STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
CA 07-101
CURTIS RANDALL
VERSUS
CONCORDIA NURSING HOME D/B/A CAMELOT LEISURE LIVING
**********
APPEAL FROM THE SEVENTH JUDICIAL DISTRICT COURT PARISH OF CONCORDIA, NO. 39528 HONORABLE LEO BOOTHE, DISTRICT JUDGE
JOHN D. SAUNDERS JUDGE
Court composed of John D. Saunders, Oswald A. Decuir, and Marc T. Amy, Judges.
AFFIRMED AS AMENDED.
James Brewster Gardner Lunn, Irion, Salley, Carlisle, & Gardner P. O. Box 1534 Shreveport, LA 71165-1534 (318) 222-0662 Counsel for Defendant/Appellant: Concordia Nursing Home
John Sturgeon Sturgeon & Boyd P. O. Drawer 1463 Ferriday, LA 71334 (318) 757-4151 Counsel for Defendant/Appellant: Concordia Nursing Home Kimberly A. Ramsey Nix, Patterson & Roach 401 Edwards St., Suite 820 Shreveport, LA 71101 (318) 425-9255 Counsel for Plaintiff/Appellee: Curtis Randall SAUNDERS, Judge.
This is a nursing home neglect and medical malpractice case brought by a
plaintiff child, individually, and on behalf of his deceased mother. Through a petition
and one supplement to that petition, the plaintiff brought an action against the nursing
home under the Louisiana Nursing Home Resident’s Bill of Rights (hereinafter
“NHRBR”) and, after a Medical Review Panel issued its findings, under the
Louisiana Medical Malpractice statutes.
The plaintiff then dismissed his medical malpractice action and specifically
reserved his NHRBR action. In response, the nursing home filed Peremptory
Exceptions of No Right of Action, No Cause of Action and Prescription. The trial
court denied these exceptions. The nursing home also filed a Motion in Limine to
limit the evidence the plaintiff could submit to that which was from one year prior to
his filing suit. This motion was also denied.
After a jury trial, the plaintiff was awarded $150,000.00 in damages for the loss
of his mother’s dignity while she was a resident of the nursing home. The nursing
home appealed the verdict, alleging six assignments of error. The plaintiff answered
the appeal and requested additional attorney’s fees for work performed on the appeal.
We affirm the trial judge on all assignments alleging his error. Further, we find
no abuse of discretion by the jury in finding that the decedent suffered damages under
the Louisiana NHRBR, nor do we find any error in the jury’s failure to reduce the
plaintiff’s award by two-thirds based on the number of beneficiaries in the class that
can recover for decedent’s damages. We find that the jury’s award of $150,000.00 to
the plaintiff for his virile share of decedent’s damages was abusively high and amend
that award to $100,000.00.We award the plaintiff $5,000 in additional attorney’s fees
for all work performed on this appeal. All costs of this appeal are assessed to the nursing home.
FACTS AND PROCEDURAL HISTORY:
On March 18, 2004, Curtis Randall (hereinafter “Plaintiff”) individually and
on behalf of the unopened succession of Francine Inez Randall (hereinafter “Mrs.
Randall”), filed suit against Concordia Nursing Home, Inc. d/b/a Camelot Leisure
Living (hereinafter “Camelot”). In his petition, Plaintiff alleged violations of Mrs.
Randall’s rights as guaranteed to her under the Louisiana NHRBR. In addition,
Plaintiff filed a letter of complaint with the Patients’ Compensation Fund, pursuant
to La.R.S. 40:1209.47, et.seq.
Plaintiff alleged in his original petition that from January 1996 through August
12, 2003, the date of his mother’s death, that his mother, as a resident at Camelot, was
maltreated and her rights were violated under the Louisiana NHRBR. Subsequent to
the Medical Review Panel reaching its findings, Plaintiff amended his petition to add
his medical malpractice action to his NHRBR action against Camelot.
Plaintiff then moved for a voluntary dismissal of his medical malpractice action
against Camelot on June 23, 2006. Plaintiff’s motion for voluntary dismissal was
granted on June 28, 2006.
Once Plaintiff’s motion for voluntary dismissal was granted, Camelot filed
Peremptory Exceptions of No Cause of Action, No Right of Action, and Prescription.
Further, Camelot filed a Motion in Limine requesting that the trial court limit
Plaintiff’s evidence to the period of one year prior to suit being filed. The trial court
denied all of Camelot’s peremptory exceptions and also denied its Motion in Limine.
Following an August 16, 2006, jury trial on the merits, the jury returned a
verdict that Camelot had violated Mrs. Randall’s rights under the Louisiana NHRBR
2 as she suffered a loss of dignity. The verdict awarded Plaintiff $150,000.00 in
damages. Camelot appealed the trial court’s rulings regarding its Peremptory
Exceptions of No Right of Action and Prescription, its Motion in Limine, and the
jury’s verdict, asserting six total assignments of error. Plaintiff answered Camelot’s
appeal requesting additional attorney fees for all work performed on the appeal.
