Opinion

Danny Demouchetversus Nexion Health Management, Inc.

Court
Louisiana Court of Appeal
Filed
May 6, 2026
Cited by
0 cases
Authority
More cited than 40.5%

The opinion

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

25-438 consolidated with 25-317

DANNY DEMOUCHET, ET AL.

VERSUS

NEXION HEALTH MANAGEMENT, INC., ET AL.

consolidated with

DANNY DEMOUCHET, SURVIVING SPOUSE OF BETTY

DEMOUCHET

VERSUS

NEXION HEALTH MANAGEMENT, ET AL.

**********

APPEAL FROM THE

SIXTEENTH JUDICIAL DISTRICT COURT

PARISH OF IBERIA, NUMBER 140662

HONORABLE CURTIS SIGUR, DISTRICT JUDGE

**********

LEDRICKA J. THIERRY

JUDGE

**********

Court composed of Shannon J. Gremillion, Ledricka J. Thierry, and Clayton Davis,

Judges.

REVERSED AND REMANDED.

Matthew M. Coman

Jordan M. Jeansonne

Garcia & Artigliere

400 Poydras Tower

400 Poydras Street, Suite 2045

New Orleans, LA 70130

(504) 354-9750

COUNSEL FOR PLAINTIFFS/APPLICANTS/APPELLANTS:

Danny Demouchet, et al.

Ann Marie LeBlanc

Kathryn M. Caraway

Mary Margaret H. Moore

Caraway LeBlanc, L.L.C.

3936 Bienville Street

New Orleans, LA 70119

(504) 566-1912

COUNSEL FOR DEFENDANTS/RESPONDENTS/APPELLEES:

Nexion Health Management, Inc., Nexion Health at New Iberia Manor

South, Inc., d/b/a New Iberia Manor South

THIERRY, Judge.

In this consolidated appeal and writ application, Plaintiffs, Danny Demouchet

and his children, Lamanda Segura, Joseph Demouchet, and Debryson Demouchet,

appeal the trial court’s judgment sustaining exceptions of prematurity and exceptions

of no cause of action to Plaintiffs’ intentional fraud and administrative negligence

claims in favor of Defendants, Nexion Health Management, Inc., Nexion Health at

New Iberia Manor South, Inc., d/b/a New Iberia Manor South, and Kevin Doerr.1

Finding the trial court erred in granting the exceptions, we reverse the judgment of

the trial court and remand the case for further proceedings.

Facts and Procedural History

On June 29, 2022, Betty Demouchet was admitted to New Iberia Manor South

(NIMS), a nursing home. Plaintiffs allege in their First Amending Petition that at the

time of her admission to the facility, Mrs. Demouchet had self-care deficits which

increased her risk of developing pressure ulcers and infections and required special

treatment of oxygen therapy. Plaintiffs further allege she required extensive

assistance with daily activities, including “bed mobility, toileting and bathing.”

Plaintiffs maintain that NIMS failed to provide Mrs. Demouchet with

appropriate care and services consistent with professional standards of practice to

prevent her from developing pressure ulcers such as one in her coccyx/sacrum area

in early 2023. Plaintiffs alleged NIMS failed to notify Mrs. Demouchet’s family of

this pressure ulcer. After it developed, Plaintiffs alleged NIMS failed to ensure that

Mrs. Demouchet received necessary treatment and services consistent with

necessary standards and practice to promote healing, prevent infection, and prevent

new pressure ulcers. These failures included failing to turn and reposition Mrs.

1

Neither the writ application nor the appeal contest the dismissal of Kevin Doerr.

Demouchet with the requisite frequency and failing to timely monitor and clean her

after episodes of incontinence. It was maintained due to these alleged failures, the

pressure ulcer deteriorated.

Further allegations included that NIMS provided substandard care and faulty

oxygen detecting equipment which led to Mrs. Demouchet being hospitalized for

breathing problems. It was further alleged that EMTs had to exchange NIMS’s

oxygen concentrator for one of their own. Further, it was alleged that due to improper

supervision by facility staff, Mrs. Demouchet aspirated on her own vomit when she

expelled into her CPAP mask. Plaintiffs also maintained when Ms. Demouchet

coded on May 1, 2023, NIMS’s monitoring equipment did not work. She was

revived after being transported to the hospital. Danny Demouchet made several

complaints about the level of care and supervision his wife was receiving while at

NIMS. It was asserted these lapses of the standard of care caused injuries to Mrs.

Demouchet and contributed to her ultimate death on June 15, 2023.

On May 22, 2023, Mrs. Demouchet filed a Request for a Medical Review

Panel against NIMS. On June 27, 2023, Mr. Demouchet filed an amended medical

malpractice claim, which alleged that Mrs. Demouchet’s death was in part caused

by complications from the pressure ulcer she developed at NIMS. According to the

amended claim, the ulcer was avoidable, occurred due to the substandard care given

at NIMS, hastened her demise, and substantially contributed to her death.

On June 27, 2023, Mr. Demouchet also filed a Petition for Damages alleging

certain acts against NIMS, Nexion Health Management, Inc. (hereafter NHMI), and

Kevin Doerr, the then administrator at NIMS. The petition alleged NIMS is a skilled

nursing facility in New Iberia. Mr. Doerr was the administrator responsible for the

general administration of the facility. NHMI was the management company with

operational control of NIMS and was vicariously liable for the actions of its

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employees and facility. The petition alleged facts similar to those contained in the

medical malpractice complaint. It also made “administrative negligence” allegations

against NHMI and Doerr of intentional underfunding that led to NIMS being

understaffed. Lastly, it alleged intentional fraud against all defendants based on

misrepresentations about the services to be provided to Mrs. Demouchet at NIMS.

On July 14, 2023, the petition was amended to add Mrs. Demouchet’s children as

plaintiffs.

On July 9, 2024, the MRP rendered its opinion and found no evidence that

NIMS deviated from the applicable standard of care. Despite the MRP ruling,

Plaintiffs filed a First Amended Petition for Damages, which largely restated the

prior assertions of medical negligence on the part of NIMS and the administrative

negligence allegations against NHMI. Both NIMS and NHMI filed an Exception of

Prematurity arguing that the fraud allegations were essentially medical malpractice

allegations in disguise and Plaintiffs had not properly pled an intentional tort as

required by Bazley v. Tortorich, 397 So.2d 475 (La.1981) and its progeny. NHMI

also excepted to the administrative negligence allegations, arguing it was a qualified

health care provider and the allegations sounded in medical negligence. Thus, the

claim fell within the scope of the Louisiana Medical Malpractice Act (LMMA),

La.R.S. 40:1231, et seq., and was premature.

NIMS and NHMI also filed an Exception of No Cause of Action, arguing that

the fraud claims were based on the Nursing Home Resident’s Bill of Rights

(NHRBR), which no longer allows damages but only provides for injunctive relief.

In addition, NHMI argued the administrative negligence claims were based on

federal regulations and did not define the standard of care. As such, those claims

should also be dismissed.

