McDONALD, J.
This matter is before the court as a medical malpractice claim, asserting various causes of action, filed by the lone surviving son of Alonia Brown. The suit alleges acts of malpractice against Ponchatoula Nursing Home, L.L.C. d/b/a Belle Maison Nursing Home during Ms. Brown's stay in that facility. For the following reasons, we affirm.
Specifically, the plaintiff-appellant alleges that the care provided by that facility led to the formation and/or deterioration of a tunneling decubitus ulcer (bed sore) that caused Ms. Brown's death as a result of sepsis. In response, the defendant filed a Peremptory Exception of No Cause of Action, Peremptory Exception of No Right of Action, Motion to Strike and Peremptory Exception of Prescription. The district court sustained the exceptions and dismissed all of plaintiff-appellant's claims with prejudice, with the exception of the wrongful death action under La. C. C. 2315.2. This appeal followed.
Alonia Brown was a patient at Belle Maison Nursing Home from March 1, 2000 through August 22, 2003. She was transferred to North Oaks Medical Center, Senior Care Unit, for treatment of a decubitus ulcer, which developed at Belle Maison, and that caused her death from sepsis on September 15, 2003. On September 14, 2004, plaintiff-appellant filed a complaint with the Patient's Compensation Fund and his first petition with the district court, with both asserting claims under the Louisiana Medical Malpractice Act and claims under the Louisiana Nursing Home Residents' Bill of Rights.
Although challenging the district court's dismissal of all claims based on the various exceptions filed by the defendant, plaintiff-appellant notes that the district court's decision was based on the defendant's prescription arguments and addressed those first. We likewise focus on the issue of prescription.
As noted, the suit is based on medical malpractice claims. Louisiana Revised Statute 9:5628, entitled "Actions for medical malpractice," provides:
The prescriptive period provided is "one year from the date of the alleged act, omission, or neglect," regardless of whether the claim asserted arises from tort or otherwise, or within one year from the date of discovery of the alleged act. La. R.S. 9:5628(A). In the matter before us, the allegations of malpractice are against Belle Maison Nursing Home. The person having the cause of action is Alonia Brown. The record reflects that in the months immediately preceding Ms. Brown's death, she suffered from dementia. However, the medical malpractice act applies "to all persons whether or not infirm or under disability of any kind and including minors and interdicts." La. R.S. 9:5628(B).
Plaintiff-appellant argues that he has a right to a survival action, specifically an action for the pain and suffering endured by the decedent. He contends that under La. C.C. article 2315.1, Ms. Brown's beneficiary is allowed one year from the date of her death to bring any viable claims she had prior to her death. This contention is correct. However, this article is a general provision with broad applicability to ordinary torts. His claim is under the medical malpractice act that covers
Ms. Brown was transferred from Belle Maison, the defendant in this case, to North Oaks Medical Center on August 22, 2003. Whether it was her intention to return to Belle Maison is irrelevant as far as any alleged act causing injury to Ms. Brown by personnel of Belle Maison is concerned. The clear wording of the statute gave Ms. Brown the right to assert any cause of action against Belle Maison for one year from the act entitling her to damages. Therefore, unless prescription was suspended, her claims prescribed on August 22, 2004, one year from the date that she left the care of Belle Mason.
The statute also provides that a cause of action may be brought one year from the "discovery of the alleged act, omission, or neglect." Under the facts before us here, the district court, without stating any specific act of "discovery," found that the plaintiff-appellant's claims had prescribed. We agree. On August 22, 2003, Ms. Brown was transferred to North Oaks Medical Center for the treatment of a decubitus ulcer. Plaintiff-appellant was well-aware of his mother's condition. He visited her frequently. He had discussed the problem of his mother's ulcer with her caregivers. Whatever he may have been told regarding the likely cause or prognosis, he cannot maintain that the injury was unknowable, or that he had not discovered it.
The Louisiana Supreme Court has provided ample instruction on the prescriptive periods of La. R. S. 9:5628. It reiterated in Carter v. Haygood, 2004-0646, pp. 9-10 (La. 1/19/05), 892 So.2d 1261, 1267-68:
As stated, the one-year prescription period is the general rule. This rule applies when the damages are immediately apparent. The "discovery rule" applies when the damages are not immediately apparent. In the Carter case, Mrs. Carter sought treatment from a dentist for complaints with her existing dentures, a gap between her front and side teeth, and an overbite. It was agreed the dentist would extract a number of her teeth and fit her with top and bottom partials. The partials did not fit properly and caused problems when plaintiff tried to eat or talk. Consequently, Ms. Carter returned for adjustments several times. Plaintiff-appellant in the case before us, asserts that the assurances of the Belle Maison personnel that his mother's bed sore was being treated creates the same situation Ms. Carter was in, and for which the supreme court invoked the discovery rule to extend her prescriptive period.
As noted by the Louisiana Supreme Court, the discovery rule in La. R.S. 9:5628 is based on the fourth category of contra non valentem, for cases in which the cause of action is not immediately knowable. Mrs. Brown's damage-causing ulcer was "immediately knowable." Additionally she had multiple, well-documented and treated, other disorders. She was diabetic, had vascular problems, renal insufficiency (due to the vascular problems), hypertension, and atherosclerosis. In the months before her death, Mrs. Brown had lost approximately sixty (60) pounds. All of conditions were readily apparent, particularly the bed sore that led to her death from sepsis. Therefore, the discovery rule is not applicable in this case.