We affirm the trial court on its finding that Camelot’s Peremptory Exception
of No Right of Action and Prescription lacked merit. We also affirm the trial court on
its finding that Camelot’s Motion in Limine lacked merit. We find no abuse of
discretion by the jury in finding that Mrs. Randall suffered damages under the
Louisiana NHRBR, nor do we find any error in the jury’s failure to reduce Plaintiff’s
award by two-thirds based on the number of beneficiaries in the class that can recover
for Mrs. Randall’s damages. We find the jury’s award of $150,000.00 to Plaintiff for
his virile share of Mrs. Randall’s damages was abusively high and amend that award
to $100,000.00.We also affirm the trial court’s allowance for Plaintiff to recover
money damages from Camelot despite our Legislature’s August 15, 2003, amendment
to La.R.S. 40:2010.9 based upon the continuing tort doctrine. Finally, we award
Plaintiff $5,000 in additional attorney’s fees for all work performed on this appeal.
All costs of this appeal are assessed to Camelot.
ASSIGNMENTS OF ERROR:
1. Did the trial court err in denying Camelot’s Peremptory Exception of No Right of Action in light of Plaintiff’s prior dismissal of his medical malpractice action?
2. Did the trial court err in denying Camelot’s Peremptory Exception of Prescription, and in denying its Motion in Limine to limit the evidence Plaintiff could submit to that which took place one year prior to filing suit?
3. Did the jury err in holding that the decedent, Mrs. Randall, sustained any injury or damages under the Louisiana Nursing Home Bill of Rights, absent any
3 expert medical evidence and in the face of the opinions of four physicians that she received excellent care?
4. Did the jury err in failing to reduce its award of $150,000.00 to Plaintiff by two-thirds as Mrs. Randall had two other children that could recover damages on her behalf?
5. Did the jury err by excessively awarding $150,000.00 to Plaintiff?
6. Did the trial court err in failing to apply the amendment of the Louisiana NHRBR effective August 15, 2003, to remove the damages remedy to Plaintiff’s suit filed on March 18, 2004?
ASSIGNMENT OF ERROR #1:
Camelot argues that the trial court erred in denying its Peremptory Exception
of No Right of Action in light of the plaintiff’s prior dismissal of his medical
malpractice action. This argument lacks merit.
Whether a plaintiff has a right of action is a question of law. Mississippi Land
Company v. S&A Properties II, Inc., 01-1623 (La.App. 3 Cir. 5/8/02), 817 So.2d
1200. An appellate court considers whether a trial court’s ruling on an Exception of
No Right of Action is legally correct via a de novo review. Boyer v. Stric-Lan Cos.
Corp., 04-872 (La.App. 3 Cir. 11/10/04), 888 So.2d 1037.
The burden of proving that a plaintiff has no right of action is on the movant.
State on behalf of Jones v. Mallet, 97-611(La.App. 3 Cir. 12/17/97), 704 So.2d 958.
The test for the application of the Peremptory Exception of No Right of Action is
whether this plaintiff has the capacity or legal interest to enforce the rights asserted
in the petition. This exception is a threshold device that terminates suits brought by
one who cannot enforce the right asserted judicially. Babineaux v. Pernie-Bailey
Drilling Co., 262 So.2d 328 (La.1972). “The exception of no right of action assumes
that the petition states a valid cause of action for some person and questions whether
the plaintiff in the particular case is a member of the class that has a legal interest in
4 the subject matter of the litigation.” Indus. Cos., Inc. v. Durbin, 02-665, p.12 (La.
1/28/03), 837 So.2d 1207, 1216.
In the case before us, the plaintiff is a surviving child of the decedent, Mrs.
Randall. In his supplemental petition, the plaintiff specifically plead the continuing
tort doctrine and asserted claims on behalf of Mrs. Randall that she suffered damages
due to the negligence of Camelot. The plaintiff alleged that due to chronic under
staffing, Camelot violated Mrs. Randall’s rights under the NHRBR including failing
to provide privacy in meeting personal needs per La.R.S. 40:2010.8(A)(8); failing to
treat Mrs. Randall courteously, fairly, and with the fullest measure of dignity per
La.R.S. 40:2010.8(A)(9); failing to allow Mrs. Randall to be free from mental and
physical abuse per La.R.S. 40:2010.8(10); and failing to allow Mrs. Randall to rise
and retire in accordance with her reasonable requests per La.R.S. 40:2010.8(21). The
plaintiff also asserted a cause of action for wrongful death under La.C.C. art. 2315.2
and a survival action under La.C.C. art. 2315.1, inclusive of a lost chance of survival.
