Yell v. Sumich

• Decision Date: 15 October 2008
• Docket Number: No. 08-296.,08-296.
• Citation: 997 So.2d 69
• Parties: Ray YELL, et al. v. Leni SUMICH, M.D., et al.
• Court: Court of Appeal of Louisiana — District of US

997 So.2d 69

Ray YELL, et al. v. Leni SUMICH, M.D., et al.

No. 08-296.

Court of Appeal of Louisiana, Third Circuit.

October 15, 2008.

Mitchel M. Evans II, DeRidder, LA, for Plaintiffs/Appellants, Ray Yell and Shannon Mosier.

John H. Grimstad, Niles, Bourque & Fontana, L.L.C., New Orleans, LA, for Defendants/Appellees, Leni Sumich, M.D.; Linda Lin, M.D.; and Donald Bergsma, M.D.

Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.

GENOVESE, Judge.

In this medical malpractice case, Plaintiffs appeal the trial court judgment granting Defendants' exception of improper venue. For the following reasons, we convert the appeal to a supervisory writ and deny it.

FACTS

Following a diagnosis of ocular melanoma,¹ Peggy Yell underwent an enucleation (removal) of her right eye at Louisiana State University Health Sciences Center, Medical Center of Louisiana at New Orleans (LSUHSC-MCLNO) on February 6, 2003. Ms. Yell was discharged from this Orleans Parish facility on February 7, 2003. She received no further treatment in Orleans Parish.

On March 31, 2004, Ms. Yell presented to W.O. Moss Regional Medical Center of Lake Charles with complaints of gall bladder pain. The CAT² scan performed on this date detected masses present in both lobes of her liver which were suspicious for metastatic³ disease. Subsequent tests performed at the LSU Health Science Center in Shreveport confirmed that Ms. Yell tested positive for metastatic malignant melanoma of the liver.

On May 10, 2004, Ms. Yell died in Beauregard Parish as a result of metastatic melanoma of the liver. Plaintiffs, Ray Yell and Shannon Mosier, the spouse and mother of Ms. Yell, instituted the present medical malpractice action on March 13, 2007, in Beauregard Parish, against Leni Sumich, M.D., Linda Lin, M.D., Donald Bergsma, M.D., Jill Gilbert, M.D., and Louisiana State University Health Sciences Center, Medical Center of Louisiana at New Orleans, alleging negligence related to the surgery and treatment provided to Ms. Yell at LSUHSC-MCLNO. Defendants, Leni Sumich, M.D., Linda Lin, M.D., and Donald Bergsma, M.D., responded with, among other exceptions, an exception of improper venue.

Following a hearing on the exception, the trial court granted Defendants' exception of improper venue and ordered the matter transferred to Orleans Parish. The trial court signed a judgment in accordance therewith on November 4, 2007. It is from that portion of the judgment granting Defendants' exception of improper venue that Plaintiffs appeal.

ISSUE

The sole issue which we are called upon to decide is whether the trial court was legally correct⁴ in concluding that Beauregard Parish is not a parish of proper venue.

LAW AND DISCUSSION

We note at the outset that the proper procedural device for seeking appellate review of a judgment granting an exception of improper venue is an application for supervisory writs.⁵ In the instant matter, Plaintiffs erroneously filed a suspensive appeal. Although no formal motion was filed, Defendants, in their appellate brief, assert that the present appeal is procedurally defective and move this court to dismiss same. We decline to do so.

"Under our general supervisory authority . . . an appellate court is entitled to convert the appeal into an application for a supervisory writ of review. La.Code Civ.P. art. 2164." LeBlanc v. LeBlanc, 05-212, p. 3 (La.App. 3 Cir. 11/2/05), 915 So.2d 966, 969. Exercising our authority to do so, we convert the present suspensive appeal into an application for a supervisory writ of review and address the issue of whether or not Beauregard Parish is a parish of proper venue in this case.

The treatment rendered by Defendants giving rise to this medical malpractice action occurred solely in Orleans Parish. Ms. Yell died in Beauregard Parish. Plaintiffs filed suit in Beauregard Parish. The pertinent legal inquiry is whether Ms. Yell's death alone in Beauregard Parish, though the alleged medical malpractice occurred in Orleans Parish, triggers an alternative venue in Beauregard Parish.

In support of their contention that Beauregard Parish is a parish of proper venue, Plaintiffs cite La.R.S. 13:5104(B). We pretermit any discussion of La.R.S. 13:5104(B) since that statutory provision applies only to a political subdivision. No Defendant in the instant action is a political subdivision which would trigger the venue provisions asserted by the Plaintiffs under paragraph (B) of La.R.S. 13:5104. Thus, Plaintiffs' reliance on La.R.S. 13:5104(B) is misplaced.