3

After a hearing on the exceptions, the trial court asked for post-hearing memos

from the parties. After the hearing, but before the post-hearing memos were

received, this court issued its ruling in Riley v. Paramount Healthcare Consultants,

LLC, 24-127 (La.App. 3 Cir. 10/30/24), 396 So.3d 470, which addressed similar

claims against a nursing home and its management company.2 Even though the trial

court received written argument from both sides as to the applicability of Riley, it

did not reference the case in its written reasons for judgment.

The trial court’s Reasons for Judgment and the judgment itself sustained both

exceptions and dismissed all of Plaintiffs’ allegations without prejudice. The trial

court stated:

INTENTIONAL/FRAUDULENT MISREPRESENTATION

AND CONTRACTUAL FRAUD

The Court finds that Cambre, Satterwhite, and Cole are

controlling and indistinguishable for the intentional tort theories as

alleged by the DEMOUCHETS. In Cambre, the court expressly held

that “plaintiffs cannot rely on the NHRBR to establish the duty

element for a claim to damages under Louisiana Civil Code article

2315, because the scope of the duty established by the legislature does

not encompass the recovery of damages based on the value of services

provided but not delivered.” Cambre, 24-218, p. 7 (La. App. 5 Cir.

8/7/24) 2024 WL 3683514, p. 8. Also, in Cole, the court expressly

held that, “[t]he legislature, by its 2003 amendment to La. R.S.

40:2010.9 has limited the claims under the NHRBR to that of

injunctive relief by a pursuing home resident. The exclusive remedy

since the amendment of the statute is injunctive relief, plus attorney

fees and cost…consequently, we find plaintiff’s second amended

petition fails to state a cause of action for contractual fraud under La.

C.C. art. 1953.” Cole, 24-148, p. 4 (La. App. 5 Cir. 8/7/24) 2024 WL

3682982, pp. 7-8 (internal citations omitted).

The Court further finds that the DEMOUCHETS have failed to

sufficiently allege that Mrs. Demouchet suffered any actual damages

caused by the alleged intentional/fraudulent misrepresentation or

contractual fraud. Again, the DEMOUCHETS claim for damages,

whether pecuniary or physical, are predicated on the NHRBR which

does not allow for recovery of any type of damages. Finally, the Court

does not find the existence of any fiduciary duty owed to Mrs.

Demouchet by the nursing home. The Court grants NEXION’S

2

The Riley opinion will be discussed in detail later in the opinion.

4

Peremptory Exception of No Cause of Action for

Intentional/Fraudulent Misrepresentation and Contractual Fraud

without prejudice.

ADMIMNISTRATIVE NEGLIGENCE

The Court finds that the regulations from the Code of Federal

Regulation (CFR), the Louisiana Administrative Code, and the U.S.

Code do not supply the “duty” element of their claim for

“administrative negligence” under Louisiana tort law for

administrative negligence in the health care setting. This duty is

supplied under the Medical Malpractice Act. The Court notes the

DEMOUCHETS’ petition fails to set forth a cause of action for

administrative negligence nor does it set forth sufficient facts to

support a claim for actual damages suffered or the specific type of

harm suffered by Mrs. Demouchet. Therefore, the Court grants

NEXION’s Peremptory Exception of No Cause of Action on

Administrative Negligence without prejudice.

DILATORY EXCEPTION OF PREMATURITY

The Court finds the DEMOUCHETS[’] claim for intentional

fraud and intentional misconduct are premature and are claims for

medical malpractice. The Medical Review Panel has not addressed

what the DEMOUCHETS listed in their Amended Petition concerning

intentional fraud and intentional misconduct. Because of this, such

claims are deemed premature, allowing for Defendants’ Dilatory

Exception for Prematurity to be granted.

Initially, we note the trial court’s Reasons for Judgment refers to all named

defendants as “Nexion” despite Plaintiffs’ separate claims against each defendant.

Also, Defendants submitted a proposed judgment asking the trial court to convert its

ruling on the Exception of No Cause of Action to a dismissal with prejudice because

Plaintiffs never moved for leave to file their amended complaint. However, the final

judgment signed April 29, 2025, maintained the dismissal of all of Plaintiffs’ claims

without prejudice.

Plaintiffs appealed the rulings involving NHMI. They argued the trial court

erred when it sustained the exceptions of prematurity and no cause of action as to

their intentional fraud and administrative negligence claims. Plaintiffs filed an

application for supervisory writ seeking review of the trial court’s sustaining of

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NIMS’s exceptions of prematurity and no cause of action that dismissed their

intentional fraud claim. NHMI and NIMS filed an Answer to the Appeal, requesting

that the trial court’s judgment as to the Exception of No Cause of Action be

converted to a judgment of dismissal with prejudice.

This court granted the writ application for the limited purpose of consolidating

the writ application and the appeal. Therefore, we will address all assignments of

error in this opinion.

Law Applicable to the Exceptions of Prematurity

Louisiana Code of Civil Procedure Article 926(A)(1) provides for the

exception of prematurity, which questions whether the cause of action has matured

to the point where it is ripe for judicial determination. Kelleher v. University Med.

Ctr. Mgmt. Corp., 21-11 (La. 12/10/21), 332 So.3d 654. The exception of

prematurity dismisses a medical malpractice claim against a qualified health care

provider “if such claim has not first been reviewed by a pre-suit medical review

panel” as required by La.R.S. 40:1231.8. Kelleher, 332 So.3d at 657. The exceptor

must demonstrate that he or she “is entitled to a medical review panel because the

allegations fall within the scope of the [Louisiana Medical Malpractice] Act.” Id.

For the LMMA to apply, (1) the party must be a qualified health care provider, and

(2) the claim must sound in medical malpractice. Dupuy v. NMC Operating Co.,

L.L.C., 15-1754 (La. 3/15/16), 187 So.3d 436. “Whether a claim sounds in medical

malpractice is a question of law reviewed under a de novo standard.” Thomas v.

Reg’l Health Sys. of Acadiana, LLC, 19-507, p. 8 (La. 1/29/20), 347 So.3d 595, 601;

Hernandez v. Diversified Healthcare-Abbeville, LLC, 09-546 (La.App. 3 Cir.

11/4/09), 24 So.3d 284, writ denied, 09-2629 (La. 2/12/10), 27 So.3d 849.

The Louisiana Supreme Court in Coleman v. Deno, 01-1517, 01-1519, 01-

1521 (La. 1/25/02), 813 So.2d 303, set forth six factors to determine whether certain

6

conduct by a qualified health care provider constitutes “malpractice” as defined

under 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.

Exceptions of Prematurity as to Plaintiffs’ Intentional Fraud Claim

Paramount in the discussion of the trial court’s sustaining of both NHMI’s and

NIMS’s exceptions of prematurity as to Plaintiffs’ intentional fraud claim is this

court’s ruling in Riley, 396 So.3d 470, which the trial court did not consider in its

Reasons for Judgment. Both parties did refer and discuss Riley in their post-hearing

memoranda; however, there was no discussion below at the hearing. We find our

decision in Riley controlling in this case.

