Jeansonne v. Bonano

• Decision Date: 23 January 2018
• Docket Number: 2017 CA 0828
• Citation: 241 So.3d 1027
• Parties: Richard JEANSONNE, Jr., M.D. v. Ferdinand BONANO
• Court: Court of Appeal of Louisiana — District of US

241 So.3d 1027

Richard JEANSONNE, Jr., M.D.

v.Ferdinand BONANO

2017 CA 0828

Court of Appeal of Louisiana, First Circuit.

DATE OF JUDGMENT: JANUARY 23, 2018

Michael E. Holoway, Folsom, Louisiana, Counsel for Plaintiff–Appellant, Richard Jeansonne, Jr., M.D.

Elisabeth Wolfe Ramirez, Covington, Louisiana, Counsel for Defendant–Appellee, Ferdinand Bonano

BEFORE: WHIPPLE, C.J., McDONALD, AND CHUTZ, JJ.

CHUTZ, J.

Plaintiff-appellant, Dr. Richard Jeansonne, Jr., appeals the trial court's judgment, which sustained peremptory exceptions raising objections of no cause of action and prescription and dismissed claims of malicious prosecution and defamation against defendant-appellee, Ferdinand Bonano. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

After the death of his wife while she was hospitalized, Mr. Bonano, in proper person, requested the formation of a medical review panel (MRP), on May 8, 2012, naming Dr. Jeansonne, among other medical health care providers, as a defendant. In response to a request for specific allegations of negligence elicited by the Louisiana Patient's Compensation Fund,¹ Mr. Bonano stated the following:

Elaine Bonano was seen by Dr. Jeansonne after being admitted through the ER. He then agreed with the UTI diagnosis and began the treatment for the infection. She was then sent home after a short stay with oral medications. Within a day or two Elaine returned to the ER and again was admitted. Mr. Bonano was told that Elaine's doctors no longer came to [the hospital]. Therefore ... [another doctor] ... was called in and properly diagnosed Elaine with kidney infection not UTI. Mr. Bonano feels that the missed diagnosis was the beginning of the end.

A MRP was convened and met by telephone conference on December 3, 2013. The MPR unanimously concluded that Dr. Jeansonne had appropriately treated Mrs. Bonano when he had last seen her and that Dr. Jeansonne had not seen Mrs. Bonano during her final admission to the hospital.

Although Mr. Bonano did not institute a medical malpractice lawsuit, Dr. Jeansonne subsequently filed a petition for damages alleging malicious prosecution and defamation claims on January 7, 2015. According to Dr. Jeansonne, "[u]pon information and belief, Mr. Bonano knew Dr. Jeansonne could not have been responsible for Mrs. Bonano's death, and he had no evidence to support or even suggest such a claim when he requested the formation of the [MRP]."

Mr. Bonano filed an answer to Dr. Jeansonne's lawsuit in proper person, generally denying the allegations against him. After he obtained legal counsel, Mr. Bonano filed peremptory exceptions objecting on the basis of no cause of action and prescription. After a hearing, the trial court sustained an exception of no cause of action as to Dr. Jeansonne's malicious prosecution claim and an exception of prescription as to the defamation claim. Expressly concluding that an amendment to Dr. Jeansonne's petition would not cure the deficiency in the malicious prosecution claim, the trial court dismissed the lawsuit. Dr. Jeansonne appeals.

NO CAUSE OF ACTION

The function of an exception of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleading. No evidence may be introduced to support or controvert an exception of no cause of action. La. C.C.P. art. 931. Every reasonable interpretation must be accorded the language of the petition in favor of maintaining its sufficiency and affording the plaintiff the opportunity of presenting evidence at trial. Robinson v. Papania, 2015-1354 (La. App. 1st Cir. 10/31/16), 207 So.3d 566, 572, writ denied, 2016-2113 (La. 3/13/17), 216 So.3d 808.

On appeal, Dr. Jeansonne asserts the trial court erred in its conclusion that the convening of the MRP at Mr. Bonano's request, in proper person, was insufficient to state a cause of action in malicious prosecution where the MRP determined that Dr. Jeansonne had not failed to meet the applicable standard of care. Although Mr. Bonano did not pursue litigation after the unfavorable MRP determination, Dr. Jeansonne nevertheless maintains that the MRP's conclusion was tantamount to a bona fide resolution in his favor which is sufficient to support a claim for malicious prosecution.

The trial court correctly determined that to prevail in an action for malicious prosecution, a plaintiff must prove: (1) the commencement or continuance of an original criminal or civil proceeding; (2) its legal causation by the present defendant against plaintiff who was defendant in the original proceeding; (3) its bona fide termination in favor of the present plaintiff; (4) the absence of probable cause for such proceeding; (5) the presence of malice therein; (6) damage conforming to legal standards resulting to plaintiff. Lemoine v. Wolfe, 2014-1546 (La. 3/17/15), 168 So.3d 362, 367 (citing Jones v. Soileau, 448 So.2d 1268, 1271 (La. 1984) ).

