Collins v. New Orleans Home for Incurables

Filing 12

ORDER & REASONS: denying 8 Motion to Dismiss for Failure to State a Claim; FURTHER ORDERED that the Oral Argument on this motion, currently set for July 15, 2015 at 9:30 a.m. is CANCELLED. Signed by Judge Carl Barbier on 7/9/15. (sek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

TRAVIS COLLINS

CIVIL ACTION

VERSUS

NO: 15-1468

NEW ORLEANS HOME FOR

SECTION: J(1)

INCURABLES
ORDER AND REASONS
Before the Court is a Motion to Dismiss for Failure to
State a Claim (Rec. Doc. 8) filed by Defendant, New Orleans Home
for Incurables, doing business as the John J. Hainkel, Jr. Home
& Rehabilitation Center (“Defendant”) and an Opposition thereto
(Rec. Doc. 9) by Plaintiff, Travis Collins (“Plaintiff”). This
motion is set for Oral Argument before the Court on July 15,
2015. Having considered the motion, the parties’ submissions,
the record, and the applicable law, the Court finds, for the
reasons expressed below, that the motion should be DENIED.
PROCEDURAL AND FACTUAL BACKGROUND
This

matter

arises

out

of

claims

brought

by

Plaintiff

regarding the use of an electric power wheelchair. Plaintiff is
a paraplegic as a result of a gunshot wound which he incurred at
1

the

age

of

fifteen.

Since

approximately

1996,

Plaintiff

has

resided at a nursing home (“the Hainkel Home”), which is owned
and operated by Defendant. Plaintiff alleges that during the
majority of his residency at the Hainkel Home, he transported
himself
within

via
and

a

power

outside

wheelchair,
of

the

which

Hainkel

allowed

Home.

him

As

a

to

travel

paraplegic,

Plaintiff is unable to travel via a manual wheelchair. Plaintiff
further

alleges

working

and

that

became

in

2013,

inoperable.

his
At

power
this

wheelchair
time,

stopped

Plaintiff’s

friends, Madeleine Burns and Carro Gardner, contacted Defendant
regarding

their

desire

to

purchase

Plaintiff

a

new

power

wheelchair worth $7,000 as a gift. Defendant advised Ms. Burns
and Ms. Gardner to make the payments directly to Defendant, who
would then deposit the money in Plaintiff’s resident trust fund
account. The women made the payments, and on April 7, 2014,
Defendant

disbursed

the

money

from

Plaintiff’s

account

and

purchased a new power wheelchair.
From April 2014 until July 2014, Plaintiff alleges that he
used the power wheelchair purchased for him by Ms. Burns and Ms.
Gardner. Plaintiff further alleges that in July 2014, without
his consent, Defendant transferred the power wheelchair from his
room at the Hainkel Home to another location, where it was not
2

accessible

to

Plaintiff.

Plaintiff

contends

that

Defendant

claimed the wheelchair was in need of repairs and refused to
permit

Plaintiff

to

use

the

wheelchair.

Due

to

Plaintiff’s

inability to use the wheelchair, he alleges that he is unable to
leave the Hainkel Home and participate in the community.
Plaintiff filed the present lawsuit in this Court on May 4,
2015. In his Complaint, Plaintiff alleges that by depriving him
of the use of his power wheelchair, Defendant has violated the
Fair Housing Act, Title III of the Americans with Disabilities
Act (“the ADA”) and Section 504 of the Rehabilitation Act of
1973. Plaintiff also states causes of action for conversion and
breach of contract under Louisiana law. As a result of these
alleged violations, Plaintiff seeks declaratory and injunctive
relief as well as compensatory and punitive damages.
In response to Plaintiff’s Complaint, Defendant filed the
instant motion seeking dismissal of Plaintiff’s claims pursuant
to

Federal

Defendant

Rules

argues

Defendant’s

of
that

provision

Civil

Procedure

because
of

12(b)(1)

Plaintiff’s

medical

care,

and

claims

they

12(b)(6).
arise

are

from

essentially

medical malpractice claims encompassed by the Louisiana Medical
Malpractice
because

