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Williams v. Williams

Court of Appeals of Louisiana, Fourth Circuit

November 29, 2017

ZERIKA WILLIAMS
v.
CALVIN E. WILLIAMS, M.D. AND CHERYL H. WILLIAMS, M.D.

         APPLICATION FOR WRITS DIRECTED TO CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2015-08465, DIVISION "I-14" Honorable Piper D. Griffin, Judge

          Warren A. "Chip" Forstall, Jr. M. Suzanne Montero C. Faye COUNSEL FOR PLAINTIFF/RELATOR

          Karen M. Dicke LEWIS, BRISBOIS, BISGAARD & SMITH, LLP COUNSEL FOR DEFENDANT/RESPONDENT, DR. CHERYL H. WILLIAMS

          David A. Woolridge Brent J. Bourgeois Charles M. Pisano ROEDEL, PARSONS, KOCH, BLACHE, BALHOFF & MCCOLLISTER, A L.C. COUNSEL FOR INTERVENOR, LOUISIANA PATIENT'S COMPENSATION FUND OVERSIGHT BOARD

          Court composed of Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins, and Judge Marion F. Edwards, Pro Tempore

          SANDRA CABRINA JENKINS JUDGE

          In this medical malpractice action, plaintiff Zerika Williams ("Plaintiff") seeks review of the trial court's July 17, 2017 judgment sustaining an Exception of Prematurity filed by defendant Cheryl H. Williams, M.D. ("Dr. Cheryl Williams"). For the reasons that follow, we grant the writ application, reverse the trial court's judgment, and remand this matter for further proceedings.

         BACKGROUND

         Plaintiff's medical malpractice claim arose from surgery performed by defendant Calvin E. Williams, M.D. ("Dr. Calvin Williams") on June 13, 2013, and post-operative care provided thereafter by Dr. Cheryl Williams. On June 4, 2014, Plaintiff filed a complaint for medical malpractice against the two physicians, and requested a medical review panel from the Commissioner of Administration, Patient's Compensation Fund (the "PCF").

         On June 11, 2014, the PCF sent a letter to Dr. Cheryl Williams, via certified mail, return receipt requested, stating that Plaintiff had filed a request for a medical review panel and had named her as a defendant. The certified letter was sent to Dr. Cheryl Williams at "8030 Crowder Blvd., New Orleans, Louisiana 70127, " which was her address on file with the Louisiana State Board of Medical Examiners. The letter was delivered, and the return receipt was signed by "Bridget Thompson."

         On June 26, 2014, the PCF sent another letter to Dr. Cheryl Williams, via certified mail, return receipt requested, stating that the PCF had received Plaintiff's filing fee, and advising that "an attorney chairman must be appointed within one year of filing of the claim" or the claim would be dismissed. The certified letter was sent to Dr. Cheryl Williams at the Crowder Blvd. address, was delivered, and the return receipt was again signed by "Bridget Thompson."

         On March 12, 2015, the PCF sent a letter to Dr. Cheryl Williams, via certified mail, return receipt requested, stating that the request for a medical review panel would be dismissed, pursuant to the medical malpractice statute, if the parties failed to appoint an attorney chairperson within one year from the June 4, 2014 date of the filing of the complaint (the "Nine Month Letter"). The Nine Month Letter was sent to Dr. Cheryl Williams at "775 Taylor St., Pine Prairie, LA 70576." The letter was returned to the PCF with the notation, "RETURN TO SENDER - NO SUCH NUMBER - UNABLE TO FORWARD."

         On April 28, 2015, the PCF re-sent the Nine Month Letter to Dr. Cheryl Williams via certified mail, return receipt requested, at the Crowder Blvd. address. On May 1, 2015, the U.S. Postal Service (the "USPS") attempted to deliver the Nine Month Letter to Dr. Cheryl Williams, but the USPS records noted that the "business [was] closed." According to the USPS records, as of May 21, 2015, the maximum hold time had expired, and the letter was unclaimed. On June 1, 2015, the USPS returned the Nine Month Letter to the PCF with the notation, "RETURN TO SENDER - UNCLAIMED - UNABLE TO FORWARD." The PCF took no further steps to deliver the Nine Month Letter to Dr. Cheryl Williams.

          On June 15, 2015, the PCF sent a letter by certified mail, return receipt requested, to Dr. Cheryl Williams's attorney[1], stating that Plaintiff's request for a medical review panel had been dismissed on June 4, 2015 because of the failure to appoint an attorney chairman within the one-year statutory period. The letter was delivered, and the return receipt was signed by Dr. Cheryl Williams's attorney.

         On September 2, 2015, Plaintiff filed a Petition for Damages against the two physicians in Civil District Court for the Parish of Orleans. In response, Dr. Cheryl Williams filed an Exception of Prematurity, arguing that the PCF should not have dismissed the medical review panel because Dr. Cheryl Williams never received the Nine Month Letter.

         A hearing on the exception was held on June 23, 2017. On July 17, 2017, the trial court signed a judgment sustaining the Exception of Prematurity "on the showing made, " and staying the proceedings against Dr. Cheryl Williams only. Plaintiff filed a Notice of Intention to Apply for Supervisory Writ.[2]

         DISCUSSION

         Under the Louisiana Medical Malpractice Act ("MMA"), all malpractice claims against qualified health care providers shall be reviewed by a state medical review panel, and no action may be commenced in any court before the claim has been presented to the panel. Price v. Med. Ctr. Of Louisiana at New Orleans, 08-0037, p. 5 (La.App. 4 Cir. 11/5/08), 999 So.2d 29, 32. A dilatory exception of prematurity is the proper procedural vehicle for a qualified health care provider to invoke when a medical malpractice plaintiff has failed to submit the claim for consideration by a medical review panel before filing suit against the provider. Id., 08-0037, p. 3, 999 So.2d at 31.

La. R.S. 40:1231.8 governs a claimant's initial request for a medical review panel. La. R.S. 40:1231.8(A)(2)(c) (formerly La. R.S. ...

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