In that case, Lloyd and Timothy Riley filed a lawsuit against Paramount

Healthcare Consultants, LLC, and Cornerstone at the Ranch, a skilled nursing home

facility, where their mother, Faye Riley, resided. Similarly to the Plaintiffs in this

case, the Rileys alleged that the nursing home and management company committed

fraud when it made knowing and intentional misrepresentations at the time it

admitted Mrs. Riley as a patient by maintaining it had adequate nursing staff and

sufficient services to meet her needs as mandated by state and federal law. The

plaintiffs relied on those representations when they chose that nursing home. It was

specifically alleged these representations were falsely made as the nursing home and

management company knew it was understaffed and could not provide the level of

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care promised. And, again, similar to here, the Rileys alleged these deliberate

fraudulent actions resulted in physical harm to Mrs. Riley.

In examining whether the plaintiffs in Riley sufficiently pled an intentional

tort, this court concluded:

“To sufficiently plead an intentional tort in the context of medical

malpractice, the petition must contain specific facts sufficient to

establish the medical provider consciously desired the physical result

of his acts or knew the result was substantially certain to follow from

[its] conduct.” Doe v. Banks, 23-914, p. 7 (La.App. 1 Cir. 3/13/24), 385

So.3d 706, 710-11; Hebert v. Louisiana Med. Mut. Ins. Co., 22-316

(La.App. 3 Cir. 10/26/22), 353 So.3d 846. “[S]omething more than a

conclusory allegation of intentional conduct is required.” Self v. Willis-

Knighton Med. Ctr., 55,130, p. 11 (La.App. 2 Cir. 8/9/23), 369 So.3d

455, 461.

In their petition alleging fraud, the Rileys claim that Cornerstone

informed Ms. Riley in writing at the time of her admission that it would

provide adequate and appropriate health care and protective and

support services, which Cornerstone knew it could not provide. The

Rileys claim that these intentional misrepresentations resulted in bodily

injuries and death by the following actions or inactions:

a) failing to have sufficient qualified personnel to properly

operate the nursing facility to assure the health, safety,

proper care and treatment of Ms. Riley as required by

La.Admin. Code. [sic] tit. 48 § I-9757, et seq. and 42 C.F.R.

§ 483.35, et seq.;

b) failing to properly assess, re-assess [a] care plan for Ms.

Riley’s self-care deficits, risk of falls, risks of developing

pressure ulcers and infections, having actually developed

pressure ulcers to her body, and her risk of dehydration and

malnutrition, as required by La.Admin. Code. [sic] tit. 480

§§ I-9763, et seq. and I-9825(A) and 42 C.F.R. § 483.25, et

seq..;

c) failing to have sufficient nursing staff to provide nursing and

related services that met the needs of Ms. Riley as required

by La. Admin. Code. [sic] tit. 48 § I-9821(A) and 42 C.F.R.

§ 483.35, et seq.;

d) failing to provide a sufficient number of nursing service

personnel consisting of registered nurses, licensed practical

nurses, medication attendants certified, and certified nurse

aides to provide nursing care to Ms. Riley in accordance

with her care plans 24 hours per day as required by

La.Admin. Code. [sic] tit. 48 § I-9823(A), et seq. and 42

C.F.R. § § 483.25, et seq. and 483.35, et seq.;

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e) failing to ensure Ms. Riley received personal attention and

nursing care and services in accordance with her condition

and consistent with current acceptable standards of nursing

practice as required by La. Admin. Code. [sic] tit. § I-

9825(A), and 42 C.F.R. § § 483.25, et seq. and 483.35, et

seq.;

f) failing to provide nursing care and services to Ms. Riley[]

as needed to prevent her from suffering preventable falls,

developing avoidable pressure ulcers and suffering from

dehydration, malnutrition and sepsis, as required by

La.Admin. Code. [sic] tit. 48 § I-9825, et seq. and 42 C.F.R.

§483.25, et seq.; and

g) failing to promptly notify Ms. Riley’s legal representative,

sponsor or designated contact when there was a significant

change in Ms. Riley’s physical status as required by La.

Admin. Code. [sic] tit. 48 § I-9825(H).

This court in Hernandez discussed an adequate staffing issue at

a nursing home. In considering the factors in Coleman, 813 So.2d 303,

this court noted that:

There can be no way to assess the fault of the nursing home

without reference to Alvin’s extensive medical and

pharmacological needs and the care and treatment that was

rendered to him by the staff. The level of supervision and

monitoring required by a patient necessarily requires an

assessment of his medical condition and capabilities.

Hernandez, 24 So.3d at 287. However, the court also observed “there

are no allegations that the conduct complained of was intentional.”

Id. at 289 (emphasis provided).

The Rileys have made specific claims of intentional

misrepresentations by the nursing home that it had the staff to care for

her specific needs when it knew it could not provide the necessary care

that her circumstances required. They have alleged that these

misrepresentations resulted in injuries and death to Ms. Riley because

the nursing home knowingly could not provide the appropriate health

care, protective, and support services. We find that these allegations

are sufficient to support a claim that an intentional tort occurred, and

the trial court erred in granting the exception of prematurity in favor of

Cornerstone.

Id. at 477-479.

Contrary to Defendants’ assertion, we find that Riley is factually similar to the

present case. Plaintiffs assert claims nearly identical to those in Riley. Plaintiffs’ first

amending petition alleged intentional misrepresentations by Defendants that resulted

9

in harm and eventually death to Mrs. Demouchet, including, but not limited to, the

following:

57.

...DEFENDANTS were to provide Mrs. Demouchet services

consistent with the mandatory staffing requirements of La. Admin.

Code tit. 48 §§ I-9821(A) and I-9823(A) and 42 C.F.R. §§ 483.35,

most specifically the right to live in a facility that employs

“sufficient nursing staff to provide…services that meet the needs of

each resident” as mandated by law,…and DEFENDANTS

affirmatively represented to Mrs. Demouchet that they would

provide such services.

59.

Before, during, and after the admission process of Mrs.

Demouchet, DEFENDANTS actively and intentionally concealed

from Mrs. Demouchet that at all times relevant hereto the facility

did not employ sufficient “nursing service personnel” to meet the

needs of facility residents as mandated by law [La.Admin. Code. tit.

48 § I-9821(A) and 42 C.F.R. §§ 483.25 et seq. and 483.35 et seq].

60.

Before, during, and after the admission process of Mrs.

Demouchet, DEFENDANTS knew that the facility did not have

sufficient “nursing service personnel” [as required by La.Admin.

Code. tit. 48 § I-9821(A) and 42 C.F.R. §§ 483.25 et seq. and 483.35

et seq.] to provide required or adequate care and services for the

incoming and existing residents and actively concealed this known

fact from Mrs. Demouchet.

69.

The representations of DEFENDANTS as incorporated into

their admission contract were false and known by the

DEFENDANTS to be false when made. Mrs. Demouchet relied on

these misrepresentations in becoming a resident of the facility. In

reliance of these misrepresentations, Mrs. Demouchet made

payments to the DEFENDANTS in return for these services as

promised. Mrs. Demouchet suffered pecuniary harm in the form of

lost payments and lost services when the DEFENDANTS actually

failed to provide these promised skilled nursing services as

represented.

74.

