Tranum v. Hebert

• Decision Date: 16 May 1991
• Citation: 581 So.2d 1023
• Parties: Richard TRANUM and Helen Tranum v. Aynaud F. HEBERT, M.D., Henry T. Cook, M.D., Stimpson Schantz, M.D., Eric Chang-Tung, M.D., M.D. Anderson Hospital and Tumor Institute, St. Paul Fire & Marine Insurance Co., and Insurance Corporation of America. CA 900245.
• Court: Court of Appeal of Louisiana — District of US

Page 1023

581 So.2d 1023

Richard TRANUM and Helen Tranum v. Aynaud F. HEBERT, M.D., Henry T. Cook, M.D., Stimpson Schantz, M.D., Eric Chang-Tung, M.D., M.D. Anderson Hospital and Tumor Institute, St. Paul Fire & Marine Insurance Co. and Insurance Corporation of America.

CA 900245.

Court of Appeal of Louisiana, First Circuit.

May 16, 1991.

Writ Denied Sept. 20, 1991.

Pete Lewis, New Orleans, for plaintiffs-appellants.

Nancy J. Marshall, New Orleans, for defendants-appellees.

Before COVINGTON, C.J., and LANIER and GONZALES, JJ.

LANIER, Judge.

This action is a suit for damages in tort alleging medical malpractice. The husband and wife plaintiffs filed suit against seven defendants. Four of these defendants were dismissed from the suit without prejudice when the trial court sustained a dilatory exception raising the objection of prematurity. The three remaining defendants asserted they were residents of Texas, filed a declinatory exception raising the objection of lack of jurisdiction over the person and subsequently had the case removed to the United States District Court for the Eastern District of Louisiana (U.S. court). While this action was pending in the U.S. court, the plaintiffs added Dr. Charles C. Crumpler as a party defendant. The U.S. court remanded this action to the Louisiana trial court insofar as it pertained to Dr. Crumpler. Dr. Crumpler then filed a peremptory exception raising the objection of prescription which was sustained by the Louisiana trial court. This devolutive appeal followed.

PROCEDURAL FACTS

This suit was filed on August 19, 1987, and alleged medical malpractice in September and October of 1986. Made defendants were (1) Dr. Aynaud Foster Hebert, (2) Insurance Corporation of America (ICA), Dr. Hebert's insurer, (3) Dr. Henry T. Cook, (4) St. Paul Fire & Marine Insurance Company (St. Paul), Dr. Cook's insurer, (5) Dr. Stimpson Schantz, (6) Dr. Eric Chang- Tung, and (7) the M.D. Anderson Hospital and Tumor Institute (Anderson).

On September 18, 1987, Dr. Hebert, ICA, Dr. Cook and St. Paul filed a dilatory exception raising the objection of prematurity. ¹ They asserted that Drs. Hebert and Cook were qualified health care providers within the purview of the Louisiana Medical Malpractice Act, La.R.S. 40:1299.41 et seq., and that pursuant to La.R.S. 40:1299.47(B)(1)(a), no action could be commenced against them in any court before the plaintiffs' complaint had been presented to a medical review panel. On November 3, 1987, the Louisiana trial court sustained this exception and dismissed the petition against Dr. Hebert, ICA, Dr. Cook and St. Paul without prejudice. The record before us does not reflect an appeal from this judgment. These defendants have not been rejoined as parties defendant.

On September 21, 1987, Anderson and Drs. Schantz and Chang-Tung filed a declinatory exception raising the objection of lack of jurisdiction over the person. They asserted that they were not residents of Louisiana, that their treatment of the plaintiff, Richard Tranum, took place in Texas, and no injury or damage occurred in Louisiana. On November 12, 1987, Anderson and Drs. Schantz and Chang-Tung filed a notice of removal of this action to U.S. court. At this point in time, the Louisiana trial court was divested of authority to proceed in this case against these defendants. 28 U.S.C.A. Sec. 1441 et seq.; Succession of Moses v. Carr, 543 So.2d 77 (La.App. 1st Cir.), writ denied, 547 So.2d 362 (La.1989).

On August 1, 1988, the plaintiffs filed a supplemental and amending petition which made Dr. Crumpler a party defendant.

On August 25, 1988, the U.S. court rendered a judgment which provided, in pertinent part, as follows:

ORDER, ADJUDGE AND DECREE (1) that Plaintiffs' motion to reconsider and vacate the Court's prior order dismissing M.D. Anderson Hospital and Tumor Institute, Dr. Stimson [sic] Schantz and Dr. Eric Chang-Tung be denied; (2) that the motion for entry of final judgment filed by Defendants M.D. Anderson Hospital and Tumor Institute, Dr. Stimson [sic] Schantz and Dr. Eric Chang-Tung be granted; (3) that the motion of Defendant Dr. Charles C. Crumpler to dismiss Plaintiffs' complaint for lack of jurisdiction be denied; and (4) that the motion of Plaintiffs Richard Tranum and Helen Tranum to remand this action to the 22nd Judicial District Court for the Parish of St. Tammany, State of Louisiana, be granted.

