David Talley v. Medical Center of Louisiana at New Orleans

• Decision Date: 12 February 2003
• Docket Number: No. 2002-CA-2488.,2002-CA-2488.
• Citation: 840 So.2d 628
• Parties: David TALLEY v. The MEDICAL CENTER OF LOUISIANA AT NEW ORLEANS, Charity Campus.
• Court: Court of Appeal of Louisiana — District of US

Page 628

840 So.2d 628

David TALLEY v. The MEDICAL CENTER OF LOUISIANA AT NEW ORLEANS, Charity Campus.

No. 2002-CA-2488.

Court of Appeal of Louisiana, Fourth Circuit.

February 12, 2003.

Appeal was taken from decision of the Civil District Court, Orleans Parish, No. 2000-11825, Michael G. Bagneris, J.,

Joseph W. Thomas, Law Offices of Joseph W. Thomas, New Orleans, LA, for Plaintiff/Appellant.

Richard P. Ieyoub, Attorney General, Susan H. Lafaye, Assistant Attorney General, New Orleans, LA, for Defendant/Appellee.

(Court composed of Chief Judge WILLIAM H. BYRNES, III, Judge MAX N. TOBIAS, JR., and Judge DAVID S. GORBATY).

WILLIAM H. BYRNES, III, Chief Judge.

The Medical Center of Louisiana at New Orleans, Charity Campus ("State") filed a motion to dismiss the devolutive appeal filed by plaintiff, David Talley, in this medical malpractice action.

Motion to Dismiss Considered as Exception of Prescription

An exception of prescription must be presented in a formal, written manner; the exception presented only in argument either orally or by way of memorandum or brief is not sufficient. Alomang v. Freeport-McMoran, Inc., 97-1349 (La.App. 4 Cir. 3/4/98), 718 So.2d 971, writ denied, 98-1352 (La.7/2/98), 724 So.2d 734. It is the substance rather than the caption of a pleading that determines its effect. Brown v. Harrel, 98-2931 (La.App. 4 Cir. 8/23/00), 774 So.2d 225, writ denied 2000-2665 (La.11/17/00), 774 So.2d 981.

La. C.C.P. art. 865 provides that every pleading shall be so construed as to do substantial justice. A pleading is classified by virtue of what it contends rather than what it is called. Cobb v. Coleman Oldsmobile, Inc., 346 So.2d 831 (La.App. 1 Cir.1977), application denied, 349 So.2d 1269 (La.1977). In that case, where the "Motion for Summary Judgment" stated all of the essential allegations for an exception of prescription and the relief sought was dismissal of the suit on that account, the First Circuit held that the motion should be characterized and considered as a peremptory exception of prescription.

In the present case, the State's motion to dismiss is a separate, formal pleading that suffices to raise the exception of prescription. The pleading is adequate to put the plaintiff on notice of the State's claim of prescription.

Second Claim of Prescription

In its motion to dismiss, the State contends that the plaintiff's action has prescribed because the plaintiff took no action to secure an attorney chairman within two years of filing his claim with the medical review panel. L a. R.S. 40:1299.39.1(A)(2)(c) provides that the commissioner of administration shall dismiss a claim ninety days after giving notice to the plaintiff if no action has been taken to secure the appointment of the attorney chairman two years from the date the plaintiff filed a request for review of his medical malpractice claim.

The prescription claim presented in the State's motion to dismiss the appeal is brought in addition to the prescription issue that was brought before the trial court and was appealed. The trial court maintained the State's exception of prescription based on the finding that the plaintiff's claim was prescribed on its face under La. R.S. 9:5628 because the plaintiff's claim was not filed within a one year period from the date of the alleged offending act, omission or neglect.

The health care provider can assert a prescription exception in a court of competent jurisdiction and proper venue at any time without regard to whether the medical review panel process is complete. La. R.S. 5628; La. R.S. 40:1299.39.1(B)(2)(a); Dixon v. Louisiana State University Medical Center, 33,036 (La.App. 2 Cir. 1/26/00), 750 So.2d 408, writ denied, 2000-0627 (La.4/20/00), 760 So.2d 350.

In White v. West Carroll Hosp., 598 So.2d 1134 (La.App. 2 Cir.1992), The Second Circuit held that the plaintiffs were not entitled to supplement the record on appeal with transcripts or other filings that were neither in evidence or otherwise part of the record before the trial court. On granting writs in that case, the Louisiana Supreme Court also noted that receiving the record for a prior medical malpractice action into the record on appeal to determine whether the prior action interrupted the running of prescription on a subsequent action, would amount to the taking of evidence and would go beyond the scope of articles permitting correction of erroneous records of supplementation of deficient records on appeal. White v. West Carroll Hospital, Inc., 613 So.2d 150 (La. 1992).

La. C.C.P. art. 2163 provides:

The appellate court may consider the peremptory exception filed for the first time in that court, if pleaded prior to a submission of the case for a decision and if proof of the ground of the exception appears of record.

If the ground for the peremptory exception pleaded in the appellate court is prescription, the plaintiff may demand that the case be remanded to the trial court for trial of the exception.

In Bibbins v. Boh Bros. Const. Co., 98-172 (La.App. 5 Cir. 7/28/98), 716 So.2d 467, remand was justified by the mover's request for remand to the trial court for trial of the exception of prescription filed for the first time in the appellate court.

In Joseph v. Vanguard Ins. Co., 99-1475 (La.App. 3 Cir. 3/1/00), 758 So.2d 893, 895-896, the Third Circuit noted:

In Willett v. Premier Bank, 97-187, pp. 9-10 (La.App. 3 Cir. 6/4/97); 696 So.2d 196, 201, we stated:

Article 2163 clearly states that the plaintiff may demand a remand of the case for trial of the prescription exception. The plaintiff therefore had discretion to make such a demand. The article, however, is silent as to any mandate on the appellate court to remand the case upon the plaintiff's demand. We conclude that the article does not grant plaintif...