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In re Medical Review Panel of Vankregten

Court of Appeal of Louisiana, Second Circuit

February 5, 2014

IN RE: THE MEDICAL REVIEW PANEL OF SANDRA TURNER VANKREGTEN

On Application for Writs from the First Judicial District Court for the Parish of Caddo, Louisiana. Trial Court No. 566,738. Honorable Scott J. Crichton, Judge.

M. F. " RICK" FAYARD, Counsel for Applicants, Andrew Flenner and Kenneth Flenner.

MAYER, SMITH & ROBERTS, By: Mark A. Goodwin, Counsel for Respondent, CHRISTUS Health, Northern Louisiana.

Before STEWART, MOORE and LOLLEY, JJ.

OPINION

[48,622 La.App. 2 Cir. 1] LOLLEY, J.

Andrew Flenner and Kenneth Flenner sought supervisory review of a judgment of the First Judicial District Court, Caddo Parish, Louisiana, wherein the trial court granted defendant CHRISTUS Health Northern Louisiana d/b/a CHRISTUS Schumpert Health System's (" Schumpert" ) motion to compel the Flenners' compliance with the Louisiana Medical Malpractice Act. We granted the writ and placed the matter on the appeal docket for consideration. For the following reasons, the judgment of the trial court is affirmed.

Facts

Andrew and Kenneth Flenner are the surviving sons of Sandra Turner Vankregten, who died on September 29, 2011, following a surgical procedure at Schumpert. Pursuant to the Louisiana Medical Malpractice

Page 642

Act, La. R.S. 40:1299.41, et seq . (the " MMA" ), the Flenners filed a complaint and instituted a medical review panel against Schumpert and its nursing staff, specifically naming two nurses as defendants: Robert Ingram, an R.N., and Donald Gaines, an L.P.N. The two nurses treated the Flenners' mother on the floor of the hospital following surgery. No physician was named as a defendant.

The Flenners nominated Debra Patricia Sheldon, Ed.D., APRN-CS, NE-BC, OCN, CNE, as their medical review panel member. Schumpert objected to the nomination as a violation of the MMA because Sheldon is a registered nurse and not a physician. The Flenners refused to nominate a physician, arguing that the alleged negligence was by two nurses and the relevant statute under the MMA allows for a " health care provider" of the same class and specialty to be selected by the complainant. The attorney [48,622 La.App. 2 Cir. 2] chairperson of the panel advised that he did not have the authority to settle the dispute. Thus, Schumpert filed the instant motion in the trial court to compel the Flenners to comply with the MMA. The trial court, while noting Sheldon's high credentials, also noted that the plaintiffs were unable to offer further authority to the trial court to support their appointment of a nonphysician panel member. The trial court granted the motion, finding that the MMA " contemplates that only medical doctors serve on a medical review panel." The Flenners sought supervisory review of the judgment, and this court granted the writ, placing it on the appeal docket for consideration.

Discussion

The sole issue is whether the MMA, specifically La. R.S. 40:1299.47, allows for a registered nurse to be a medical review panelist in this medical malpractice claim against a hospital and two nurses. All parties agree that there are no reported Louisiana cases that squarely address this issue. The Flenners take the position that the MMA allows the appointment of a " health care provider" to the panel, and that the definition of such is not limited to physicians. On the other hand, Schumpert argues that, in effect, there is only one party defendant in this case--Schumpert--and in such cases, the MMA mandates that all panelists be physicians. We agree.

As noted, this precise issue has not been addressed squarely by the Louisiana courts. Thus, our determination is primarily made on our interpretation of the statutory law. In Louisiana, the starting point in the interpretation of any statute is the language of the statute itself. Moreno v. Entergy Corp., 2012-0097 (La. 12/04/12), 105 So.3d 40. Words and phrases shall be read with their context and shall be construed according to [48,622 La.App. 2 Cir. 3] the common and approved usage of the language. La. R.S. 1:3. When a law is clear and unambiguous and its application does not lead to absurd ...


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