Opinion
21-C-725
02-17-2022
KYLE STEIB, INDIVIDUALLY AND ON BEHALF OF HIS DECEASED FATHER HALTON JOSEPH STEIB v. TWIN OAKS NURSING HOME, INC. IN RE TWIN OAKS NURSING HOME, INC.
APPLYING FOR SUPERVISORY WRIT FROM THE FORTIETH JUDICIAL DISTRICT COURT, PARISH OF ST JOHN THE BAPTIST, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE VERCELL FIFFIE, DIVISION "A", NUMBER 76, 486
Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Hans J. Liljeberg
WRIT DENIED
Defendant/relator, Twin Oaks Nursing Home, Inc., seeks this Court's supervisory review of the trial court's November 10, 2021 judgment which denied relator's exception of prematurity. For the following reasons, we deny the writ application.
FACTS AND PROCEDURAL BACKGROUND
Plaintiff/respondent, Kyle Steib, individually and on behalf of his deceased father, Halton Joseph Steib, filed suit against defendant Twin Oaks on March 5, 2021 for the wrongful death of Halton Steib, a patient/resident of Twin Oaks, from Covid-19 on May 23, 2020. The petition alleged various acts and omissions on the part of Twin Oaks, as detailed below, pertaining to Twin Oaks' failure to prevent the introduction and spread of Covid-19 at its facility, and its failure to properly identify and report Covid-19 symptoms among residents to proper authorities, which led to Mr. Steib contracting Covid-19 from which he ultimately died. The petition specifically stated that the acts/omissions constituted medical malpractice as per the Louisiana Medical Malpractice Act, La. R.S. 40:1299.41 ("LMMA").
The petition states that Mr. Steib contracted Covid-19 in late April of 2020 while at Twin Oaks, but he passed away at University Medical Center of New Orleans.
Plaintiff's petition also alleged violations of the Louisiana Nursing Residents' Home Bill of Rights, La. R.S. 40:2010.8. Defendant filed exceptions of no cause of action and no right of action pertaining to those allegations, which were granted, thus dismissing those claims. That ruling is not part of this writ application.
Paragraph 38 of plaintiff's petition for damages states as follows:
Twin Oaks is liable to Petitioner for the death of his father under the Medical Malpractice Act (MMA), La. Rev. Stat. Ann. § 40:1299.41, et seq. Here, the MMA is applicable because the negligence of Twin Oaks is related to: 1) a wrong related to or caused by a dereliction of professional skill; 2) a wrong that requires expert medical evidence to determine whether the appropriate standard of care was breached; 3) pertinent facts or omissions involving assessment of the patient's condition; and 4) the assessment and treatment of a patient by a physician; 5) the death would not have occurred if appropriate treatment would have been provided.Plaintiff's petition, paragraph 39, also alleges a failure to comply with the standard of care, as well as a failure to undertake appropriate training of staff.
Before filing the petition in district court, plaintiff filed an application for a medical review panel with the Louisiana Patient's Compensation Fund on June 8, 2020. According to the writ application, the medical review panel application contains substantially similar allegations against Twin Oaks, and the medical review panel has not yet convened or rendered an opinion on plaintiff's application.
Defendant filed an exception of prematurity on April 29, 2021. The matter was heard before the trial court on August 16, 2021, and was taken under advisement. The trial court's judgment denying the exception was issued on November 10, 2021. The judgment included extensive reasons for the judgment. This timely writ application followed.
LAW AND STANDARD OF REVIEW
The dilatory exception of prematurity questions whether the cause of action has matured to the point where it is ripe for judicial determination. Bonilla v. Jefferson Par. Hosp. Serv. Dist. #2, 16-0234 (La.App. 1 Cir. 12/28/16), 210 So.3d 540, 545-46, writ denied, 17-0187 (La. 4/7/17), 215 So.3d 235, citing La. C.C.P. art. 926 and Buford v. Williams, 11-568 (La.App. 5 Cir. 2/14/12), 88 So.3d 540, 543. An action is premature when it is brought before the right to enforce it has accrued. Id.; La. C.C.P. art. 423. Under the Louisiana Medical Malpractice Act, a medical malpractice claim against a private qualified healthcare provider is subject to dismissal on an exception of prematurity if the claim has not first been presented to a medical review panel. Id.; La. R.S. 40:1231.8(A)(1)(a); LaCoste v. Pendleton Methodist Hosp., L.L.C., 07-0008 (La. 9/5/07), 966 So.2d 519, 523. The burden of proving prematurity is on the exceptor to show that it is entitled to a medical review panel. Id., citing Williamson v. Hospital Serv. Distr. No. 1 of Jefferson, 04-0451 (La. 12/1/04), 888 So.2d 782, 785. A case must proceed with the procedure set forth in the LMMA if the claims sound in malpractice, but should proceed under general tort law if the claims sound in negligence. Bonilla, 210 So.3d at 545, citing Dupuy v. NMC Operating Co., L.L.C., 15-1754 (La. 3/15/16), 187 So.3d 436, 440.
