91-2734 La.App. 4 Cir. 1/13/94, Pfiffner v. Correa

• Decision Date: 13 January 1994
• Citation: 640 So.2d 281
• Parties: 91-2734 La.App. 4 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 281

640 So.2d 281

91-2734 La.App. 4 Cir. 1/13/94

Yevon M. PFIFFNER, et al. v. Amilcar J.E. CORREA, M.D., I.L. Fontenelle, M.D., St. Claude General Hospital and Diagnostic Services Inc.

No. 91-CA-2734.

Court of Appeal of Louisiana Fourth Circuit.

Jan. 13, 1994.

Rehearing Denied Feb. 17, 1994.

Writ Granted June 3, 1994.

Darryl J. Tschirn, Metairie, for plaintiff/appellant.

Stewart E. Niles, Jr., Joan Winters Burmaster, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for defendant/appellant Dr. Amilcar J.E. Correa.

Edward J. Rice, Jr., L. Thomas Styron, Adams and Reese, New Orleans, for defendant/appellant, Dr. I.L. Fontenelle.

Bruce J. Toppin, Patricia A. Bethancourt, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for intervenor/appellant, LA Patient's Compensation Fund.

Before SCHOTT, C.J., and BARRY, WARD, JONES and WALTZER, JJ.

[91-2734 La.App. 4 Cir. 1] BARRY, Judge.

The primary issues in this medical malpractice suit are whether the claim against Dr. Fontenelle prescribed, whether the standard of medical care was established, and whether a breach of that standard was proven. The plaintiff, Mrs. Pfiffner, did not call a medical expert but relied on cross-examination of the defendant doctors to establish the standard of care.

On April 16, 1984 Yevon Pfiffner, individually and on behalf of her deceased husband, James, sued: Dr. I.L. Fontenelle, a general practitioner; Dr. Amilcar Correa, a neurosurgeon; Diagnostic Services, Inc., the CAT scan provider; and St. Claude General Hospital. (Suit # 84-6123). She alleged that the defendants were solidarily liable for her husband's death. Dr. Fontenelle's exception of prematurity was maintained and he was dismissed without prejudice on July 20, 1984 by a consent judgment. Diagnostic Services was dismissed on the same day because Mrs. Pfiffner failed to amend her petition after its exception of no cause of action was maintained.

[91-2734 La.App. 4 Cir. 2] On April 13, 1984 Mrs. Pfiffner filed a complaint with the Commissioner of Insurance against Doctors Fontenelle and Correa (her letter to the Commissioner is dated April 11). A Medical Review Panel rejected the complaint in separate opinions. On September 16, 1987 Mrs. Pfiffner filed a second suit against the same defendants (Suit # 87-16651). Diagnostic Services' exception of res judicata was maintained based on its prior dismissal with prejudice from Mrs. Pfiffner's first suit. Mrs. Pfiffner then dismissed (without prejudice) Diagnostic Services. On February 1, 1991 Mrs. Pfiffner voluntarily dismissed St. Claude General with prejudice.

Mrs. Pfiffner cross-examined the two doctors/defendants, after which the doctors' motions for a directed verdict were denied. The motions were re-urged after the jury trial and were denied. The January 25, 1991 judgment awarded $320,000 and held Dr. Correa 60% at fault and Dr. Fontenelle 40% at fault. Motions for a new trial and a judgment notwithstanding the verdict were denied, but a motion to amend was granted. The March 22, 1991 amended judgment limited the awards against Drs. Correa and Fontenelle to $100,000 pursuant to La.R.S. 40:1299.47 and the remaining $120,000 was awarded against the Louisiana Patient's Compensation Fund. A March 27, 1991 judgment maintained Dr. Fontenelle's exception of prescription and amended the March 22, 1991 judgment to dismiss Dr. Fontenelle.

La.C.C.P. art. 1951 does not permit a substantive amendment to the January 25, 1991 judgment. Reed v. St. Charles General Hospital, 602 So.2d 784 (La.App. 4th Cir.1992). The altered awards against Drs. Correa and Fontenelle and the award against the Louisiana Patient's Compensation Fund [91-2734 La.App. 4 Cir. 3] were substantive in nature. The March 22, 1991 amended judgment is a nullity and is hereby vacated.

Dr. Correa's appeal submits three arguments:

Mrs. Pfiffner did not establish the standard of care required of a neurosurgeon to treat Mr. Pfiffner's symptoms;

Mrs. Pfiffner did not establish a breach of the standard of care;

No expert evidence was presented to establish medical causation.

Mrs. Pfiffner, as cross-appellant, appeals the judgment which maintains Dr. Fontenelle's exception of prescription. Dr. Fontenelle appealed; however, his exception of prescription had been granted (March 27, 1991 judgment). He subsequently filed an appellee brief.

The Patient's Compensation Fund intervened in the appeal because both doctors are health care providers (R.S. 40:1299.41) and submits:

Mrs. Pfiffner did not present expert testimony to establish the standard of medical care and its breach;

Mrs. Pfiffner relies on testimony which is based on speculation and conjecture;

The motions for judgment notwithstanding the verdict should have been granted.

