APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 760-561, DIVISION
"D" HONORABLE SCOTT U.SCHLEGEL, JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLANT, CHRISTOPHER GUIDRY,
INDIVIDUALLY, LOUIS GUIDRY, INDIVIDUALLY, MICHAEL GUIDRY,
INDIVIDUALY, DANIELLE FONTENOT, INDIVIDUALLY, AND PATRICIA
GUIDRY, INDIVIDUALLY, AND ON BEHALF OF, RALPH GUIDRY (D) Todd
A. Townsley Jordan Z. Taylor.
COUNSEL FOR DEFENDANT/APPELLEE, M. KALEEM ARSHAD, M.D. AND
KOA D. TRAN, M.D. Deborah I. Schroeder.
COUNSEL FOR DEFENDANT/APPELLEE, OCEANS BEHAVIORAL HOSPITAL OF
GREATER NEW ORLEANS, LLC Sidney W. Degan, III Richard C.
Badeaux Maryann G. Hoskins.
composed of Judges Robert M. Murphy, Stephen J. Windhorst,
and Hans J. Liljeberg.
M. MURPHY JUDGE.
have appealed the trial court's judgment granting the
defendants' exceptions of prescription regarding their
claim for wrongful death in this medical malpractice case.
For the reasons that follow, we affirm the judgment of the
AND PROCEDURAL HISTORY
are the surviving wife and adult children of decedent Ralph
Guidry. Mr. Guidry, who was seventy-seven years old at the
time of his death, suffered from vascular dementia. In 2014,
he had become increasingly difficult to care for and moved
into an assisted living facility. While in that facility, he
exhibited inappropriate sexual behavior and was aggressive
with the staff and other residents. After punching a female
resident in the face, Mr. Guidry was admitted to Oceans
Behavioral Hospital of Gretna ("Oceans") on October
19, 2014. While in Oceans, he was under the care of Dr.
Kaleem Arshad and Dr. Koa Tran. He was placed on various
psychotropic medications in an attempt to decrease his
aggressiveness and inappropriate behavior. During the early
morning hours of November 4, 2014, Mr. Guidry was found on
the floor of his room. He was assisted to the bathroom to be
cleaned. While in the bathroom, he became unresponsive.
Despite aggressive attempts at resuscitation, Mr. Guidry
autopsy dated November 5, 2014 diagnosed Mr.
Guidry with bilateral pulmonary emboli with deep vein
thrombosis. Mr. Guidry's death certificate, which was
issued on February 9, 2015, listed Mr. Guidry's cause of
death as "bilateral pulmonary emboli with deep leg vein
October 22, 2015, well within one year of decedent's
death, plaintiffs filed a claim with the Division of
Administration against Oceans and Drs. Arshad and Tran,
requesting that a Medical Review Panel be formed to review
the care rendered to Mr. Guidry. The claim alleged that the
dates of medical malpractice were from October 19, 2014
through November 4, 2014. The claim alleged that
interventions were not implemented to reduce the risk of fall
for Mr. Guidry and that he had suffered more than one fall
and was injured. The claim alleged that Mr. Guidry was
administered medications that were ordered by Drs. Arshad and
Tran and that Mr. Guidry was sedated and physically
restrained in a Geri-chair. The claim further alleged:
"Mr. Guidry's confinement coupled with the chemical
rendered him immobile and at increased risk for a venous
thrombus embolus. Mr. Guidry's venous thrombus embolus
risk was not properly identified nor were any interventions
prescribed to reduce the risk of venous thrombus
embolus." The claim additionally alleged: "As a
result of the breaches in the standard of care by defendants,
Ralph Guidry fell and became injured and was subsequently
locked into a chair and given significant doses of sedating
medications causing him to develop a venous thrombus and
embolus that progressed to a Pulmonary Embolus." The
claim stated that as a result of the improper treatment, Mr.
