Full Opinion

STATE OF LOUISIANA COURT OF APPEAL IRST CIRCUIT 0110141 UNW6" W141YA-114" I!• rpm ru`• LI • i fg VERSUS NSR LOUISIANA, LLC D/ B/ A NORTHSHORE REHABILITATION HOSPITAL, Judgment Rendered: NITI Q 6 2026 ON APPEAL FROM THE 22" D JUDICIAL DISTRICT COURT, DIVISION D ST. TAMMANY PARISH, STATE OF LOUISIANA DOCKET NUMBER 2024- 15461 D Kyle P. Kirsch Attorneys for Plaintiff -Appellant Samantha S. Boudreaux Miriam Reinbold New Orleans, Louisiana Guice A. Giambrone, III Attorneys for Defendants -Appellees A. Rebecca Wilmore NSR Louisiana, LLC d/ b/ a Metairie, Louisiana Northshore Rehabilitation Hospital, Harry Lucas R. N., Kristie Hubbard, R. N., and Lily Simyari, R. N. BEFORE: THERIOT, GREENE, and EDWARDS, JJ. GREENE, J. In this appeal, a deceased patient's wife appeals a judgment dismissing her wrongful death and survival actions against a rehabilitation hospital and its employees as prematurely filed. She contends that one of the claims in her petition does not sound in medical malpractice, need not be first considered by a medical review panel, and the trial court erred in dismissing that claim as prematurely filed in court. After review, we affirm. Y On October 3, 2024, Miriam Reinbold filed a petition for damages in the Twenty Second Judicial District Court ( 22nd JDQ against NSR Louisiana, LLC d/ b/ a Northshore Rehabilitation Hospital ( NSR), thiree NSR nurses, a separate entity alleged to operate NSR, and two physicians.' Mrs. Reinbold alleged that, in October 2023, her husband, William Reinbold 2, was a patient at NSR and died when NSR and its staff failed to adequately supervise him, failed to ensure he was wearing the nasal cannula that provided him supplemental oxygen, failed to ensure the head of his bed remain elevated, and failed to ensure his bed alarm was set and functioning so as to alert them if he moved. On the same day, Mrs. Reinbold sent a complaint to the Division of Administration making the same allegations against the same defendants and requesting that a medical review panel be convened to consider the matter. On December 27, 2024, NSR and the three NSR nurses (the NSR defendants) filed a dilatory exception of prematurity in the trial court, alleging they were qualified health care providers enrolled in the Louisiana Patient's Compensation Fund ( PCF), that Mrs. Reinbold' s suit was premature because she had not obtained a medical review panel' s opinion before filing suit, and that the trial court should dismiss her suit without prejudice. Attached to the NSR defendants' exception were copies of NSR's certificate of enrollment with the PCF, Mrs. Reinbold' s, petition filed in the 22nd JDC, and her medical review panel 1 In her petition, Mrs. Reinbold named PJSR nurses Harry Lucas, RN, Kristie Hubbard, RN, and Lily Simyari, RN, as defendants. She also named Select Medical Corporation ( SMC) as a defendant and alleged SMC operated NSR. SMC later answered the petition, denied that it operated NSR, and alleged that the entity that operated NSR was NSR Louisiana, LLC. Mrs. Reinbold also named Dr. Gollamudi Reddy and Dr. Craig Seicshnaydre as defendants. 2 In her petition, Mrs. Reinbold refers to her husband as " Dr. William Reinbold." To avoid confusion with named defendants herein, we reference her husband as " Mr. Reinbold." 2 complaint. Mrs. Reinbold opposed the exception and also attached her petition and medical review panel complaint. After a hearing, the trial court signed a judgment on May 19, 2025, granting the NSR defendants' prematurity exception and dismissing them from Mrs. Reinbold' s suit without prejudice. 3 In oral reasons for judgment, the trial court stated that it was granting the exception because all of Mrs. Reinbold' s claims were " rooted in health care." Mrs. Reinbold appeals the adverse Judgment. in a single assignment of error, she contends the trial court erred in finding allof her claims were rooted in health care when she specifically alleged that NSR failed to provide Mr. Reinbold a functioning bed alarm; she argues this particular claim sounds in general negligence properly presented to the trial court, not in medical negligence, which must first be presented to a medical review panel. MEDICAL MALPRACTICE CLAIM VERSUS GENERAL NEGLIGENCE CLAIM Under the Louisiana Medical Malpractice Act ( LMMA), all medical malpractice claims against a qualified health care provider4 shall be reviewed by a medical review panel, except for claims validly agreed for submission to lawfully binding arbitration. La. R. S. 40: 1231. 