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In re Medical Review Panel Proceeding of Benjamin

Court of Appeals of Louisiana, Fifth Circuit

November 25, 2014

IN RE: MEDICAL REVIEW PANEL PROCEEDING OF HERBERT BENJAMIN

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA. NO. 726-500, DIVISION " B" . HONORABLE CORNELIUS E. REGAN, JUDGE PRESIDING.

CHARLES G. JUSTICE, III, ATTORNEY AT LAW, New Orleans, Louisiana, COUNSEL FOR PLAINTIFF/APPELLANT.

HARRY E. CANTRELL, JR., ATTORNEY AT LAW, New Orleans, Louisiana, COUNSEL FOR PLAINTIFF/APPELLANT.

CHARLES F. GAY, JR., KATIE F. WOLLFARTH, ATTORNEYS AT LAW, New Orleans, Louisiana, COUNSEL FOR DEFENDANT/APPELLEE.

Panel composed of Judges Marc E. Johnson, Robert M. Murphy and Stephen J. Windhorst.

OPINION

 STEPHEN J. WINDHORST, J.

Page 162

[14-192 La.App. 5 Cir. 2] Appellant, Herbert Benjamin, appeals from the trial court's judgment granting an exception of prescription, dismissing his medical malpractice complaint against Ochsner Clinic Foundation (" Ochsner" ), Christopher J. Najberg, M.D., and Shane Pelitere, R.N. For the reasons that follow, we affirm in part and reverse in part, and remand for further proceedings.

The alleged malpractice occurred on September 16, 2011. On September 17, 2012, Mr. Benjamin filed his complaint with the Patient Compensation Fund (" PCF" ), requesting a medical review panel. He named as defendants Ochsner Clinic Foundation, Ochsner Medical Center, Dr. Najberg, and an Ochsner nurse identified as " A. Shane@."

On October 1, 2012, the PCF sent notice to Mr. Benjamin's counsel of the required filing fee and informed him that failure to pay this fee within 45 days would render claimant's request for a medical review panel without effect and the request would not suspend the time for filing suit. The PCF requested filing fees of $300.00; $100.00 for each of the three qualified defendants, Ochsner Clinic Foundation, Ochsner Medical Center, and Dr. Najberg. The PCF also requested the first and last name of the nurse identified as A. Shane so that it could determine whether A. Shane was a qualified provider.

[14-192 La.App. 5 Cir. 3] Accordingly, Mr. Benjamin's check was due to the PCF by November 14, 2012. The claimant sent a check for the fees by certified letter dated November 9, 2012,

Page 163

which was returned because it did not contain the sufficient postage. Counsel resent the fee, which the PCF received on December 11, 2012.

On January 2, 2013, the PCF advised counsel that the check was returned NSF for insufficient funds. A second check was tendered, which was ...


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