Opinion
NO. 2014 CW 1215
10-21-2014
MARY EARTHLY ON BEHALF OF DOROTHY JONES v. CPLACE UNIVERSITY SNF, LLC D/B/A AFFINITY NURSING AND REHAB CENTER AND ABC INSURANCE COMPANY
In Re: Cplace University, SNF, LLC d/b/a Affinity Nursing and Rehab Center, applying for supervisory writs, 19th Judicial District Court, Parish of East Baton Rouge, No. 629257.
BEFORE: PARRO, McDONALD AND CRAIN, JJ.
WRIT GRANTED IN PART. The September 3, 2 014 judgment of the trial court is hereby vacated in part. We find that the allegations contained in Paragraph 14, subsection B of the petition, which alleges intentional mental and physical abuse; Paragraph 14, subsection C of the petition, which alleges improper restraints with inappropriate materials and in an unreasonable, inappropriate and dangerous manner; and Paragraph 14, subsection E of the petition, which alleges other intentional acts as may be revealed at the trial of the merits on this case, arise in intentional tort and are therefore exempt from the provisions of La. R.S. 40:1299.47 (B). The exception of prematurity is denied with respect to these claims.
The trial court erred in refusing to admit and consider evidence at the hearing of this matter pursuant to La. C.C.P. art. 930. The trial court is ordered to admit and consider evidence regarding whether the alleged negligence occurred during the patient's medical care, treatment or confinement, and to reconsider the exception of prematurity in light of such evidence and in light of McKnight v. D & W Health Servs., Inc., 2002-2552 (La. App. 1st Cir. 11/7/03), 873 So.2d 18, and Hamilton v. Baton Rouge Health Care, 2009-0849 (La. App. 1st Cir. 12/8/10), 52 So.3d 330.
RHP
JMM
Crain, J., concurs.
COURT OF APPEAL, FIRST CIRCUIT /s/_________
DEPUTY CLERK OF COURT