IN RE: MEDICAL REVIEW PANEL PROCEEDINGS OF ETHEL MAE GLOVER
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.
composed of Judges Susan M. Chehardy, Fredericka Homberg
Wicker, and Hans J. Liljeberg.
J. LILJEBERG JUDGE.
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
AND PROCEDURAL HISTORY
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.
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."
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. 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
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.
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. 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
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
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
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.
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.
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
time plaintiffs' requests for a medical review panel were
filed, La. R.S. 40:1231.8(A)(1)(c) provided: 
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.)
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.
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"