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Thomas v. Nexion Health at Lafayette, Inc.

Court of Appeal of Louisiana, Third Circuit

January 14, 2015

VERONICA THOMAS
v.
NEXION HEALTH AT LAFAYETTE, INC., ET AL

APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT, PARISH OF LAFAYETTE, NO. 2013-3981. HONORABLE EDWARD B. BROUSSARD, DISTRICT JUDGE.

Patrick Daniel, The Daniel Law Firm, Lafayette, Louisiana, Counsel for Plaintiff/Appellant: Veronica Thomas.

Robert M. Kallam, John L. Woods, Craig R. Bordelon, II, Preis PLC, Lafayette, Louisiana, Counsel for Defendant/Appellee: Nexion Health at Lafayette, Inc.

Ian A. Macdonald, Jones Walker, Lafayette, Louisiana, Counsel for Defendant/Appellee: Acadian Ambulance Service, Inc.

Court composed of Shannon J. Gremillion, Phyllis M. Keaty, and John E. Conery, Judges.

OPINION

Page 709

[14-609 La.App. 3 Cir. 1] KEATY, Judge.

In this medical malpractice case, Plaintiff, Veronica Thomas, appeals a judgment rendered by the trial court sustaining an exception of prematurity filed by Defendant, Nexion Health at Lafayette, Inc., d/b/a Lafayette Care Center, dismissing her claims against it without prejudice. For the following reasons, we affirm.

PROCEDURAL HISTORY

Thomas, a wheelchair-bound paraplegic, was injured while being transported by van from a hospital to Nexion's skilled nursing facility in Lafayette, Louisiana, on August 17, 2012. Thereafter, she filed a petition for damages against multiple defendants, including Nexion, seeking to recover for the injuries that she sustained due to Defendants' alleged negligence.

Nexion responded to the petition by filing a dilatory exception of prematurity, alleging that because it was a qualified health care provider under the Louisiana Medical Malpractice Act (the MMA or the Act) at the time of the accident, Thomas' claim had to be submitted to a medical review panel before it could be filed in court. See La.R.S. 40:1299.47. According to the record, the hearing on the exception was continued twice at Thomas' request. Thereafter, Thomas waited until the day before the rescheduled hearing to file her opposition memorandum. At the hearing, Nexion's counsel indicated that due to the late filing, he was not prepared to counter all of the arguments asserted in Thomas' opposition. Nevertheless, the trial court proceeded with the hearing and sustained Nexion's exception of prematurity in open court. Later that day, however, the trial court recalled its interlocutory ruling

Page 710

based upon its finding that " the record was not developed sufficiently to make the factual findings needed to decide the [14-609 La.App. 3 Cir. 2] exception," which were " due in large part to plaintiff's counsel's failure to comply with Rule 9.9." A second hearing on the exception took place two weeks later, and a judgment sustaining the exception of prematurity and dismissing Thomas' claims against Nexion without prejudice was signed on April 7, 2014. The trial court provided written reasons for judgment on April 28, 2014.

Thomas now appeals, asserting in her sole assignment of error that the trial court committed legal error by sustaining Nexion's exception of prematurity " in direct ...


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