Perry v. State Farm Mut. Auto. Ins. Co.

• Decision Date: 14 December 2016
• Docket Number: NO. 16–CA–418,16–CA–418
• Citation: 209 So.3d 308
• Parties: Carl PERRY v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Melissa St. Blanc–Champagne
• Court: Court of Appeal of Louisiana — District of US

209 So.3d 308

Carl PERRY

v.STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Melissa St. Blanc–Champagne

NO. 16–CA–418

Court of Appeal of Louisiana, Fifth Circuit.

December 14, 2016

COUNSEL FOR PLAINTIFF/APPELLANT, CARL PERRY, Glenn C. McGovern

COUNSEL FOR DEFENDANT/APPELLEE, OCHSNER MEDICAL CENTER–WESTBANK AND MARK LABAT, M.D., Peter E. Sperling, Nairda T. Colon, Brittany K. Sloan

Panel composed of Susan M. Chehardy, Stephen J. Windhorst, and Hans J. Liljeberg

CHEHARDY, C.J.

Plaintiff, Carl Perry, appeals the 24th Judicial District Court's March 29, 2016 judgment sustaining the dilatory exception of prematurity and dismissing without prejudice Mr. Perry's claims against defendants, Dr. Marc Labat, M.D. and Ochsner Medical Center–Westbank. For the reasons that follow, we reverse this judgment and remand the matter for further proceedings.

FACTS AND PROCEDURAL HISTORY

On June 23, 2012, Carl Perry was injured in a motor vehicle accident. Mr. Perry was on his motorcycle when he was struck by a vehicle driven by Melissa St. Blanc–Champagne. Mr. Perry filed suit on May 23, 2013 naming Ms. St. Blanc–Champagne and her insurer as defendants.

After further discovery, Mr. Perry amended his petition on November 24, 2015, adding as defendants Dr. Marc Labat, M.D. and Ochsner Medical Center–Westbank. Mr. Perry alleges that Dr. Labat treated Ms. St. Blanc–Champagne in the Ochsner emergency room on the day of the accident, administered several intravenous drugs to her, and prematurely discharged her while she was still under the influence of the drugs. Ms. St. Blanc–Champagne's intoxicated state, along with the negligence of Dr. Labat and the hospital in permitting her to drive, Mr. Perry claims, were the proximate causes of his injuries.

On February 17, 2016, defendants pleaded the dilatory exception of prematurity as well as the peremptory exceptions of no cause of action and no right of action. On March 29, 2016, following a hearing on the exceptions, the court issued its judgment, overruling the peremptory exceptions, but sustaining the exception of prematurity.¹ Mr. Perry sought supervisory review from this Court, but we declined to exercise our supervisory jurisdiction, finding a judgment sustaining the exception of prematurity is a final appealable judgment subject to our appellate jurisdiction. Carl Perry v. State Farm Mutual Automobile Ins. Co, et al. , 16–216 (La. App. 5/10/16) (unpublished writ disposition). Thereafter, Mr. Perry sought and was granted a devolutive appeal.

DISCUSSION

An action is premature when it is brought before the right to enforce it has accrued.

Williamson v. Hosp. Serv. Dist. No. 1 , 04–0451 (La. 12/1/04), 888 So.2d 782, 785 citing La. C.C.P. art. 423. The dilatory exception of prematurity questions whether a cause of action has matured to the point where it is ripe for judicial determination. LaCoste v. Pendleton Methodist Hosp., L.L.C. , 07–0008 (La. 09/05/07), 966 So.2d 519, 523 ; Williamson , supra ; Spradlin v. Acadia–St. Landry Med. Found. , 98–1977 (La. 2/29/00), 758 So.2d 116, 119.

Under the Louisiana Medical Malpractice Act ("LMMA"), a medical malpractice claim against a private qualified health care provider is subject to dismissal on an exception of prematurity if such claim has not first been presented to a medical review panel. LaCoste , supra ."No action against a health care provider covered by this Part, or his insurer, may be commenced in any court before the claimant's proposed complaint has been presented to a medical review panel established pursuant to this Section." La. R.S. 40:1231.8(B)(1)(a)(i) (formerly La. R.S. 40:1299.47(B)(1)(a)(i) ).

When the exception of prematurity is pled in the medical malpractice context, the burden of proving prematurity is on the exceptor, who must show that it is entitled to a medical review panel because the allegations fall within the LMMA. LaCoste , supra , at 523–24. Indeed, the LMMA and its limitations on tort liability for a qualified health care provider apply only to claims "arising from medical malpractice," while all other tort liability on the part of the qualified health care provider is governed by general tort law. Id. at 524. Therefore, we conduct a de novo review of the district court's ruling sustaining the dilatory exception of prematurity because the issue of whether a claim sounds in medical malpractice involves a question of law. Matherne v. Jefferson Parish Hospi t al Dist. No. 1 , 11–1147 (La.App. 5 Cir. 5/8/12), 90 So.3d 534, 536, writ denied , 12–1545 (La. 10/12/12), 98 So.3d 873. Moreover, because no evidence was introduced at the hearing on the exceptions, we must, as the district court did below, render our decision on the exception based solely upon the facts as alleged in the petition, accepting all allegations therein as true. See LaCoste , supra at 525, ("Where no evidence is presented at trial of a dilatory exception, like prematurity, the court must render its decision on the exception based upon the facts as alleged in the petition, and all allegations therein must be accepted as true.").

