Bordelon v. Medical Center of Baton Rouge

• Decision Date: 20 December 2002
• Docket Number: No. 2001 CA 2164.,2001 CA 2164.
• Citation: 836 So.2d 407
• Parties: Jody and Lora BORDELON, Individually and on Behalf of Their Minor Child, Brandon v. MEDICAL CENTER OF BATON ROUGE and Andrew T. Zaruski, M.D.
• Court: Court of Appeal of Louisiana — District of US

Page 407

836 So.2d 407

Jody and Lora BORDELON, Individually and on Behalf of Their Minor Child, Brandon v. MEDICAL CENTER OF BATON ROUGE and Andrew T. Zaruski, M.D.

No. 2001 CA 2164.

Court of Appeal of Louisiana, First Circuit.

December 20, 2002.

Joseph E. Stockwell, III, Baton Rouge, for Plaintiffs-Appellants Jody and Lora Bordelon, Individually and on behalf of their minor child, Brandon.

Daniel A. Reed, Baton Rouge, for Defendant-Appellee Medical Center of Baton Rouge.

Charles F. Gay, Jr., Ann M. Halphen, Amy C. Lambert, Baton Rouge, for Defendant-Appellee Andrew T. Zaruski, M.D.

Before: WHIPPLE, PARRO, KLINE, JAMES, and PATTERSON, JJ.¹

PARRO, J.

la this medical malpractice suit, Jody and Lora Bordelon, individually and on behalf of their minor child, Brandon, appeal a judgment maintaining an exception of prescription in favor of defendants, the Medical Center of Baton Rouge and Dr. Andrew T. Zaruski, and dismissing their claims. After a review of the facts and applicable law, we reverse and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

On December 23, 1995, Brandon Bordelon (Brandon) was taken to the emergency department of the Medical Center of Baton Rouge (Medical Center) due to pain in his left testicle, spine, and legs. The emergency room physician performed a physical examination and found that Brandon's pain increased with movement and that his left testicle was swollen. Various diagnostic tests were run, after which the emergency room physician contacted Dr. Andrew T. Zaruski, a urologist, by telephone to discuss Brandon's condition. Based on the information provided to him, Dr. Zaruski diagnosed Brandon's condition as epididymitis. He advised that Brandon could be discharged with antibiotics and should schedule a visit to his office within five days.

Brandon had an appointment with Dr. Zaruski on December 26, 1995.² Additional tests were performed at this time and revealed that there was no blood flow to Brandon's left testicle. Dr. Zaruski informed Brandon's parents that his left testicle was dead and further treatment would he unsuccessful. Dr. Zaruski concluded that an infection had caused swelling in the testicle, which had impeded the blood supply.

On December 28, 1995, Brandon was taken to Dr. Kenneth Blue for a second opinion. Dr. Blue concluded that Brandon was suffering from a necrotic left testicle secondary to an old torsion and recommended immediate scrotal exploration to remove the left testicle and re-position the right testicle. This surgery was performed on December 29, 1995. Pathology studies on the left testicle confirmed that a hemorrhagic infarction consistent with torsion had occurred.

Jody and Lora Bordelon, individually and on behalf of their minor child, Brandon (the Bordelons), filed a medical malpractice suit against the Medical Center and Dr. Zaruski in February 1998, in the 19th Judicial District Court, Parish of East Baton Rouge (the first suit). Service on the defendants was withheld. The Medical ('enter eventually filed a motion to dismiss this suit, pursuant to Louisiana Code of Civil Procedure article 1672(C),³ based on the Bordelons' failure to request service as required by Louisiana Code of Civil Procedure article 1201(C).⁴

After a hearing on August 3, 1998, the court granted the motion to dismiss. A judgment to that effect was signed on August 10, 1998, dismissing all claims against the defendants due to the failure to timely request service of citation. However, on August 3, 1998, the same day as the contradictory hearing on the motion and before the judgment was signed, the Bordelons filed a new petition against the Medical Center. This suit (the second suit) was also filed in the 19th Judicial District Court, but Dr. Zaruski was not named as a defendant.

The Medical Center filed an exception raising the objection of prescription in the second suit.⁵ The court sustained the exception, stating:

The court is of the opinion that Code of Civil Procedure⁶ article 3463 does apply and did not interrupt prescription. It was dismissed because it was not served within 90 days.

