On August 4, 2006, Chinita Weber filed a lawsuit against Metropolitan Hospice alleging wrongful death and survival claims on behalf of her aunt, Mary London, who died at the facility in the days following Hurricane Katrina. The hurricane impacted the New Orleans area on August 29, 2005. Ms. Weber asserted that Metropolitan Hospice was negligent in causing her aunts death for two reasons. First, the facility was negligent in failing to evacuate in advance of Hurricane Katrina. Second, the facility was negligent in failing to provide adequate backup electrical power, thereby subjecting her aunt to extreme heat and unsanitary conditions, which she claimed ultimately caused her aunts death.

Metropolitan Hospice filed an exception of no right of action, arguing that the Louisiana statutes governing wrongful death and survival claims did not allow Ms. Weber the right to bring such claims on behalf of her aunt. Louisiana law permits only limited classes of beneficiaries to bring such claims, and a niece does not qualify as such a beneficiary. The trial court granted the exception, but allowed Ms. Weber thirty days to amend her petition to properly state a claim.

Ms. Weber had herself appointed as representative of her aunts succession, and filed an amended petition asserting wrongful death and survival claims as her aunts succession representative. Metropolitan Hospice responded by filing two exceptions: (1) an exception of no right of action arguing that as succession representative, Ms. Weber had no right to assert a wrongful death claim, and (2) an exception of prescription arguing that Ms. Webers survival claim was not timely asserted. The trial court granted both motions, and Ms. Weber appealed.

On appeal, the appellate court affirmed in part and reversed in part the trial courts decision. With regard to the exception of no right of action, the appellate court affirmed the trial courts dismissal of Ms. Webers wrongful death claim because Louisiana law does not allow a succession representative the right to bring a wrongful death claim. Nevertheless, the appellate court noted that a successor representative does have the right to bring a survival claim on behalf of the deceased person. Thus, whether Ms. Weber could continue pursuing the survival claim hinged on whether the appellate court agreed that the survival claim was untimely.

Louisiana law requires that survival claims be filed within one year from the date of the decedents death. While undoubtedly Ms. Weber filed her original 2006 lawsuit within one year of her aunts death, the key issue was whether the filing of her amended complaint in 2011 could relate back to the date that she filed her original lawsuit on August 4, 2006.

In accordance with Louisianas relation back doctrine, four factors determine whether an amended petition that either adds or substitutes a plaintiff can be treated as if it were filed on the date that the original petition was filed. They are: (1) if the amended claim arises out of the same conduct, transaction or occurrence as the original claim, (2) the defendant knew or should have known of the involvement of the new plaintiff, (3) the new and old plaintiffs are sufficiently related so that the new party is not entirely new or unrelated, and (4) the defendant is not prejudiced in preparing its defense. The appellate court determined that Ms. Webers amended lawsuit met these requirements.

The courts analysis did not end there, however. If Ms. Webers claims against Metropolitan Hospice could be considered medical malpractice claims rather than negligence claims, then her claims would still be untimely since Louisiana law requires that medical malpractice claims be filed within three years of the date of the decedents death without exception. Relying on other Louisiana decisions involving similar Katrina-related claims, the appellate court determined that Ms. Webers claims were not, in fact, medical malpractice claims. Accordingly, the court held that Ms. Webers survival claims were timely as her amended complaint related back to the date that she filed her original lawsuit.

Take-Away: In cases where someone has died as a result of the alleged negligence of a premises owner, the owner may be sued for damages sustained by the decedent prior to his death and damages sustained by surviving family members as a result of their loss.

This article was co-authored by Lizzi Richard, an associate at Irwin Fritchie Urquhart & Moore LLC.

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