Thus, it is alleged at all times relevant hereto, the

DEFENDANTS were required to know pursuant to applicable

10

statutes and regulations (or risk forfeiture of licensure) that

understaffing the facility created a high risk of harm to residents of

the facility, including Mrs. Demouchet. That all times relevant

hereto DEFENDANTS consciously disregarded that knowledge and

continued to maintain insufficient staffing levels.

79.

The DEFENDANTS deliberate actions detailed herein were in

violation of Louisiana law, including without limitation Louisiana

Civil Code articles 1953 and 2315, and resulted in damages to Mrs.

Demouchet, the full extent of which is not yet known.

Similar to Riley, Plaintiffs have alleged Defendants made intentional

misrepresentations that NIMS had sufficient staff to care for Mrs. Demouchet’s

health care needs, despite knowing they could not provide the care that her

circumstances necessitated and both state and federal regulations require. Plaintiffs

alleged Mrs. Demouchet “justifiably relied upon [Defendants’] misrepresentations

in entering into an admission agreement” and becoming a resident of the facility.

Again, similar to Riley, Plaintiffs alleged their reliance on these misrepresentations

resulted in Mrs. Demouchet’s injuries and eventual death because Defendants knew

they could not provide the appropriate health care and protective and support

services to properly care for her. Thus, we find these allegations are sufficient to

support a claim that an intentional tort occurred.

We further note that since its release, several federal district courts have relied

on our opinion in Riley in similar cases involving intentional fraud allegations

against nursing homes and their management companies. In Andrews v. Nexion

Health Mgmt., Inc., 24-560 (M.D. La. 2025) (unpublished opinion) (2025 WL

634348), the court issued a ruling denying a Rule 12(b)(6) motion to dismiss filed

by a nursing home and the same management company (NHMI) as in this case. The

plaintiffs in Andrews asserted an intentional fraud claim against both the nursing

home and the management company, claiming they understaffed and underfunded

11

the nursing home and intentionally misrepresented their compliance with Louisiana

nursing home standards and minimum nursing requirements to induce the plaintiffs’

father to become a resident. Pertinent here, the federal court denied the defendants’

motion to dismiss holding the intentional fraud claim was not subject to the LMMA.

Citing Riley, the Andrews court held that the allegations asserted by the plaintiffs as

to intentional misrepresentations made by the defendants to induce their father to

become a resident “adequately pled an intentional tort, and the intentional tort claim

is not subject to the LMMA[.]” Id. at 5.

In Lunkin on behalf of Blanchard v. Nexion Health Mgmt., Inc., 24-673 (M.D.

La. 2024) (unpublished opinion) (2024 WL 5317288), the court denied a Rule

12(b)(6) motion to dismiss filed by a nursing home and the same management

company (NHMI) as in this case. The plaintiff in Lunkin asserted a claim for

intentional fraud against the nursing home and management company for knowing

misrepresentations made to the plaintiff’s mother during the admissions process

pertaining to the sufficiency of staffing and care services that would be provided to

her as a resident, which defendants knew were false since the facility was

understaffed. The plaintiff in Lunkin, as in our case, separately initiated the

formation of a MRP against the nursing home addressing only her medical

malpractice claims as required by the LMMA. Citing Riley with approval, the Lunkin

court found the allegations that defendants “made knowing misrepresentations

regarding their compliance with mandatory regulations governing minimum staff,

and ‘focused on unlawfully increasing . . . earnings’ instead of ‘ensuring the legally-

mandated minimum care’ for its residents” were sufficient to set forth an intentional

fraud claim. Id. at 5.

The same conclusion was reached in Jones v. Nexion Health Mgmt., Inc., 25-

146 (M.D. La. 2025) (unpublished opinion) (2025 WL 2797709), where, again, the

12

plaintiff filed an intentional fraud claim against a nursing home and the same

management company as here. In Jones, the plaintiff alleged his father’s death was

the direct result of (1) the defendants’ practice of intentionally underfunding and

understaffing the nursing home in order to maximize profits; and (2) the defendants’

intentional concealment and misrepresentations regarding their services made with

the purpose of inducing the father to become a resident of the nursing home, on

which he justifiably relied, causing him harm. Defendants moved to dismiss the

plaintiff’s claims, arguing they were subject to the LMMA and must first proceed to

a medical review panel. The Jones court, citing our opinion in Riley with approval,

denied the motion to dismiss finding the plaintiff’s allegations did not sound in

medical malpractice and, thus, were not subject to the requirements of the LMMA.

Defendants note that, although decisions of federal courts are considered

persuasive, they are not binding on Louisiana state courts. Shell Oil Co. v. Sec’y,

Revenue and Taxation, 96-929 (La. 11/25/96), 683 So.2d 1204; XXI Oil & Gas, LLC

v. Hilcorp Energy Co., 16-269 (La.App. 3 Cir. 9/28/16), 206 So.3d 885. However,

in this case they are particularly persuasive, as all three rely on this court’s opinion

in Riley for the conclusion reached.

Accordingly, we find the allegations pled by Plaintiffs are sufficient to support

a claim that an intentional tort occurred. The trial court erred in sustaining the

exception of prematurity in favor of Defendants, NHMI and NIMS, as to Plaintiffs’

intentional fraud claim.

Exception of No Cause of Action as to Plaintiffs’ Intentional Fraud Claim

The trial court also granted Defendants’ exception of no cause of action as to

Plaintiffs’ intentional fraud claim. The exception of no cause of action tests “the

legal sufficiency of the petition by determining whether the law affords a remedy”

against the defendant to anyone under the factual allegations of the petition.

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Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1235

(La.1993). No evidence may be introduced to support or controvert the objection

that the petition fails to state a cause of action. La.Code Civ.P. art. 931. If the petition

alleges sufficient facts to establish a case cognizable in law, an exception of no cause

of action must fail. Allied Chemical Corp. v. Iberville Par. Police Jury, 426 So.2d

1336 (La.1983).

A petition should not be dismissed for failure to state a cause of action unless

it appears beyond doubt that the plaintiff can prove no set of facts in support of any

claim which would entitle him to relief. Fink v. Bryant, 01-987 (La. 11/28/01), 801

So.2d 346. “The pertinent inquiry is whether, viewed in the light most favorable to

the plaintiff, and with every doubt resolved in the plaintiff’s favor, the petition states

any valid cause of action for relief.” Maw Enter., L.L.C. v. City of Marksville, 14-

90, p. 6 (La. 9/3/14), 149 So.3d 210, 215.

The trial court granted the exception of no cause of action, finding the cases

of Cambre v. Riverlands Home Group, LLC, 24-218 (La.App. 5 Cir. 8/7/24), 398

So.3d 115, Satterwhite v. Reilly, 35,926 (La.App. 2 Cir. 5/8/02), 817 So.2d 407, writ

denied, 02-1552 (La. 9/30/02), 825 So.2d 1193, and Cole v. St. Joseph of Harahan,

LLC, 24-148 (La.App. 5 Cir. 8/7/24), 398 So.3d 109, “are controlling and

indistinguishable for the intentional tort theories as alleged by the [Plaintiffs].” The

trial court found Cambre “expressly held that ‘plaintiff’s [sic] cannot rely on the

NHRBR to establish the duty element for a claim to damages under Louisiana Civil

Code article 2315, because the scope of the duty established by the legislature does

not encompass the recovery of damages based on the value of services provided but

not delivered.’” The trial court further found the court in Cole held the legislature

“has limited the claims under the NHRBR to that of injunctive relief by a pursuing

[sic] home resident[,]” and the exclusive remedy under the NHRBR is limited to

14

only injunctive relief, plus attorney fees and costs. Consequently, the trial court

found Plaintiff’s petition failed to state a viable cause of action for damages.

