Jones v. Crow

Citation633 So.2d 247
Decision Date24 November 1993
Docket NumberNo. 92,92
PartiesCheryl A. Murry JONES, individually, and on Behalf of Her Minor Daughter Jennifer Jones v. Velma Cockern CROW and ABC Insurance Company. CA 2032.
CourtCourt of Appeal of Louisiana (US)

Vickie Picou, New Orleans, for defendant-appellant Velma Crow.

James D. Carriere, New Orleans, for plaintiff-appellee.

C.T. Williams, Jr., Elliott Baker, for LA Patient's Compensation Fund.

Before CARTER, GONZALES and WHIPPLE, JJ.

CARTER, Judge.

This is an appeal from a trial court judgment denying a dilatory exception pleading the objection of prematurity in a medical malpractice action.

FACTS

On June 12, 1991, plaintiff, 1 Cheryl A. Murry Jones, individually and on behalf of her minor daughter, Jennifer Jones, filed a medical malpractice action against defendant, Velma Cockern Crow, a licensed practical nurse, and ABC Insurance Company. In her petition, plaintiff alleged that all defendants, whether named or undiscovered and unnamed, and whether qualified or nonqualified, were solidarily liable to plaintiff. 2

The following facts are gleaned from the petition: In March of 1989, plaintiff contacted the office of P. Craig Parker, M.D. and spoke with defendant, who was employed as a nurse by Dr. Parker. Plaintiff informed defendant that she had discovered a lump in her right breast. Defendant, without scheduling an appointment with Dr. Parker, advised plaintiff to have a mammogram performed. Pursuant to these instructions, a bilateral mammogram was performed at Highland Park Hospital on March 30, 1989. Thereafter, defendant advised plaintiff by telephone that the test was benign and instructed plaintiff to have another mammogram in four months. Pursuant to these instructions, plaintiff contacted Dr. Parker's office in August. Again, without scheduling an appointment with Dr. Parker, defendant advised plaintiff to report to the hospital for a mammogram. On August 23, 1989, another bilateral mammogram was performed at Highland Park. Thereafter, defendant contacted plaintiff by telephone and advised her that there were no changes on the mammogram and that "there was nothing to worry about." Again, defendant did not schedule plaintiff for examination by Dr. Parker and advised her to have a repeat mammogram in a year.

On May 25, 1990, plaintiff was examined by a gynecologist who, following a breast examination, referred plaintiff to a general surgeon. On May 28, 1990, a right breast biopsy and right modified radical mastectomy was performed on plaintiff. Thereafter, on May 30, 1990, the pathologist reported that plaintiff had "infiltrating ductal carcinoma with invasion into lymphatics."

In her petition, plaintiff alleged that defendant was a health care provider and that, at the time of the acts giving rise to the instant suit, defendant was employed by Dr. Parker. Plaintiff further alleged that defendant was negligent in the following non-exclusive respects: ordering tests without the supervision of a physician; interpreting test results; failing to schedule an appointment with a physician; and giving medical advice when defendant is not a physician. Moreover, plaintiff alleged that defendant was not a "qualified health care provider" and that plaintiff had been so notified of defendant's status by the Louisiana Patient's Compensation Fund.

Thereafter, defendant filed a dilatory exception pleading the objection of prematurity, contending that she was a "qualified health care provider" under LSA-R.S. 40:1299.41 et seq. and that, as such, a medical review panel must be convened to render an opinion before any litigation can be instituted against her. Defendant further contended that no such medical review panel had been convened to review plaintiff's claims against her. 3

After a hearing, the trial court determined that defendant was not a qualified health care provider and that, as such, the medical malpractice action instituted against her without convening a medical review panel was not premature. Accordingly, the trial court denied defendant's exception pleading the objection of prematurity and refused to dismiss plaintiff's suit. From this adverse judgment, defendant appealed. 4 Thereafter, the Patient's Compensation Fund filed a petition of intervention with this court. 5

DILATORY EXCEPTION PLEADING THE OBJECTION OF PREMATURITY

The central issue raised by this objection is whether petitioner's suit was filed prematurely.

LSA-C.C.P. article 926 sets forth the objections which may be raised through the dilatory exception and includes prematurity. LSA-C.C.P. art. 926(1). Prematurity contemplates that the action taken by the petitioner occurs prior to some procedure or assigned time. It is usually utilized in cases wherein the law or contract has provided a procedure for one aggrieved of a decision to seek relief before resorting to judicial action. See Polk v. State, Department of Transportation and Development, 538 So.2d 239, 250-51 (La.1989); Turner v. Maryland Casualty Co., 518 So.2d 1011, 1016-17 (La.1988); Casse v. Sumrall, 547 So.2d 1381, 1383 (La.App. 1st Cir.), writ denied, 551 So.2d 1322 (La.1989); Anderson v. Lanier, 479 So.2d 667, 668 (La.App. 3rd Cir.1985); Waggoner v. American Bank and Trust Company, 423 So.2d 794, 796 (La.App. 4th Cir.1982); In the Matter of Delahoussaye, 409 So.2d 372, 374 (La.App. 1st Cir.1981), writ denied, 413 So.2d 494 (La.1982).