The Bordelons appealed this judgment in the second suit. On appeal, this court agreed that, on the face of the petition. the Bordelons' claim had prescribed, and noted that there was insufficient evidence in the record concerning the Bordelons' argument teat prescription had been suspended and/or interrupted by other proceedings, including the medical review panel and the first suit. Therefore, this court affirmed in part and reversed in part, stating:

Although plaintiffs urge that prescription was suspended by proceedings before the medical review panel and by a suit filed in the Nineteenth Judicial District Court on February 5, 1998, the record before this court does not contain any evidence pertaining to these earlier legal proceedings. Thus, plaintiffs failed to meet their burden of proof, and the trial court properly sustained defendant's exception of prescription. Accordingly, the judgment sustaining the exception of prescription is affirmed.

Although we conclude that the trial court correctly sustained the exception of prescription, we also must conclude that the trial court erred in failing to give plaintiffs an opportunity to amend their petition. Under the provisions of La. C.C.P. art. 934, when the grounds of an objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. See Higginbotham v. Morris. 33,506, p. 6 (La.App.2d Cir. 12/8/99), 749 So.2d 840.

In this matter, the judgment sustaining the exception did not provide plaintiffs the opportunity to amend their pleadings. Since it appears that the grounds of the objection may he removed by amendment of the petition, we remand this matter to the trial court to give the plaintiffs a period of time to amend their petition.

Bordelon P. Medical Center of Baton Rouge, 99-0879 (La.App. 1st Cir.5/12/00) (unpublished opinion).

On June 9, 2000, after the second suit was remanded to the district court, the Bordelons amended their petition, pleading facts supporting their claims concerning the suspension and interruption of prescription and adding Dr. Zaruski as a defendant. The Medical Center and Dr. Zaruski filed exceptions raising the objection of prescription. After a hearing, the court again sustained the exceptions and dismissed the Bordelons' claims against both defendants, reasoning:

Failure to serve is to he treated as an absolute nullity. As Black's [Law Dictionary] suggests, a nullity is to be considered as though it never occurred. This is analogous to the treatment of the abandonment provisions .... Herr, as with abandonment, an order is not necessary to effectuate the dismissal or the claim. After the 90 day period has passed, by operational (sic) law, the case is deemed dismissed. Although, the plaintifff[s] filed the second suit before the order of dismissal was signed the case had already been dismissed by operation of law. Thus, the plaintiff's] cannot take advantage of interruption of prescription. Keeping with the intent of the law, I consider that the initial suit is an absolute nullity. As with abandonment, a nullity is considered never to have occurred. Filing a suit alone, did not interrupt prescription. Without service on the defendants, the lawsuit was an absolute nullity, which does not require a judgment. Therefore, the plaintiff['s] claim has prescribed, and I'm going to grant this.

The Bordelons appealed, assigning as error the trial court's decision to sustain the peremptory exceptions raising the objection of prescription.

STANDARD OF REVIEW

On legal issues, the appellate court gives no special weight to the findings of the trial court, but exercises its constitutional duty to review questions of law and renders judgment on the record. Franklin & Moore v. Gilshar; Inc., 95-1520 (La.App. 1st Cir.5/10/96), 673 So.2d 658, 660. Appellate review of questions of law is simply to determine whether the trial court was legally correct or legally incorrect. Cangelosi v. Allstate Ins. Co., 96-0159 (La.App. 1st Cir.9/27/96), 680 So.2d 1358, 1360, writ denied, 96-2586 (La.12/13/96), 692 So.2d 375; O'Niell v. Louisiana Power & Light Co., 558 So.2d 1235, 1238 (La.App. 1st Cir.1990).

ANALYSIS

The Bordelons assert that the district court erred in sustaining the peremptory exceptions raising the objection of prescription brought by the Medical Center and Dr. Zaruski. They contend the exceptions should not have been sustained, because the prescriptive period under Louisiana Revised Statute 9:5628 for filing a medical malpractice cause of action was interrupted while the first suit was pending. Prescription is interrupted when the obligee commences an action against the obligor in a court of competent jurisdiction and venue. See LSA-C.C. art. 3462.⁷ 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. See LSA-C.C. art. 3463. The Bordelons' first suit was filed in a court of competent jurisdiction and proper venue, and the final judgment in that lawsuit was not signed until several days after the second suit was filed. When interruption occurs, prescription begins to run anew from the last day of the interruption. See LSA-C.C. art. 3463; LeBretod v. Rabito, 97-2221 (La.7/8/98), 714 So.2d 1226, 1229. The Bordelons contend, therefore, that the interruption of prescription resulting from the first suit was in effect at the time the second suit was riled. Consequently, the filing of the second suit while the first suit was pending was within the prescriptive period applicable to their medical malpractice claim.

The Bordelons further argue that the district court misinterpreted the law regarding a...