Glass v. Alton Ochsner Medical Foundation

• Decision Date: 06 November 2002
• Docket Number: No. 2002-CA-0412.,2002-CA-0412.
• Citation: 832 So.2d 403
• Parties: Frances GLASS v. ALTON OCHSNER MEDICAL FOUNDATION (Ochsner Foundation Hospital) Ochsner Clinic, L.L.C. and Warren R. Summer, M.D.
• Court: Court of Appeal of Louisiana — District of US

Page 403

832 So.2d 403

Frances GLASS v. ALTON OCHSNER MEDICAL FOUNDATION (Ochsner Foundation Hospital) Ochsner Clinic, L.L.C. and Warren R. Summer, M.D.

No. 2002-CA-0412.

Court of Appeal of Louisiana, Fourth Circuit.

November 6, 2002.

Clarence F. Favret, III, Favret, Demarest, Russo & Lutkewitte, New Orleans, LA, for Frances Glass.

Charles F. Gay, Jr., C. Byron Berry, Jr., Adams and Reese, LLP, New Orleans, LA, for Alton Ochsner Medical Foundation and Ochsner Clinic, L.L.C.

Richard P. Ieyoub, Attorney General, Jude D. Bourque, Assistant Attorney General, Baton Rouge, LA, for Warren R. Summer, M.D.

(Court composed of Chief Judge WILLIAM H. BYRNES III, Judge CHARLES R. JONES, and Judge PATRICIA RIVET MURRAY).

CHARLES R. JONES, Judge.

The plaintiff/appellant, Frances Glass, appeals the judgment of the Civil District Court for the Parish of Orleans granting an Exception of Lis Pendens in favor of the Defendant/Appellees, Alton Ochsner Medical Foundation, Ochsner Clinic, L.L.C. (hereinafter collectively "Ochsner") and Warren R. Summer, M.D. Following a review of the record, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

On August 1, 1997, Wayne Hicks, the son of Ms. Glass, nearly drowned at The Magnolia School, Inc. located in Harahan, Louisiana. As a result of the accident, Wayne was admitted to Ochsner for treatment. From August 1st to August 5th of 1997, Dr. Summer treated Wayne at Ochsner. During Wayne's hospital stay, he developed pneumothorax, ARDS, pneumonia, tension pneumothorax, and various other complications. Dr. Summer later ordered Wayne's extubation and the removal of a ventilator. Eventually, Wayne died as a result of his deteriorating condition.

Ms. Glass filed a survival and wrongful death action (hereinafter the "original petition") in the Jefferson Parish Twenty-fourth Judicial District Court against The Magnolia School, Inc., and against Nicole Weber and Brenda Walker—who are employees of the Magnolia School—for the near drowning and ultimate death of Wayne. In the original petition, The Magnolia School, Inc, Nicole Weber and Brenda Walker (hereinafter collectively the "Magnolia School defendants") filed a Third Party Demand against Ochsner and Dr. Summer for contribution and/or indemnity in the event that they were held liable.

After trial on the merits, the district court found that the Magnolia School defendants were not negligent. Ms. Glass appealed the decision to the Fifth Circuit Court of Appeal, where she prevailed. The Fifth Circuit reversed the district court, found liability and awarded damages. The Magnolia School defendants filed a Writ of Certiorari to the Supreme Court. The Supreme Court has not yet rendered a decision in that case.

Subsequent to the filing of the original petition, two separate medical review panels were empanelled for a determination as to the medical malpractice of Dr. Summer and Ochsner. However, the findings of the panels are unknown to this Court.

On June 18, 2001, Ms. Glass filed the instant suit in the Civil District Court for the Parish of Orleans, against Ochsner and Dr. Summer. Ms. Glass contended that Wayne's complications and resulting death were caused by the medical malpractice of

Ochsner and Dr. Summer. In response to Ms. Glass's petition, both Ochsner and Dr. Summer respectively filed an Exception of Lis Pendens and Ochsner filed an additional Exception of Prematurity. They contended the Exception of Lis Pendens should have been granted because the original petition was already in progress against them in Jefferson Parish, and both suits involved the same transaction or occurrence, and are between the same parties in the same capacities under La.C.C.P. art. 531. The district court granted the exceptions filed by Dr. Summer and Ochsner, on September 12, 2001 and September 14, 2001 respectively, and dismissed the suit filed by Ms. Glass as to Dr. Summer and Ochsner.

On June 19, 2001, Ms. Glass filed another suit against Ochsner and Dr. Summer (hereinafter the "third suit") in the Twenty-fourth Judicial District Court in Jefferson Parish for medical malpractice. The third suit is currently pending as well, and curiously, had not been met with an exception at the time of submission in this court.

In the instant suit, Ms. Glass appeals the judgment of the district court granting the Exceptions of Lis Pendens.

