Vincent v. Voorhies

• Decision Date: 08 June 1978
• Docket Number: No. 6484,6484
• Parties: Roy J. VINCENT, Jr., et al., Plaintiffs-Appellants, v. Dr. Vernon VOORHIES et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 1129

359 So.2d 1129

Roy J. VINCENT, Jr., et al., Plaintiffs-Appellants, v. Dr. Vernon VOORHIES et al., Defendants-Appellees.

No. 6484.

Court of Appeal of Louisiana,Third Circuit.

June 8, 1978.

J. Minos Simon, Lafayette, for plaintiffs-appellants.

Voorhies & Labbe, Marc W. Judice, Lafayette, Michael G. Barron, Baton Rouge, Herbert J. Mang, Jr., New Orleans, for defendants-appellees.

Before GUIDRY, FORET and CUTRER, JJ.

FORET, Judge.

The constitutionality of certain sections of the Louisiana Medical Malpractice Act, LSA-R.S. 40:1299.41, et seq. (Act 817 of 1975), is at issue in this appeal.

Plaintiff filed this tort suit based on alleged medical malpractice of several defendants. Plaintiff alleged that his injuries occurred in December, 1975, thereby bringing the new medical malpractice act into focus. Plaintiff also prayed in his petition that the provisions of the medical malpractice act be declared unconstitutional. The defendant doctor filed exceptions styled exceptions to venue and jurisdiction, claiming that the proper venue and forum were set forth in the medical malpractice act and that plaintiff had not complied with the act's directives.

The trial judge, in written reasons for judgment, sustained the defendant doctor's exceptions, stating that regardless of what the exception was styled, defendant was a health care provider covered by the act. Therefore, plaintiff must go first before the medical review panel. Consequently, plaintiff's suit was premature, and accordingly was dismissed without prejudice. Plaintiff appeals from the trial court judgment sustaining defendant doctor's exception.

The issues on appeal are the following: (1) Did the defendant file the correct exception which would have called into issue appellant's petition for damages and declaratory relief; and (2) the constitutionality of the medical malpractice act as found in LSA-R.S. 40:1299.41, et seq.

Appellant first complains that the defendant filed the incorrect exception. It does appear that the correct exception in this case should have been the dilatory exception of prematurity. This is based on the fact that the statute in question states that a plaintiff must take his claim before the medical review panel before proceeding to court. However, the trial judge stated that it made no difference whether the exception is correctly styled or not because the defendant, if the act is valid, is entitled to the remedy under the statute. It is felt that the trial judge is correct in this decision. There is no question as to the timeliness of the exception before the court. Therefore, under LSA-C.C.P. Article 924 and Wooten v. Central Mutual Insurance Company, 202 So.2d 690 (La.App. 3 Cir. 1967), the defendant has satisfied LSA-C.C.P. Article 924 and adequately appraised the plaintiff of the grounds for his exception.

The second issue is that of the constitutionality of the medical malpractice act, or certain portions thereof. The trial court apparently felt that the constitutionality of the whole statute was at issue. We do not agree. The...