Camelot argues that this plaintiff cannot bring this action under the NHRBR
because the NHRBR specifically provides that an action under La.R.S. 40:2010.9
“may be brought by the resident or his curator, including a curator ad hoc,” and the
action in the case before us was not brought by either Mrs. Randall or her curator as
required by the statute. While it is true that the plaintiff is neither Mrs. Randall nor
her curator, it is also true that the plaintiff is a surviving child of Mrs. Randall and,
as a surviving child of Mrs. Randall, if her claim under the NHRBR is heritable, then
this plaintiff has the capacity or legal interest to enforce the rights asserted under the
NHRBR in this petition.
Camelot contends that the claims asserted by this plaintiff under the NHRBR
5 are not heritable based upon two arguments. Camelot’s first argument is that the
allegations of violations of the NHRBR in the plaintiff’s petition are not heritable
because they are not related to medical treatment. Camelot cites Short v. Plantation
Management Corp., 99-899 (La.App. 1st Cir. 12/27/00), 781 So.2d 46, contending in
its brief that “an alleged violation of the NHRBR should not be deemed heritable
unless the alleged violation is related to medical treatment.” Camelot’s basis for this
bright line rule is the following quote from Short, “[i]n this regard, violations of the
provisions of the Resident’s Bill of Rights law, relating to medical treatment,
constitute an ‘offense or quasi-offense.’ As such they give rise to the application of
La.C.C. art. 2315.1, and the right of a survival action.” Id at 54. (Emphasis
Camelot’s).
Our reading of Short is that the First Circuit found that all claims asserted
under the NHRBR are heritable. The rule as stated in Short is summed up in the
sentence following the quote relied upon by Camelot, “[w]e thus conclude that the
causes of action advanced pursuant to the Residents’ Bill of Rights Law constitute
heritable actions that can be asserted by a party’s successor.” Short, p.8, 781 So.2d
at 54. We adopt this reading for Short because this court did not find any other case
that can be interpreted to stand for the proposition put forth by Camelot. However,
this court found several cases, including one decided by our own Louisiana Supreme
Court, Richard v. Louisiana Extended Care Centers, Inc., 02-978 (La. 1/14/03), 835
So.2d 460, that have found, either by implication or directly, that actions brought
under the NHRBR are heritable regardless of whether the alleged violations are
related to medical treatment.1 As such, Camelot’s first argument, that the allegations
See Pender v. Natchitoches Parish Hospital, 01-1380 (La.App. 3 Cir. 1
5/15/02), 817 So.2d 1239; Rachal v. Peters, 28,655 (La.App. 2 Cir. 9/25/96), 680 6 of violations under the NHRBR in the plaintiff’s petition are not heritable because
they are not related to medical treatment, lacks merit.
Camelot’s second argument is that the legislature never intended for claims
asserted under the NHRBR to be heritable. We disagree.
On August 15, 2003, the legislature amended La.R.S. 40:2010.9 to eliminate
civil enforcement via claims for actual money damages and instead provided for civil
enforcement only via injunctive relief. Prior to August 15, 2003, La.R.S. 40:2010.9
stated:
A. Any resident whose rights, as specified in R.S. 40:2010.8, are deprived or infringed upon shall have a cause of action against any nursing home or health care facility responsible for the violation. The action may be brought by the resident or his curator, including a curator ad hoc. The action may be brought in any court of competent jurisdiction to enforce such rights and to recover actual damages for any deprivation or infringement on the rights of a resident. Any plaintiff who prevails in such action shall be entitled to recover reasonable attorney’s fees, costs of the action and damages, unless the court finds that the losing plaintiff has acted in bad faith with malicious purpose, and that there was an absence of a justiciable issue of either law or fact, in which case, the court shall award the prevailing party his reasonable attorney fees.
B. The remedies provided in this action are in addition to and cumulative with other legal and administrative remedies available to a resident and to the Department of Health and Hospitals or other governmental agencies. (Emphasis added.)
After the legislature amended La.R.S. 40:2010.9 on August 15, 2003, it states,
in pertinent part:
A. Any resident who alleges that his rights, as specified in R.S. 40:2010.8, have been deprived or infringed upon may assert a cause of action for injunctive relief against any nursing home or health care facility responsible for the alleged violation. The action may be brought by the resident or his curator, including a curator ad hoc. The action may
So.2d 1280; Carl v. Naquin, 93-1725 (La.App. 1 Cir. 5/20/94), 637 So.2d 736; Schenck v. Living Centers-East, Inc., 94-2514 (E.D.La. 4/21/96), 917 F.Supp. 432; Petre v. Living Centers-East, Inc., 94-1004 (E.D.La. 4/8/96), 935 F.Supp. 808. 7 be brought in any court of competent jurisdiction to enforce such rights or to enjoin any deprivation or infringement on the right of a resident. Any plaintiff who prevails in such action shall be entitled to recover reasonable attorney fees, and costs of the action, unless the court finds that the losing plaintiff has acted in bad faith which malicious purpose, and that there was absence of a justiciable issue of either law or fact, in which case the court shall award the prevailing party his reasonable attorney fees. (Emphasis added.)
