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In re Guidry

Court of Appeals of Louisiana, Fifth Circuit

August 30, 2017

IN RE: RALPH GUIDRY (D)

         ON 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.

          Panel composed of Judges Robert M. Murphy, Stephen J. Windhorst, and Hans J. Liljeberg.

         AFFIRMED

         RMM

         SJW

         DISSENTS WITH REASONS

         HJL

          ROBERT M. MURPHY JUDGE.

         Plaintiffs 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 trial court.

         FACTS AND PROCEDURAL HISTORY

         Plaintiffs 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 died.

         An autopsy[1] 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 thrombosis."

         On 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.

         In a 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.

         On 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 plaintiffs.

         On May 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.

         Plaintiffs 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 untimely.

         Following 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.[2]

         LAW AND DISCUSSION

         Prescription 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 ...


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