Here, Plaintiffs alleged in their petition that Defendants made knowing

misrepresentations regarding their compliance with mandatory state and federal

regulations governing staffing requirements, including but not limited to, the

NHRBR. They allege Mrs. Demouchet was provided with both written and oral

representations by Defendants that NIMS would provide services in accordance with

the mandatory staffing requirements. The petition also alleges Defendants knew it

could not meet these requirements since NIMS was understaffed. Plaintiffs argue

these intentional, fraudulent actions induced Mrs. Demouchet to become a resident

at NIMS and resulted in pecuniary losses through payment of services not rendered,

bodily injury, and ultimately death. Therefore, Plaintiffs maintain they have

sufficiently alleged a cause of action pursuant to La.Civ.Code arts. 1953 and 1958.

This court in Riley, 396 So.3d at 476–77, addressed this exact issue and

reasoned as follows:

The Rileys claim that Cornerstone committed fraud when it made

knowing, intentional misrepresentations at the time she was admitted

that violated her rights under La.R.S. 40:2010.8(A)(7) of the Nursing

Home Residents Bill of Rights (NHRBR). They claim that Cornerstone

assured Ms. Riley that there would be sufficient nursing personnel

meeting her needs as mandated by federal and state laws and it knew

these representations were falsely made because it would not be able to

meet her needs since it was understaffed. The Rileys argue that these

deliberate fraudulent actions resulted in injury and economic damages

pursuant to La.Civ. Code arts. 1953 and 1958, in addition to attorney

fees.

Enactment of the NHRBR was not intended to remove medical

malpractice claims against qualified health care providers from the

LMMA, but was intended to provide nursing home residents with

important rights to preserve their dignity and personal integrity.

Richard v. Louisiana Extended Care Ctrs., Inc., 02-978 (La. 1/14/03),

835 So.2d 460.

Louisiana Revised Statutes 40:2010.9 provides for the

enforcement of the NHRBR.

15

Causes of action for actual monetary damages based upon

violations of the NHRBR were statutorily permitted prior

to 2003. However, legislative amendments eliminated

claims for monetary damages arising from violation of the

NHRBR. Private actions for NHRBR violations are

limited to claims by nursing home residents for injunctive

relief plus attorney’s fees and costs.

Cole v. St. Joseph of Harahan, L.L.C., 24-148, p. 6 (La.App. 5 Cir.

8/7/24), [398 So.3d 109, 114].

The court in Cambre v. Riverlands Home Group, L.L.C., 24-218,

p. [13] (La.App. 5 Cir. 8/7/24), [398 So.3d 115, 126], also noted that

“the NHRBR no longer allows for the recovery of damages when that

duty - i.e., to provide certain information to residents regarding its

services and to assure that residents receive such services – is breached;

the exclusive remedy is injunctive relief.” However, the court did

recognize that La.Civ.Code art. 2315 could provide a basis for a cause

of action for fraud. The court stated that plaintiffs must allege that

actual harm was suffered which resulted in actual damages.

In Randall v. Concordia Nursing Home, 07-101 (La.App. 3 Cir.

8/22/07), 965 So.2d 559, writ denied, 07-2153 (La. 1/7/08), 973 So.2d

726, this court noted that La.R.S. 40:2010.9(B) states that other legal

and administrative remedies are still available to the resident. Although

decided before the 2003 amendment to La.R.S. 40:2010.9, this court

recognized that a resident’s intentional tort claim under the NHRBR did

not have to be submitted to a medical review panel. Richard ex rel.

Deville v. Louisiana Extended Care Ctrs., Inc., 01-1492 (La.App. 3 Cir.

3/6/02), 809 So.2d 1248, affirmed in part on other grounds, 02-978 (La.

1/14/03), 835 So.2d 460 (In footnote 2, the supreme court noted that the

defendant conceded that the plaintiff’s intentional tort claim was not

subject to the provisions of the LMMA).

Fraud is defined by La.Civ.Code art. 1953 (emphasis provided)

as “a misrepresentation or a suppression of the truth made with the

intention either to obtain an unjust advantage for one party or to

cause a loss or inconvenience to the other. Fraud may also result

from silence or inaction.” “Mere silence or inaction without fraudulent

intent does not constitute fraud. Fraudulent intent, or the intent to

deceive, is a necessary and inherent element of fraud. Fraud cannot be

predicated upon mistake or negligence, no matter how gross.”

Shekinah Glory Ministries v. One Way Deliverance Ministry, 22-1170,

p. 8 (La.App. 1 Cir. 4/20/23), 366 So.3d 1256, 1261.

Fraud is established by proving three elements: “(1) a

misrepresentation, suppression, or omission of true information; (2) the

intent to obtain an unjust advantage or to cause damage or

inconvenience to another; and (3) the error induced by a fraudulent act

must relate to a circumstance substantially influencing the victim’s

16

consent to (a cause of) the contract.” Shelton v. Standard/700 Assocs.,

01-587, p. 5 (La 10/16/01), 798 So.2d 60, 64; Robinson-Carter v. St.

John the Baptist Parish Sch. Bd., 23-397 (La.App. 5 Cir. 4/3/24), 386

So.3d 1163. “Specific intent to deceive is a necessary element of fraud,

and fraud cannot be based on mistake or negligence, regardless how

great.” Lomont v. Bennett, 14-2483, p. 19 (La. 6/30/15), 172 So.3d 620,

634, cert. denied, 577 U.S. 1139, 136 U.S. 1167 (2016).

This court in Riley rejected this same NHRBR argument to identical fraud

allegations, finding that the allegations sufficiently state a claim that an intentional

tort occurred. We find the same result appropriate here. Plaintiffs herein do not seek

damages under the NHRBR, but rather base their fraud claim in tort and contract

theory. Plaintiffs maintain they reference the NHRBR because it is one of the

statutory requirements applicable to nursing homes that Defendants misrepresented

to Mrs. Demouchet would be followed.

Relying in part on our opinion in Riley, the federal court in Lunkin, 24-673,

denied NHMI’s argument to dismiss the plaintiff’s fraud claim on the grounds it

failed to meet the requisite statutory elements to state a cause of action for relief in

tort or in contract. The Lunkin court noted that both the plaintiff’s theories of fraud

“rested in the statutory and regulatory obligations” applicable to nursing facilities,

including the NHRBR, La.R.S. 40:2010.8(A)(7), La.Admin. Code. tit. 48 § I-9821,

and 42 CFR § 483.5. Id. at 5. The court in Lunkin specifically distinguished Cambre

and Cole as it did not address obligations under 42 CFR § 483.5:

Defendants’ primary argument is that causes of action for

violations of the NHRBR are limited to claims for injunctive relief.