8( A)( 1)( a). A plaintiff may not commence a medical malpractice suit in a court of law against a qualified health care provider before he has presented his claim to a medical review panel. See La. R. S. 40: 1231. 8( B)( 1)( a)( i). A request for a medical review panel is a prerequisite to and not the equivalent of a suit for medical malpractice. Rivera v. Boldens Transportation Service, Inc., 2011- 1669 ( La. App. I Cir. 6/ 28/ 12), 97 So. 3d 1096, 1099. The panel' s duty is to express its expert opinion as to whether or not the evidence supports the conclusion that the defendants acted or failed to act within the appropriate standards of care. See La. R. S. 40: 1231. 8( G). The panel' s report shall be 3 At the hearing, in addition to considering the NSR defendants' prematurity exception, the trial court also considered similar exceptions filed by Drs. Reddy and Seicshnaydre. At the end of the hearing, the trial court orally ruled that it was granting all three exceptions. The May 19, 2025 judgment before us granted the exceptions filed by the NSR defendants and Dr. Reddy. An earlier April 3, 2025 judgment granted the exception filed by Dr. Seicshnaydre. This appeal only pertains to the dismissal of Mrs. Reinbold' s claims against the NSR defendants. 4 It is undisputed that the NSR defendants are qualified health care providers within the meaning of the LMMA. See La. R. S. 40: 1231. 1( 10); 40: 1231. 2. The liability of a health care provider qualified under the LMMA shall not exceed $ 100, 000, plus interest and certain costs, for all malpractice claims because of injuries to or death of any one patient. See La. R. S. 40: 1231. 2( B)( 2). 3 admissible, but not conclusive, in any action subsequently flied in a court of law. La. R. S. 40: 1231. 8( H). The dilatory exception of prematurity is the proper procedural mechanism by which a qualified health care provider may challenge a medical malpractice suit that has been filed against it in a court, when that claim has not first been presented to a medical review panel. See La. C. C. P. art. 926( A)( 1); Dupuy v. NMC Operating Company, L. L. C., 2015- 1754 ( La. 3/ 15/ 16), 187 So. 3d 436, 438. The exceptor has the burden of proving prematurity and his initial immunity from suit. Dutrey v. Plaquemine Manor Nursing Home, 2012- 1295 ( La. App. 1 Cir. 6/ 17/ 13), 205 So. 3d 934, 944; Rivera, 97 So. 3d at 1099. On the trial of the prematurity exception, the parties may introduce evidence to support or controvert the exception when the grounds for the exception do not appear from the petition. See La. C. C. P. art. 930. The LIVIIVIA only requires that claims " arising from medical malpractice" be submitted to a medical review panel; all other tort liability of a qualified health care provider is governed by general tort law. Dupuy, 187 So. 3d at 439. Courts must strictly construe the LIVIMA, because its limitations on the liability of health care providers are in derogation of the rights of tort victims. Id. We note that the distinction between medical malpractice and general negligence is a subtle one, for medical malpractice is but a species of malpractice and no rigid analytical line separates the two. See Dawkins v. Union Hospital District, 408 S. C. 171, 176, 758 S. E. 2d 501, 503 ( 2014). However, if a medical malpractice claim is stated, the fact that the plaintiff may have allegations sounding in both medical malpractice and general tort law does not remove the petition from the penumbra of the LMMA., Dutrey, 205 So. 3d at 945; Rivera, 97 So. 3d at 1100. We review the trial court's ruling on a prematurity exception de novo, as the issue of whether a claim sounds in medical malpractice is a question of law. Rivera, 97 So. 3d at 1100. The LIVIMA pertinently defines " malpractice" as any unintentional tort or any breach of contract based on " health care" rendered, or which should have been rendered, by a 0 health care provider to a patient. See La. R. S. 40: 1231. 1( A)( 13). 5 Further, the LMMA pertinently defines " health care" as " any act or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient's medical care, treatment, or confinement[.]" See La. R. S. 40: 1231. 1.( A)( 9). 