Camelot contends that because the only remedy that the legislature made
available in the current La.R.S. 40:2010.9 was that of injunctive relief, the legislature
was indicating that it never intended any actions under the NHRBR to be heritable.
This supposition is contrary to the legislative intent expressed in La.R.S. 40:2010.6.
Louisiana Revised Statute 40:2010.6 states, in pertinent part:
The legislature finds that persons residing within nursing homes are isolated from the community and often lack the means to assert their rights as individual citizens. The legislature further recognizes the need for these persons to live within the least restrictive environment possible in order to retain their individuality and some personal freedom. It is therefore the intent of the legislature to preserve the dignity and personal integrity of residents of nursing homes through the recognition and declaration of rights safeguarding against encroachments upon nursing home residents’ right to self-determination. (Emphasis added.)
Given these clear legislative findings that residents in nursing homes are in
need of help to represent themselves as they “lack the means to assert their rights as
individual citizens,” Camelot’s argument that the legislature never intended causes
of action to be heritable under the NHRBR is counterintuitive.
Moreover, causes of action set out in the NHRBR have been held to be
heritable since 1985, as established by Richard, 835 So.2d 460; Short, 781 So.2d 46;
and those cases cited in Footnote 1. This jurisprudence has never been overturned
legislatively or otherwise. The legislature had never intended for the causes of action
in the NHRBR to be heritable, as Camelot argues, the August 15, 2003, amendment
would have addressed whether causes of action under the NHRBR were heritable
8 rather than focus on the removal of recovery for actual money damages. As such, we
find that Camelot’s argument that the legislature never intended for causes of action
asserted under the NHRBR to be heritable is also without merit.
Finally, Camelot argues that the plaintiff has no right of action because the
negligence the plaintiff alleged in his petition is related to medical treatment, and
should be considered part of his medical malpractice claim that he voluntarily
dismissed when he filed a Motion and Order for Voluntary Partial Dismissal. Camelot
contends that when the trial court signed an order stating, “IT IS HEREBY
ORDERED that the Plaintiff’s claims asserted under the Medical Malpractice Act are
hereby dismissed, with prejudice, reserving Plaintiff’s right to pursue the claim
asserted under the Louisiana Nursing Home Residents’ Bill of Rights,” plaintiff
waived any cause of action he had against it. This argument also lacks merit.
The plaintiff’s petition clearly contains allegations that are not covered by the
Medical Malpractice Act. In plaintiff’s petition, he asserted claims on behalf of Mrs.
Randall that she had suffered damages from being, “[l]eft to lie for hours at a time in
dirty, soiled conditions from dried human waste.” Further, the plaintiff asserted a
claim on behalf of the decedent for a loss of dignity due to Camelot’s “reckless
disregard for the consequences of its actions caused staffing levels to be set at a level
where personnel on duty at any given time could not reasonably tend to the basic life
needs of the residents. . ..”
In Coleman v. Deno, 00-1517 (La.1/25/02), 813 So.2d 303, our Louisiana
Supreme Court used six factors to determine whether a claim is covered under the
Medical Malpractice Act. Those six factors are:
(1) whether the particular wrong is “treatment related” or caused by a dereliction of professional skill; (2) whether the wrong requires expert
9 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.
The First Circuit and Second Circuit Courts of Appeal have dealt with these
virtually identical allegations regarding failure to change adult diapers and bed linens.
Using the six factors set out in Coleman above, both courts determined that this type
of allegation does not require submission to a medical review panel and therefore is
not part of a medical malpractice claim.2
We agree with our fellow circuits as is evidenced in Quinney v. Summit of
Alexandria, 05-237 (La.App. 3 Cir. 6/1/05), 903 So.2d 1226. Using the six factors in
Coleman we find no reason to find that the plaintiff’s voluntary dismissal of any
medical malpractice claims is inclusive of a claim for loss of dignity under the
NHRBR based upon Camelot’s chronic understaffing. Allegations that Camelot
allowed Mrs. Randall to lie in her own waste and failed to change Mrs. Randall’s
linens are not “treatment related” or caused by a dereliction of professional skill, nor
do the allegations require expert medical evidence to determine whether the
appropriate standard of care was breached. As such, Camelot’s contention that the
plaintiff dismissed all of his remedies available when he voluntarily dismissed his
2 See Davis v. St. Francisville Country Manor, LLC, 05-72 (La.App. 1 Cir. 2/10/06), 928 So.2d 549, writ denied, 06-604 (La. 5/26/06), 930 So.2d 25; Womack v. Autumn Leaves Nursing & Rehabilitation Center, L.L.C., 39,710 (La.App. 2 Cir. 5/11/05), 902 So.2d 1280; Rogers v. Hickory Manor Nursing & Rehabilitation, L.L.C., 39,626 (La.App 2 Cir. 5/11/05), 902 So.2d 1150; Burks v. Christus Health Monroe, 39,540 (La.App 2 Cir. 4/6/05), 899 So.2d 775, writ denied, 05/1184 (La. 11/28/05), 916 So.2d 146; Henry v. West Monroe Guest House, Inc., 39,442 (La.App 2 Cir. 3/2/05), 895 So.2d 680, writ denied, 05-875 (La. 5/13/05), 902 So.2d 1032. 10 medical malpractice action is without merit.