Thereafter, the trial court reviewed the following law:

In determining whether plaintiff has asserted a cause of action, the Court finds it necessary to examine the purpose behind the enactment of Louisiana's Medical Malpractice Act ("MMA").^[2] In response to a perceived crisis in this state caused by prohibitive costs in connection with medical malpractice insurance, our Legislature enacted the MMA in 1975, with the intended purposes of reducing or stabilizing medical malpractice insurance rates and ensuring the availability of affordable medical services to the general public. McGlothlin v. Christus St. Patrick Hosp., 10-2775, p. 4 (La. 7/1/11), 65 So.3d 1218, 1225. In order to achieve these ends, the MMA provided qualified health care providers with a number of advantages in derogation of the general rights of tort victims. [See]Galloway v. Baton Rouge General Hosp., 602 So.2d 1003, 1005-06 (La. 1992) ; Everett v. Goldman, 359 So.2d 1256, 1262-63 (La. 1978). The legislative goals of the MMA are to encourage prompt settlement of good claims[,] the abandonment of poor claims and, most importantly, the fostering of prompt, professional medical services to the people of Louisiana. Derouen v. Kolb, 397 So.2d 791, [795] (La. 1981).

One of the principal advantages provided to qualified health care providers is that no action for malpractice against them or their insurers can be commenced in any court prior to submission of the complaint to a [MRP], composed of three health care providers and one attorney, and the panel's issuance of its expert opinion. [ La. R.S. 40:1299.47(B)(1)(a) [ (i) ] ;^[3]McGlothlin, 65 So.3d at [1225]. The purpose of a [MRP] is to screen and filter claims in a "non-judicial setting" in hopes of weeding out any meritless claims without the delay or expense of a court trial. [See]Everett, 359 So.2d at 1264 ;

[see also]Perritt v. Dona, [2002–2601] (La. 7/2/03), 849 So.2d 56, 67 [ (Weimer, J., concurring) ].

Under this scheme, the sole duty of the [MRP] is to express its expert opinion as to whether or not the evidence supports the conclusion that the defendant acted or failed to act within appropriate standards of care. La. R.S. 40:1299.47(G) ; McGlothlin, 65 So.3d at 1226. Any report of the medical review panel's expert opinion "shall be admissible as evidence in any action subsequently brought by the claimant in a court of law." La. R.S. 40:1299.47(H). However, such expert opinion shall not be conclusive and either party shall have the right to call, at his cost, any member of the [MRP] as a witness. If called, the witness shall be required to appear and testify. A panelist shall have absolute immunity from civil liability for all communications, findings, opinions, and conclusions made in the course and scope of his duties pursuant to serving on a [MRP]. [ La. R.S. 40:1299.47(H).] The opinion is equivalent to expert medical evidence. McGlothlin, 65 So.3d at [1227]. Further, the panel makes no findings as to damages, and their conclusions are not binding. [ Derouen, 397 So.2d at 794 ].

The Court in Derouen noted that where "a judge has the power to decide the facts and law of a case and to render a final adjudication as to the rights of the parties involved, no such power exists for the [MRP]. The panel simply renders an expert opinion and does not have the power to adjudicate the rights of any party." Derouen, 397 So.2d at 794. A [MRP] is not a judge or a jury but merely a body of experts assembled to evaluate a medical claim and to provide an expert opinion. Derouen, 397 So.2d at [794–95].

In light of the jurisprudence, the trial court made the following determination:

As to the malicious prosecution claim, the Court concludes that a [MRP] is not a "civil judicial proceeding" nor does the rendition of an opinion by the [MRP], which has no dispositive effect, satisfy the requirement that there is a bona fide termination of the civil judicial proceeding in favor of plaintiff. To find that there is a cause of action for malicious prosecution arising out of a [MRP] proceeding would run contrary to one of the main purposes of the [MRP], which is to screen and filter meritless claims prior to the filing of an actual [lawsuit]. The Court notes that in this matter, Mr. Bonano did not file a medical malpractice [lawsuit] against Dr. Jeansonne.

Mindful that this court conducts a de novo review of a trial court's ruling sustaining an exception of no cause of action because the exception raises a question of law and the trial court's decision is based only on the sufficiency of the petition, see Robinson, 207 So.3d at 572, we find no error. And because the grounds of the objection of no cause of action as to Dr. Jeansonne's malicious prosecution claim cannot be removed by amendment, the trial court correctly dismissed this claim. See La. C.C.P. art. 934 (providing that if the grounds of the objection raised through the exception cannot be removed by an amendment, the petition shall be dismissed).

PRESCRIPTION

Liberative prescription is a mode of barring actions as a...