Guidry suffered emotional distress, anxiety, loss of
enjoyment of life, scarring, medical expenses, and premature
death. The claim stated that defendants are liable to
plaintiffs for the loss of consortium of their spouse and
father and for mental anguish and anxiety experienced as a
result of Mr. Guidry's unexpected death.
certified letter dated October 28, 2015, the Medical
Malpractice Compliance Director of the Division of
Administration informed plaintiffs' attorney that
pursuant to La. R.S. 40:1231.8(A)(1)(c) "a filing fee of
$100 per qualified defendant must be received by the
Patient's Compensation Fund within 45 days of the
postmark of this notice without exception." The letter
went on to state: "Please remit full payment to the
Patient's Compensation Fund in the amount of
$300.00." The letter further stated that the fee may
only be waived upon receipt of an affidavit from a physician
or a district Court's in forma pauperis ruling.
Finally, the letter stated: "Failure to comply shall
render the request invalid and without effect and shall not
suspend the time within which suit must be instituted."
By certified letter dated December 18, 2015, the Medical
Malpractice Compliance Director of the Division of
Administration informed plaintiffs' attorney that it had
not received the filing fee, that he had failed to comply
within the time allowed, and that the claim previously filed
was invalid and without effect.
December 22, 2015, more than one year after the
decedent's death, plaintiffs filed a claim with the
Division of Administration against Oceans and Drs. Arshad and
Tran, requesting that a Medical Review Panel be formed to
review the care rendered to Mr. Guidry. In this claim,
plaintiffs state that after reviewing the autopsy, Mrs.
Guidry believed that Mr. Guidry died of natural causes. The
claim explains that a few weeks after Mr. Guidry's death,
Mrs. Guidry obtained an incomplete copy of Mr. Guidry's
medical record from Oceans and arranged for this record to be
reviewed by a nurse. The nurse informed her that the record
was incomplete. A certified complete copy of the records was
received on June 22, 2015. The claim states that Mrs. Guidry
met with her attorney and the nurse on August 25, 2015 when
she was informed for the first time that Mr. Guidry's
death "was due to improper medical treatment and that
his death was not a natural progression of Alzheimer's
disease." The same allegations made in the October 22,
2015 claim regarding improper treatment by Oceans and Drs.
Arshad and Tran are repeated in this claim. This claim
alleged that the defendants are liable for the survival claim
of Mr. Guidry and the wrongful death claims of the
5, 2016, a Petition to Institute Discovery was filed in the
24thJudicial District Court by Drs. Arshad and
Tran requesting that this matter be allotted to facilitate
the provisions of the medical review panel proceeding. This
request was granted. On that same date, Dr. Arshad and Tran
filed an Exception of Prescription stating that the October
19, 2015 claim was without effect and that the December 22,
2015 claim was prescribed on its face since it was filed more
than a year after Mr. Guidry's death. On June 27, 2015,
Oceans filed an Exception of Prescription arguing that
despite constructive knowledge, plaintiffs did not file their
claim within one year of the alleged malpractice and the
claim should be dismissed.
opposed the exceptions of prescriptions, arguing that Mrs.
Guidry did not suspect malpractice until a nurse deciphered
the medical records. Plaintiffs contend that prescription did
not begin to run until the date of discovery of the
malpractice. Plaintiffs contend that because the claim was
filed within one year of the date of discovery of the
malpractice, the claim filed on December 22, 2015 was not
a hearing on the motions, the trial court overruled the
exceptions of prescription with respect to the survival
claim. The trial judge asked for further memoranda on the
issue of whether the wrongful death claims were barred by the
one-year prescriptive period starting from the date of Mr.
Guidry's death. The trial judge then rendered judgment
sustaining the exceptions of prescription regarding the
wrongful death claims. Plaintiffs seek review of the judgment
sustaining the exceptions of prescription with respect to the
wrongful death claims.
is a peremptory exception which is provided for in Louisiana
Code Civil Procedure article 927. Evidence may be introduced
in support of or contravention of the exception if the
grounds are not apparent from the petition. La. C. C.P. art.
931. When evidence is introduced at the hearing on the
exception of prescription, an appellate court reviews the
ruling on the exception under the manifest error standard of
review. London Towne Condo. Homeowner's Ass'n v.
London Towne Co., 06-401 (La.10/17/06), 939 So.2d 1227,
1231. When no evidence is introduced, the appellate court
"simply determines whether the trial court's finding
was legally correct." Dugas v. Bayou Teche Water
Works, 10-1211 (La.App. 3 Cir. 4/6/11), 61 So.3d 826,
830. Generally, the burden of proof lies on the party