Moreover, it is clear from the current version of La.R.S. 40:2010.9(B) that
causes of action for money damages based upon other legal remedies, for example
those based upon La.C.C. art 2315, are not barred. Louisiana Revised Statute
40:2010.9(B) states, “ The remedies provided in this Section shall not be construed
to restrict other legal and administrative remedies available to a resident and to the
Department of Health and Hospitals or other governmental agencies.” Given that the
plaintiff’s petition asserted a survival action and wrongful death action based upon
La.C.C. art. 2315, and the plaintiff is a surviving child of the decedent, Mrs. Randall,
we find no merit in the assertion that this plaintiff had no right of action against
Camelot.
As such, Camelot’s various contentions that the claims set forth in the
plaintiff’s petition provide him with no right of action are without merit. We affirm
the trial court’s denial of Camelot’s Peremptory Exception of No Right of Action.
ASSIGNMENT OF ERROR #2:
Camelot argues that the trial court erred in denying its Peremptory Exception
of Prescription. We disagree.
The exception of prescription is a peremptory exception. La.Code Civ.P art.
927(A)(1). The Peremptory Exception of Prescription may be brought by the
defendant at any stage of the proceeding in the trial court prior to the submission of
the case for a decision. La.Code Civ.P art. 928(B). “If the peremptory exception has
been filed after the answer, but at or prior to the trial of the case, it shall be tried and
disposed of either in advance of or on the trial of the case. . . .” La.Code Civ.P art.
929(B). “When evidence is introduced and evaluated at the trial of a peremptory
11 exception, an appellate court must review the entire record to determine whether the
trial court was manifestly erroneous with its factual conclusions” Parker v. Buteau,
99-519, p. 3 (La.App. 3 Cir. 10/13/99), 746 So.2d 127, 129.
“Absent ‘manifest error’ or unless it is ‘clearly wrong,’ the jury or trial court’s
findings of fact may not be disturbed on appeal.” Sistler v. Liberty Mut. Ins. Co., 558
So.2d 1106, 1111 (La.1990). “If the trial court or jury’s findings are reasonable in
light of the record reviewed in its entirety, the court of appeal may not reverse, even
though convinced that had it been sitting as the trier of fact, it would have weighed
the evidence differently.” Id. at 1112.
Louisiana Revised Statute 40:2010.9(c) states:
Any claim brought pursuant to R.S. 40:2010.8 et seq. shall be filed in a court of competent jurisdiction within one year from the date of the alleged act, omission or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect. The provisions of this Section shall apply to all persons whether or not infirm or under disability of any kind and including, but not limited to, minors, interdicts and all persons adjudicated to be incompetent of handling their own affairs.
The party alleging that a claim has prescribed ordinarily bears the burden of
proof. However, when it appears that prescription has run from the face of the
pleadings, the burden of proof then shifts to the party not asserting prescription to
prove that prescription has been interrupted or suspended. Younger v. Marshall
Indus., Inc., 618 So. 2d 866 (La.1993).
“When the tortious conduct and the resulting damages continue, prescription
does not begin until the conduct causing the damages is abated.” South Central Bell
Telephone Co. v. Texaco, Inc., 418 So.2d 531, 533 (La.1982). If a defendant’s
12 conduct is continuous and it gives rise to damages successively occurring from day
to day, then a continuing tort exists. When such a situation arises, prescription does
not begin to run until the continuous, damage causing conduct ceases. Coulon v.
Witco Corp., 03-208 (La.App. 5 Cir. 5/28/03), 848 So.2d 135; Wilson v. Hartzman,
373 So.2d 204 (La.App. 4 Cir 1979), writ denied, 376 So.2d 961 (La.1979); Craig v.
Montelepre Realty Co., 252 La. 502, 211 So.2d 627 (La.1968).
The plaintiff alleged in his petition that the continuing tort doctrine applied to
the case at bar. In his petition, the plaintiff alleged that Camelot’s damaging conduct,
chronic and continuous understaffing, led to day to day violations of Mrs. Randall’s
“right to be treated courteously, fairly and with the fullest measure of dignity,” as
guaranteed to her in the NHRBR.
