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In re Medical Review Panel Proceedings of Glover

Court of Appeals of Louisiana, Fifth Circuit

October 25, 2017

IN RE: MEDICAL REVIEW PANEL PROCEEDINGS OF ETHEL MAE GLOVER

         ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 764-120, DIVISION "G" HONORABLE E. ADRIAN ADAMS, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLANT, BRENDA LINDSEY, SYLVIA DAVIS, JOYCELYN JOSEPH AND SHELIA GLOVER, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF ETHEL MAE GLOVER Sidney D. Torres, III Roberta L. Burns Beau F. Camel.

          COUNSEL FOR DEFENDANT/APPELLEE, OCHSNER CLINIC FOUNDATION, DR. ERICA DIGGS, DR. SHAHRZAD TALEBI-NEJAD, DR. IFEANYI IWUKCHUKWU AND DR. JOSHUA GOLDBERG Shelly S. Howat William K. Wright, IV.

          Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Hans J. Liljeberg.

          HANS J. LILJEBERG JUDGE.

         In this medical malpractice case, plaintiffs, Brenda Lindsey, Sylvia Davis, Jocelyn Joseph, and Shelia Glover, individually and on behalf of the Estate of Ethel Mae Glover, appeal the trial court judgments granting the exceptions of prescription filed by defendants and dismissing plaintiffs' claims against them. For the following reasons, we reverse and remand for further proceedings.

         FACTS AND PROCEDURAL HISTORY

         On March 9, 2015, Ethel Mae Glover was admitted to Tulane Medical Center, where she was diagnosed with having suffered a stroke. On March 17, 2015, at the request of Ms. Glover's family, she was transferred to Ochsner Foundation Hospital ("Ochsner") for "ongoing stroke management" and treatment. While at Ochsner, Dr. Iwuchukwu, who was known to the Glover family as "Dr. Obie" and/or "Dr. Arden, " was Ms. Glover's attending physician and oversaw her treatment.

         Plaintiffs contend that Ms. Glover had several issues during her treatment at Ochsner. According to plaintiffs, although Ms. Glover's chart indicated that she was allergic to iodine and iodide-containing products, she underwent a CT scan with iodine contrast of the abdomen and pelvis and suffered an allergic reaction. They also contend that there were problems with the proper placement of an NGT (nasogastric tube), and she also suffered a pseudomonas urinary tract infection ("UTI") ultimately causing septic shock. Ms. Glover underwent surgery for placement of a PEG (percutaneous endoscopic gastronomy) tube on April 1, 2015. According to plaintiffs, they expressed concerns with their mother's treatment to Dr. Iwuchukwu and he assured them that the problems were "under control."

         Ms. Glover passed away on April 12, 2015. Her death certificate listed the causes of death as follows: a) septic shock, b) UTI, c) acute respiratory failure, and d) CVA.[1] Due to their concerns about Ms. Glover's treatment while at Ochsner, the Glover family arranged for a private autopsy, which was performed on April 14, 2015. The autopsy report, which was provided to the Glover family on or about June 17, 2015, revealed that the primary cause of death was chemical peritonitis. The report further indicated that the "cerebral infarct contributed to her death secondary to the decedent requiring a gastric tube which subsequently became dislodged and contributed to" the chemical peritonitis.

         On behalf of the Glover family, Brenda Lindsey, one of Ms. Glover's daughters, filed a pro se request for a medical review panel, alleging malpractice by Ochsner and "Dr. Obie" or "Dr. Arden." This request was dated April 8, 2016 and was sent via facsimile to the Louisiana Division of Administration ("DOA") on April 11, 2016, which was one day before the year anniversary of Ms. Glover's death. On April 15, 2016, the Patient's Compensation Fund ("PCF") sent a letter to Ms. Lindsey acknowledging receipt of the complaint requesting a medical review panel, advising that Ochsner was a qualified health care provider, indicating that she would have to provide the complete name of Dr. Obie and/or Dr. Arden within 45 days of the postmark of the notice, and advising that a filing fee of $100 per qualified defendant must be received by the PCF within 45 days of the postmark, "in accordance with R.S. 40:1231.8(A)(1)(c)." The letter further provided that if the PCF did not receive the filing fee within 45 days of the postmark of the letter, the request for a medical review panel would be rendered "invalid and without effect." Because the PCF's letter was postmarked April 15, 2016, the 45-day period ended on May 31, 2016.