When a defendant files an exception raising the objection of prematurity, the exceptor has the initial burden of showing that an administrative remedy was available by reason of which the judicial action was premature. Steeg v. Lawyers Title Insurance Corporation, 329 So.2d 719, 720 (La.1976); Anderson v. Lanier, 479 So.2d at 668; In the Matter of Delahoussaye, 409 So.2d at 374. Once the existence of an administrative remedy is established by the exceptor, then the burden shifts to the party opposing the exception to show that the administrative remedies have been exhausted. Waggoner v. American Bank and Trust Company, 423 So.2d at 796.

Generally, a person aggrieved of an action must exhaust all "administrative" remedies provided before being entitled to judicial review. See Polk v. State, Department of Transportation and Development, 538 So.2d at 250. The function of the exhaustion doctrine is to give the body whose decision is under attack an opportunity to review, supplement, and, if necessary, correct its decision. See Bonomo v. Louisiana Downs, Inc., 337 So.2d 553, 560-61 (La.App. 2nd Cir.1976). However, this doctrine, like most legal doctrines is subject to exceptions and limitations. Application of the doctrine to specific cases requires an understanding of its purpose and of the particular administrative scheme involved. McKart v. United States, 395 U.S. 185, 193, 89 S.Ct. 1657, 1662, 23 L.Ed.2d 194 (1969).

MEDICAL MALPRACTICE ACT

The purpose of the Medical Malpractice Act, LSA-R.S. 40:1299.41 et seq., is to limit the liability of health care providers who qualify under the Act by maintaining specified basic malpractice insurance and by contributing a surcharge to the Patient's Compensation Fund. As long as a health care provider remains qualified under the Act, the health care provider and his insurer are liable for malpractice only to the extent provided in the Act. LSA-R.S. 40:1299.45A; Sewell v. Doctors Hospital, 600 So.2d 577, 578 (La.1992). Moreover, all claims against health care providers covered by the Act are required to be reviewed by a medical review panel. LSA-R.S. 40:1299.47A(1). The burden is on a defendant to prove immunity from suit as a qualified health care provider under the Act. Goins v. Texas State Optical, Inc., 463 So.2d 743, 744 (La.App. 4th Cir.1985).

The issue presented in this case is whether defendant is a "qualified health care provider" under the Act so as to require that a medical review panel review plaintiff's claims against her prior to the institution of a lawsuit.

At all times pertinent hereto, LSA-R.S. 40:1299.41A(1) defined a "health care provider" as:

[A] person, partnership, corporation, facility, or institution licensed by this state to provide health care or professional services as a physician, hospital, community blood center, tissue bank, dentist, registered or licensed practical nurse, ambulance service under circumstances in which the provisions of R.S. 40:1299.39 are not applicable, certified registered nurse anesthetist, nurse midwife, pharmacist, optometrist, podiatrist, chiropractor, physical therapist, occupational therapist, psychologist, or any non-profit facility considered tax-exempt under Section 501(c)(3), Internal Revenue Code, pursuant to 26 U.S.C.A. § 501(c)(3), for the diagnosis and treatment of cancer or cancer-related diseases, whether or not such a facility is required to be licensed by this state, or any professional corporation a health care provider is authorized to form under the provisions of Title 12 of the Louisiana Revised Statutes of 1950, or an officer, employee, or agent thereof acting in the course and scope of his employment. (Emphasis added).

In the instant case, there is no argument that defendant is a "health care provider" under LSA-R.S. 40:1299.41 in that she is a licensed practical nurse. However, our inquiry does not end here. We must determine whether defendant is "qualified" under the Act so as to bring her within the protections of the Act.

LSA-R.S. 40:1299.42A addresses the qualifications a health care provider must possess to be "qualified" under the Act. LSA-R.S. 40:1299.42A provides as follows:

To be qualified under the provisions of this Part [Part XXIII. Medical Malpractice], a health care provider shall:

(1) Cause to be filed with the board proof of financial responsibility as provided by Subsection E of this Section.

(2) Pay the surcharge assessed by this Part on all health care providers according to R.S. 40:1299.44.

(3) For self-insureds, qualification shall be effective upon...

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