Whether Mrs. Randall suffered due to the continuous understaffing at Camelot
is a necessary finding to prove the allegation in the plaintiff’s petition. This court
must determine whether the trial court was “manifestly erroneous” or “clearly wrong”
in its factual conclusions by looking at the entire record.
After throughly reviewing the record, we find that the trial court’s
determination regarding whether Camelot was continuously and habitually
understaffed was not “manifestly erroneous” or “clearly wrong.” The testimony of
Sadie Dixon, an aide at Camelot while Mrs. Randall was a resident, was that she
would find Mrs. Randall lying in dried bowel movements and urine in the mornings
when she would come into work “two or three times a week.” Ms. Dixon testified that
Mrs. Randall was found in this condition because Camelot “didn’t have enough
people to help, you know, turn her or something like that. We [Camelot] didn’t have
enough people to help really do anything.”
13 Ms. Dixon only worked four times a week. Ms. Dixon’s testimony that Mrs.
Randall was in this condition due to understaffing two or three times a week of the
four days a week that she worked is evidence that Camelot was understaffed
continuously.
Further, there is the testimony of Leah Ballard. Ms. Ballard was a CNA at
Camelot while Mrs. Randall was a resident. She testified that “[u]sually, we
[Camelot] were very short staffed. There was usually four people supposed to work
the night shift and at least three or four times a week there was only two to three
CNAs.”
Finally, there is the testimony of Ms. Lakisha Washington. Ms. Washington
was also a CNA at Camelot while Mrs. Randall was a resident. Ms. Washington
testified that she also would find Mrs. Randall lying in dried bowel movement and
dried urine “two to three times a week” when she would come into work in the
mornings.
Camelot counters these testimonies that they were continually understaffed by
pointing out that it was only cited twice for understaffing during the time that Mrs.
Randall was a resident. Camelot’s argument is greatly undermined, however, when,
during Ms. Lakisha Washington’s testimony, counsel for the plaintiff asked if the
staffing would change when the State would come to Camelot and Ms. Washington
replied, “[y]es, ma’am. We would have more help and department heads helping out
more.” Directly after this testimony, when asked what would happen once the State
would leave, Ms. Washington replied, “[w]e’d go back to the way we was before they
came.”
Moreover, we note that if Camelot does not receive a citation for being
14 understaffed on one particular day, that does not mean that Camelot was properly
staffed on that particular day, it simply means that the State was not aware of whether
Camelot was understaffed that day.
While there was other testimony from management personnel that Camelot was
not continuously understaffed, it is not this court’s duty under the applicable standard
of review to weigh the evidence, nor make any credibility determinations. As
reflected by its ruling, the trial court chose to believe that Camelot was continuously
understaffed. As noted above, there was a plethora of testimony that Camelot was
understaffed on a regular basis. These testimonies create a reasonable basis for the
trial court to have chosen to believe that the plaintiff proved what he needed to prove
in order to overcome the presumption that his claims had prescribed. It was a
reasonable finding that Camelot’s continuous understaffing was damaging to Mrs.
Randall on a day to day basis. As such, we cannot reverse the trial court for its
reasonable determination and, therefore, affirm the trial court’s denial of Camelot’s
Peremptory Exception of Prescription.
Camelot also argues in this assignment of error that the trial court erred in
denying its Motion in Limine to limit the evidence the plaintiff could submit to those
actions which occurred within one year of the plaintiff filing suit
A Motion in Limine is an evidentiary matter and great discretion is given to the
trial court on its rulings on such evidentiary matters. Heller v. Nobel Insurance
Group, 00-261 (La. 2/2/00), 753 So.2d 841; Scott v. Dauterive Hosp. Corp., 02-1364
(La.App. 3 Cir. 4/23/03), 851 So.2d 1152, writ denied, 03-2005 (La. 10/31/03), 857
So.2d 487. As we noted above, there is ample evidence in the record to uphold the
trial court’s denial of Camelot’s Motion in Limine.
15 ASSIGNMENT OF ERROR #3:
Next Camelot argues that the jury erred in holding that the decedent, Mrs.
Randall, sustained any injury or damages under the Louisiana NHRBR, absent any
expert medical evidence and in the face of the opinions of four physicians that she
received excellent care. This argument is misguided.
In brief, when arguing the merits of this assignment of error, Camelot again
contends that when Plaintiff filed a Motion and Order for Voluntary Partial Dismissal
dismissing his medical malpractice claims, he also dismissed his NHRBR claims as
they are “inherently subsumed” within Plaintiff’s medical malpractice claims. We
have already discussed the merits of this argument in Assignment of Error #1, and
found it baseless.
Next Camelot contends that it was unreasonable for the jury to find that the
damage suffered by Mrs. Randall was causally related to the fact that she was allowed
to sit in her waste for prolonged periods of time. This argument is also without merit.
