APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH. NO. 2010-03323, DIVISION " D-16" . Honorable Lloyd J. Medley, Judge.
IVAN A. ORIHUELA, RIGUER SILVA, LLC, Kenner, LA, COUNSEL FOR PLAINTIFF/APPELLANT.
JAMES D. " BUDDY" CALDWELL, Attorney General, ANDREE' F. PITARD, Assistant Attorney General, LA DEPARTMENT OF JUSTICE, New Orleans Litigation Division, New Orleans, LA, COUNSEL FOR DEFENDANT/APPELLEE.
(Court composed of Judge Roland L. Belsome, Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins). BELSOME, J., DISSENTS WITH REASONS.
Sandra Cabrina Jenkins Judge.
[2013-1260 La.App. 4 Cir. 1] In this medical malpractice suit, plaintiff appeals the trial court judgment dismissing her claims for failure to request service within ninety days of filing the petition, as required by La. R.S. 13:5107. For the reasons that follow, we find the trial court did not err in sustaining defendant's exception of insufficiency of service of process and dismissing plaintiff's suit for failure to show good cause as to why service had not been requested.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff, Mirna Velasquez, filed a formal complaint with the State of Louisiana Division of Administration on April 4, 2007 requesting that a Medical Review Panel convene in order to review her allegations against Ralph R. Chesson, M.D. (" Dr. Chesson" ). Plaintiff asserts that she submitted to a tubal ligation following childbirth at University Hospital for sterilization purposes. Plaintiff further contends the tubal ligation was performed negligently as she became pregnant a year after the procedure.
[2013-1260 La.App. 4 Cir. 2] The Division of Administration notified plaintiff, by letter dated April 27, 2007, that Dr. Chesson is a qualified state health care provider under the provisions of La. R.S. 40:1299.39.1 and a Certificate of Qualification was issued on June 6, 2007. In January 2010, the Medical Review Panel ultimately concluded that evidence did not support the allegation that Dr. Chesson failed to meet the applicable standard of care as charged in plaintiff's complaint. Plaintiff then filed a petition for damages against Dr. Chesson in the Civil District Court for the Parish of Orleans on April 5, 2010.
On July 15, 2010, defendant filed a declinatory exception of insufficiency of service of process alleging the State was not properly served within ninety days of filing the suit. Following a hearing on September 10, 2010, the trial court sustained defendant's exception and dismissed plaintiff's petition without prejudice. Plaintiff filed a motion for a new trial on September 20, 2010, which was subsequently denied and this appeal ensued. On appeal, plaintiff argues the trial court erred in sustaining defendant's exception and dismissing plaintiff's petition as service on the State was not necessary because Dr. Chesson was not sued in his official capacity as a qualified state health care provider.
As mandated by La. R.S. 13:5107(D) and La. C.C.P. ...