Plaintiffs also rely on the decision of Wharton v. Ridgell, 05-69 (La.1/19/06), 922 So.2d 461, in support of their contention that venue in a malpractice action is proper in the parish in which the patient died. In Wharton, the decedent was injured in Tangipahoa Parish, where she was stuck by a vehicle while crossing a street. She was treated for her injuries in Orleans Parish where she died seventeen days later. A wrongful death action was filed by the decedent's mother in Orleans Parish, against the defendants, who were residents of Tangipahoa Parish. The trial court granted defendants' exception of improper venue, and the appellate court reversed. Our supreme court affirmed the appellate court, holding that the parish where the death occurred was a proper venue for the wrongful death action filed by the child's mother.

We do not find Wharton to be controlling. First, our supreme court in Wharton was applying La.R.S. 13:5104(B), which is inapplicable to the case at bar. Second, Wharton involved an action for wrongful death resulting from an automobile accident, as opposed to medical malpractice, and is distinguishable as to the nature of the cause of action being asserted. Additionally, in Wharton, contrary to the case at bar, the decedent received medical treatment in the parish of her death. Neither Wharton, nor any other jurisprudence holds, as Plaintiffs contend herein, that venue in a medical malpractice action is proper in a parish based solely upon the patient's ultimate death occurring in said parish.

Because one of the Defendants in this case, LSUHSC-MCLNO, is a state agency, the governing statutory provision for purposes of venue in the instant matter is La.R.S. 13:5104(A). That statute specifically and expressly provides that "[a]ll suits filed against the state of Louisiana or any state agency may be instituted before the district court of the judicial district in which the state capitol is located or in the district court having jurisdiction in the parish in which the cause of action arises."

We find Colvin v. Louisiana Patient's Compensation Fund Oversight Board, 06-1104 (La.1/17/07), 947 So.2d 15, to be pertinent to the case at bar. In Colvin, our supreme court applied the provisions of La.R.S. 13:5104(A) in a suit against the Louisiana Patient's Compensation Fund Oversight Board (PCF), which is a state agency. Colvin presented consolidated cases brought by plaintiffs against the PCF wherein it was alleged that, following their claim for medical malpractice, the PCF was negligent in its adjustment of said claims. The issue before the court was the proper venue for suits brought against the PCF. The supreme court held "that venue for a suit against this state agency is specifically provided by La.R.S. 13:5104(A), and that the general venue provisions and exceptions found in La. C.C.P. arts. 42, and 71-85, specifically La. C.C.P. art. 74, do not apply." Id. at 16. Notably, our supreme court in Colvin recognized that "the analysis for `when' a cause of action arises is different from the analysis for `where' a cause of action arises for venue purposes[,]" and in so doing, reasoned as follows:

Although we ultimately held in Wharton that for venue purposes under La. R.S. 13:5104(B), a wrongful death cause of action arises at the place of death, regardless of where the wrongful conduct occurred, we recognized that in a direct tort action, as opposed to a wrongful death action, venue is proper, even under La. C.C.P. art. 74, in the parish in which the wrongful conduct took place. Further, the standard for addressing "when" a cause of action arises under Landry [v. Avondale Industries, Inc., 03-0719 (La.12/3/03), 864 So.2d 117] and Walls [v. American Optical Corp., 98-0455 (La.9/8/99), 740 So.2d 1262] addresses theories of recovery for determining a party's right to recovery, whereas "where" a cause of action arises for venue purposes addresses a consideration of the most convenient situs for trial. Under such consideration, the place where a plaintiff happened to be when wrongful conduct caused his damages is often very inconvenient for purposes of where the trial should be conducted, as it often has no relation to the location of the defendant, or the wrongful conduct. In any event, the ultimate holding of Wharton is distinguishable and not determinative of this case, as Wharton was a wrongful death case.

Id. at 23-24.

When considering "the question of what constitutes the situs of a cause of action[,]" our supreme court in Colvin ultimately adopted the test set forth by the fourth circuit in Avenal v. State, Department of Natural Resources, 95-836 (La.App. 4 Cir. 11/30/95), 668 So.2d 1150, writ denied, 96-198 (La.1/26/96), 667 So.2d 524. "In Avenal, the court held that `the place where the operative facts occurred which support plaintiff's entitlement to recovery is where the cause of action arise[es]' for venue purposes under La. R.S. 13:5104(A)." Colvin, 947 So.2d at 24.

In the instant matter, because the sole treatment rendered by Defendants was in Orleans Parish (where the alleged medical malpractice occurred), Orleans Parish is clearly "where the operative facts occurred which support [Plaintiffs'] entitlement to recovery." Therefore, based upon Colvin, Orleans Parish is where the cause of action arose for venue purposes under La.R.S. 13:5104(A). Accordingly, we find that the trial court was legally correct...