Plaintiff, on behalf of Mrs. Randall, was awarded by the jury for her loss of
dignity. The jury found that her loss of dignity resulted from Camelot’s chronic
understaffing. Plaintiff did not need to put forth expert medical testimony to combat
the testimony of four physicians in order to prove that Mrs. Randall suffered a loss
of dignity; Plaintiff merely had to put forth evidence that Mrs. Randall suffered a loss
of dignity due to Camelot’s chronic understaffing. Plaintiff did this via the testimony
of Sadie Dixon, Leah Ballard, Lakisha Washington and the plaintiff himself. Their
testimonies, as discussed in Assignment of Error #2 above, provide the jury with
ample evidence to find that Mrs. Randall sustained damages under the NHRBR due
to her loss of personal dignity. Accordingly, we affirm the jury’s determination that
16 Mrs. Randall did sustain injury and damages under the Louisiana NHRBR
ASSIGNMENT OF ERROR #4:
Camelot argues that the jury erred in awarding $150,000.00 to the plaintiff.
Camelot contends the award should be reduce by two-thirds as Mrs. Randall had two
other children besides the plaintiff and the plaintiff is only entitled to recover his
virile share. We are convinced that Plaintiff is only entitled to recover his virile share.
Louisiana Civil Code Article 2315.1 provides, in part, that:
A. If a person who has been injured by an offense or quasi offense dies, the right to recover all damages for injury to that person, his property or otherwise, caused by the offense or quasi offense, shall survive for a period of one year for the death of the deceased in favor of: (1) The surviving spouse and child or children of the deceased, or either the spouse or the child or children.
Louisiana Civil Code Article 1788 states that, “[w]hen an obligor owes just one
performance intended for the common benefit of different obligees, neither of whom
is entitled to the whole performance, the obligation is joint for the obligees.”
Louisiana Civil Code Article 1815 states that, “[a]n obligation is divisible
when the object of that performance is susceptible of division.”
Louisiana Civil Code Article 1789 states, in pertinent part, “When a joint
obligation is divisible, each joint obligor is bound to perform, and each joint obligee
is entitled to receive, only his portion.”
In the case before us, Mrs. Randall’s right to recover under La.R.S. 40:2010.9
for damages inflicted upon her by Camelot survived her death per La.Civ.Code art.
2315.1(A). This right to recover is bestowed upon her surviving three children as they
are the highest ranking beneficiaries under La.Civ.Code art. 2315.1(A)(1). Included
in this class of beneficiaries is Plaintiff. Camelot, the obligor, owes one performance,
payment of damages to Mrs. Randall. This performance is intended under
17 La.Civ.Code art. 2315.1(A)(1) for the common benefit of different obligees, Mrs.
Randall’s three children. None of Mrs. Randall’s children are entitled to the whole
performance. Therefore, under La.Civ.Code art. 1788, Camelot’s obligation to Mrs.
Randall’s children is a joint obligation.
The object of Camelot’s performance, money damages, is susceptible of
division; therefore, the obligation is divisible per La.Civ.Code art. 1815. Because the
obligation owed by Camelot to Mrs. Randall’s children is both divisible and joint,
each joint obligee, one of which is Plaintiff, is entitled to recover only his share.
Because Plaintiff is only entitled to recover his virile share, Camelot argues
that the $150,000.00 award should be reduced by two-thirds to Plaintiff’s virile share.
There is no evidence in the record that supports this argument.
Both Plaintiff and Camelot cite Guilbeau v. Bayou Chateau Nursing Center,
05-1131 (La.App. 3 Cir. 5/17/06), 930 So.2d 1167, writ denied, 06-1496 (La.
10/13/06), 939 So.2d 365. Much like the case before us, the Guilbeau case involved
surviving children bringing a survival action on behalf of their mother for damages
she suffered while in the care of a nursing facility. In Guilbeau, four of the decedent’s
five children brought an action that resulted in an award of $100,000.00. The
defendants in Guilbeau, like Camelot here, argued that the trial court did not account
for the remaining child’s virile share and the award should be reduced accordingly.
The Guilbeau court found that because the trial court was aware of the decedent’s
fifth child, and because there was no evidence that the trial court failed to take this
fact into consideration when it made its award, there was no reason to adjust the
award given at the trial level based upon a finding that the existence of other
beneficiaries was not taken into account.
18 Here, it is also true that the finder of fact on the trial level was aware that the
decedent, Mrs. Randall, had other children that were not a part of the case before
them. Further like in Guilbeau, there is also no evidence in the record here that the
jury failed to take this fact into consideration when it made its award. As such, this
court, like the Guilbeau court, will not adjust the award based upon this argument.
ASSIGNMENT OF ERROR #5:
Camelot argues that the jury erred by excessively awarding $150,000.00 to
Plaintiff. We agree.
