Flintroy v. La. Health Science Ctr.-Monroe

CourtCourt of Appeal of Louisiana (US)
Citation315 So.3d 395
Docket NumberNo. 53,777-CA,53,777-CA
Parties Emanuel FLINTROY, Individually and on Behalf of His Deceased Daughter, Jessica Wright, Plaintiff-Appellant v. The STATE OF LOUISIANA HEALTH SCIENCE CENTER-MONROE, Dr. Rick Cavell, Dr. Gwen Holdiness, Dr. Stuart Melton, S.M. Beal, RN, Randy Ratcliff, RN, Lauren Tucker, RN, K. Richardson, RN and S. Dunham, RN, Defendant-Appellees
Decision Date03 March 2021

315 So.3d 395

Emanuel FLINTROY, Individually and on Behalf of His Deceased Daughter, Jessica Wright, Plaintiff-Appellant
The STATE OF LOUISIANA HEALTH SCIENCE CENTER-MONROE, Dr. Rick Cavell, Dr. Gwen Holdiness, Dr. Stuart Melton, S.M. Beal, RN, Randy Ratcliff, RN, Lauren Tucker, RN, K. Richardson, RN and S. Dunham, RN, Defendant-Appellees

No. 53,777-CA

Court of Appeal of Louisiana, Second Circuit.

Judgment rendered March 3, 2021

WILLIAM E. LEBLANC, Donaldsonville, Counsel for Appellant

HUDSON, POTTS & BERNSTEIN, L.L.P. By: Jay P. Adams, Monroe, Counsel for Appellees



Emanuel Flintroy appeals a judgment that sustained an exception of no right of action and dismissed his claim of medical malpractice arising from the allegedly substandard treatment received by his daughter, Jessica Wright, at LSU Health Sciences Center-Monroe (at the time known as E.A. Conway Hospital, but referred to herein as "LSU"). For the reasons expressed, we affirm.


The 20-year-old Ms. Wright, who suffered from Sickle Cell disease, went to LSU on August 5, 2008, with a Sickle Cell crisis. Doctors gave her a cocktail of strong narcotics, to control her pain, but early on the morning of August 7, she coded and could not be resuscitated. The plaintiff, Flintroy, filed a timely request for Medical Review Panel ("MRP") with the Division of Administration on July 31,

315 So.3d 397

2009. The instant record does not include a copy of this request.

The MRP rendered its opinion on August 1, 2011, finding no breach of any standard of care by LSU or by any of the doctors or nurses who treated Ms. Wright.

Flintroy filed this petition for medical malpractice on November 2, 2011, alleging that Ms. Wright died from narcotic intoxication. He alleged that he was suing "individually and on behalf of his deceased daughter, Jessica Wright," and demanded damages for wrongful death and survival.

LSU answered with general denials, and the parties proceeded to discovery. At a deposition in September 2015, Flintroy stated that he was Ms. Wright's father, but admitted that he was never married to her mother. In a separate deposition, Ms. Wright's mother, Carolyn Shareef, testified that Flintroy "acknowledged" Ms. Wright as his child, but she confirmed that she was never married to Flintroy.

LSU filed a "peremptive exception of no right of action." This argued that because Flintroy was not married to the patient's mother and never filed an avowal action, he had to prove filiation, under La. C.C. arts. 2315.1 and 2315.2 and Udomeh v. Joseph , 11-2839 (La. 10/26/12), 103 So. 3d 343, but any such action had to be filed within one year of the child's death, under La. C.C. art. 198, and this time period is peremptive. Since more than one year had passed since Ms. Wright's death, LSU argued, Flintroy could not prove paternity; thus, he had no right of action to sue on her behalf. In support, LSU attached copies of Flintroy's and Ms. Shareef's depositions.

In an "additional response" (the record does not include his original response), Flintroy argued that the documents did not clearly establish the date of Ms. Wright's death, so the court could not rule on timeliness of a filiation action. Mostly, however, he argued that the Medical Malpractice Act ("MLSSA")1 "substantially impedes the ability of tort victims to obtain a full recovery of damages, is in derogation of established rights and is to be strictly construed," citing Watkins v. Lake Charles Mem. Hosp. , 13-1137 (La. 3/25/14), 144 So. 3d 944.

At a hearing in September 2019, LSU offered Ms. Wright's death certificate, which showed that she died August 7, 2008, and Flintroy's petition, filed November 2, 2011, over one year later. Flintroy argued that once a plaintiff files a request for MRP, prescription is interrupted; by analogy, he urged, the peremption of Art. 198 should also be interrupted. The court quoted La. C.C. art. 3461, "Peremption may not be renounced, interrupted, or suspended," and asked counsel if, under this law, anything could interrupt peremption. Counsel admitted that he did not "have a case" on that issue, but argued that his MRP request alleged paternity, and that was sufficient.

The court wrote an opinion laying out the arguments and noting that it could find no case law interpreting MLSSA as allowing the suspension or interruption of the peremptive period of Art. 198. The court therefore found that filing the MRP request, on July 31, 2009, did not interrupt the peremptive period. Because Flintroy

315 So.3d 398

failed to bring a paternity action within that period, he had no standing to sue on Ms. Wright's behalf. The court sustained the exception and rendered judgment dismissing Flintroy's claims with prejudice.

Flintroy appealed devolutively.


By his sole assignment of error, Flintroy urges the district court erred in granting LSU's exception of "preemption" by applying Art. 198 to a MLSSA case; specifically, the court did not acknowledge that filing the MRP request stopped the peremptive period from running, and thus disregarded Udomeh . He argues that Art. 198 simply does not apply to MLSSA cases. He cites cases that generally hold that MLSSA (or the private Medical Malpractice Act) governs malpractice claims, such as Conerly v. State , 97-0871 (La. 7/8/98), 714 So. 2d 709, and Correro v. Ferrer , 50,476 (La. App. 2 Cir. 3/2/16), 188 So. 3d 316, rev'd on other grounds , 16-0861 (La. 10/28/16), 216 So. 3d 794. He reiterates that MLSSA derogates from tort victims’ rights and must be construed to support those rights, as was held in Watkins v. Lake Charles Mem. Hosp. , supra . He asks that the judgment be reversed and the case remanded for further proceedings.

LSU reiterates that Flintroy was not married to Ms. Wright's mother, is not listed on the birth certificate, and never filed a paternity action; thus, he needed to file a suit to establish paternity. Under Art. 198, this suit had to come within one year after the child's death, and the year is peremptive. Since Flintroy filed no timely suit, he has no standing. LSU argues that Udomeh is factually distinguished from this case, as that plaintiff filed a tort suit alleging paternity within one year, while Flintroy did not. LSU strongly disputes that the timely MRP request could interrupt the one year, as Art. 198 is peremptive and, as such, cannot be interrupted, La. C.C. art. 3461, Naghi v. Brener , 08-2527 (La. 6/26/09), 17 So. 3d 919. It agrees that the MRP request interrupted prescription on Flintroy's MLSSA claim, but argues that it could not interrupt peremption on the paternity action. It asks this court to affirm.


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