Indeed, although the NHRBR permitted claims for monetary damages

prior to 2003, “legislative amendments eliminated claims for monetary

damages arising from violation of the NHRBR.” Cole [v. St. Joseph of

Harahan, LLC, 24-148 (La.App. 5 Cir. 8/7/24), 398 So.3d 109]. Now,

“[p]rivate actions for NHRBR violations are limited to claims by

nursing home residents for injunctive relief plus attorney’s fees and

costs.” Id. (citing Heinrich v. Maison De’Ville Nursing Home of

Harvey, LLC, 21-240 (La.App. 5 Cir. 6/30/21) (unpublished writ

disposition); Knight v. Jefferson Healthcare Center, 21-736 (La. App.

5 Cir. 2/10/20) (unpublished writ disposition).

17

Defendants argue that Plaintiff relies only on the NHRBR to

establish the duty owed to her. . . . Defendants apparently ignore,

however, Plaintiff’s reference to 42 CFR § 483.5, an entirely different

regulation setting forth mandatory standards for nursing home care.

And the two cases relied on by Defendants are distinguishable on this

point. In Cole, the plaintiff’s contractual and tort fraud claims were

“inextricably interwoven with violations of the NHRBR,” and

therefore, the fraud claims for pecuniary damages failed. Cole, 2024

WL 3682982 at *3. Likewise, in Cambre v. Riverlands Home Group,

L.L.C., 24-218 (La.App. 5 Cir. 8/7/24), [398 So.3d 115, 126], the court

held that the plaintiffs could not “rely on the NHRBR to establish the

duty element for a claim to damages under La. C.C. art. 2315, because

the scope of the duty established by the legislature does not encompass

the recovery of damages based on the value of services promised but

not delivered.”

Neither Cole nor Cambre, decided by the Fifth Circuit Court of

Appeal of Louisiana on the same day, address obligations under 42

CFR § 483.5. A case recently decided by the Third Circuit Court of

Appeal of Louisiana does, and the court there found that the plaintiffs

had stated claims for tort and contractual fraud where the defendants

allegedly misrepresented their compliance with § 483.5. Riley v.

Paramount Healthcare Consultants, LLC, 2024-127 (La. App. 3 Cir.

10/30/24), [396 So.3d 470]. Here, the Court finds the Riley opinion

persuasive and will allow Plaintiff’s fraud claim in so far as they allege

a misrepresentation of compliance with § 483.5.

Defendants next attempt to hang their hat on additional language

from the Cambre and Cole opinions. In Cambre, the court added to its

dismissal based on NHRBR’s remedy limitations and wrote that the

plaintiffs had not “set forth sufficient facts to support a claim for

damages, based on a percentage of the cost of services not provided,”

because the plaintiffs had not alleged that any resident “suffered actual

harm attached to actual payments made and actual services that were

not provided.” Cambre, 2024 WL 3683514, at *7. Likewise, in Cole,

no plaintiff had alleged that any resident was “actually harmed from

inadequate staffing.” Cole, 2024 WL 3682982 at *3. That is simply

not the case here, where Plaintiff has alleged that inadequate staffing

led to Blanchard’s pressure injury and subsequent hospitalization.

Indeed, this allegation forms the basis of Plaintiff[’]s administrative

negligence claim. For these reasons, because Defendants allegedly

promised but did not provide adequate staffing, Plaintiff paid for

adequate staffing, and Blanchard was allegedly physically harmed by

inadequate staffing, the Court finds that Plaintiff has satisfied the

damages elements of her tort and contractual fraud claims.

Id. at 4–5.

Similarly, a different federal judge in Andrews, 24-560, relying on Riley and

Lunkin, denied an identical motion to dismiss, again filed against the same

18

management company as here and one of its nursing homes. In that case, the

defendants argued the plaintiffs could not assert a claim for damages under the

NHRBR because it only allowed for injunctive relief for residents. The plaintiffs

countered that they were not seeking damages pursuant to the NHRBR but were only

using it to establish the duties owed to residents that Defendants misrepresented they

provided and followed. The court in Andrews concluded:

Lunkin addressed this issue and rejected Defendants’ argument. . . . The

Court looked to the plaintiff’s citation to 42 C.F.R. § 483.5, which also

sets forth regulations regarding mandatory standards in nursing

homes. . . . The Court found that the NHRBR bar to damages did not

apply because the plaintiff based her claim on the misrepresentation of

compliance with 42 C.F.R. § 483.5. The same is true here. Plaintiffs

refer to 42 C.F.R. § 483.35, saying that Defendants misrepresented their

compliance with this regulation. . . . Therefore, as the Court held in

Lunkin, Plaintiffs’ fraud claim is not foreclosed, “in so far as they allege

a misrepresentation of compliance with [§ 483.35].” 2024 WL

5317288, at *5. The Motion to Dismiss will be denied on this ground.

Id. at 6.

We find a similar result is required here. The trial court erred in finding

Cambre, Satterwhite, and Cole “are controlling and indistinguishable for the

intentional tort theories as alleged by [Plaintiffs].” Plaintiffs alleged Defendants

promised but did not deliver adequate staffing, Mrs. Demouchet paid for adequate

staffing, and she was allegedly harmed by the lack of adequate staffing, pursuant to

the analysis set forth in this court’s opinion in Riley, as well as the federal court

opinions in Lunkin and Andrews, we find Plaintiffs have sufficiently stated a cause

of action for intentional fraud. Therefore, the trial court’s sustaining of NHMI’s and

NIMS’s exceptions of no cause of action as to Plaintiffs’ intentional fraud claim are

reversed.

NHMI’s Exception of Prematurity as to Plaintiffs’ Administrative Negligence

Claim

19

The trial court granted NHMI’s Exception of Prematurity as to Plaintiffs’

administrative negligence claim finding it sounded in medical malpractice and thus

fell under the protections of the LMMA. As noted earlier, for the LMMA to apply,

(1) the party must be a qualified health care provider and (2) the claim must sound

in medical malpractice. Dupuy, 187 So.3d 436.

Very recently in Broden v. Priority Management Group, LLC, 25-1651 (La.

2/12/26), 427 So.3d 726 (per curiam), the Louisiana Supreme Court addressed

whether similar claims for administrative negligence sounded in medical

malpractice.3 In that case, the plaintiffs asserted an administrative negligence claim

against a management company alleging it intentionally underfunded a nursing

home, which led to understaffing and inadequate care provided to the resident. The

plaintiffs argued their claims did not involve healthcare and were therefore not

subject to the LMMA. The management company filed a motion for partial summary

judgment, contending the allegations fell within the protections afforded by the

LMMA. After noting that the management company met its burden of proof to

establish it was a qualified health care provider (which the plaintiffs did not dispute),

the court focused on whether the plaintiffs’ administrative negligence claims

constituted medical malpractice within the meaning of the LMMA or were more

properly characterized as general negligence.

The Broden court found the administrative negligence claims arose directly

from health care performed by the management company “specifically, by acts [the

management company] took or failed to take during [the resident’s] care.” Id. at 729.

Thus, the court found a determination as to whether the duty of care was breached

“ultimately turns on the level and adequacy of the health care provided to him.” Id.