It is undisputed that Ms. St. Blanc–Champagne, not Mr. Perry, is the patient in this case. Although the LMMA's primary focus is patients' claims of medical malpractice, the Louisiana Supreme Court has held that the LMMA also applies to non-patient claims, but under limited circumstances. See Hutchinson v. Patel , 93–2156 (La. 5/23/94), 637 So.2d 415. The supreme court held that the LMMA "applies exclusively to claims arising from injuries to or death of a patient where such claims are brought by the patients themselves, their representatives on the patient's behalf, or other persons with claims arising from injuries to or death of a patient ." Id. at 428 (Emphasis added). Accordingly, under this standard, the issue here is whether Mr. Perry's non-patient claims against defendants arise from injuries to or the death of Ms. St. Blanc–Champagne.

In Hutchinson , the non-patient plaintiff sued a hospital and psychiatrist for the injuries she sustained as a result of their alleged failure to warn or take reasonable precautions to protect her against a threat of physical violence communicated to the psychiatrist by the patient, the plaintiff's husband. Hutchinson , supra , at 417–18. Several weeks after being discharged from the hospital, where he had undergone psychiatric treatment, the patient shot the plaintiff, permanently paralyzing her from the waist down, before he committed suicide. Id. at 418. The district court overruled the defendants' exception of prematurity, which the First Circuit affirmed on appeal,² finding the plaintiff's claim was not covered by the LMMA because it "does not involve the medical care or treatment of a patient." Id. (quoting Hutchinson v. Patel , 626 So.2d 368, 369 (La. App. 1 Cir. 1993) ).

On certiorari review, the Louisiana Supreme Court affirmed, reasoning that the doctor's "alleged tortious conduct was not based on his treatment or failure to treat [the patient] because his alleged duty to warn [the] plaintiff was independent of the professional standard of care he owed exclusively to [the patient]." Hutchinson , supra , at 423 (Internal quotations omitted). The court concluded that "because [the plaintiff's] claim does not arise from injury to or death of a patient[,]" the LMMA does not apply. Id. at 428.

On the other hand, in Trahan v. McManus , 97–1224 (La. 3/2/99), 728 So.2d 1273, the Louisiana Supreme Court found the LMMA governed non-patient claims for mental anguish caused by negligence in the treatment of the patient. In Trahan , the mother received a telephone message that her adult son had been transported to the emergency room after sustaining injuries in a motor vehicle accident. Trahan , 728 So.2d at 1275. When she arrived to the hospital, her son appeared to be in pain, but the doctor assured her that he was not seriously injured and simply needed bed rest. Id. He was discharged within three hours of being admitted to the emergency room. Id. Unfortunately, the doctor had read the wrong chart; and the son, as reflected in the correct chart, was in fact suffering from shock and internal bleeding. Id. At home, he complained of severe pain to both of his parents and subsequently died in their presence about seven hours after his discharge from the hospital. Id. The parents filed an action against the doctor to recover damages under La. C.C. Art. 2315.6 for their mental anguish and emotional distress resulting from their son's injury and death. Id.

Following a jury trial in which the jury returned a verdict in favor of the defendants, the Third Circuit reversed. Trahan v. McManus , 96–669 (La.App. 3 Cir. 2/19/97), 689 So.2d 696. In addition to reversing the jury's verdict on the merits, the court of appeal found that the case was not governed by the LMMA and so concluded that the district court had erred in instructing the jury on the law as provided under the LMMA. Id. at 709–10.

On certiorari review, however, the Louisiana Supreme Court reversed and dismissed the parents' action. Trahan v. McManus , 97–1224 (La. 3/2/99), 728 So.2d 1273. Before concluding that the parents could not succeed on their claims under La. C.C. Art. 2315.6,³ the court addressed the issue of the jury instructions and determined that the case was in fact governed by the LMMA. Applying Hutchinson , the court concluded that the LMMA applied because the parents' claims of mental anguish arose from their son's injury and death that had been caused, at least in part, by the negligence of the doctor. Id. at 1276–77.

Conversely, in a case analogous to the one presently before us, the Second Circuit applied Hutchinson to find the LMMA did not govern a non-patient's claim. In Jones v. Scriber , 30,693 (La.App. 2 Cir. 06/24/98), 716 So.2d 905, the plaintiff was injured when his horse and buggy was struck by a vehicle driven by the defendant. The plaintiff sued the defendant's ophthalmologist, arguing the doctor negligently...