This court, in Guillot v. Doe, 03-1754, p. 5-6 (La.App. 3 Cir. 6/30/04), 879
So.2d 374, at 379-80, when discussing the correct procedure for reviewing damage
awards, stated the following:
An appellate court should rarely disturb an award of damages due to the great and, even, vast discretion vested in the trial court. We can disturb such awards, only, when the trial court clearly abused its discretion.
Reasonable people often disagree over the appropriate measure of general damages in a particular case. Yet, “[i]t is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.”
We should not rely on a comparison of prior awards in cases with similar medical injuries to decide whether the trial court abused its discretion. “The primary considerations in assessing damages are the severity and duration of the injured party’s pain and suffering.” (Citations omitted.)
“The appropriate procedure for testing whether the jury abused its discretion
is to determine whether the award can be supported under the interpretation of the
evidence most favorable to the plaintiff which reasonably could have been made by
the jury.” Schexnayder v. Carpenter, 346 So.2d 196, 198 (La.1977).
If an abuse of discretion is found, the appellate court will only lower the award
19 to the highest (or raise the award to the lowest) point which is reasonably within the
discretion afforded the court; the appellate court does not substitute its judgment for
that of the trial court judge or jury in this situation. Coco v. Winston Industries, Inc.,
341 So.2d 332 (La.1976).
After reviewing the record, we find that the jury abused its discretion in making
its award. Given our finding that the jury’s award of $150,000.00 is the virile portion
of Plaintiff in Assignment of Error #5, it would then follow that the jury believed the
total damages suffered by Mrs. Randall to be $450,000.00. This is an unreasonable
sum to this court. As such, we are called to lower the award to the highest point
within a court’s discretion given the facts of the case.
If we are to view the evidence in a light most favorable to Plaintiff, the dignity
of Mrs. Randall was violated over a three year period. We find that the highest sum
that Mrs. Randall could reasonably be awarded under the facts of this case is
$300,000.00. Given that Plaintiff is one of three members of the class of beneficiaries,
Mrs. Randall’s children, Plaintiff is entitled to $100,000.00. Accordingly, we reduce
the award to Plaintiff from $150,000.00 to $100,000.00.
ASSIGNMENT OF ERROR #6:
Camelot argues that the trial court erred in failing to apply the amendment of
the Louisiana NHRBR, effective August 15, 2003, to remove the damages remedy to
Plaintiff’s suit filed on March 18, 2004. This argument lacks merit.
As discussed in Assignment of Error #2, the legislature amended La.R.S.
40:2010.9 effective August 15, 2003. Louisiana jurisprudence, which has not been
overturned legislatively or otherwise, has found that the August 15, 2003, amendment
20 is not retroactive.3 The plaintiff alleged incidents of negligence that occurred prior
the August 15, 2003, amendment. We upheld the trial court’s findings in Assignment
of Error #2 that those prior incidents of negligence were not prescribed due to the
continuing tort doctrine. Therefore, the plaintiff was entitled to recover actual money
damages under the NHRBR for acts that he alleged occurred prior to the August 15,
2003, amendment. As such, Camelot’s contention is without merit and we affirm the
trial court’s award of actual money damages under the NHRBR.
ANSWER TO APPEAL:
Plaintiff answered Camelot’s appeal requesting additional attorney’s fees for
work performed on this appeal under La.R.S. 40:2010.9. We grant this request.
Our review of the record convinces us that an additional award of $5,000 is
warranted for appellate work performed by Plaintiff’s counsel.
CONCLUSION:
Camelot asserts six assignments of error. We affirm the trial court on its
finding that Camelot’s Peremptory Exceptions of No Right of Action and Prescription
lacked merit. We also affirm the trial court on its finding that Camelot’s Motion in
Limine lacked merit. We find no abuse of discretion by the jury in finding that Mrs.
Randall suffered damages under the Louisiana NHRBR, nor do we find any error in
the jury’s failure to reduce Plaintiff’s award by two-thirds based on the number of
beneficiaries in the class that can recover for Mrs. Randall’s damages. We find that
the jury’s award of $150,000.00 to Plaintiff for his virile share of Mrs. Randall’s
damages was abusively high and reduce that award to $100,000.00. We also affirm
3 See Davis, 928 So.2d 549, writ denied, 06-604 (La. 5/26/06), 930 So.2d 25; Furlow v. Woodlawn Manor, Inc., 39,485 (La.App. 2 Cir. 4/20/05), 900 So.2d 336, writ denied, 05-1320 (La. 12/9/05), 916 So.2d 1064. 21 the trial court’s allowance for Plaintiff to recover money damages from Camelot
despite our Legislature’s August 15, 2003, amendment to La.R.S. 40:2010.9 based
upon the continuing tort doctrine. Finally, we award Plaintiff $5,000 in additional
attorney’s fees for all work performed on this appeal. All costs of this appeal are
assessed to Camelot.