In re Med. Review Complaint By Daron Downing
| Decision Date | 08 May 2019 |
| Docket Number | NO. 2018-CA-1027,2018-CA-1027 |
| Citation | 272 So.3d 55 |
| Parties | MEDICAL REVIEW COMPLAINT BY Daron DOWNING, Andrus Downing, Andria Downing, and Andre Downing for Melissa Downing (D) |
| Court | Court of Appeal of Louisiana — District of US |
Wanda A. Davis, LEEFE, GIBBS, SULLIVAN, DUPRE AND ALDOUS, L.L.C., 3900 North Causeway Blvd., Suite 1470, Metairie, LA 70002, COUNSEL FOR PLAINTIFFS/APPELLANTS
Benjamin J. Biller, C. William Bradley, Jr., Richard S. Crisler, BRADLEY MURCHISON KELLY & SHEA, LLC, 1100 Poydras Street, Suite 2700, New Orleans, LA 70163, Carl E. Hellmers, III, D. Burke Stough, FRILOT L.L.C., 1100 Poydras Street, Suite 3700, New Orleans, LA 70163, Karen M. Fontana Young, KEAN MILLER LLP, 909 Poydras Street, Suite 3600, New Orleans, LA 70112, COUNSEL FOR DEFENDANTS/APPELLEES
(Court composed of Judge Daniel L. Dysart, Judge Joy Cossich Lobrano, Judge Rosemary Ledet )
This is a medical malpractice case involving both private and state health care providers. Both the Medical Malpractice Act ("MMA") (), which governs claims against private qualified health care providers, and the Medical Liability for State Services Act ("MLSSA") (), which governs claims against state health care providers, apply here.1 This case is in the pre-suit, medical review panel stage.2
This case arises out of alleged malpractice in the treatment of Melissa Downing on July 13, 2014, at Interim Louisiana State University Hospital in New Orleans ("LSU Hospital"). On the night of July 11, 2014, Ms. Downing was seriously injured in a high-speed automobile accident.3 Ms. Downing was initially treated at a local hospital (former River Parish Hospital in LaPlace, Louisiana). Due to the nature of her injuries, Ms. Downing was transferred to LSU Hospital in New Orleans on the next day. On July 13, 2014, Ms. Downing sustained an anoxic brain injury, which led to her death on April 20, 2015. Ms. Downing's death certificate listed the following three causes of death: (i) respiratory failure; (ii) anoxic brain injury ; and (iii) motor vehicle accident.
On July 13, 2015, Ms. Downing's estate and four of her five surviving children (collectively "the "Downing Family") filed a request for a medical review proceeding with the Division of Administration (the "DOA"), alleging malpractice by twelve named defendants in the treatment provided to Ms. Downing on July 13, 2014, at LSU Hospital (the "Complaint"). Five of the named defendants were private health care providers covered by the MMA; five were state providers covered by the MLSSA;4 and two were never properly identified and thus dismissed.5
On October 13, 2015, four of the five state providers filed in the Civil District Court for the Parish of Orleans a Petition to Institute Discovery pursuant to La. R.S. 40:1237.2(D)(4) (the "CDC Case").6 In the fall of October 2017, before the completion of the medical review panel proceedings, three of the private health care providers—University Medical Center Management Corp. d/b/a Interim LSU Hospital ("Interim LSU"),7 Dr. Rebecca Schroll, and Dr. Charles Clark (collectively the "Private Providers")—filed peremptory exceptions of prescription in the CDC Case.8
The grounds for the Private Providers' exceptions was the Downing Family's failure to comply with La. R.S. 40:1231.8(A)(1)(c), which provides:
A claimant shall have forty-five days from the date of receipt by the claimant of the confirmation of receipt of the request for review in accordance with Subparagraph (3)(a) of this Subsection to pay to the board a filing fee in the amount of one hundred dollars per named defendant qualified under this Part.9
The penalty for failure to comply with Subparagraph (c) is set forth in La. R.S. 40:1231.8(A)(1)(e), which provides:
Failure to comply with the provisions of Subparagraph (c) or (d) of this Paragraph within the specified forty-five day time frame in Subparagraph (c) of this Paragraph shall render the request for review of a malpractice claim invalid and without effect. Such an invalid request for review of a malpractice claim shall not suspend time within which suit must be instituted in Subparagraph (2)(a) of this Subsection.
In support of their exceptions, the Private Providers argued that the Downing Family's failure to timely pay the entire filing fee they owed for invoking a medical review panel—$ 500 ($ 100 for each of the five qualified private health care providers named in the Complaint)—rendered the entire request invalid and without effect. Accordingly, they contended that the Downing Family's medical malpractice claim against them prescribed, by operation of law, on April 20, 2016, one year from the date of Ms. Downing's death.