Plaintiff-appellant also argues that the trial court erred in dismissing his "loss of a chance of survival" claim because the trial court presupposed that a "loss of a chance of survival" claim is controlled by the prescription guidelines in a survival action rather than a wrongful death action. The current law and jurisprudence are silent on this issue. Unlike survival actions and wrongful death actions which are firmly rooted in La. C.C. arts. 2315.1 and 2315.2 respectively, a "loss of a chance of survival" claim was jurisprudentially created by the Louisiana Supreme Court in Hastings v. Baton Rouge General Hosp., 498 So.2d 713 (La. 1986). When the Louisiana Supreme Court described its Hasting decision in Smith v. State through Dept. of Health and Human Resources Admin., 523 So.2d 815 (La. 1988), the Court stated that "we held essentially that the plaintiff may establish a compensable claim through evidence which demonstrates that a defendant's malpractice resulted in the loss of a chance of survival of a patient who thereafter expired." Id. at 816.
What was not at issue then, nor had it become an issue, was whether this "compensable claim," that has become known as a "loss of a chance of survival" claim, should be treated as a survival action or a wrongful death action for the purposes of prescription. The Louisiana Supreme Court summarized the distinction between the two actions in Taylor v. Giddens, 618 So.2d 834 (La. 1993), where the Court recognized that although both actions arise from a common tort, survival and wrongful death actions are separate and distinct. Each right arises at a different time and addresses itself to the recovery of damages for totally different injuries and losses. The survival action comes into existence simultaneously with the existence of the tort and is transmitted to beneficiaries upon the victim's death and permits recovery only for the damages suffered by the victim from the time of injury to the moment of death. It is in the nature of a succession right. On the other hand, the wrongful death action does not arise until the victim dies and it compensates the beneficiaries for their own injuries which they suffer from the moment of the victim's death and thereafter. Wrongful death damages compensate beneficiaries for their own injuries. Id. at 840.
The injury to the decedent in a "loss of a chance of survival" claim occurs between the moment when the negligent act occurs and the moment when the decedent passes. This is the same compensable period of a survival action. The compensable period of a wrongful death action occurs after the decedent passes away. The temporal element of a "loss of a chance of survival" claim coincides with a survival action. By the time the period arrives in which a wrongful death action becomes compensable, all of the tortious acts that have brought about the "loss of a chance of survival" claim have already occurred.
As stated above, damages from a wrongful death action compensate the beneficiary for their own injuries. To align a wrongful death action with a "loss of a chance of survival" action would require the inferential leap that the purpose of awarding "loss of a chance of survival" damages would be to compensate the beneficiaries for the decedent's loss chance of survival. A reduction in a person's chance at life due to a misdiagnosis by a doctor is similar to when a person experiences severe pain and anguish before their death due to a misdiagnosis. In both cases the injury is a personal one that is endured by the decedent. It logically follows that the "loss of a chance of survival" claim is meant to compensate the decedent, not the beneficiaries.
Accordingly, a "loss of a chance of survival" claim is guided by the prescriptive period of a survival action and commences simultaneously with the occurrence of the tort and prescribes one year from that date.
Plaintiff-appellant also alleges violations of the Nursing Home Residents Bill of Rights Act (NHRBRA), La. R.S. 40:2010.6, et seq. We discussed the NHRBRA in Davis v. St. Francisville Country Manor, LLC. 2005-0072, pp.6-7 (La. App. 1
After August 14, 2003, any claims arising under the NHRBRA only give a person alleging harm the right to seek injunctive relief. Further, the prescriptive period for timely filing claims under the NHRBRA is one year from the date of the alleged violation, or the date of discovery of the alleged violation. La. R.S. 2010.9(C). The petition alleging violations of the NHRBRA was filed September 14, 2004. Regardless of what damages Ms. Brown may have been entitled to seek, any claim for damages prescribed a year from the date Belle Maison last provided services and care that allegedly violated the NHRBRA, that being August 22, 2003.
All of plaintiff-appellant's claims on behalf of his mother against Belle Maison for damages to her before, and including, her death are subject to the same prescriptive period. Those claims had to be filed before August 23, 2004. Plaintiff-appellant filed his pleadings on September 14, 2004. Therefore, his claims are prescribed, and we affirm the judgment of the district court. Costs of this appeal are assessed against the plaintiff-appellant, Chuck Carr Brown.
PETTIGREW, J., CONCURS IN PART AND DISSENTS IN PART, AND ASSIGNS REASONS.
I concur with the results reached by the majority in affirming the trial court's dismissal of appellants' survival action and the Nursing Home Residents Bill of Rights (NHRBRA) actions under La. R.S. 40:2010.6, et seq.
I respectfully dissent with the majority's affirmance of the trial court's dismissal of appellants' lost chance of survival claim. Is the lost chance of survival claim part of the wrongful death claim, survival claim, both, or a separate cause of action? The lost chance of survival claim was first recognized in Louisiana in a wrongful death case.