         The Glover family subsequently retained counsel, and on May 27, 2016, they filed via facsimile a "First Supplemental and Amending Complaint and Request for Medical Review, " identifying "Dr. Obie" as Dr. Ifeanyi Iwuchukwu and naming additional health care providers as defendants, namely Dr. Erica Diggs, Dr. Joshua Goldberg, and Dr. Shahrzad Talebi-Nejad. A copy of a check for $500 was included with the facsimile.[2] In addition, the original of the First Supplemental and Amending Complaint and the check for $500 were mailed via certified mail on May 27, 2016. The Division of Administration received the check and the original of the "First Supplemental and Amending Complaint" on June 2, 2016.

         Also on June 2, 2016, the PCF sent Ms. Lindsey a letter stating that her April of 2016 request for a medical review panel was "invalid and without effect, " because the PCF did not receive the filing fees within the time allowed by law and plaintiffs failed to timely identify the complete name of Dr. Obie and/or Dr. Arden. Thereafter, on June 8, the PCF sent a letter to counsel for the Glovers, acknowledging that it received the May 27, 2016 request for a medical review panel and $500 in filing fees on June 3, 2016, confirming that all five defendants were qualified health care providers, and assigning a new file number to the amended complaint.

         On August 24, 2016, all of the defendants, except Dr. Goldberg, filed a peremptory exception of prescription in the 24th Judicial District Court, requesting that the medical review panel proceedings based on the May 27, 2016 amended complaint and all medical malpractice claims against these defendants be dismissed as untimely. They argued that the initial request for a medical review panel filed on April 11, 2016, was rendered invalid for failure to timely pay the required filing fees and thus, it did not suspend the time within which plaintiffs had to file their complaint. They assert that without suspension of the time limitations, plaintiffs' "supplemental" request for a medical review panel filed on March 27, 2016 was untimely. After a hearing, the trial court rendered a judgment on November 22, 2016, granting defendants' exception of prescription.[3]

         On December 13, 2016, Dr. Goldberg filed an exception of prescription, alleging that the claims against him were untimely for the same reasons alleged by the other defendants. After a hearing, the trial court rendered a judgment on January 9, 2017, granting the exception of prescription and dismissing the claims against Dr. Goldberg with prejudice. Plaintiffs now appeal the trial court judgments granting the exceptions of prescription and dismissing the claims against all defendants.

         LAW AND DISCUSSION

         On appeal, plaintiffs argue that the trial court erred by granting defendants' exceptions of prescription, and they set forth several arguments in support of their position. First, plaintiffs contend that their original request for a medical review panel filed on April 11, 2016 should not have been rendered invalid and without effect, because the filing fee was timely paid by sending a check via certified mail within 45 days of the postmark of the PCF's April 15, 2016 letter. Thus, since the April 11, 2016 request was valid, it suspended the running of prescription against all joint and solidary obligors, and the supplemental request for a medical review panel filed via facsimile and certified mail on May 27, 2016 was timely.

         Defendants respond that pursuant to the PCF's April 15, 2016 letter and La. R.S. 40:1231.8(A)(1)(c), the filing fee of $100 per qualified defendant must be received by the PCF within 45 days of the postmark of the PCF notice. Defendants assert that plaintiffs' payment of the filing fees was untimely, where the check for the fees was mailed within 45 days of date of the PCF letter, but not received until after this 45-day period.

         At the time plaintiffs' requests for a medical review panel were filed, La. R.S. 40:1231.8(A)(1)(c) provided: [4]

A claimant shall have forty-five days from the mailing date of the confirmation of receipt of the request for review… to pay to the board a filing fee in the amount of one hundred dollars per named defendant qualified under this Part. (Emphasis added.)

         La. R.S. 40:1231.8(e) provided that failure to timely pay the required filing fee of $100 per qualified defendants "shall render the request for review of a malpractice claim invalid and without effect, " and the invalid request shall not suspend the time within which the malpractice suit must be instituted.

         La. R.S. 40:1231.8(A)(1)(c) did not specify whether a payment mailed by certified mail within the time limitations was sufficient to comply with the requirement "to pay, " or whether the payment had to be received within the 45-day period. Interpretation of the term "to pay" is ...


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