Louisiana Personal Injury Lawyer Blog
Recently, an individual from the Parish of St. Tammany was injured as she was transported from a nursing home to another health-care facility. She fell from her wheelchair when the driver had to slam on his brakes. The wheelchair had neither a seatbelt, nor was the wheelchair strapped down in the van. The individual sued her nursing home based on the failure to adequately secure her for her journey. Questions regarding the Louisiana Medical Malpractice Act arose that considered whether the nursing home was a healthcare provider and whether her injury constituted medical malpractice.
The Louisiana Medical Malpractice Act (“Act”) requires that individuals take their medical malpractice complaints against qualified health care providers to a medical review board before taking the claim to a court. The State of Louisiana employs this administrative process because the state is self-insured, and it covers some health-care providers. They want to be sure that a medical malpractice claim exists before it gets into the courtroom. The medical review board generally consists of two healthcare professionals and one attorney. Generally, the healthcare professionals are in the same field as the doctor accused of malpractice. For more information on the medical review panel, see http://www.doa.louisiana.gov/MedReview/index.htm.
If a claimant does not use the medical review panel and tries to take their claim directly to court, then it will be dismissed because it is premature. Dismissing for prematurity is a dilatory exception, which means that it only delays the progress of a lawsuit, but does not defeat the action. In medical malpractice suits, the defendant has the burden of proving that he is entitled to a medical review panel, which only applies to only malpractice, not other tort actions, and that he or she is a qualified medical provider.
Malpractice is defined by statute La. Rev. Stat. 40:1299.41A(8) as a breach of contract involving health care or related services, including failing to provide said services, or not doing so in a timely manner. The handling of a patient can also be included in this unintentional tort. Health care is also defined in the same statute. Health care is any present or future service performed by a healthcare provider done during a patient’s treatment or stay at a medical facility.
A court generally uses a six-factor test to determine whether a claim is medical malpractice: first is whether the incident at hand occurred during treatment or was caused by an insufficient amount of skill to perform the appropriate health care procedure; second is whether the resulting incident requires expert medical testimony or other evidence to determine whether there was a breach in the correct standard of care; third is whether an assessment of the patient’s condition was necessary or was the cause of the incident; fourth would be whether the accident happened during a physician-patient relationship, or was within the scope of duties or services that a health care provider would typically administer to a patient; fifth is whether the incident or accident may have happened anyway, regardless of seeking health care services; and the final factor is a determination of whether the incident or harm was accidental, or if it was in fact done on purpose. The Court notes that, essentially, all of these items depend on whether the action was related to treatment by a medical professional.
First, the nursing home did have a certificate providing that they are “qualified health care providers” under the Act. So, the remaining question was whether her injury was considered malpractice under the Act. The argument that the injured individual was making is that the nursing home failed to put her in a wheelchair with a seatbelt. The court reasoned that since she was already confined to a wheelchair, an average person with little to no medical education could have reasoned that she should be in a wheelchair with a seatbelt while being transported. The fact that she was being transported for medical reasons has no real bearing since she was not in the nursing home for medical reasons other than the “normal infirmities of advanced age.” Since the negligence referred to the condition of the equipment and not the decision to transport, the court found that the injured individual did not need to go through the medical review board to bring her suit.
The court mentions several similar cases. While transporting a patient who is under medical care is generally within the definition of relating to treatment, when a patient is injured while being transported from a nursing home where they reside for no real medical reason, then the nursing home may be liable for the failure to provide the proper equipment or care. Because these distinctions can be somewhat confusing, it is helpful to consult attorneys who are well versed in this area.