Act

(“the

Plaintiff

has

LMMA”).
not

Defendant

submitted
3

his

further
claims

asserts
to

a

that

medical

review panel prior to filing the present lawsuit as required by
the LMMA, the Court should determine that Plaintiff’s claims are
premature and should be dismissed.
LEGAL STANDARD
In deciding a motion to dismiss for lack of subject matter
jurisdiction

under

Federal

Rule

of

Civil

Procedure

12(b)(1),

“the district court is ‘free to weigh the evidence and resolve
factual disputes in order to satisfy itself that it has the
power to hear the case.’” Krim v. pcOrder.com, Inc., 402 F.3d
489, 494 (5th Cir. 2005). The party asserting jurisdiction must
carry the burden of proof for a Rule 12(b)(1) motion to dismiss.
Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 762
(5th Cir. 2011). The standard of review for a motion to dismiss
under Rule 12(b)(1) is the same as that for a motion to dismiss
pursuant to Rule 12(b)(6). United States v. City of New Orleans,
No. 02-3618, 2003 WL 22208578, at *1 (E.D. La. Sept. 19, 2003).
Under the Federal Rules of Civil Procedure, a complaint
must contain “a short and plain statement of the claim showing
that

the

pleader

is

entitled

to

relief.”

Fed.

R.

Civ.

P.

8(a)(2). The complaint must “give the defendant fair notice of
what the claim is and the grounds upon which it rests.” Dura
Pharm.,

Inc.

v.

Broudo,

544
4

U.S.

336,

346

(2005).

The

allegations “must be simple, concise, and direct.” Fed. R. Civ.
P. 8(d)(1).
“Under

Rule

12(b)(6),

a

claim

may

be

dismissed

when

a

plaintiff fails to allege any set of facts in support of his
claim which would entitle him to relief.” Taylor v. Books A
Million,

Inc.,

296

F.3d

376,

378

(5th

Cir.

2002)

(citing

McConathy v. Dr. Pepper/Seven Up Corp., 131 F.3d 558, 561 (5th
Cir. 1998)). To survive a Rule 12(b)(6) motion to dismiss, the
plaintiff must plead enough facts to “state a claim to relief
that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
547 (2007)). A claim is facially plausible when the plaintiff
pleads

facts

inference

that

that

the

allow

the

court

defendant

is

to

“draw

the

reasonable

for

the

misconduct

liable

alleged.” Id. A court must accept all well-pleaded facts as true
and

must

draw

all

reasonable

inferences

in

favor

of

the

plaintiff. Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232-33
(5th Cir. 2009); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir.
1996). The court is not, however, bound to accept as true legal
conclusions couched as factual allegations.
678.

5

Iqbal, 556 U.S.at

DISCUSSION
Defendant asserts that despite the multiple types of claims
included

in

Plaintiff’s

Complaint,

all

of

the

claims

are

essentially for medical malpractice and are encompassed by the
LMMA. The LMMA mandates as follows:
No action against a health care provider covered by
this Part, or his insurer, may be commenced in any
court before the claimant’s proposed complaint has
been presented to a medical review panel established
pursuant to this Section.
La. Rev. Stat. Ann. § 1299.47 (2012). It is undisputed by the
parties that Plaintiff did not submit his claims to a medical
review panel prior to the filing of this lawsuit. Because of
this, Defendant argues that dismissal of Plaintiff’s claims is
warranted pursuant to Federal Rules of Civil Procedure 12(b)(1)
and 12(b)(6).
In response, Plaintiff disputes that his claims sound in
medical malpractice. Instead, Plaintiff asserts that his claims
are purely for violations of his rights guaranteed by Louisiana
law

and

federal

Defendant’s
Because

his

non-discrimination

intentional
claims

are

deprivation
not

founded

statutes
of
in

as

a

Plaintiff’s
medical

result

of

property.

malpractice,

Plaintiff contends that he was not required to submit his claims

6

to a medical review panel prior to filing the lawsuit or to
exhaust any other administrative requirements.
As
12(b)(1)

an
is

initial
not

matter,

the

the

appropriate

Court

recognizes

mechanism

for

that

Rule

dismissal

of

Plaintiff’s claims. Defendant premises its request for dismissal
under both Rule 12(b)(1) and Rule 12(b)(6) on the same arguments
and makes no attempt to distinguish its arguments for either
mode

of

dismissal.

