Baham v. Medical Center of Louisiana at New Orleans

• Decision Date: 11 July 2001
• Docket Number: No. 2000-CA-2022.,2000-CA-2022.
• Citation: 792 So.2d 85
• Parties: Mary M. BAHAM v. MEDICAL CENTER OF LOUISIANA AT NEW ORLEANS
• Court: Court of Appeal of Louisiana — District of US

792 So.2d 85

Mary M. BAHAM v. MEDICAL CENTER OF LOUISIANA AT NEW ORLEANS

No. 2000-CA-2022.

Court of Appeal of Louisiana, Fourth Circuit.

July 11, 2001.

Rehearing Denied September 6, 2001.

Brigette M. Piattoly, Piattoly Law Firm, New Orleans, Counsel for Plaintiff/Appellant.

Richard P. Ieyoub, Attorney General, John S. "Chip" Coulter, Assistant Attorney General, Louisiana Department of Justice, Division of Risk Litigation, Baton Rouge, Counsel for Defendant/Appellee.

Court composed of Chief Judge WILLIAM H. BYRNES III, Judge MIRIAM G. WALTZER, Judge JAMES F. MCKAY III.

BYRNES, Chief Judge.

Plaintiff-appellant, Mary M. Baham's claim against defendants-appellees, Dr. Christopher Babycos, Dr. Scott McDonald, and the Medical Center of Louisiana at New Orleans ("MCLANO"), for medical battery and malpractice arising out of negligence and lack of informed consent was dismissed by the trial court pursuant to an exception of prescription. We reverse and remand.

Ms. Baham requested that Dr. Christopher Babycos perform certain cosmetic surgery. She alleges that she requested Dr. Babycos to remove the fatty tissue under her chin and shorten the soft tissue on the tip of her nose. She further alleges that Dr. Babycos recommended that she additionally allow the placement of a small implant which would make her chin stand out more, a procedure that she was assured was a simple one. She also alleges that she rejected recommendations for more serious surgical procedures. The consent form said only: "Fix the nose and chin, Possible chin implant." No other details of the procedures to be employed in the consent form was standard boilerplate language.

On October 8, 1993, the surgery was performed by Dr. Babycos under the supervision of Dr. Scott McDonald at MCLANO.

Allegedly, the day after the surgery Ms. Baham discovered that Drs. Babycos and McDonald did not remove the fatty tissue from under her chin and did not place a chin implant as she had expected. Instead, they broke Ms. Baham's jaw on both sides, pulled her chin out, and reconnected her jaws with plates and screws, a procedure which Ms. Baham describes in her petition as "unauthorized sliding genioplasty." On October 5, 1994, plaintiff filed suit against MCLANO, Dr. Babycos, and Dr. McDonald in Civil District Court. The main thrust of plaintiffs original petition was a claim for the intentional tort of medical battery based on lack of consent. However, the petition also contained allegations of negligence. For example, Paragraph IX of plaintiffs petition alleged that:

As a consequence of the sliding genioplasty and the manner in which it was performed, the plates inserted in petitioner's chin caused injury to her.

[Emphasis added.]

Paragraph X(c) and (d) of plaintiff's petition provide that:

(c) Failure to insert the metal plates in such a manner so as to cause neurological and muscular damage to petitioner; and

(d) Any and all other acts of negligence and breach of the applicable standard of care as will be shown upon the presentation of the evidence in this matter.

Also on October 5, 1994, within a year of the original surgery, plaintiff filed a claim with the Patients' Compensation Fund (PCF) for medical malpractice against MCLANO, Dr. Babycos, and Dr. McDonald, which was received by the PCF on October 7, 1994.

Annexed to plaintiffs opposition to the exception of prescription are letters from the Patient's Compensation Fund dated October 18, 1994, indicating that Drs. McDonald and Babycos are qualified health care providers, but that MCLANO is not.

On March 22, 1995, while the filing with the PCF was still pending, plaintiff filed a claim of medical malpractice against the defendants with the Division of Administration requesting a state medical review panel, there being some question as to whether the doctors were covered by the state.

On August 2, 1995, the trial judge dismissed the plaintiffs Civil District Court suit pursuant to the defendants' exception of prematurity. On appeal this Court held that:

Plaintiffs intentional tort of medical battery action was correctly filed in the district court and need not be submitted to a malpractice panel. Accordingly, the trial court correctly dismissed without prejudice the medical malpractice action as premature, but should not have dismissed the intentional tort medical battery action. [Emphasis added.]

Baham v. Medical Center of Louisiana at New Orleans, 95-2605 (La.App. 4 Cir. 5/8/96), 674 So.2d 458, 461. Therefore, this Court sustained the exception of prematurity as to the negligence claim, but remanded the case back to the trial court on the intentional tort medical battery action.

