Short v. Plantation Management Corp.

• Decision Date: 27 December 2000
• Docket Number: No. 99 CA 0899.,99 CA 0899.
• Citation: 781 So.2d 46
• Parties: Katherine SHORT v. PLANTATION MANAGEMENT CORPORATION d/b/a Golden Age Nursing Home.
• Court: Court of Appeal of Louisiana — District of US

781 So.2d 46

Katherine SHORT v. PLANTATION MANAGEMENT CORPORATION d/b/a Golden Age Nursing Home.

No. 99 CA 0899.

Court of Appeal of Louisiana, First Circuit.

December 27, 2000.

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Thomas R. Juneau, Lafayette, Counsel for Defendant/Appellant, Plantation Management Corporation d/b/a Golden Age Nursing Home.

Timothy E. Pujol, Gonzales, James C. Percy, Baton Rouge, Jay J. Harris, Denham Springs, Counsel for Plaintiff/Appellee, Barbara Bullock.

Before: GONZALES, FITZSIMMONS, KUHN, GUIDRY, and WEIMER, JJ.

FITZSIMMONS, J.

Plantation Management Corporation d/b/a Golden Age Nursing Home (Plantation Management) challenges a judgment finding it liable for damages sustained by a nursing home resident.

FACTUAL AND PROCEDURAL BACKGROUND

On June 15, 1995, Mrs. Katherine Short, 69 years of age, was admitted to Golden Age Nursing Home (Golden Age) in Denham Springs, Louisiana, after having undergone hip replacement surgery. When admitted to Golden Age, Mrs. Short also had a history of rheumatoid arthritis, anemia, cataracts, peptic ulcer disease, and osteoporosis. While at Golden Age, Mrs. Short frequently complained of pain all over her body and suffered from depression.

On October 29, 1995, nursing staff at Golden Age noted Mrs. Short's lower right leg was swollen and shiny. Mrs. Short's leg problem continued to worsen over the next two weeks. Nurses' notes indicate her feet were dark in color, her great right toe became "purplish," and Mrs. Short complained of much pain. On November 12, 1995, Mrs. Short's daughter, Barbara Bullock, and her granddaughter, Vickie Burton, visited Mrs. Short. After hearing Mrs. Short's complaints of pain, and seeing the extent of discoloration of her right foot, Ms. Bullock requested that an ambulance be called to take Mrs. Short to the hospital.

Mrs. Short was taken to the Medical Center of Baton Rouge where it was determined she had acute, chronic ischemia¹ of the right foot and an arterial occlusion (blockage) of all three tibial vessels above her right ankle. On November 13, 1995, Mrs. Short underwent a right popliteal to posterior tibialis artery bypass surgery to try to save her right foot. This procedure was unsuccessful, and on November 14, 1995, Mrs. Short's right leg was amputated below the knee. Mrs. Short was readmitted to the Medical Center of Baton Rouge on November 23, 1995, with complaints of chest pain. It was determined she had suffered a recent heart attack. Mrs. Short remained bedridden for the remainder of her life. She died on March 3, 1997.

On May 7, 1996, before her death, Mrs. Short filed suit against Plantation Management, seeking damages for the negligence and/or strict liability of Golden Age employees, who she alleged failed to properly provide her with adequate care, failed to properly investigate her complaints, and failed to timely seek medical advice regarding her complaints. She also alleged Plantation Management was negligent for failing to provide her with adequate care, failing to hire properly trained employees, and failing to provide proper training and adequate supervision for its employees.

After Mrs. Short's death, Ms. Bullock, in her capacity as administratrix of her mother's estate, filed a motion to be substituted as the proper party plaintiff in the suit. The order substituting Ms. Bullock as such was signed on June 10, 1997. On August 15, 1997, Ms. Bullock filed an amended petition, alleging that since Mrs. Short's death, it had been learned that Plantation Management's actions constituted violations of La. R.S. 40:2010.8, legislation enacted to protect the rights of nursing home residents (Residents' Bill of Rights Law).

On October 6, 1998, a bench trial was held, and on December 4, 1998, the trial court signed a judgment, in favor of Ms. Bullock, in her capacity as the administratrix of Mrs. Short's estate, and against Plantation Management, for $955,256.49 plus legal interest and costs. The judgment consisted of $650,000.00 in general damages, $66,442.55 in medical expenses, and $238,813.94 in attorney fees.

Plantation Management appeals from this adverse judgment, contending: (1) the plaintiff failed to prove Mrs. Short's injuries were caused by Golden Age's negligence; (2) the trial court abused its discretion in awarding attorney fees of $238,813.94; (3) the trial court abused its discretion in awarding general damages of $650,000.00; and (4) the trial court erred in awarding interest on attorney fees since such interest was not specifically requested by the plaintiff. Additionally, on appeal, Plantation Management has filed peremptory exceptions of no right of action and no cause of action.

