Sepulvado v. Toledo Nursing Center, Inc., 2007 La. App. LEXIS 1098 (3rd Circuit 2007)

Edith Sepulvado was admitted to the Toledo Nursing Center, Inc. on May 1, 2001. She was 81 at the time, suffering from advanced Alzheimer’s. She was at high risk for falls and a variety of restraints were used including mats around her bed. In mid-January, she fell, suffering a head bruise and a skin tear. On February 11, 2003, she was found on the mat beside her bed, babbling and rubbing her right eye. On February 13, 2003, she was found again on the mat, this time with skin tears over her right eye and right cheek. A CT scan was ordered and a bed alarm was installed. In Follow-up CT scans showed right frontal contusion and right temporal lobe low density. A small subdural hematoma was found, but she was neuralgically unchanged. On March 12, 2003, before a follow-up CT scan could be performed, she was taken to the emergency room due to recurrent fever and was admitted to the hospital with right lower lobe pneumonia, dehydration and diarrhea. She did not return to the nursing home.

In January 2004, Mrs. Sepulvado and her son filed a medical review panel complaint. The physician members of the panel found no breach of the standard of care, but the nurse member felt a breach of the standard of care had occurred.

On March 30, 2006, after the resident’s death, suit was filed. Defendants filed a motion for summary judgment on August 25, 2006. Defendants argued that even if there was a breach in the standard of care, Plaintiff could not show a causal connection between the breach and the injury. In support, Defendants attached the affidavit of Dr. Scott Gremillion, a member of the medical review panel. Plaintiff responded, filing the affidavit of Dr. Sandra Tucker, a registered nurse with a Ph.D. in Clinical Nursing Research. Dr. Tucker opined that the nursing home breached the standard of care and that the breach contributed to the resident’s injuries. The trial court granted Defendant’s motion for summary judgment and dismissed Plaintiff’s claims.

Defendant’s argument hinged on the fact that Dr. Tucker was not a medical doctor. On appeal, the Court rejected that argument, finding: “that it was not necessary for Dr. Tucker to diagnose Mrs. Sepulvado’s condition in order to give an opinion as to whether a breach of the standard of care caused the injuries. It is undisputed that at least some of Mrs. Sepulvado’s injuries were caused by falling. Dr. Tucker is qualified, as a registered nurse and holder of a Ph.D in Clinical Nursing Research, to give an opinion as to whether there was a causal connection between the falls and the breach of the standard of care by the nursing home. This does not entail a medical diagnosis.” In light of the conflict between the competing affidavits, a question of fact remained and summary judgment was reversed.

The court did not reach a separate issue, which was whether Defendant’s motion to strike photographs in the brief should be stricken since it found that a question of fact remained for decision. Decided May 30 2007.