3

We note in Broden, only claims for administrative negligence were at issue, not claims for

intentional fraud.

20

Accordingly, the supreme court determined there was no genuine issue of material

fact that the administrative negligence claims were medical malpractice claims and

fell under the LMMA.

Therefore, under Broden we must find Plaintiffs’ administrative negligence

claims sounded in medical malpractice. However, our inquiry does not end there, as

Plaintiffs maintain that NHMI was not a “qualified health care provider” entitled to

the protections of the LMMA. “On the exception of prematurity, the exceptor must

prove that he is a qualified health care provider if his status is not conceded.”

Couvillion v. Matherne, 15-1762, p. 4 (La.App. 1 Cir. 6/3/16), 196 So.3d 706, 709.

During Mrs. Demouchet’s stay at NIMS, La.R.S. 40:1231.1(A)(10) defined “health

care provider” as follows:

(10) “Health care provider” means a person, partnership, limited

liability partnership, limited liability company, corporation, facility, or

institution licensed or certified by this state to provide health care or

professional services as a physician, hospital, nursing home, . . . or any

partnership, limited liability partnership, limited liability company,

management company, or corporation whose business is conducted

principally by health care providers, or an officer, employee, partner,

member, shareholder, or agent thereof acting in the course and scope of

his employment. (Emphasis added).

A qualified health care provider is one that has filed proof of financial

responsibility with the Patient’s Compensation Fund Oversight Board and has paid

the required surcharge. La.R.S. 40:1231.2(A). Proof of qualification is satisfied

when the health care provider has introduced a certificate of enrollment into

evidence. La.R.S. 40:1231.8(B)(1)(a)(ii).

Pertinent to our inquiry here, the record establishes NHMI did not obtain a

PCF certificate until April 1, 2023. Mrs. Demouchet’s residency at NIMS began on

June 29, 2022, and lasted until May 24, 2023. Thus, NHMI obtained PCF

qualification well after the alleged acts of fraud and administrative negligence

occurred. The Supreme Court has held the LMMA “does not provide coverage to

21

health care providers who fail to qualify prior to the commission of tortious

conduct.” Luther v. IOM Co., 13-353, p. 9 (La. 10/15/13), 130 So.3d 817, 824, citing

Abate v. Healthcare International, Inc., 560 So.2d 812 (La.1990). The appellate

court in Prejean v. Rodrigue, 23-646, pp. 13–14 (La.App. 1 Cir. 12/27/23), 381

So.3d 98, 107–08, addressed a similar situation where the health care provider’s PCF

certificate demonstrated an enrollment period that began after the alleged wrongful

activity occurred:

[T]he only “indicated period(s)” on the certificate – November 1, 2021

to November 1, 2022 and July 14, 2021 to November 1, 2021 – are

periods after the alleged malpractice in this case, which began on

August 20, 2020. . . . [The health care provider] may have been a

qualified health care provider; however, he failed to submit evidence

that he was entitled to the protections under the MMA for the relevant

period and failed to carry his burden of proof. Therefore, the trial court

erred in sustaining [the] dilatory exception asserting the objection of

prematurity.

In Lunkin, 24-673, the federal district court denied a motion to dismiss filed

by NHMI based on prematurity grounds to similar, if not identical, administrative

negligence claims, finding NHMI failed to meet its burden of proving it was certified

under the LMMA prior to when the alleged administrative negligence occurred:

Neither party addresses the impact that Nexion’s securing of

LMMA protection during Blanchard’s stay has on Blanchard’s claim

for administrative negligence. Absent briefing on the subject, for the

time being the Court takes recourse in Louisiana’s continuing tort

doctrine, which distinguishes “injuries resulting from continuous

operating causes and those that result from discontinuous operating

causes” for purposes of establishing when a statute of limitations begins

to run. Young v. United States, 727 F.3d 444, 447 (5th Cir. 2013). Here,

whether Nexion’s alleged administrative negligence would be a

continuing tort is, in part, “a conduct-based [inquiry, with the court]

asking whether the tortfeasor perpetuates the injury through overt,

persistent, and ongoing acts.” Id. Here, Plaintiff does state a continuing

tort because [the nursing home] was allegedly plagued by

underfunding, under-resourcing, and understaffing from the day

Blanchard arrived to the end of her stay. . . . Although the continuing

tort doctrine is usually employed to toll statutes of limitations, its

theoretical underpinnings apply in this context as well. A continuing

tort protects a plaintiff from the statute of limitations barring their claim

when the limitations period begins during the tort. Here, the continuing

22

tort doctrine protects Plaintiff from the procedural requirements of the

LMMA, which only can be invoked by Nexion for part of the tortious

period. For this reason, the Court finds that the LMMA does not protect

Nexion from Plaintiff’s claim against it for a tort that began before

Nexion was certified under the LMMA. See Sewell, 600 So.2d at 578

(“[T]he coverage of the [LMMA] should be strictly construed.”)

Id. at 3 (emphasis added).

Shortly after Lunkin, the federal district court in Andrews, 24-650, denied

NHMI’s motion to dismiss similar administrative negligence claims on prematurity

grounds, holding:

Nexion Management attached a copy of its certification of enrollment

as a certified healthcare provider, but it only shows enrollment for the

period between June 1, 2023, and June 1, 2024. . . . Mr. Rice’s stay at

Meadowview began in February 2020 and ended in July 2023.

Plaintiffs pled that throughout his time at Meadowview, Mr. Rice

suffered because of the intentional underfunding, which led to

understaffing. . . . This well pled allegation, taken as true for the

purposes of the Motion to Dismiss, establishes that the administrative

negligence of Nexion Management was a continuing tort. The injury

was perpetuated “through overt, persistent, and ongoing acts[,]” which

Plaintiffs sufficiently allege. Lunkin, 2024 WL 5317288, at *3 (quoting

Young v. United States, 727 F.3d 444, 447 (5th Cir. 2013)) (internal

quotation marks omitted).

Because the tort began when Mr. Rice began his stay at

Meadowview in February 2020—or at least when he returned to

Meadowview in June 2022—part of the tort occurred when Nexion

Management was not a qualified healthcare provider. Nexion

Management had the burden to show that it was a qualified healthcare

provider during the relevant period, and it has failed to do so. Prejean

v. Rodrigue, 23-646 (La. App. 1 Cir. 12/27/23), 381 So.3d 98, 107 (“As

the party filing the exception, the burden was on [the defendant] to

prove prematurity and initial immunity from suit as a qualified health

care provider under the [L]MMA.”). As this Court held in Lunkin,

Plaintiffs are protected from the procedural bar requiring a medical

review panel, because the tort began when Nexion Management was

not a qualified healthcare provider and did not fall under the LMMA.

Lunkin, 2024 WL 5317288, at *3. The Court need not address the rest

of Nexion Management's arguments that the claim is premature, since

they rely on Nexion Management’s status as a qualified healthcare

provider. The Motion to Dismiss will be denied as to Plaintiffs’

administrative negligence claim.

Id. at 3–4 (emphasis added).

