Hernandez v. Chalmette Medical Center

• Decision Date: 21 August 2002
• Docket Number: No. 2001-CA-0074.,2001-CA-0074.
• Citation: 826 So.2d 641
• Parties: Julie HERNANDEZ and Berdelio Hernandez, individually and on behalf of their minor child, Chris Lee Hernandez, v. CHALMETTE MEDICAL CENTER a/k/a UHS De La Ronde, Inc.
• Court: Court of Appeal of Louisiana — District of US

826 So.2d 641

Julie HERNANDEZ and Berdelio Hernandez, individually and on behalf of their minor child, Chris Lee Hernandez, v. CHALMETTE MEDICAL CENTER a/k/a UHS De La Ronde, Inc.

No. 2001-CA-0074.

Court of Appeal of Louisiana, Fourth Circuit.

August 21, 2002.

R. Ray Orrill, Jr., Leslie A. Cordell, W. Christopher Beary, Lyn M. Curlin, Orrill, Cordell & Beary, L.L.C., New Orleans, LA, For Plaintiffs/Appellees.

C. William Bradley, Jr., Nicole Duarte Martin, Lemle & Kelleher, L.L.P., New Orleans, LA, for Defendant/Appellant, Gregory A. Redmann, M.D.

J. Michael Daly, Jr., Law Offices Of Robert E. Birtel, Metairie, LA, for Defendant/Appellant, Charles Lavis, M.D.

George Cain, Ann Marie LeBlanc, Frilot, Partridge, Kohnke & Clements, L.C., New Orleans, LA, for Intervenor/Appellant, Patients' Compensation Fund.

Court composed of Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge DENNIS R. BAGNERIS, SR.

PATRICIA RIVET MURRAY, Judge.

Defendants, Dr. Gregory Redmann and Dr. Charles Lavis, and intervenor, the Louisiana Patient's Compensation Fund ["PCF"], appeal the trial court's judgment awarding damages to plaintiffs in this medical malpractice action. These defendants and the PCF also jointly assert in this court an exception of prescription.

FACTS

On December 30, 1993, nine-year-old Chris Hernandez was brought to the Chalmette Medical Center emergency room complaining of pain in his left leg resulting from a football injury. He was examined by Dr. Redmann, who ordered x-rays. After the x-ray films were viewed by Dr. Lavis, a radiologist, Chris was diagnosed with a hip and leg contusion and was sent home approximately three hours after he had arrived at the hospital. The next morning, Dr. Lavis reviewed Chris's x-rays in order to prepare his formal interpretation, and noticed for the first time an abnormality in the hip film. Dr. Lavis informed Dr. Alfred Friedrichsen, the emergency room physician on duty that day, who immediately called the Hernandez family and requested that they bring Chris back to the hospital. When Chris arrived that morning, he underwent repeat x-rays and a CT scan of his left hip and pelvis. Following these tests, Chris was diagnosed with a dislocated hip. After consulting by telephone with Dr. Bennett, a pediatric orthopedic surgeon, Dr. Friedrichsen attempted to reduce the hip. On his second attempt, after Chris was given a second dose of sedatives, Dr. Friedrichsen succeeded, and Chris was discharged with instructions to stay on complete bed rest with abduction pillows between his legs. Four days later, Chris saw Dr. Bennett at Children's Hospital, who concluded that the reduction was only a pseudo-reduction, which meant that something, presumably a bone fragment, was interposed between the socket and the hip. In an attempt to correct the situation, Chris underwent two surgical procedures: an arthrogram on January 4, which was not successful; and a femoral arthrotomy on January 10, 1994, in which the hip was opened up and the piece of labrum that had been preventing a complete reduction was flipped back to its proper position. In March, 1994, Dr. Bennett diagnosed Chris with avascular necrosis, a condition that results from disruption and corresponding lack of blood supply to the femoral head. Chris was placed in a complete body cast for three months and then on weight-bearing crutches. According to Dr. Bennett, the damage to Chris's hip will almost certainly require future surgery (arthrodesis and/or an artificial hip).

