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In re Medical Review Panel Proceedings for Claim of Alonso

Court of Appeals of Louisiana, Fifth Circuit

December 13, 2017

IN RE: MEDICAL REVIEW PANEL PROCEEDINGS FOR THE CLAIM OF HECTOR L. ALONSO

         ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 764-555, DIVISION "D" HONORABLE SCOTT U.SCHLEGEL, JUDGE PRESIDING

          PLAINTIFF/APPELLANT, HECTOR L. ALONSO AND MARIA D. ALONSO Hector L. Alonso In Proper Person

          FOR DEFENDANT/APPELLEE, D'CHEL CLARK THIBODE, RN AND MICHELLE KRAJCE, RN Peter E. Sperling James P. Waldron

          FOR DEFENDANT/APPELLEE, KIMBERLY BURKE, CRNA C. William Bradley, Jr. Benjamin J. Biller

          Panel composed of Judges Marc E. Johnson, Robert M. Murphy, and Hans J. Liljeberg

          ROBERT M. MURPHY JUDGE

         Hector Alonso, in proper person, appeals the trial court's November 7, 2016, judgment sustaining the peremptory exceptions of prescription filed by defendants, D'Chel Clark Thibode, R.N., Michelle Krajce, R.N., and Kimberly C. Burke, CRNA, and dismissing, with prejudice, Mr. Alonso's medical malpractice complaint filed with the Louisiana Patient's Compensation Fund. For the following reasons, we find that defendants' exceptions were properly sustained and affirm the trial court's judgment.

         FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         On July 14, 2016, Mr. Alonso filed a request for medical review panel with the Louisiana Patient's Compensation Fund (hereinafter "LPCF") alleging that defendants committed medical malpractice during his April 29, 2011 cataract surgery performed by Dr. Shehab Ebrahim at Tulane-Lakeside Hospital.[1] In his panel request, Mr. Alonso averred that he awoke from anesthesia during surgery in excruciating pain and implored the medical staff to stop the surgery to no avail. According to Mr. Alonso, he was forcefully held down, tape was placed over his mouth restricting his ability to breathe, and the surgery continued. He claimed that defendants herein held him down and fought him, causing one of his teeth to dislodge, which he apparently swallowed. When surgery was completed, Mr. Alonso claimed he was taken to radiology for X-rays from which it was later confirmed that the dislodged tooth had settled in his stomach. Mr. Alonso alleged that defendants failed to properly treat him, to use proper procedures, to take adequate measures to insure his safety, restricted his liberty, and committed an assault and battery upon his person.

         In response to Mr. Alonso's request for medical review panel, on September 8, 2016 defendants, Nurse Thibode and Nurse Krajce, filed a petition to institute discovery in the medical review panel proceeding. See La. R.S. 40:1299.47. Shortly thereafter, Nurse Thibode and Nurse Krajce filed an exception of prescription in the medical review panel discovery suit seeking dismissal of the medical review panel proceedings on the basis that, pursuant to the time periods set forth by La. R.S. 9:5628(A), Mr. Alonso's July 14, 2016 panel request, filed more than one year after the alleged acts of malpractice, was prescribed on its face.[2]Defendant, CRNA Burke, filed an identical exception in the same proceeding. In support of their respective exceptions, defendants attached two exhibits: (1) a copy of Mr. Alonso's July 14, 2016 complaint with the LPCF made the subject of the instant appeal, and (2) the prior January 21, 2016 judgment rendered in Mr. Alonso's medical malpractice action against Tulane-Lakeside and Dr. Ebrahim. In opposition, Mr. Alonso submitted numerous exhibits, including letters from the LPCF confirming that each defendant is a qualified health care provider.

         Defendants' exceptions came for hearing on November 7, 2016. The exhibits attached to defendants' exceptions were submitted on the record and offered into evidence. Mr. Alonso, appearing in proper person, submitted evidence establishing defendants as qualified health care providers, and introduced an October 7, 2016 letter directed to Mr. John Tarlton Olivier, Clerk of Louisiana Supreme Court, from Susan Gremillion, Medical Malpractice Compliance Director for the LPCF, advising that the parties had not been able to agree on the selection of a chairman for the panel and requesting that a list of attorney names be submitted to the LPCF in order that the selection process could timely be completed. Mr. Alonso submitted no further evidence.

         At the close of the hearing, the trial judge issued an oral ruling sustaining defendants' exceptions stating the following, in pertinent part:

Pursuant to Louisiana Revised Statute 9:5628(A), [the] prescriptive period for medical malpractice is within one year from the date of the discovery, but no greater than three years from the date of the event, alleged act, omission and neglect.
Pursuant to the exhibits offered by all parties, the Court considering the Louisiana Compensation Fund's letters, the date of the alleged offense was . . . April 29, 2011. The ...

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