PRESCRIPTION AS TO DR. FONTENELLE

Mrs. Pfiffner appeals Dr. Fontenelle's dismissal based on prescription.

The alleged malpractice occurred between April 18-23, 1983. Mrs. Pfiffner filed a complaint with the Commissioner of Insurance against Dr. Fontenelle and Dr. Correa on April 13, 1984. On April 16, 1984 she sued Dr. Fontenelle, Dr. Correa, Diagnostic Services and St. Claude General [91-2734 La.App. 4 Cir. 4] based on solidary liability (Suit # 84-6123). Dr. Fontenelle's exception of prematurity was maintained and he and Diagnostic Services were dismissed without prejudice.

The Medical Review Panel rejected Mrs. Pfiffner's claim as to Dr. Fontenelle on September 9, 1986 and she was notified on September 11, 1986. The panel rejected the claim against Dr. Correa on June 16, 1987 and Mrs. Pfiffner was notified on June 18, 1987. On September 14, 1987 Mrs. Pfiffner filed the second suit against both doctors, St. Claude General and Diagnostic Services (Suit # 87-16651).

According to La.R.S. 9:5628, an action against a physician shall be filed within one year from the date of the discovery of the alleged act of neglect or omission. A claim filed with the Commissioner of Insurance suspends the prescriptive period until 90 days after notification of the Medical Review Panel's decision. La.R.S. 40:1299.47(A)(2)(a).

Dr. Fontenelle submits that the 90 day period begins September 11, 1986 when Mrs. Pfiffner received notice of the Panel's opinion and her claim prescribed.

Mrs. Pfiffner responds that prescription began when the decision as to Dr. Correa was received on June 18, 1987. Her suit filed on September 14, 1987 was within the 90 day period.

The Medical Malpractice Act shall be strictly construed. Williams v. St. Paul Insurance Companies, 419 So.2d 1302 (La.App. 4th Cir.1982), writ denied, 423 So.2d 1182 (La.1982). La.R.S. 40:1299.47(A)(2)(a) does not cover a situation when the Medical Review Panel separates claims against two allegedly solidarily liable doctors. Mrs. Pfiffner states that she waited for both opinions because she filed suit and a claim with the Commissioner of Insurance against both doctors as solidary obligors.

[91-2734 La.App. 4 Cir. 5] To support its conclusion that the claim against Dr. Fontenelle had prescribed, the trial court stated that Mrs. Pfiffner's 1984 suit was dismissed on June 20, 1984 based on prematurity (the correct date is July 20, 1984). On that erroneous conclusion the court decided that Mrs. Pfiffner's claim prescribed 90 days after September 10, 1986, the date Mrs. Pfiffner was notified of the Panel's opinion as to Dr. Fontenelle. The court declared that the Panel's decisions as to Dr. Fontenelle and Dr. Correa were rendered independently and suit had to be filed within 90 days of each notice. The court rejected the argument as to solidary liability of the doctors.

Mrs. Pfiffner's 1984 suit was not dismissed on June 20 or July 20, 1984; rather, Diagnostic Services was dismissed on July 20, 1984. The same day Dr. Fontenelle was dismissed without prejudice based on prematurity. Mrs. Pfiffner's 1984 suit was pending until it was abandoned under La.C.C.P. art. 561. According to the motion filed by American Medical International, Inc. (formerly St. Claude General), the last pleading in the 1984 case was filed January 22, 1986 and the suit was legally abandoned five years later as of January 22, 1991. The motion to dismiss was granted on January 25, 1991.

Although Dr. Fontenelle now argues that Mrs. Pfiffner had 90 days from September 10, 1986 to file suit, he never filed an exception of prescription until the five year abandonment occurred. He filed a prescription exception on February 28, 1991 after judgment was rendered in the 1987 suit. The exception was maintained on March 27, 1991.

Prescription as to one solidary obligor is suspended by the filing of a medical review claim against any other solidary obligor. La.R.S. 40:1299.47(A)(2)(a); Graham v. St. Charles General Hospital, 590 So.2d 818 (La.App. 4th Cir.1991). As long as the 1984 suit was pending against one [91-2734 La.App. 4 Cir. 6] solidarily liable defendant, prescription was interrupted as to the other solidary obligors.

Dr. Fontenelle strenuously argues that he and St. Claude General are not solidarily liable, but their solidary liability is not required under this procedural scenario. Dr. Fontenelle had been dismissed without prejudice from the 1984 suit because his dilatory exception of prematurity was maintained. Dismissal was correctly rendered (without prejudice) to allow Mrs. Pfiffner to bring suit at a later date against that defendant. La.C.C.P. art. 933 Official Revisions Comment(c); Rausch v. Hanberry, 377 So.2d 901 (La.App. 4th Cir.1979).

Both parties cite C.C. art. 3463 which provides in part: "Interruption is considered never to have occurred if the plaintiff abandons, voluntarily dismisses, or fails to prosecute the suit at the trial." Dr. Fontenelle claims that after Mrs. Pfiffner's 1984 suit was dismissed as abandoned, any interruption relating to that suit is considered never to have occurred.

A second suit which was filed after the original suit was dismissed or abandoned is...