Agreeing with the Private Providers, the trial court orally reasoned that it did not "find that the requisite fees were appropriately paid." For this reason, the trial court sustained the exceptions of prescription and ordered that the Downing Family's "proposed claim of medical malpractice ... PCF File No. 2015-00753, is DISMISSED WITH PREJUDICE and the pending medical review panel proceeding in that matter is dissolved."10 This appeal followed.
In a medical malpractice case in which the plaintiff's complaint requesting a medical review panel serves initially as the petition and serves to suspend prescription, "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." In re Med. Review Panel for Claim of Moses , 00-2643, p. 6 (La. 5/25/01), 788 So.2d 1173, 1177 ; La. R.S. 40:1231.8(B)(2)(a).11 Such is the procedural posture of this case. In this procedural posture, the Louisiana Supreme Court has noted that "we resolve the issue of the placement of the burden of proof based on a logical application of the general principle that the party asserting a suspension or interruption of prescription bears the burden." Id. The Supreme Court has further noted that "[s]ince the party asserting a suspension is plaintiff, logic dictates that plaintiff have the burden of proof." Id. , 00-2643, p. 6, 788 So.2d at 1178. The Downing Family, as the party asserting a suspension, has the burden of proof here.
The standard of review applied to address a trial court's judgment sustaining a prescription exception "varies based on whether evidence was introduced in the trial court at the hearing on the exception." Barkerding v. Whittaker , 18-0415, p. 13 (La. App. 4 Cir. 12/28/18), 263 So.3d 1170, 1180, writ denied , 19-166 (La. 4/8/19), 267 So.3d 607, 2019 WL 1615947. "When prescription is raised by peremptory exception, with evidence being introduced at the hearing on the exception, the trial court's findings of fact on the issue of prescription are subject to the manifest error-clearly wrong standard of review." London Towne Condo. Homeowner's Ass'n v. London Towne Co. , 06-401, p. 4 (La. 10/17/06), 939 So.2d 1227, 1231 (citing Carter v. Haygood , 04-0646, p. 9 (La. 1/19/05), 892 So.2d 1261, 1267. Such is the case here.
This case, however, also presents an issue of statutory construction regarding the suspension of prescription under the MMA and the MLSSA. Statutory construction presents a question of law and, thus, is subject to a de novo standard of review. Succession of Dauterive , 18-0131, p. 4 (La. App. 4 Cir. 7/18/18), 251 So.3d 1204, 1207, writ denied , 2018-1382 (La. 11/14/18), 256 So.3d 293 (citing Benjamin v. Zeichner , 12-1763, p. 5 (La. 4/5/13), 113 So.3d 197, 201 ); Burnette v. Stalder , 00-2167, p. 5 (La. 6/29/01), 789 So.2d 573, 577 ). Simply put, legal decisions are reviewed de novo . Thibodeaux v. Donnel , 08-2436, p. 3 (La. 5/5/09), 9 So.3d 120, 122.
In sum, both the manifest error and the de novo standard apply here.
The special prescriptive period governing medical malpractice actions is set forth in La. R.S. 9:5628(A), which generally provides a prescriptive period of one year from the date of the alleged negligent treatment.12 This case involves both wrongful death and survival action claims. Although survival action claims are governed by La. R.S. 9:5628(A), wrongful death claims are governed by the one-year period applicable to delictual actions set forth in La. C.C. art. 3492. Taylor v. Giddens , 618 So.2d 834, 842 (La. 1993). Wrongful death claims, nonetheless, "continue to be governed and procedurally controlled by the provisions of the Act [here the MMA and the MLSSA]." Taylor , 618 So.2d at 841.
Despite the one-year prescriptive period, "medical malpractice lawsuits are virtually never actually filed in courts of competent jurisdiction within one year of the alleged act of malpractice." In re Noe , 05-2275, p. 8 (La. 5/22/07), 958 So.2d 617, 622 (Calogero, C.J., concurring in part, dissenting in part). This is because "[f]iling a complaint with the review panel is a mandatory initial step in a malpractice claim and a requirement before filing suit ‘in any court.’ " Nathan v. Touro Infirmary , 512 So.2d 352, 353 (La. 1987). Acknowledging this initial step, the Louisiana Legislature has expressly "provided that the filing of the request for a review of a claim suspend[s] the running of prescription, ... just as the filing of a suit in a competent jurisdiction suspends the running of prescription." Id. at 354.13
Two special suspension provisions are codified in La. R.S. 40:1231.8(A)(2)(a) of the MMA and La. R.S. 40:1237.2(A)(2)(a) of the MLSSA.14 These statutes each contain two sentences. As former Chief Justice Calogero explained:
The first sentence ... expressly suspends the one-year prescriptive period for filing a medical malpractice action in a court of competent jurisdiction until 90 days following notification of the issuance of the medical review panel's opinion. ["Sencence One"]. The second...
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