STANDARD OF REVIEW

The standard of review of appellate courts in reviewing a question of law is simply whether the court's interpretative decision is legally correct. Phoenix Assur. Co. v. Shell Oil Co., 611 So.2d 709, 712 (La.App. 4 Cir.1992). Furthermore, if the decision of the district court is based on an erroneous application of law rather than on a valid exercise of discretion, the decision is not entitled to deference by the reviewing court. Kem Search, Inc. v. Sheffield, 434 So.2d 1067, 1071-1072 (La.1983).

LIS PENDENS

La. C.C.P. art. 531 states:

When two or more suits are pending in a Louisiana court or courts on the same transaction or occurrence, between the same parties in the same capacities, the defendant may have all but the first suit dismissed by excepting thereto as provided in Article 925. When the defendant does not so except, the plaintiff may continue the prosecution of any of the suits, but the first final judgment rendered shall be conclusive of all.

Additionally, the test for deciding whether an Exception of Lis Pendens should be granted is to inquire whether a final judgment in the first suit would be res judicata in the subsequently filed suit. Domingue v. ABC Corporation, 96-1224, p. 3 (La.App. 4 Cir.1996), 682 So.2d 246, 248, writ denied, 96-1947 (La.11/1/96), 681 So.2d 1268, citing, Fincher v. Ins. Corp. of America, 521 So.2d 488 (La.App. 4 Cir. 1988), writ denied 522 So.2d 570 (La.1988). The Exception of Lis Pendens has the same requirements as the Exception of Res Judicata, and is properly granted when the suits involve the same transaction or occurrence between the same parties in the same capacities. Id. at 248.

The first requirement for granting an Exception of Lis Pendens is that there are two or more suits pending. A suit is considered pending for Lis Pendens purposes if it is being reviewed by an appellate court. Board of Trustees of Sheriffs Pension and Relief Fund v. City of New Orleans, 2001-0497, p. 2, (La.App. 4 Cir. 3/13/02), 813 So.2d 543, citing, Maddens Cable Service, Inc. v. Gator Wireline Services, Ltd., 509 So.2d 21, 23 (La.App. 1st Cir.1987); Daul Insurance Agency, Inc. v. Parish of Jefferson, 447 So.2d 1208, 1210 (La.App. 5th Cir.1984); Scott v. Ware, 160 So.2d 237 (La.App. 2nd Cir. 1964).

The suit subject to this appeal was filed in the Civil District Court for the Parish of Orleans on June 18, 2001. Ochsner contends that when Ms. Glass filed this suit the original petition was pending because she did not receive a ruling on her appeal from the Fifth Circuit until March 13, 2002. Ms. Glass does not deny that the original petition was pending at the time she filed the instant suit and she does not deny that she presently has two cases pending in Jefferson Parish. Both parties agree that no final judgment has been entered in the original petition.

There are three cases pending: the original petition, the instant suit and the third suit. The original petition is pending before the Supreme Court and the third suit is pending oral arguments in Jefferson Parish. Thus, the requirement that two or more cases are pending has been met.

As for the second requirement, Ms. Glass avers that both proceedings involve the same transaction or occurrence. Ms. Glass asserts that she is pursuing a negligent cause of action against the Magnolia School defendants for their negligent supervision and monitoring of Wayne while he swam in the school's pool on August 1, 1997. However, her case against Ochsner and Dr. Summer is based upon a medical malpractice claim for the treatment that Wayne received while under the care of Ochsner from August 1, 1997 to his death on August 5, 1997. Ms. Glass argues that these are separate and different occurrences.

Ochsner's response to these assertions is that Ms. Glass has misinterpreted La. C.C.P. art. 531, and is relying on the pre-1991 amendment of said statute. Ochsner argues that La. C.C.P. art. 531 no longer requires that the pending suits share the same cause of action. Ochsner argues under Domingue, supra, that the Exception of Lis Pendens has the same requirements as the Exception of Res Judicata, and is properly granted when the suits involve the same transaction or occurrence between the same parties in the same capacities. Domingue at 248. We agree.

The original petition, the instant suit and the third suit all involve the same transaction or occurrence: Wayne Hick's death. The original petition is based on the negligent supervision that led to Wayne Hicks's death while the instant suit is based on the negligence of Ochsner and Dr. Summer in their medical treatment of Wayne Hicks, which allegedly led to his death. The third suit is also against Ochsner and Dr. Summer for medical malpractice. Although Ms. Glass promulgates various theories of liability, she is bringing survival actions and wrongful death claims in all three cases.

Furthermore, the application of the holding in Weber v. Charity Hospital of Louisiana, 475 So.2d 1047 (La.1985), also contributes to the understanding that this case involves the same transaction or occurrence. The Supreme Court in Weber rationalized that "a tortfeasor may be liable not only for the injuries he directly causes to the tort victim, but also for the tort victim's additional suffering caused by inappropriate treatment by the doctor, nurse or hospital staff member who treats the injuries directly caused by the tortfeasor." Id. at 1050 citing Berger v. Fireman's Fund Insurance Co., 305 So.2d 724 (La.App. 4th Cir.1974); Hillebrandt v. Holsum Bakeries, Inc., 267 So.2d 608 (La. App. 4th Cir.1972); ...