Brener, [1] 2008-2527 (La. 6/26/09), 17 So.3d 919, the court concluded that the amended complaint filed more than a year after the date of Pennywell's death did not relate back to the original complaint.

         Washington appealed the judgment granting the exceptions of no right of action and dismissing his lawsuit.

         DISCUSSION

         The function of an exception of no right of action is to determine whether a plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the petition. La. C.C.P. art. 927; Turner v. Busby, 2003-3444 (La. 9/9/04), 883 So.2d 412. The exception of no right of action serves to question whether the plaintiff in the particular case is a member of the class of persons that has a legal interest in the subject matter of the litigation. Id.

         To recover under a claim for wrongful death and survival damages, a plaintiff must fall within the class of persons designated as a beneficiary under La. C.C. arts. 2315.1 and 2315.2. Turner v. Busby, supra. The primary category under both wrongful death and survival actions includes "children" of the decedent. Reese v. State Dept. of Public Safety & Corrections, 2003-1615 (La. 2/20/04), 866 So.2d 244.

         The exception of no right of action presents a question of law; therefore, a court conducts a de novo review of the trial court's action on these exceptions. Waggoner v. America ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.