The record does not show an appeal from this judgment.

On September 7, 1989, Dr. Crumpler filed a peremptory exception raising the objection of the liberative prescription of La.R.S. 9:5628. On October 5, 1989, the Louisiana trial court rendered judgment sustaining Dr. Crumpler's exception, and assigned the following written reasons:

The exception of prescription is maintained, on grounds that Dr. Crumpler is the sole remaining Louisiana defendant, and was not timely sued, suit having been filed against him on February 12, 1988. In paragraph XVII of the petition, petitioners allege that "they did not discover until October 28, 1986 that Mr. Tranum had in fact been misdiagnosed." Thus, the date of discovery of the malpractice was October 28, 1986.

The alleged malpractice by Dr. Crumpler, the misreading of slides from plaintiff's biopsy, occurred some time in September of 1986, during plaintiff's stay at Slidell Memorial Hospital.

The original petition, filed against Drs. Hebert and Cook (the "Louisiana defendants"), and Drs. Schantz, Chang-Tung, and M.D. Anderson Hospital and Tumor Institute (the "Texas defendants") reflects that plaintiffs were aware that a biopsy had been taken and slides prepared from the biopsy. (Paragraph IV)

Further, on September 2, 1987, petitioners subpoenaed the biopsy slides from Slidell Memorial Hospital.

An exception of prematurity was filed on behalf of the Louisiana defendants, who were qualified health care providers, and as such, entitled to review by a medical review panel. The remaining Texas defendants removed the case to federal court, where it was subsequently dismissed for lack of personal jurisdiction. Thus, the sole remaining defendant in this case is Dr. Charles Crumpler.

Inasmuch as he was not sued within a year of the discovery of the misdiagnosis and all defendants with whom he was allegedly solidarily liable were dismissed from the lawsuit, the cause of action against him has prescribed. The provisions of La.R.S. 40:1299.41(G) do not apply, inasmuch as there is no defendant with whom Dr. Crumpler was "answerable in solido", such that the convening of the medical review panel would suspend prescription for ninety days.

Dr. Crumpler could not be found liable in solido with the Texas defendants, since they were dismissed from the Louisiana lawsuit.

FACTS

La.C.C.P. art. 931 provides, in pertinent part, as follows:

On the trial of the peremptory exception pleaded at or prior to the trial of the case, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition.

(Emphasis added)

In the instant case, no evidence was presented in the Louisiana trial court at the hearing on the exception. ² In the absence of evidence, the objection of prescription must be decided upon the facts alleged in the petition, and all allegations thereof are accepted as true. Capital Drilling Company v. Graves, 496 So.2d 487 (La.App. 1st Cir.1986).

Pursuant to La.C.C.P. art. 2164, an appellate court must render its judgment upon the record on appeal. The record on appeal is that which is sent by the trial court to the appellate court and includes the pleadings, court minutes, transcript, jury instructions, judgments and other rulings, unless otherwise designated. La.C.C.P. arts. 2127 and 2128; Official Revision Comment (d) for La.C.C.P. art. 2127. An appellate court cannot review evidence that is not in the record on appeal and cannot receive new evidence. Davis v. Anderson, 451 So.2d 1302 (La.App. 1st Cir.1984). The record before us contains memoranda (briefs), with attached exhibits, which were filed in the trial court. These memoranda and exhibits were not filed in evidence and are not part of the record on appeal. In State ex rel. Guste v. Thompson, 532 So.2d 524, 527, n. 2 (La.App. 1st Cir.1988) appears the following:

The briefs of the parties assert facts which are not in the record and refer to exhibits which have not been filed in evidence in the record. An appellate court may not consider evidence which is outside the record. La.C.C.P. art. 2164. The briefs of the parties and the attachments thereto are not part of the record on appeal. Bunch v. Town of St. Francisville, 446 So.2d 1357 (La.App. 1st Cir.1984). In addition, we may not consider exhibits filed in the record which were not filed in evidence, unless authorized by law to do so. See, for example, La.C.C.P. arts. 966 and 967.

See also Leyva v. Laga, 549 So.2d 914 (La.App.3rd Cir.1989). Further, the appellate briefs of the parties herein assert facts not contained in the petition or the record on appeal. The appellate briefs of the parties are not part of the record on appeal, and this court has no authority to consider on appeal facts referred to in appellate briefs, or in exhibits attached thereto, if those facts are not in the record on appeal. Capital Drilling Company v. Graves, 496 So.2d at 489; Fred H. Moran Construction Corporation v. Elnaggar, 441 So.2d 260 (La.App. 1st Cir.1983).

The pertinent facts alleged in the petition, as amended, are as follows:

IA.

Defendant, Dr. Charles C. Crumpler, at all material times involved in this action, was not a Qualified Health Care Provider (See Exhibit 1 herein attached); however he was working as a pathologist for Slidell Memorial Hospital and was a resident of the Parish of St. Tammany, State of Louisiana.

. . . . .

III.

On or about September 19, 1986, petitioner, Richard Tranum, came home from work very sick and had been spitting up blood earlier...