Sepulvado v. Toledo Nursing Center, Inc.

958 So. 2d 135, 7 La.App. 3 Cir. 122, 2007 La. App. LEXIS 1098, 2007 WL 1545887
CourtLouisiana Court of Appeal
DecidedMay 30, 2007
DocketNo. 2007-122
StatusPublished
Cited by2 cases

This text of 958 So. 2d 135 (Sepulvado v. Toledo Nursing Center, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sepulvado v. Toledo Nursing Center, Inc., 958 So. 2d 135, 7 La.App. 3 Cir. 122, 2007 La. App. LEXIS 1098, 2007 WL 1545887 (La. Ct. App. 2007).

Opinion

PAINTER, Judge.

|, Plaintiff, Jeff Sepulvado, appeals the trial court’s grant of summary judgment dismissing the claim for nursing home negligence in connection with injuries sustained by his elderly mother while a patient at Toledo Nursing Center, Inc. (TNC). Finding that issues of fact remain as to breach of the standard of care as well as to causation, we reverse the judgment of the trial court and remand for further proceedings.

FACTS

The underlying facts, as outlined in the opinion of the medical review panel, are [137]*137undisputed, and we base the following fact summary on that document. Plaintiffs mother, Edith Sepulvado, was admitted to TNC on May 1, 2001. At that time she was eighty-one years old and suffering from advanced Alzheimer’s disease, psychosis, anemia, malnutrition, increased agitation, repetitive babbling, and gastrosto-my. She was at high risk for falls a variety of restraints were used during her time at TNC. She was given an “Alzheimer’s bed,” which was low to the floor to minimize the impact of falls, and mats were placed around her bed for the same reason. The patient was largely non-verbal and frequently engaged in rocking behavior and babbling.

In mid-January 2003, Mrs. Sepulvado suffered head bruising and a skin tear. In February, she had bruises to her forehead. The origin of these injuries were unknown. On February 11, 2003, she was found on the mat beside her bed, rocking and babbling. She was rubbing the right side of her face on the bed. Later the same day, she was rubbing her right eye, and she was found to have bruising above the right eye and on her forehead. Her treating physician, Dr. Greg Founds, was notified.

|2On February 13, 2003, Mrs. Sepulvado was found on the floor between the foot of her bed and the mat. There were skin tears over her right eye and right cheek. She was put back in bed, and her wounds were tended. She was sent to Sabine Medical Center for treatment and returned to TNC the same day. As a result of this incident, Dr. Founds ordered a CT scan, which was performed at Sabine Medical Center. The results of the CT scan showed a right frontal contusion with possible shearing but without symptoms of increased intracranial pressure or mass effect.

TNC installed an alarm on Mrs. Sepul-vado’s bed. Another CT scan of Mrs. Sep-ulvado’s head was performed in late February 2003. The results showed a “right frontal contusion and right temporal lobe low density. Most likely shear injury. New left subdural extra-axial fluid collection-looks like chronic subdural hemato-ma.” In March 2003, Mrs. Sepulvado was examined by Dr. Anil Nanda, a neurosurgeon. He noted a small subdural hemato-ma and found her to be neurologically unchanged.

On March 11, 2003, Dr. Nanda ordered a repeat CT scan of Mrs. Sepulvado’s head to be performed on April 8, 2003. On March 12, 2003, before the scan could be performed, Mrs. Sepulvado was taken to the emergency room at Sabine Medical Center because of recurrent fever spikes over the previous few days. She was admitted to the hospital with right lower lobe pneumonia, dehydration, and diarrhea. She did not return to TNC thereafter.

PROCEDURAL HISTORY

In January 2004, Edith Sepulvado and her son, Jeff Sepulvado filed a medical review panel complaint in which they named as defendants TNC, Management Services of Beauregard Parish (MSBP), and several employees of TNC. The opinion issued by the panel indicates that the two physician members of the panel found no |sbreach of the standard of care, but that the nurse member of the panel, who is also a Ph.D., felt that a breach of the standard of care had occurred. The opinion states, in pertinent part:

The claimants herein have made generalized allegations of failure by the defendants to properly monitor, supervise, and care for the patient. These doctors find that the records herein are devoid of any such failures on the part of the defendants. The assessments of the patient properly identified her condition and risks, and steps were taken, includ[138]*138ing restraints and special equipment, to reduce the risk of falls and injury to the patient. The claimants have provided nothing which contradicts the records’ documentation of proper and timely care by the defendants. Given the patient’s history and condition, it is not unexpected that she would suffer occasional injuries from falls or bumps. Short of total restraints, utilized one-hundred percent (100%) of the time, there is no method by which a patient such as Ms. Sepulva-do herein can be completely protected from injury. While the record does document a failure to accomplish communication about a fall with family members in certain instances, it does not rise to the level of a breach.
After a careful review of all evidence submitted for my review, and for the reasons espoused below, Dr. Tucker finds that the actions of the defendants herein, Toledo Nursing Center, Inc., Management Services of Beauregard Parish, Ms. Cheryl Rivers, LPN, Ms. Viola Malmay, LPN, Ms. Sue Pilkington, RN, and Ms. Pam Kennedy, did constitute a deviation from the applicable standard of care.
The facility herein, and its employees, were not equipped to handle a geripsych individual such as the patient herein. The staff was not adequately trained; accordingly, did not make the proper assessments or take appropriate actions, particularly with respect to the monitoring of the patient. Due to the patient’s repeated falls, she should have been monitored more closely and more frequently. There was no monitoring for seizures, despite a history of seizures, and the LPNs were apparently not aware of the effects of medication, as there were no genuine attempts to communicate with the patient due to the described “babbling[.]” Dr. Tucker finds the overall care to have been substandard in numerous respects.

On March 30, 2006, after the death of Mrs. Sepulvadox1, her son filed this action seeking compensation for pre-death physical and mental pain and suffering and [4for medical expenses. He further sought damages under Lejeune v. Rayne Branch Hospital, 556 So.2d 559 (La.1990).

Defendants answered the petition, and, on August 25, 2006, filed a motion for summary judgment. In that motion they asserted that Plaintiffs petition should be dismissed since there was no remaining issue as to material fact because, even admitting, for purposes of the motion only, that there was a deviation from the standard of care, Plaintiff could not show a causal connection between the breach of the standard of care and the injury to Mrs. Sepulvado. Attached in support of the motion was the affidavit of Dr. Scott Gremillion, who served on the medical review panel. He stated that:

The Medical Review Panel found unanimously, with written reasons, that the evidence did not support the conclusion that Toledo Nursing Center, Inc. deviated from the applicable standard of care as charged in the complaint of malpractice and that no conduct by Toledo Nursing Center, Inc. was causative of any harm to the patient herein.

Plaintiff opposed the motion, and submitted the affidavit of Dr. Sandra Tucker, a registered nurse and holder of a Ph.D. in Clinical Nursing Research, in which she stated that it was her opinion that the nursing home did deviate from the stan[139]*139dard of care and that the breach contributed to the injuries sustained by Mrs. Sepul-vado.

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958 So. 2d 135, 7 La.App. 3 Cir. 122, 2007 La. App. LEXIS 1098, 2007 WL 1545887, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sepulvado-v-toledo-nursing-center-inc-lactapp-2007.