Defendant

provides

no

legal

support

for

dismissal pursuant to Rule 12(b)(1). Instead, Defendant relies
entirely

on

cases

in

which

courts

have

dismissed

medical

malpractice claims for failure to submit to a medical review
panel under Rule 12(b)(6). Because Defendant has not provided
the Court with, nor is the Court aware of, any case in which an
LMMA claim has been dismissed for reason of prematurity pursuant
to

Rule

12(b)(1),

standard in

the

Court

will

not

adopt

the

evidentiary

Rule 12(b)(1) and will instead consider Defendant’s

motion in light of the legal standard provided by Rule 12(b)(6). 1

1

In deciding a motion to dismiss for failure to state a claim, courts are
generally confined to considering evidence contained in the pleadings. In
fact, if a court considers evidence outside of the pleadings, “the motion
shall be treated as one for summary judgment.” In re Katrina Canal Breaches
Litig., 495 F.3d 191, 205 (5th Cir. 2007) (citing Fed. R. Civ. P. 12(b)
(internal quotations omitted)). However, the Fifth Circuit has recognized
that “documents that a defendant attaches to a motion to dismiss are
considered part of the pleadings if they are referred to in the plaintiff’s
complaint and are central to her claim.” Causey v. Sewell Cadillac-Chevrolet,
Inc., 394 F.3d 285, 288 (5th Cir. 2004) (citing Collins v. Morgan Stanley
Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000)). Here, Defendant has
7

In

order

to

consider

whether

dismissal

is

appropriate

pursuant to Rule 12(b)(6), it is necessary to determine whether
Plaintiff’s

claims

actually

sound

in

medical

malpractice,

as

Defendant alleges. The LMMA defines the term “malpractice” as:
[A]ny unintentional tort or any breach of contract
based
on
health
care
or
professional
services
rendered, or which should have been rendered, by a
health care provider, to a patient, including failure
to render services timely and the handling of a
patient, including loading and unloading of a patient,
and also includes all legal responsibility of a health
care provider arising from acts or omissions during
the procurement of blood or blood components, in the
training or supervision of health care providers, or
from defects in blood, tissue, transplants, drugs, and
medicines,
or
from
defects
in
or
failures
of
prosthetic devices implanted in or used on or in the
person of a patient.
La. Rev. Stat. Ann. § 1299.41(A)(13) (2012). Both this Court and
Louisiana courts have recognized that in order to protect the
rights of tort victims, the definition of malpractice under the
LMMA must be strictly construed and should not be interpreted to
include

all

forms

of

liability

of

a

health

care

provider.

Williamson v. Hosp. Serv. Dist. No. 1 of Jefferson, 04-0451, p.
5 (La. 12/1/04); 888 So.2d 782, 786 (quoting Sewell v. Doctors

attached a number of exhibits to its Opposition. (Rec. Doc. 8-3, Rec. Doc. 84). However, the only exhibit referenced by Plaintiff in his Complaint is the
“Wheelchair
Safety
Evaluation”
conducted
by
Kim
Zornes,
a
licensed
occupational therapist, on behalf of Defendant. (Rec. Doc. 8-3, p. 3-4).
Because none of the other attached exhibits are either contained in
Plaintiff’s Complaint or central to Plaintiff’s claim, they will not be
considered by the Court in deciding the instant motion.
8

Hosp.,

600

So.2d

577,

578

(La.

1992))

(finding

that

the

limitations of the LMMA “apply only in cases of liability for
malpractice as defined in the Act. Any other liability of the
health care provider to the patient is not subject to these
limitations.”) (internal quotations omitted); Taylor v. Ochsner
Clinic Found., Nos. 11-1926, 11-2221, 2011 WL 6140885, at *4
(E.D. La. Dec. 9, 2011) (Vance, J.). All other liability on the
part

of

health

care

providers

which

falls

outside

of

the

definition of malpractice is governed by relevant statutes or
general tort law. See Williamson, 888 So.2d at 786.
In

determining

whether

a

claim

is

considered

one

for

malpractice governed by the LMMA, this Court is guided by the
following factors enumerated by the Louisiana Supreme Court in
Coleman v. Deno:
(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.
9

01-1517, p. 17-18 (La. 1/25/02); 813 So.2d 303, 315-16. Contrary
to

Defendant’s

demonstrates

contentions,
that

the

application

Plaintiff’s

claims

do

of

these

not

factors

constitute

malpractice as envisioned by the LMAA.
First, the wrong at issue is not “treatment related” and
was

not

caused

by

a

dereliction

of

professional

skill.