Where no evidence is presented at the trial of a dilatory exception of 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; however, this latter principal applies only to properly pleaded material allegations of fact, as opposed to allegations deficient in material detail, conclusory factual allegations, or allegations of law. Id., citing Hamilton v. Baton Rouge Health Care, 09-0849 (La.App. 1 Cir. 12/08/10), 52 So.3d 330, 333. The issue of whether a claim sounds in medical malpractice is a question of law conducted under a de novo standard of review. Id., citing Matherne v. Jefferson Parish Hospital Dist. No. 1, 11-1147 (La.App. 5 Cir. 5/8/12), 90 So.3d 534; Buford, 88 So.3d at 544.
No transcript of the hearing on the exception of prematurity is included in this writ application. While both the writ application and the opposition thereto filed in this Court imply that no evidence was introduced at the hearing, the judgment notes that "Defendant attached records of treatment of Halton Steib received after March of 2020, …" and goes on to comment on those records. The lack of hearing transcript renders this Court unable to independently verify whether the trial court relied upon evidence outside of the petition furnished by the parties, and whether such evidence was properly introduced as is required in exception practice. See Denoux v. Vessel Mgmt. Servs., Inc., 07-2143 (La. 5/21/08), 983 So.2d 84, 88.
The LMMA, in La. R.S. 40:1231.1(A)(13), defines malpractice as follows:
"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, including loading and unloading of a patient, and also includes all legal responsibility of a health care provider arising from acts or omissions during the procurement of blood or blood components, in the training or supervision of health care providers, or from defects in blood, tissue, transplants, drugs, and medicines, or from defects in or failures of prosthetic devices implanted in or used on or in the person of a patient.
"Health care," is defined in the LMMA, in La. R.S. 40:1231.1(A)(9), as "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 … ."
In Coleman v. Deno, 01-1517 (La. 1/25/02), 813 So.2d 303, 315-316, the Supreme Court set forth six factors to assist a court in determining whether certain conduct by a qualified health care provider constitutes "malpractice" as defined under the LMMA:
(1) Whether the particular wrong is treatment related or caused by a dereliction of skill;
(2) Whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached;
(3) Whether the pertinent act or omission involved assessment of the patient's condition;
(4) Whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital is licensed to perform;
(5) Whether the injury would have occurred if the patient had not sought treatment; and
(6) Whether the tort alleged was intentional.
Thus, the particular issue before this Court is whether the trial court erred in finding that allegations in plaintiff's petition sounded in general tort negligence rather than in medical malpractice. In this writ application, defendant/relator argues that the trial court erred in denying the exception of prematurity. Relator argues that the trial court misapplied the Coleman factors.
ANALYSIS
The particular wrongs alleged by Mr. Steib in the petition are that Twin Oaks failed to prevent his father from contracting Covid-19, because Twin Oaks failed to develop and implement policies and procedures regarding how to respond to the coronavirus infections, did not train staff about preventing and containing the virus in a timely manner, did not train nurse aides about using personal protective equipment, and did not provide that equipment for their use, and employed unqualified staff when staffing shortages occurred. The specific acts/omissions as alleged in plaintiff's petition are as follows:
• Failure to take measures to protect Plaintiff's father, Halton Joseph Steib, from contracting COVID-19;
• Failure to follow the guidance of the American Healthcare Association (AHCA) and the National Center for Assisted Living issued on February 29, 2020 by monitoring staff and visitors for hand washing or use of alcohol hand gels;
• Failure to follow the guidance of the American Healthcare Association (AHCA) and the National Center for Assisted Living issued on February 29, 2020 by following contact isolation procedures and ensure staff follows them consistently;
• Failure to follow the guidance of the American Healthcare Association (AHCA) and the National Center for Assisted Living issued on February 29, 2020 by restricting the use of common areas to prevent the spread to other residents and staff;
• Failure to follow the guidance of the American Healthcare Association (AHCA) and the National Center for Assisted Living issued on February 29, 2020 by requiring that staff, contractors, volunteers to stay home if they are sick;
• Failure to follow the guidance of the American Healthcare Association (AHCA) and the National Center for Assisted Living issued on February 29, 2020 by posting notices for visitors who are sick to stop visiting and work with facilities on alternate ways to visit family members, like Skype, phone calls and email;
• Failure to follow the guidance of the American Healthcare Association (AHCA) and the National Center for Assisted Living issued on February 29, 2020 by checking with the local health department if they are recommending more restrictive criteria for visitations as COVID-19 spreads;
• Failure to follow the guidance of the American Healthcare Association (AHCA) and the National Center for Assisted Living issued on February 29, 2020 by maintaining consistent communication with local and state health departments;
• Failure to follow the guidance of the American Healthcare Association (AHCA) and the National Center for Assisted Living issued on February 29, 2020 by ensuring that the Twin Oaks' infection preventionist signed up for health department and CDC announcements;
• Failure to follow the guidance of the American Healthcare Association (AHCA) and the National Center for Assisted Living issued on February 29, 2020 by consistently monitoring the CDC COVID-19 website for the latest information on coronavirus prevention strategies, testing guidance, and recommendations for health care workers;
• Failure to adhere to the updated guidance of the Centers for Disease Control by restricting all visitation except for certain compassionate care situations, such as end of life situations much sooner than it did;
• Failure to adhere to the updated guidance of the Centers for Disease Control by restricting all volunteers and non-essential healthcare personnel (HCP), including nonessential healthcare personnel (e.g. barbers) much sooner than it did;
• Failure to adhere to the updated guidance of the Centers for Disease Control by canceling all group activities and communal dining much sooner than it did;
• Failure to adhere to the updated guidance of the Centers for Disease Control by implementing active screening of residents and HCP for fever and respiratory symptoms much sooner than it did;
• Failure to adhere to the updated guidance of the Centers for Disease Control by adhering to state or federal guidelines to regularly screen residents and staff and ensure adequate supplies of personal protective equipment much sooner than it did;
• Failure to adhere to the updated guidance of the Centers for Disease Control by adequately test residents and staff;
• Failure to isolate infected residents in a timely manner to protect others;
• Failure to enforce social distancing among residents;
• Failure to undertake appropriate training of staff to ensure its employees and staff complied with the COVID-19 preventative directives; and
• Failure to comply with the standard of care by all facts that will be discovered through discovery in this action.
