Protecting Granny: Recent Developments in Nursing Home Litigation in Louisiana

• Author: Melissa Marie Grand
• Pages: 445-469

I would like to thank Professor John Church for his invaluable guidance in the drafting of this Comment. I also owe much gratitude to my husband Chad for his unyielding support throughout the writing process-I couldn't have done it without you.

Page 445

I Introduction

Louisiana is getting old. On a national scope, the next several decades are certain to foster dramatic changes in the make-up of the population.¹ As the baby-boom generation attains old age,² the population of elderly persons in America will increase from the current and already record level of 13% to as much as 20% by 2030.³ The actual number of elderly persons is predicted to double by that year.⁴

As an increasingly larger proportion of the population inches toward old age, it becomes ever more critical to focus on the health, care, and maintenance that such a significant group is to receive. The Department of Health and Human Services makes clear that:

[t]he rapid growth of the elderly, particularly the oldest old, represents in part a triumph of the efforts to extend human life, but these age groups also require a disproportionately large share of special services and public support. There will be large increases by 2030 in the numbers requiring special services in housing, transportation, recreation, and education, as well as in health and nutrition.⁵

As these demographic statistics illustrate, caring for the expanding elderly population in America must be pushed toward the forefront as a critical issue with ramifications affecting all levels of society-if it is not our grandparents who are in need of supervised care as they age, then it is our parents, and soon, us and our children. In Louisiana, the recent criminal prosecution of Page 446 Mable and Salvador Mangano,⁶ owners of St. Rita's Nursing Home in Chalmette, Louisiana,⁷ where thirty-four residents were believed to have drowned after Hurricane Katrina, has thrust the issue of nursing home policy failure into the national spotlight.⁸Although the Manganos were acquitted in their criminal prosecution,⁹ the case nevertheless serves as a blatant example of the breakdown in nursing home care in Louisiana.¹⁰ Nationally, news coverage of Katrina and its aftermath plunged Louisiana into the forefront of public interest stories across America,¹¹ with the devastation at St. Rita's and the Manganos' subsequent arrest serving as "vivid symbols of the inept preparation and response to the disaster."¹²

With the onslaught of nursing home litigation after Katrina, Louisiana courts are and will continue to be inundated with cases surrounding the ambiguities of the statutory scheme currently in place for dealing with nursing home issues. The existing state of the law regarding nursing homes in Louisiana is ill-prepared to deal with this fact. As this Comment will illustrate, Louisiana courts have failed to clearly distinguish between medical Page 447 malpractice and simple negligence in nursing home cases.¹³ The inconsistent application by the courts of the statutory scheme for nursing home claims has left nursing home residents in a state of uncertainty in the resolution of their claims. Further, through the efforts of the powerful Louisiana Nursing Home Lobby, a resident's right of action under the statutory bill of rights was successfully amended out.¹⁴ Eliminating the resident's right to sue for damages in this way completely contradicts the stated purpose of the statute, namely to protect those persons isolated from the community who often lack the means to assert their rights as individual citizens. This diminution of rights¹⁵ is further seen with the amendment of the Medical Malpractice Act to expressly include nursing homes, thereby imposing the requirement of a medical review panel and a cap on recovery upon all nursing home claims falling under the statutory definition of malpractice.¹⁶

While most nursing home malpractice cases have centered around "quality of care issues,"¹⁷ Katrina has brought about novel Page 448 issues that are just now being worked out in the courts.¹⁸Legislative action to reintroduce a private right of action for damages into the Nursing Home Residents' Bill of Rights is necessary to ease the current tension surrounding nursing home litigation, clearly define the nursing home's classification as a hybrid health care provider and 24-hour boarding facility, and provide efficient means for speedy resolution of claims, while fostering the original purpose of the bill of rights: to protect those individuals who cannot always protect themselves.

Though it has been offered that tort reform is desirable and necessary in order to decrease the costs to financially strained nursing home facilities,¹⁹ this Comment argues that diminishing the nursing home resident's private right of action to sue for damages and allowing only for injunctive relief does not accomplish the reform's proposed goal, namely the betterment of patient care. The aim of tort reform on a national scope, including the implementation of caps in recovery and on attorney's fees, is to stabilize the nursing home and liability insurance markets;²⁰however, this objective comes at too high a cost, eliminating the incentive for nursing homes to provide quality care. As this Comment will show,²¹ the statutory scheme currently in place in Louisiana for victims of nursing home abuse and neglect provides the express goal of protecting and preserving the rights of residents who are isolated from the community and have diminished rights as individual citizens. Nursing home residents should be afforded every right and protection of normal citizens, but taking away a resident's right to recover damages accomplishes exactly the opposite.

After a detailed analysis of the current statutory scheme for nursing home claims, including an examination of the Medical Page 449 Malpractice Act²² (hereinafter "MMA") and the Nursing Home Residents' Bill of Rights²³ (hereinafter "NHRBR"), this Comment will comprehensively examine recent Louisiana jurisprudence on the issue of nursing home litigation. The jurisprudential survey will be organized into rulings pursuant to the MMA and those pursuant to the NHRBR. This Comment will further scrutinize the role of the Nursing Home Lobby in Louisiana, its influence in political campaigns, and its ability to persuade lawmakers in passing amendments to the NHRBR, which serve to limit resident rights.

II Background: Classification Of The Nursing Home In Louisiana

Nursing homes are somewhat of an anomaly in the classification scheme of care units-on one hand, the nursing home is like a hospital in that it provides medical care to its residents. This cataloging is affirmed by the MMA, which expressly lists the nursing home as a "health care provider."²⁴ On the other hand, the nursing home serves as a boarding house providing twenty-four-hour physical care and watch over its residents. Expounding on the inherent tension in the classification scheme of nursing homes, the Louisiana Department of Health and Hospitals promotes "nursing home culture change"²⁵ to emphasize the need for improved standards in the physical care given to residents: "Culture change reflects a shift from the 'one-size fits all' traditional medical model to a model that seeks to improve the quality of life for residents, while fostering an atmosphere of community within the nursing home setting for staff and residents alike."²⁶ In other words, the nursing home provides more than the sterility of a hospital-type medical facility-it is a home, a community, and an overall care environment for its residents.

Because of the dualistic nature of the nursing home in providing both medical and physical care to its residents, the nursing home defies a traditional classification as strictly either a medical facility or a simple boarding house. The relevant question therefore becomes: despite the nursing home's classification as a "health care provider" in the MMA, should acts or omissions Page 450 occurring in the nursing home truly be routed through a medical review panel pursuant to the MMA?²⁷

III Medical Malpractice Versus Negligence In The Nursing Home Setting: A Statutory Analysis

A Overview

Nursing homes are highly regulated institutions in Louisiana.²⁸Title 40 of the Revised Statutes defines "nursing home" as follows:

a private home, institution, building, residence or other place, serving two or more persons who are not related by blood or marriage to the operator, whether operated for profit or not, and including those places operated by a political subdivision of the state of Louisiana, which undertakes, through its ownership or management, to provide maintenance, personal care, or nursing for persons who, by reason of illness or physical infirmity or age, are unable to properly care for themselves.²⁹

Pursuant to the statute, nursing homes are subject to the jurisdiction of the state Department of Health and Hospitals.³⁰ The statute...