6 In Coleman v. Deno, 2001- 1517 ( La. 1/ 25/ 02), 813 So. 2d 303, 315- 16, our Supreme Court set forth six factor's to assist a court in determining whether a health care provider's conduct constitutes "' malpractice" based on " health care" as defined by the LMMA: ( 1) whether the particular wrong is " treatment related" or caused by a dereliction of professional skill, ( 2) whether the wrong requires expert 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. ANALYSIS In applying the Coleman factors herein, we examine the allegations of Mrs. Reinbold' s petition to determine whether they sound in medical malpractice or in general tort. See Dutrey, 205 So3d at 947. In her petition/ Mrs. Reinbold alleged that, in September 2023, Mr. Reinbold was admitted to Ochsner Medical Center Main Campus Ochsner) for evaluation of a cervical fracture he sustained in a fall. While at Ochsner, Mr. Reinbold experienced problems with low blood oxygen levels when he was lying flat but, when his head was elevated, Mr. Reinbold' s blood oxygen levels improved. On 5 After the trial court signed the May 1.9, 2025 judgment at issue herein, the definition of " malpractice" was amended by 2025 La. Acts, No. 342, § 1 ( eff. 8/ 1/ 25) to include " all acts associated with the medical treatment of an individual, whether directly related to clinical care or performed in an administrative or managerial capacity necessary for the delivery of such care." 6 After the trial court signed the May 1.9, 2025 judgment at issue herein, the definition of "health care" was also amended by 2025 La. Acts, No. 342, § 1, to include " administration, service, or care related to policies and procedures and the administration thereof, staffing, custodial services by licensed or certified staff" and " all acts associated with the medical treatment of an individual, whether directly related to clinical care or performed in an administrative or managerial capacity necessary for the delivery of such care." 7 The allegations of Mrs. Reinbold' s medical review panel complaint mirror those of the petition she filed in the 22nd JDC. 5 October 8, 2023, Mr. Reinbold was transferred from Ochsner to NSR in Covington, Louisiana. The NSR pre -admission screening records noted that Mr. Reinbold required medical care for several conditions, including close management of his respiratory status and the use of supplemental oxygen to avoid the risk of low blood oxygen levels and respiratory distress. According to Mrs. Reinbold, a physician' s note, 8 submitted to NSR upon Mr. Reinbold' s admission, directed that the head of his bed remain elevated to 30- 45 degrees to maintain acceptable blood oxygen levels. Further, one of the goals of NSR' s care plan for Mr. Reinbold was to prevent and manage delirium, including the While Mr. Reinbold was a patient at NSR, from October 8 through 15, 2023, either Mrs. Reinbold or a sitter was present in his room most of the time. Mr. Reinbold continued to experience problems with his oxygen levels, as well as confusion, cognitive deficits, and decreased safety awareness. On October 12, 2023, Mr. Reinbold' s bed alarm began to continually sound. An NSR nurse turned the alarm off, and an NSR nursing supervisor told Mr. Reinbold' s sitter that they would " get it fixed." Three days later, on October 15, 2023, Mrs. Reinbold was with Mr. Reinbold in his room, and the bed alarm was not functioning. She told an NSR nurse that she was leaving to run an errand, and the nurse assured her that "they would keep a close eye" on Mr. Reinbold while Mrs. Reinbold was gone. Mrs. Reinbold alleged that, when she returned, she observed another NSR nurse standing in the hallway near Mr. Reinbold' s room and watching a TV he could see in another room. Mrs. Reinbold discovered Mr. Reinbold lying flat in his bed, white in color, unresponsive, not wearing his nasal cannula ( which provided supplemental oxygen), and not wearing his cervical collar. Mr. Reinbold was taken by ambulance to a local hospital where he was pronounced dead. According to Mrs. Reinbold' s petition, Mr. Reinbold' s death occurred because " he did not receive the 1: 1 supervision required, he did not [ have] his supplemental oxygen on, the head of his bed was laid flat, and the bed alarm [ was] not working." Regarding the bed alarm, Mrs. Reinbold further alleged NSR was liable for " having a defective or 8 In her petition, Mrs. Reinbold identified