The

Supreme Court of Louisiana has previously addressed the issue of
what constitutes “treatment” by a nursing home. Richard v. La.
Extended Care Centers, Inc., 02-0978, p. 12-13 (La. 1/14/03);
835 So.2d 460, 468. In Richard, the court concluded that:
In the case of a nursing home, the nursing home
resident is not always receiving medical care or
treatment for any specific condition, but can always
be said to be “confined” to the nursing home. However,
in our view, it was not the intent of the legislature
to have every “act, … by any health care provider …
during the patient’s … confinement” in a nursing home
covered by the [L]MMA.
Id. (quoting La. Rev. Stat. Ann. 40:1299.41(A)(9)). The court
proceeded to hold that while the act of negligently allowing a
patient to fall from a wheelchair involved the “handling of a
patient” as described by the LMMA, it did not constitute medical
malpractice because it was not related directly to the patient’s
treatment provided by the nursing home. Id. Similarly, here,
while it is undisputed that Defendant’s taking of Plaintiff’s
wheelchair was performed during Plaintiff’s “confinement” within
10

Hainkel Home, there is no evidence to suggest that this was
related

in

to

Plaintiff’s

“treatment.”

Because

of

this,

the

first factor weighs heavily against malpractice.
The second Coleman factor, considering whether the wrong
requires expert medical evidence to determine whether a standard
of

care

was

malpractice.

breached,
Defendant

also

weighs

alleges

against

that

it

a

finding

refused

to

of

allow

Plaintiff to use the motorized wheelchair largely because of
defects

in

the

wheelchair.

involving

defects

generally

require

or

(Rec.

Doc.

malfunctions

medical

8-1,

in

expertise.

p.

7).

wheelchairs

See

Romero

Claims
do

v.

not

Willis-

Knighton Med. Cntr., 38,374, p. 8 (La. App. 2 Cir. 4/7/04); 870
So.2d

474,

479.

Accordingly,

the

second

factor

also

weighs

against a finding of malpractice.
Third, Defendant alleges that its conduct in taking the
wheelchair from Plaintiff involved an assessment of Plaintiff’s
condition.

Defendant

specifically

argues

that

it

took

the

wheelchair from Plaintiff partly because it was generally unsafe
and also due to his condition as a paraplegic. While the Court
will consider that Defendant’s conduct was potentially based in
part on Plaintiff’s physical condition, this factor weighs only
slightly in favor of a finding of malpractice.
11

Fourth, the taking of Plaintiff’s wheelchair did not occur
in the general course of a physician patient relationship or
within the scope of activities a nursing home is licensed to
perform. Defendant does not allege that the intentional taking
of a plaintiff’s private property against his will is conduct
within the scope of nursing home’s duties, nor can it. While
assisting a plaintiff to find appropriate medical equipment may
fall within the scope of these duties, that it is not what
Plaintiff alleges occurred here. As such, this fourth factor
weighs against a finding of malpractice.
As to the fifth Coleman factor, Plaintiff’s injury likely
would

not

have

occurred

if

he

had

not

sought

treatment

and

residence at Hainkel Home. However, this factor alone is not
determinative. Requiring a finding of malpractice for any claim
related to the seeking of medical treatment would defeat the
purpose of a strict interpretation of the LMAA, and would allow
for

the

LMMA

to

encompass

virtually

any

claim

related

to

healthcare. See Taylor, 2011 WL 6140885 at *7 (finding that one
Coleman factor, on its own, is not determinative regarding a
finding

of

malpractice,

because

would follow.”).

12

“if

it

were,

absurd

results

Sixth,

and

finally,

Plaintiff

claims

that

Defendant’s

taking of his wheelchair was intentional, and Defendant does not
dispute this. The mere fact that Defendant may have based its
decision

in

part

on

Plaintiff’s

physical

condition

does

not

change the effect of this factor. Instead, this sixth factor
weighs heavily against a finding of malpractice.
Considering

all

six

factors

as

a

whole,

only

two

weigh

slightly in favor of a finding that Defendant’s alleged conduct
constitutes malpractice under the LMMA. As such, the Coleman
factors

as

well

as

the

specific

facts

of

this

matter

collectively support the conclusion that Plaintiff’s claims do
not sound in malpractice. Because Plaintiff’s claims are not for
medical malpractice, he was not required to submit his claims to
a medical review panel before filing this lawsuit, and dismissal
of his claims for prematurity is not warranted.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss
(Rec. Doc. 8) is DENIED.
IT
motion,

IS

FURTHER

currently

ORDERED
set

for

that
July

CANCELLED.
13

the

Oral

Argument

on

15,

2015

at

a.m.

9:30

this
is

New Orleans, Louisiana this 9th day of July, 2015.

________________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

14