Mr. and Mrs. Hernandez filed a proposed complaint of medical malpractice with the PCF against Chalmette Medical Center [CMC] and Dr. Friedrichsen on December 28, 1994, within one year of Chris's initial examination in the emergency room. The instant civil action was instituted against CMC on December 28, 1995. On September 11, 1996, plaintiffs filed with the PCF a proposed complaint of medical malpractice against Dr. Redmann. On December 17, 1996, a medical review panel exonerated CMC and Dr. Friedrichsen. On September 15, 1997, within the statutorily-provided time frame, plaintiffs filed their first supplemental and amending petition, adding Dr. Friedrichsen as a defendant. On September 30, 1997, plaintiffs filed their proposed claim of malpractice against Dr. Lavis. In July, 1998, a second medical review panel concluded that Dr. Redmann and Dr. Lavis had breached the applicable standard of care. On September 16, 1998, plaintiffs filed their second supplemental and amending petition, adding Dr. Redmann and Dr. Lavis as defendants. On May 6, 1999, plaintiffs dismissed CMC from the lawsuit following settlement in the amount of $5,000, and reserved their rights against the remaining defendants.

A bench trial was held February 2-3, 2000. On April 24, 2000, the trial court rendered judgment in favor of plaintiffs against Dr. Redmann in the sum of $100,000, against Dr. Lavis in the sum of $100,000, and against those same defendants in solido for costs; the court also rendered judgment in favor of Dr. Friedrichsen, dismissing plaintiffs' claims against him. In written reasons for judgment, the court noted that both Dr. Redmann and Dr. Lavis were negligent in their treatment of Chris Hernandez, finding them to be 100% at fault in causing his injuries. The court also noted that because the Hernandez's damages exceeded the statutory cap, the award was the maximum amount allowable by law. Finally, the court concluded that plaintiffs had failed to meet their burden of proving that Dr. Friedrichsen had breached the standard of care.

In an amended judgment issued May 26, 2000 in response to plaintiffs' motion for new trial, the trial court increased the damages awarded against Dr. Redmann and Dr. Lavis to $500,000 each, with the stipulation that each of them would not be personally liable for any amount in excess of $100,000; the court also awarded to plaintiffs against the PCF medical expenses in the amount of $14, 234.79, as well as future medical care and related benefits for the remainder of Chris Hernandez's life.

Following the judgment, the PCF intervened for purposes of appeal. Dr. Redmann, Dr. Lavis and the PCF timely filed a suspensive appeal. Plaintiffs neither answered the appeal nor filed an appeal in their own right. On October 31, 2001, prior to the case being submitted for decision, the three appellants jointly filed an exception of prescription in this court, which the plaintiffs opposed. The exception was argued in February, 2002, in conjunction with the oral argument on the merits, and was briefed separately.

EXCEPTION OF PRESCRIPTION

Consideration of the exception must pretermit our consideration of the merits of the appeal. We first note that plaintiffs' action against Dr. Redmann and Dr. Lavis appears prescribed on its face. Prescription for medical malpractice claims is governed by La. R.S. § 9:5628, which provides that the action must be filed within one year from the date of the alleged act, omission or neglect, or within one year from its discovery, but in no event more than three years from the date of the alleged act of malpractice. Additionally, La. R.S. § 40:1299.47 provides that all claims against qualified health care providers must be reviewed by a medical review panel, and the filing of the request for review suspends the time within which suit must be instituted until ninety days following the notification, by certified mail, to the claimant of the decision of the medical review panel. Moreover, the timely filing of a request for review suspends the running of prescription against all those who are joint and solidary obligors and/or joint tortfeasors with the timely sued party. La. R.S. § 40:1299.47 A 2(a). If, however, it is determined after trial that there is no joint or solidary obligation, prescription may be successfully asserted by an untimely sued defendant who is cast in judgment. Adams v. Dupree, 94-2353, pp. 3-4 (La.App. 4 Cir. 10/12/95), 663 So.2d 433, 435; Gioustover v. Progressive American Ins. Co., 561 So.2d 961, 964 (La.App. 4th Cir.1990); Spott v. Otis Elevator Co., 601 So.2d 1355, 1359 (La.1992).

Applying these principles to the instant case, it becomes clear that the only timely sued defendants are CMC and Dr. Friedrichsen. The exoneration of Dr. Friedrichsen after trial therefore provided the two untimely sued defendants, Dr. Redmann and Dr. Lavis, with grounds to assert prescription in the appellate court, because the filing of suit against a non-solidary obligor could not have suspended the running of...