Giovingo v. Dunn

• Decision Date: 13 March 2012
• Docket Number: No. 11–CA–781.,11–CA–781.
• Citation: 90 So.3d 1098
• Parties: Bianca GIOVINGO v. David DUNN, M.D., Browne–McHardy Clinic, and East Jefferson General Hospital.
• Court: Court of Appeal of Louisiana — District of US

90 So.3d 1098

Bianca GIOVINGO

v.David DUNN, M.D., Browne–McHardy Clinic, and East Jefferson General Hospital.

No. 11–CA–781.

Court of Appeal of Louisiana,Fifth Circuit.

March 13, 2012.

Betsy J. Barnes, Richard L. Root, Barnes & Root, L.L.C., New Orleans, LA, for Plaintiff/Appellant.

Don S. McKinney, Katie F. Wollfarth, Adams and Reese LLP, New Orleans, LA, for Defendant/Appellee.

Panel composed of Judges MARION F. EDWARDS, MARC E. JOHNSON, and ROBERT A. CHAISSON.

MARION F. EDWARDS, Chief Judge.

[5 Cir. 2]Plaintiff/appellant, Bianca Giovingo (“Ms. Giovingo”), takes this appeal from a judgment by the trial court dismissing her cause of action for medical malpractice against defendant/appellee, David Dunn, M.D. (“Dr. Dunn”), on grounds of abandonment. We affirm the judgment of the trial court for reasons herein.

Ms. Giovingo filed a medical malpractice action against Dr. Dunn individually and as David Dunn, M.D., L.L.C., as well as against other defendants on June 5, 2005. According to the petition, Ms. Giovingo had long-standing complaints of abdominal pain for which she was treated by Dr. Dunn. On July 25, 1998, Dr. Dunn performed exploratory laparoscopic surgery in an attempt to diagnose Ms. Giovingo's condition.During the procedure, a retroperitoneal hematoma was encountered, and a laparotomy was immediately performed to inspect the area. The laparotomy revealed small defects in the mesentery of the small bowel and colon. The defects were repaired without incident, and Ms. Giovingo was released from the hospital four days later.

[5 Cir. 3]However, the pain continued, and Ms. Giovingo was unable to get pregnant, despite taking medication to facilitate pregnancy. Ms. Giovingo sought treatment with Dr. Eric Schultis, a fertility specialist who diagnosed her with a blocked left fallopian tube. Dr. Schultis performed a second laparotomy that revealed intestinal and tubal-ovarian adhesions. Surgery to correct this was performed by Dr. Schultis on May 23, 2000. However, the prognosis is that the probability of her fallopian tubes functioning normally, despite the release of the adhesions, is minimal.

Ms. Giovingo filed for a medical review panel on May 16, 2001 that convened on March 7, 2005 and found in favor of defendants. Ms. Giovingo filed this action in district court on June 7, 2005 against Dr. Dunn, Dr. Dunn's L.L.C., East Jefferson General Hospital (“East Jefferson”) and Brown–McHardy Clinic, but held service of all defendants. Subsequently, service on defendants was requested. On July 28, 2005, Ms. Giovingo requested service on David Dunn, M.D., L.L.C. through an attorney, Brown–McHardy Clinic, and East Jefferson. East Jefferson answered the petition.

After discovery, the hospital moved for a summary judgment. Although Ms. Giovingo filed a motion to re-set the hearing on the motion for summary judgment, she did not oppose it and, ultimately, the motion was granted, dismissing all claims against East Jefferson in November 2007.

Service on David Dunn, M.D., L.L.C. was made through an attorney on August 1, 2005. On November 17, 2010, Ms. Giovingo requested service on Dr. Dunn personally. Personal service was made on Dr. Dunn on November 30, 2010. Neither Dr. Dunn's L.L.C. nor Dr. Dunn has answered or participated in the lawsuit until filing the motion to dismiss as abandoned at issue herein on December 15, 2010.

[5 Cir. 4]The matter was taken up by the trial court on April 4, 2011. According to the judgment and the record, there was a “discussion with counsel,” and the court took the matter under advisement. There is no transcript of that discussion for this Court to review. However, along with the grant of the motion of abandonment and the dismissal of all claims against Dr. David Dunn, the trial court gave extensive written Reasons.

The factual findings in the Reasons for Judgment are that Ms. Giovingo's original petition, filed on June 7, 2005, withheld service of all defendants. Subsequently, on June 28, 2005, Ms. Giovingo requested service on David Dunn, M.D., L.L.C.; East Jefferson; and Brown–McHardy Clinic. On December 15, 2010, Ms. Giovingo requested that the Clerk of Court “reserve the original petition on defendant David Dunn....” Dr. Dunn was personally served with the petition and citation on November 30, 2010. The trial court found that Ms. Giovingo “clearly demonstrated her intent to abandon the case as to defendant Dr. David Dunn who was never served with process during the three-year abandonment period.” Consequently, the motion to dismiss the suit as to Dr. Dunn was granted as abandoned.

Ms. Giovingo concedes that Dr. Dunn was never personally served and gives no explanation as to why an attorney was served as Dr. Dunn's agent. However, she argues that service was on Dr. Dunn, not his L.L.C. Furthermore, Ms. Giovingo avers that East Jefferson's actions,as a co-defendant, preclude the judgment of abandonment. Ms. Giovingo also asserts that service on Dr. Dunn in November 2010 was within three years of the motion for summary judgment filed by East Jefferson, making it timely. Ms. Giovingo asserts that Dr. Dunn's bankruptcy in federal court serves either as an interruption of the abandonment period and/or a step in the prosecution of the...