WELTZ v. MAGNOLIA MANOR NURSING REHABILITATION CENTER LLC (2020)

Writ denied.

Magnolia Manor Nursing & Rehabilitation Center, LLC is a nursing home health care provider under the Louisiana Medical Malpractice Act. See La. R.S. 40:1231.1A(10). As such, for claims filed against it that sound in “malpractice,” Magnolia Manor is entitled to a medical review panel and the limitation on damages provided for under the Act. See La. R.S. 40:1231.2 and 1231.8A. Plaintiff claims, while confined in the nursing home, she was dropped and suffered injuries while her adult diaper was being changed. Specifically, she claims her care plan was violated when one person, not two, attempted to change her diaper, thus allowing her to fall. She argues her claims arise in negligence, not malpractice; therefore, Magnolia Manor is not entitled to the benefits under the Act. The issue should be resolved by a plain reading of the Act.

“Malpractice” is defined under La. R.S. 40:1231.1A(13) as any unintentional tort based on “health care” rendered, or which should have been rendered, by a health care provider to a patient, including “the handling of a patient.” (Emphasis added.) “Health care” means “any act ․ 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.” La. R.S. 40:1231.1A(9).

Applying the facts alleged to the plain language of the Act, the diaper change was an act performed for a patient during the patient's confinement in the nursing home; consequently, that act meets the express definition of “health care.” See La. R.S. 40:1231.1A(9). Dropping the patient during the diaper change was an unintentional tort which involved “handling” the patient. See La. R.S. 40:1231.1A(13). A plain reading of the statute results in the inescapable conclusion that Magnolia Manor has been sued for “malpractice” under the Act. There is no need to resort to an analysis of statutory intent by applying the factors enumerated in Coleman v. Deno, 01-1517 (La. 1/25/02), 813 So. 2d 303, as the alleged tortious act clearly meets the statutory definition of “malpractice.” This court should not allow the consequences of the court of appeal's error to stand. I would grant the subject writ application, reverse the court of appeal, and reinstate the judgment of the trial court.

Crain, J., would grant and assigns reasons.