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Maestri v. Pazos

Court of Appeals of Louisiana, Fifth Circuit

May 28, 2015

KATHY MAESTRI AND KURT C. BURGENTHAL, INDIVIDUALLY, AND ON BEHALF OF THE ESTATE OF THEIR DECEASED MOTHER DOROTHY LUCILLE REYNOLDS
v.
CHERIE PAZOS, N.P

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA. NO. 735-726, DIVISION " O" . HONORABLE ROSS P. LADART, JUDGE PRESIDING.

LEE M. SCHWALBEN, ATTORNEY AT LAW, Lake Charles, Louisiana, COUNSEL FOR PLAINTIFFS/APPELLANTS.

C. WILLIAM BRADLEY, JR., BRADLEY R. BELSOME, ATTORNEYS AT LAW, New Orleans, Louisiana, COUNSEL FOR DEFENDANT/APPELLEE.

Panel composed of Judges Susan M. Chehardy, Stephen J. Windhorst and Hans J. Liljeberg. LILJEBERG, J., DISSENTS WITH REASONS.

OPINION

[15-9 La.App. 5 Cir. 2] STEPHEN J. WINDHORST, J.

Page 370

Appellants, Kathy Maestri and Kurt C. Burgenthal, individually, and on behalf of the estate of their deceased mother, Dorothy Lucille Reynolds, appeal the trial court's September 4, 2014 judgment sustaining the exception of prescription filed by Cherie Pazos, N.P., appellee. For the reasons which follow, we affirm.

Facts and Procedural History

On August 3, 2012, Dorothy Reynolds was admitted to Oceans Behavioral Hospital of Greater New Orleans (" Oceans" ), a geriatric psychiatric hospital. Mrs. Reynolds' admission history and physical were performed by appellee under the supervision of Dr. Parimal Parikh.[1] At the time of her admission, Mrs. Reynolds did not have any decubitus ulcers (bed sores).

Appellants' petition alleged that on August 9, 2012, appellee noted Mrs. Reynolds had " sacral redness" and ordered Boudreaux's butt paste to be applied. [15-9 La.App. 5 Cir. 3] Appellants also alleged that appellee noted Mrs. Reynolds' skin problems were worsening and altered the topical regimen; however, she did not notify Mrs. Reynolds' treating physician or family. The petition further alleged that appellee failed to order pressure reduction measures and chose not to order that Mrs. Reynolds be turned at least every two hours.

Mrs. Reynolds' decubitus ulcer continued to deteriorate, and she was transferred to East Jefferson General Hospital for treatment on August 15, 2012. The petition further alleged that Mrs. Reynolds' decubitus ulcer worsened, and was a substantial factor in her death on October 24, 2012.

On October 16, 2013, appellants filed a complaint with the Louisiana Patients Compensation Fund (PCF) which claimed that Mrs. Reynolds' injuries and death were caused by the joint negligence of Oceans, Dr. Parikh, and appellee. On October 30, 2013, the PCF sent a letter to appellants' counsel notifying appellants that Oceans and Dr. Parikh were qualified health care providers, but appellee was not a qualified health care provider, thus she was not covered under the Louisiana Medical Malpractice Act (LMMA). Appellants received the notice on October 31, 2013.

On February 20, 2014, appellants filed a wrongful death and survival action against appellee in the Twenty-Fourth Judicial District Court, Jefferson Parish. Appellants contended that Mrs. Reynolds' decubitus ulcer was preventable and should not have occurred while she was a patient at Oceans. Appellants also claimed that appellee deviated from the applicable medical standards and her breach was a substantial factor in Mrs. Reynolds' prolonged infection, pain and suffering, sepsis, and death. Appellants further claimed that their claim was timely filed with the PCF on " October 15, 2013," and they were notified on " December 23, 2013," that appellee was not a qualified health care provider.

[15-9 La.App. 5 Cir. 4] On July 28, 2014, appellee filed an exception of prescription contending that appellants' petition was untimely because it was filed more than 90 days after the notification letter from the PCF ...


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