23

As we noted earlier, NHMI obtained a PCF certificate which showed an

enrollment period beginning on April 1, 2023. Mrs. Demouchet’s residency at NIMS

began on June 29, 2022, 276 days before NHMI obtained its PCF certificate. Thus,

under the jurisprudence set forth above, the LMMA does not protect NHMI from

Plaintiffs’ administrative negligence claims that allegedly occurred before NHMI

was certified under the LMMA.4 Therefore, the trial court erred in granting NHMI’s

exception of prematurity as to Plaintiffs’ administrative negligence claims.

Exception of No Cause of Action as to Plaintiffs’ Administrative Negligence Claim

In its written reasons for judgment, the trial court held that Plaintiffs’ citation

of regulations from the CFR and the Louisiana Administrative Code were not

sufficient to supply the “duty” element of their claim for “administrative negligence”

under Louisiana tort law. The trial court also found Plaintiffs failed to set forth

sufficient facts to support a claim for actual damages suffered.

As Plaintiffs note, “Louisiana unquestionably recognizes claims for corporate

or administrative negligence in the health care facility context.” Rhodes v. Aurora

Cares LLC, 20-319, p. 9 (W.D. La. 2021) (unpublished opinion) (2021 WL 649797),

citing Scio v. Univ. Med. Ctr. Mgmt. Corp., 19-1319 (La. 10/21/19), 280 So.3d 1135.

The Rhodes case, as here, involved alleged understaffing of a nursing home. The

plaintiff filed suit against the management company asserting administrative

negligence for its underfunding and understaffing of the nursing home. The

management company filed a motion to dismiss for failure to state a claim. The court

4

NHMI argued in brief that it should be considered a qualified health care provider based on the

fact that its agent, in this case Kevin Doerr, was a qualified health care provider. We find this

unpersuasive as there would be no need for a management company to ever obtain a PCF certificate

if it could simply rely on its employees to be considered a qualified health care provider. The fact

that La.R.S. 40:1231.1(A)(10), in defining a “health care provider,” specifically lists management

companies, places it in the group that must then be certified by the PCF to be a “qualified health

care provider” under the LMMA. The fact that NHMI did indeed seek to obtain a PCF certificate

indicates its acknowledgment that this was a necessary requirement to become a qualified health

care provider entitled to the protections of the LMMA. Therefore, we find this argument

unpersuasive.

24

denied the motion and held the plaintiff adequately stated a claim for negligence

against the management company:

Here, Plaintiff has stated a claim for negligence against Aurora

Cares. First, Plaintiff alleges that Aurora Cares had management

authority over Bernice and thus had a duty to Plaintiff under both statute

and regulation to ensure adequate staffing and funding for the

facility. . . . Nursing facilities are required to maintain certain minimum

levels of staffing and services pursuant to state and federal statute and

regulation. See, e.g., 42 U.S.C. § 1396r(b)(4)(A); 42 C.F.R § 483.

Plaintiff contends that Aurora Cares tightly controlled decisions about

staffing, budgeting, and operations at the corporate level, and therefore

owed a duty to Plaintiff by virtue of its relationship with Bernice. . . .

Second, Plaintiff adequately alleges that Aurora Cares’ conduct fell

below the standard of care because he claims Aurora Cares provided

residents with nursing hours below the national average and had

inadequate staff and/or funding to see to Plaintiff's custodial needs. . . .

Third, Plaintiff alleges that this understaffing and underfunding was the

cause in fact of his injuries, including his weight loss decubitus ulcers,

and other injuries. Fourth, if, as Plaintiff alleges, Aurora Cares was the

entity responsible under statute and/or regulation at the corporate level

for making staffing, operations, and budgeting decisions, then it follows

that their dereliction of those duties were also the legal cause of

Plaintiff’s injuries because Plaintiff is within the scope of people the

statute and regulations are designed to protect. Finally, plaintiff alleges

injury because he states that he was hospitalized for malnutrition and

decubitus ulcers due to the dereliction of care he experienced because

of Aurora Cares’ decisions. . . . Thus, Plaintiff has adequately stated a

claim for negligence against Aurora Cares.

Rhodes, at p. 9.

Contrary to NHMI’s contention, Plaintiffs maintain they are not relying on

state and federal regulations to confer a “private right of action” but instead assert

their administrative negligence claims under La.Civ.Code art. 2315. The

jurisprudence has recognized that federal regulations and statutes can be utilized in

a duty-risk analysis to determine if duties and obligations under Louisiana law have

been violated. Likewise, the fourth circuit has explained:

These regulations, promulgated by the federal Department of

Transportation, do not create any private right of action for damages.

Any claim for damages in this case arises under Louisiana tort law.

However, public safety regulations such as these, issued by an agency

presumed to have expertise in the relevant subject matter and

statutorily-charged with protecting public safety, are very useful in

25

determining the standard of care applicable in a negligence action

(i.e. defining the “duty” that is owed by someone).

In re New Orleans Train Car Leakage Fire Litig., 00-479, p. 49 (La.App. 4 Cir.

6/27/01), 795 So.2d 364, 395 (emphasis added), writ denied, 01-2493 (La. 10/14/02),

827 So.2d 411, cert. denied, Nova Chems., Inc. v. Adams, 538 U.S. 944, 123 S.Ct.

1623 (2003) (emphasis added).

Further, the appellate court in Claborne v. Hous. Auth. of New Orleans, 14-

1050, p. 21 (La.App. 4 Cir. 4/15/15), 165 So.3d 268, 286, specifically recognized

that public safety regulations (in that case 24 CFR § 5.703(f)) may be “utilized in

determining whether defendants violated their duties and obligations under

Louisiana law.” Thus, we find the trial court erred in concluding that “the regulations

from the Code of Federal Regulation (CFR), the Louisiana Administrative Code, and

the U.S. Code do not supply the ‘duty’ element of their claim for ‘administrative

negligence’ under Louisiana tort law for administrative negligence in the health care

setting.”

Based on the well-pled allegations in Plaintiffs’ petition, we find Plaintiffs

have stated a claim for negligence under Louisiana tort law. If the petition alleges

sufficient facts to establish a case cognizable in law, an exception of no cause of

action must fail. Allied Chem. Corp. v. Iberville Parish Police Jury, 426 So.2d 1336

(La.1983). Therefore, we find the trial court erred in sustaining the exception of no

cause of action as to Plaintiffs’ administrative negligence claim.

Defendants’ Answer to the Appeal

In light of our reversal of the trial court’s judgment, Defendants’ answer to

the appeal seeking the dismissal of Plaintiffs’ claims to be ordered with prejudice is

rendered moot.

DECREE

26

For the foregoing reasons, we reverse the sustaining of the exception of

prematurity and the exception of no cause of action in favor of NIMS as to Plaintiffs’

intentional fraud claims. We also reverse the sustaining of the exceptions of

prematurity and the exceptions of no cause of action in favor of NHMI as to

Plaintiffs’ intentional fraud claims and administrative negligence claims. We remand

this case to the trial court for further proceedings consistent with this opinion. All

costs of this appeal are assessed to Defendants, New Iberia Manor South and Nexion

Health Management, Inc.

REVERSED AND REMANDED.

27

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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