See Paragraph 39 of plaintiff's petition.
The above list, excepting the last four allegations, comprises "administrative negligence," i.e., the failure to know, implement, and/or adhere to specific policies, and are not allegations of "hands-on" treatment or lack thereof by a particular physician or health care worker. The Louisiana Medical Malpractice Act may apply to administrative failures that impact health care. Bonilla, 210 So.3d at 545, citing Dupuy v. NMC Operating Co., L.L.C., 187 So.3d at 440. As this Court recognized in Bonilla, analyzing these types of administrative negligence claims under the Coleman framework is a challenging exercise but one that the Supreme Court has undertaken in these types of cases, which now guide this Court.
Regarding the first Coleman factor, plaintiff's petition contains no allegations of malpractice against any physicians or health care providers, unlike in Bonilla, which bring these claims of administrative negligence within the ambit of those the Supreme Court considered in LaCoste, supra. In that case, the Court held that a hospital's negligent failure to design, construct, and/or maintain its facility to provide emergency power to sustain life support systems during and in the aftermath of Hurricane Katrina, and the failure to implement adequate evacuation plans or have facilities available to transfer patients to in emergency or mandatory evacuations, did not directly relate to medical treatment or a dereliction of professional skill within the meaning of the first Coleman factor. Further, this Court in Bonilla, in denying the exception of prematurity filed in that case, noted the "inextricable dependency of the administrative negligence claim upon a subsequent act of medical malpractice by the physicians … ." There are no allegations against physicians in the case at bar.
In Bonilla, the plaintiff made allegations against both hospital administrators and her treating physicians. The failure of the hospital to adopt a "handoff" policy was found to sound in medical malpractice against the hospital administrators, as was the plaintiff's allegation that she was in fact improperly handed off sounded in medical malpractice against her treating physicians.
The second Coleman factor is whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached. The alleged acts or omissions involve the alleged duty to make and follow administrative policies that themselves do not govern a physician's practice of medicine. We agree with the trial court that resolution of this issue does not implicate expert medical testimony, and further that the allegations of improper staff training and hiring are not treatment related.
The third Coleman factor is whether any pertinent act or omission involved assessment of Mr. Steib's condition. The acts and omissions alleged in plaintiff's petition, lack of and/or adherence to policies, and the particular claim of lack of staff training, do not refer to any acts or failures to act regarding his condition or assessment thereof, at any time, before or after he contracted Covid-19. Accordingly, this factor weighs against a finding that the claims fall under medical malpractice.
The fourth Coleman factor is whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital is licensed to perform. We find no error in the trial court's conclusion that the acts and/or omissions complained of did not state that they occurred in the context of a doctor-patient relationship, nor is it alleged that physician direction or supervision was required to implement Covid-19 policies.
The fifth Coleman factor is whether the injury would have occurred if the patient had not sought treatment, or, restated, would Mr. Steib have contracted Covid-19 had he not been a patient at Twin Oaks? The trial court found that this factor was indeterminable. We find no error in this conclusion. Given Mr. Steib's age and the fast rate of the virus's initial spread, it cannot be said that but for his presence at Twin Oaks, he would not have contracted Covid-19.
Plaintiffs do not allege an intentional tort, so the sixth Coleman factor is not at issue here.
Considering the application of all of the Coleman factors to the allegations in the petition, we find no error in the trial court's conclusion that the allegations in plaintiff's petition sound in general tort negligence rather than in medical malpractice.
Relator argues that plaintiff's petition explicitly states in paragraph 38 that the LMMA is applicable, for the various listed reasons. Such a statement is a legal conclusion, however, and is not dispositive of the issue, which must be determined by the application and analysis of the Coleman factors to the specific allegations in a petition. Further, the fact that plaintiff has also applied for a medical review panel is, likewise, not dispositive, as that tribunal makes its own determination upon analysis of the allegations in an application whether the LMMA applies.
Having found no error in the trial court's ruling denying relator's exception of prematurity, this writ application is denied.
JGG
SMC
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