Correro v. Ferrer

• Decision Date: 28 October 2016
• Docket Number: NO. 2016-C-0861,2016-C-0861
• Citation: 216 So.3d 794 (Mem)
• Parties: Carolyn CORRERO v. Dr. Jose L. FERRER, Lammico Insurance Agency, Inc., Iasys Glenwood Regional Medical Center, L.P., and XYZ Insurance Company
• Court: Louisiana Supreme Court

216 So.3d 794 (Mem)

Carolyn CORRERO

v.Dr. Jose L. FERRER, Lammico Insurance Agency, Inc., Iasys Glenwood Regional Medical Center, L.P., and XYZ Insurance Company

NO. 2016-C-0861

Supreme Court of Louisiana.

October 28, 2016

PER CURIAM

This medical malpractice action concerns whether a timely filed amendment to a medical review panel ("MRP") complaint can be converted into a new complaint ("MRP-2") by the Department of Administration ("DOA"), which would end suspension on the initial complaint ("MRP-1") causing plaintiff's claims against the first named healthcare providers to prescribe while the second complaint is still pending against alleged joint and solidary obligors. In accord with the strict construction required, we find, in this circumstance where an administrative decision directly affected the tolling period to the detriment of plaintiff's tort rights, prescription on plaintiff's claims remained suspended as to all joint and solidary obligors while the MRP-2 proceeding was still pending against alleged joint and solidary obligors.

The following is a brief summation of the relevant facts:

• Apr. 23, 2011—Plaintiff underwent surgery performed by Dr. Jose Ferrer at Glenwood Regional Medical Center ("Glenwood") after fracturing her left hip. Due to incorrect positioning and misverification of the surgical site, Dr. Ferrer began surgery on plaintiff's right hip, making a 10–inch incision through her skin, subcutaneous tissue, and her deep fascia. Two minutes into the surgery, the error was discovered by an attending RN who noticed the x-ray images were of a left hip fracture although consent was for a right hip fracture. Plaintiff's right side was sutured and her skin stapled. After verifying and confirming the x-rays, Dr. Ferrer then proceeded with surgery on her left hip without further incident.

• Apr. 12, 2012—Plaintiff mailed, via U.S. Certified Mail, a letter to DOA requesting the formation of a MRP against Dr. Ferrer and Glenwood (MRP-1) and specifically alleging the medical negligence of Glenwood's employees and/or Dr. Ferrer.

• Aug. 22, 2013—Dr. Ferrer was dismissed from MRP-1 after Dr. Ferrer acknowledged his liability and breach of the standard of care and waived the proceeding in the initial panel.

• Nov. 1, 2013—MRP-1's attorney chairman informed the parties the matter would proceed to the panel for a hearing and decision on November 19, 2013.

• Nov. 15, 2013—Plaintiff's counsel, via email, requested a postponement of the panel hearing, explaining: "The hospital's position paper has revealed for the first time that the physician assistant, the anesthesia team and the CRNA were not employees of the hospital. Plaintiff wishes to amend her complaint to add these additional independent parties, which will be forthcoming shortly."

• Nov. 18, 2013—MRP-1's attorney chairman indicated he was not willing to postpone the hearing, stating: "What you are requesting me to do is cancel a panel conference in a proceeding that has been pending for almost a year so you can start over by adding new defendants, which would entail new defense attorneys, re-selection of the panelists, a new schedule for discovery and submissions, et al. I am not willing to do this. You can file a new complaint in a new proceeding against whatever additional parties you need to proceed against and have a panel against those new parties. The panel conference set for tomorrow evening will go forward as scheduled."

• Nov. 19, 2013—Plaintiff filed an amendment to her complaint, adding Bernie Caldwell and Cathy Greer as newly-discovered, additional defendants. The amendment specifically referenced her initial complaint: "In the above referenced panel proceeding, the hospital's position paper submitted on September 25, 2013, revealed for the first time that the physician assistant, Bernie Caldwell, and the CRNA, Cathy Greer, were not employees of the hospital. Plaintiff wishes to amend her complaint to add these additional independent defendants. Pursuant to La. R.S. 9:5628, this amendment is timely made within three years of the alleged injury."

• Dec. 27, 2013—MRP-1 issued and mailed, via U.S. Certified Mail, its opinion finding Glenwood failed to meet the applicable standard of care, specifically reasoning: "Standard of care calls for both the surgeon and the operation room nurses/personnel to confirm the correct surgical sight [sic] before surgery begins. While this panel is aware that the surgical consent form identifies the right hip instead of the left hip, the emergency room records and radiology reports clearly show that Ms. Correro had sustained a left hip fracture. It is the responsibility of both the physician and the operation room nurse to verify the correct surgical sight [sic] when there is a discrepancy between the surgical consent form and the hospital records.... This panel recognizes that there is a material issue of fact as to whether Ms. Correro told the operation room nurse she was having surgery on her right hip; but even assuming that is true it does not relieve the operating room nurse/personnel and the physician from verifying the correct surgical site. As a result of the aforementioned deviation below the standard of care Ms. Correro incurred a right hip incision that should not have been made."

• Jan. 31, 2014—The PCF informed plaintiff it had converted the amended complaint against Caldwell and Greer into a separate request for a MRP (MRP-2), stating: "Unknowing to the [PCF] an opinion was rendered on the above referenced panel request when the recently submitted amendment dated November 19, 2013 was filed. Therefore, the amendment will be processed as a new request for a medical review panel."

• Apr. 23, 2014—Caldwell and Greer filed an exception of prescription in response to MRP-2. The trial court granted the exception, but the court of appeal reversed, holding: "the timely filed claim with the initial panel against Dr. Ferrer and Glenwood served to suspend prescription with regard to the unnamed joint tortfeasors (Caldwell and Greer) to the same extent that suspension transpires as to those named in the request for review. Likewise, the timely filed claim against Caldwell and Greer served to suspend prescription against the remaining alleged joint tortfeasor, Glenwood." Correro v. Caldwell , 49,778 (La. App. 2 Cir. 6/3/15), 166 So.3d 442, 447–48writ denied , 15–1536 (La. 10/23/15), 179 So.3d 607 ("Correro I").

• Aug. 27, 2014—Plaintiff filed the instant medical malpractice suit against Dr. Ferrer, Glenwood, XYZ Insurance Company, and LAMMICO.

In response to plaintiff's suit, Dr. Ferrer and Glenwood filed separate exceptions of prescription. Citing La. Rev. Stat. § 9:5628(A),¹ they argued plaintiff's claim prescribed ninety days after the MRP-1 opinion was issued and mailed on December 27, 2013. Plaintiff opposed the exception, arguing MRP-2, which remained pending against Caldwell and Greer, suspended prescription against all joint and solidary obligors, including Dr. Ferrer and Glenwood.

After a hearing, the trial court granted defendants' exception of prescription and dismissed plaintiff's suit...