However, in the year following this Court's decision in Baham, the Louisiana Supreme Court stated emphatically that there is no cause of action for medical battery based on lack of consent:

We therefore reject battery-based liability in lack of informed consent cases (which include no-consent cases) in favor of liability based on breach of the doctor's duty to provide the patient with material information concerning the medical procedure.

Lugenbuhl v. Dowling, 96-1575, p. 9 (La.10/10/97), 701 So.2d 447, 453.

According to Lugenbuhl, lack of informed consent cases and no consent cases all sound in medical malpractice. Therefore, this Court's opinion in Baham on the question of medical battery for lack of consent has been tacitly overruled by Lugenbuhl. Accord: In re Medical Review Panel For Claim of Larche, 97-2397 (La. App. 4 Cir.4/15/98), 714 So.2d 56

.

A premature medical malpractice suit does not interrupt or suspend prescription. LeBreton v. Rabito, 97-2221 (La.7/8/98), 714 So.2d 1226¹. Pursuant to the Supreme Court's reasoning in LeBreton the plaintiff may not rely on the original, October 5, 1994 premature filing of her suit in Civil District Court to either suspend or interrupt prescription.

Moreover, the trial court judgment cited Burdeaux v. Cline, 626 So.2d 1205 (La. App. 2 Cir.1993), in support of the proposition that the timely filing of a medical malpractice claim with the wrong state agency does not suspend the running of prescription. In other words, it was the opinion of the court below that the filing with the PCF did not suspend prescription because the filing should have been made with the Division of Administration. Burdeaux cites no authority in support of this proposition and this court is aware of none in existence at the time Burdeaux was decided in 1993.

At the time that plaintiff filed her claim with the Patient Compensation Fund in October of 1994 within a year of the original surgery, LSA-R.S. 40:1299.47A(2)(a) provided that the filing suspended prescription as to all solidary obligors until 90 days after the notification to the claimant or his attorney of the decision of the medical review panel or until 60 days after the notification to the claimant or his attorney that the health care provider is not covered by the provisions relating to the medical review panel. The plaintiff notes that Act 664 of 1997, effective August 15, 1997, added the following sentence to LSA-R.S. 40:1299.47A(2)(a):

Filing a request for review of a malpractice claim as required by this Section with any agency or entity other than the division of administration shall not suspend or interrupt the running of prescription.

This sentence added to LSA-R.S. 40:1299.47A(2)(a) in 1997 was obviously not in effect at the time plaintiff filed with the Patient's Compensation Fund in October of 1994, nor at the time the plaintiff filed with the Division of Administration on March 22, 1995. The same sentence as was added by Act 664 of 1997 to LSA-R.S. 40:1299.47A(2)(a) was at the same time added to LSA-R.S. 40:1299.39.1A(2)(a) dealing with the suspension of prescription in connection with requests for a state medical review panel.

We do not see how this amendment has any relevance to the particular facts of this case, because, as already pointed out, Act 664 of 1997 was not in effect at the time of the filing with either the PCF or the Division of Administration. The defendants do not rely on this amendment in support of any of their arguments.

We find that the timely filing by the plaintiff with the Patient Compensation Fund suspended prescription. The defendants do not contest the timeliness of this filing. Instead, the defendants, citing LSA-C.C. art. 3463, contend that the suspension resulting from the timely filing with the Patient's Compensation Fund is considered never to have occurred because it was voluntarily dismissed by the plaintiff on April 8, 1996 when Ms. Baham signed an agreement to dismiss the PCF proceedings and transfer the entire matter to the state panel which had already been invoked by the plaintiff on in March of 1995.

LSA-C.C. art. 3463 provides that:

An interruption of prescription resulting from the filing of a suit in a competent court and in the proper venue or from service of process within the prescriptive period continues as long as the suit is pending. Interruption is considered never to have occurred if the plaintiff abandons, voluntarily dismisses the action at any time either before the defendant has made any appearance of record or thereafter, or fails to prosecute the suit at trial. [Emphasis added.]

Plaintiff relies on Niklaus v. Bellina, 96-2411 (La.App.5/21/97), 696 So.2d 120, in support of her argument that the failure of the defendants to object to the medical review proceeding constituted an acknowledgement of her claim sufficient to interrupt prescription under LSA-C.C. art. 3464. In fact, the defendants not only did not object to the transfer, it appears that they actively sought and facilitated it. In Niklaus this Court suggested that the failure of the defendant to object to the proceedings constituted a waiver of prescription.

We do not believe that we should follow Niklaus in this regard for several reasons. First, the prescriptive issue in Niklaus was dicta, because...