EXCEPTIONS

Improper Party Plaintiff

Plantation Management filed an exception of no right of action in this court, challenging Ms. Bullock's substitution as the proper party plaintiff in Mrs. Short's suit. Plantation Management also filed an exception of no cause of action, challenging Ms. Bullock's amendment of the petition to assert a cause of action under the Residents' Bill of Rights Law. The arguments raised in support of both exceptions address whether Ms. Bullock has a right of action in the present suit; therefore, because we have the power to note the absence of a right of a party on our own motion, we will address Plantation Management's exception of no cause of action as though it were filed as an exception of no right of action. La. C.C.P. art. 927; see Thompson v. Harrington, 99-571 (La.App. 3 Cir. 10/13/99), 746 So.2d 652, 656.

The objection of no right of action tests whether the plaintiff has a "real and actual interest" in the suit. Layne v. City of Mandeville, 98-2271 (La.App. 1 Cir. 11/5/99), 743 So.2d 1263, 1267, writ denied, 1999-3432 (La.2/18/00), 754 So.2d 966. Stated another way, an exception of no right of action determines whether the plaintiff belongs to the particular class to which the law grants a remedy for the particular harm alleged. Sivils v. Mitchell, 96-2528 (La.App. 1 Cir. 11/7/97), 704 So.2d 25, 27. The exception is appropriate when the plaintiff does not have an interest in the subject matter of the suit or legal capacity to proceed with a suit in a particular case. Layne, 743 So.2d at 1267.

Plantation Management first argues Ms. Bullock's substitution as the administratrix of Mrs. Short's succession was improper because Mrs. Short was survived by children who are in a category of legal successors, who take precedence over succession representatives when substitution of parties occurs.

According to La. C.C.P. art. 801, when a party dies during the pendency of an action which is not extinguished by his death, his legal successor may have himself substituted for the deceased party. As used in La. C.C.P. art. 801, "legal successor" means: "(1) [t]he survivors designated in [La. C.C. art.] 2315.1, if the action survives in their favor; and (2) [o]therwise, it means the succession representative of the deceased appointed by a court of this state, if the succession is under administration therein, or the heirs and legatees of the deceased, if the deceased's succession is not under administration therein." The survivors designated in La. C.C. art. 2315.1 as those qualified to recover damages for injury to a deceased person are: (1) the surviving spouse and/or children of the deceased; (2) the surviving father and/or mother of the deceased, if he left no surviving spouse or children; (3) the surviving brothers and sisters of the deceased, or any of them, if the deceased left no surviving spouse, child, or parent; (4) the surviving grandfathers or grandmothers of the deceased, or any of them, if the deceased left no surviving spouse, children, parent, or sibling; (5) the deceased's succession representative, in the absence of any class of beneficiary set forth in the first four listed categories.

In this case, it is undisputed that Ms. Bullock is Mrs. Short's daughter. Thus, it is clear she is Mrs. Short's legal successor, in addition to being the administratrix of her mother's estate. Cf. Carl v. Naquin, 93-1725 (La.App. 1 Cir. 5/20/94), 637 So.2d 736 (succession administrator, who was not a La. C.C. art. 2315.1 legal successor, dismissed as party plaintiff because deceased was survived by a brother, who was a La. C.C. art. 2315.1 legal successor, and who is given higher preference as party plaintiff). We decline to vacate the judgment in this case solely because Ms. Bullock was substituted in the case as the administratrix of Mrs. Short's estate, rather than as Mrs. Short's legal successor. Clearly, Ms. Bullock, as Mrs. Short's daughter, is a legal successor who is entitled to pursue her mother's negligence/strict liability action against Plantation Management.

Heritability of Residents' Bill of Rights Law

The petition filed by Mrs. Short, before her death, asserted negligence and strict liability claims against Plantation Management. The claim under the Residents' Bill of Rights Law was first asserted by Ms. Bullock when she filed the amended petition after her mother's death. Therefore, a pivotal issue to be decided is whether the cause of action provided in La. R.S. 40:2010.9 is a heritable obligation. Additionally, can it be asserted by a legal successor of Mrs. Short, or is it a strictly personal obligation which ceased to exist when Mrs. Short died?

Louisiana Revised Statute 40:2010.6 et seq., was enacted in 1985. The law is based on the legislature's finding that persons residing in nursing homes are isolated from the community and often lack the means to assert their rights as individual citizens. La. R.S. 40:2010.6. The legislation requires all nursing homes to adopt and make a public statement of the rights and responsibilities of their residents and to treat the residents in accordance with the provisions of the statement. La. R.S. 40:2010.8(A). The statement must assure each resident of several rights, for example: the right to civil...