Dr. Gollarnudi Reddy, one the defendants herein, as the physician who ordered that Mr. Reinbold's bed rerr!ain elevated at 30- 45 degrees upon his transfer to NSR. Dr. Reddy is affiliated with Ochsner Clinic Foundation in New Orleans, Louisiana. A non- functioning bed alarm, failing to properly maintain the alarms in [ Mr.] Reinbold' s room, and/ or delaying in repairing and/ or replacing the alarms in [ Mr.] Reinbold' s room." After a de novo review, and applying the Coleman factors, we conclude the allegations of Mrs. Reinbold' s petition as a whole, including the non- functioning bed alarm claim, sound in medical malpractice. When Mr. Reinbold arrived at NSR, the health care that NSR was obligated to provide to him included close management of his respiratory status and the use of supplemental oxygen to avoid the risk of low blood oxygen. One of the goals of his NSR care plan was to prevent and manage delirium, including the avoidance of low blood oxygen levels. Notably, NSR was given a physician' s order directing that the head of Mr. Reinbold' s bed remain elevated to maintain his blood oxygen at a certain level. Thus, the primary focus of Mrs. Reinbold' s allegations is NSR' s failure to closely monitor Mr. Reinbold's respiratory status, which resulted in his nasal cannula coming off, a lack of oxygen, and his bed inexplicably being in a flat position. NSR's alleged failure to maintain a properly functioning bed alarm is " treatment- related," because such failure is directly related to NSR's obligation to manage Mr. Reinbold' s respiratory status. Accord Dupay, 187 So. 3d at 442. Further, expert medical evidence will be needed to determine whether NSR' s obligation to closely manage Mr. Reinbold' s respiratory status necessarily included the use of a bed alarm at all and whether the absence of a functioning bed alarm constitutes a breach of the applicable standard of care. See Armand v. West Jefferson Holdings, LLC, 24-410 ( La. App. 5 Cir. 8/ 28/ 25), 424 So. 3d 132, 139, writ denied, 2025- 01228 ( La. 12/ 9/ 25), 422 So. 3d 296 finding expert testimony required to determine why CTA scan was recommended, indicated, or ordered); Garner v. Louisiana Medical Mutual Insurance Company, 2022- 0778 ( La. App. 1 Cir. 3/ 29/ 23), 364 So. 3d 508, 514 ( finding expert testimony necessary to determine whether use of a cautery device was appropriate); and Cook v. Rigby, 2019- 1463 ( La. App. 1 Cir. 4/ 13/ 21), 323 So. 3d 383, 392- 93, writ denied, 2021- 00663 ( La. 9/ 27/ 21), 324 So. 3d 102 ( finding expert medical testimony required to determine whether hospital properly maintained surgical valve retractor). Next, NSR' s assessment of Mr. Reinbold' s respiratory status necessitated a way of knowing whether his bed was properly elevated — although certainly not the only means to accomplish this, the absence of a functioning bed alarm in this case is related to NSR's assessment of Mr. Reinbold. See Armand, 424 So. 3d at 139 ( finding hospital' s failure to maintain testing equipment prevented its staff from properly evaluating and diagnosing patient). Next, monitoring a patient' s respiratory status with the aid of a bed alarm would be expected to be within the scope of activities a rehabilitation hospital performs. See Williams v. Notami Hospitals of Louisiana, Inc., 2004- 2289 ( La. App. 1 Cir. 11/ 4/ 05), 927 So. 2d 368, 370 ( noting hospital placed confused and disoriented patient in a room equipped with a bed alarm system to notify staff if patient attempted to get out of bed). And, although Mr. Reinbold may have suffered from a respiratory -related death had he not sought treatment at NSR, this factor alone does not remove Mrs. Reinbold' s non- functioning bed alarm claim from the penumbra of the LMMA. See? Dutrey, 205 So. 3d at 945; Rivera, 97 So. 3d at 1100. The trial court correctly found that all of Mrs. Reinbold' s claims sound in medical malpractice and correctly dismissed the NSR defendants from her suit without prejudice. CONCLUSION For the foregoing reasons, we affirm the May 19, 2025 judgment, granting the prematurity exception filed by NSR Louisiana, LLC d/ b/ a Northshore Rehabilitation Hospital, Harry Lucas, RN, Kristie Hubbard, RN, and Lily Simyari, RN, and dismissing all claims filed by Miriam Reinbold against these defendants without prejudice. We assess costs of this appeal to Miriam Reinbold. AFFIRMED.