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Correro v. Caldwell

Court of Appeals of Louisiana, Second Circuit

June 3, 2015

CAROLYN CORRERO, Plaintiff-Appellant
v.
BERNIE CALDWELL AND CATHY GREER, Defendants-Appellees

Appealed from the Fourth Judicial District Court for the Parish of Ouachita, Louisiana. Trial Court No. M132014. Honorable Robert C. Johnson, Judge.

DOUGLAS R. PLYMALE, Counsel for Appellant.

MCLEOD VERLANDER, By: David E. Verlander III, Counsel for Appellee Bernie Caldwell.

LAW OFFICES OF SHERYL STORY, By: Micholle Walker Mordock, Counsel for Appellee Cathy Greer.

Before WILLIAMS, CARAWAY and LOLLEY, JJ.

OPINION

Page 443

[49,778 La.App. 2 Cir. 1] LOLLEY, J.

Carolyn Correro appeals a judgment by the Fourth Judicial District Court, Parish of Ouachita, State of Louisiana, granting a peremptory exception of prescription in favor of defendants, Bernie Caldwell and Cathy Greer. For the following reasons, we reverse the trial court's judgment.

Facts

On April 22, 2011, Correro fractured her left hip after a fall. She was taken by ambulance to IASIS Glenwood Regional Medical Center, L.P. (" Glenwood" ). In the emergency room, she was diagnosed with a fracture of her left hip, and she was scheduled for surgery the next day. On April 23, 2011, Correro was taken into surgery, where the surgical team performed a time out--the procedure used to verify the correct surgical location prior to the commencement of surgery. Correro was positioned on the wrong side, and her right hip was incorrectly verified as the surgical site during the time out. Resultantly, Dr. Jose Ferrer began surgery on Correro's right hip, actually making a 10-inch incision through her skin, subcutaneous tissue, and her deep fascia. Two minutes into the surgery, the error was discovered.

Correro's right side was sutured and her skin stapled. Surgery proceeded on her left hip without further incident. Correro instituted a medical review panel (" MRP" ) with the Louisiana Patient's Compensation Fund (" PCF" ) on April 16, 2012, naming Dr. Ferrer and the employees of Glenwood involved with her surgery--MRP Complaint no. 2012-00384 (the " initial panel" ). The record indicates that Dr. Ferrer subsequently: acknowledged his liabilty and breach of standard of care; waived the proceeding in the initial panel; and, was dismissed from it on [49,778 La.App. 2 Cir. 2] August 22, 2013, after a letter from Correro to the PCF requesting his dismissal. However, as against Glenwood, the initial panel proceeded.

During those proceedings, Glenwood filed its submission to the initial panel. In that submission, it stated that Dr. Ferrer " has . . . accepted his liability. . . ." It also noted that Bernie Caldwell and Cathy Greer, respectively the physician's assistant and certified registered nurse anesthetist on the surgical team, were not employees of Glenwood. The initial panel hearing was scheduled for November 19, 2013. On that date, but prior to the hearing, Correro filed an amended complaint in the initial panel proceeding naming Caldwell and Greer as additional defendants, claiming they were tortfeasors along with Dr. Ferrer and Glenwood. Ultimately, the initial panel issued its opinion and it was mailed via certified mail on December 27, 2013. It concluded that Glenwood failed to meet the applicable standard of care in the treatment of Correro " as charged in the complaint." Subsequently, on January 31,

Page 444

2014, Correro was informed by the PCF that " [u]nknowing to the [PCF] an opinion was rendered on the [initial panel] when the recently submitted amendment dated November 19, 2013 was filed. Therefore, the amendment will be processed as a new request for a medical review panel." The new panel was assigned MRP Complaint no. 2013-01407 (the " second panel" ).

Subsequently, Caldwell and Greer filed their peremptory exception of prescription, stating that any claim against them prescribed on April 7, 2014, pursuant to La. R.S. 40:1299.47. They argued that although the timely filed claim to the initial panel served to suspend prescription against all joint tortfeasors during the pendency of that panel, Correro never filed suit against [49,778 La.App. 2 Cir. 3] Ferrer or Glenwood after the initial panel opinion had been issued. As a result, the claims against them, as well as the ...


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