Appeal from the 19th Judicial District Court In and for the
Parish of East Baton Rouge State of Louisiana Trial Court No.
644, 353 Honorable Timothy E. Kelley, Judge Presiding
K. Breaud Timothy W. Basden Lafayette, LA Attorneys for
Defendant-Appellee, Stephen M. Breaud, M.D.
Adams Baton Rouge, LA Attorney for Plaintiffs-Appellants,
Milton Lee Harris and Lisa Harris
BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
medical malpractice case, plaintiffs, Mr. Milton Lee Harris
and Mrs. Lisa Harris, appeal the trial court judgment
granting defendant's, Dr. Stephen M. Breaud, declinatory
exception raising the objection of lis pendens and
peremptory exception raising the objection of prescription.
AND PROCEDURAL HISTORY
February 2009, Mr. Harris was evaluated by his
ophthalmologist, Dr. Breaud, for difficulties he was
experiencing with his vision. In an effort to improve Mr.
Harris's vision, Dr. Breaud performed a number of
procedures on Mr. Harris's eyes including: a laser
procedure on Mr. Harris' left eye on May 11, 2009; a
surgical vitrectomy on May 28, 2009; a surgical vitrectomy on
December 29, 2009; a laser procedure on Mr. Harris's left
eye on April 20, 2010; and a laser procedure to Mr.
Harris's retina on October 25, 2010. After Mr. Breaud
completed the December 29, 2009 vitrectomy, Mr. Harris went
into cardiac arrest which resulted in hospitalization in the
intensive care unit.
on December 15, 2010, Mr. Harris, through his attorney,
requested the formation of a Medical Review Panel (MRP)
pursuant to the provisions of the Louisiana Medical
Malpractice Act to evaluate his claim arising out of the
treatment he was provided on December 29, 2009, by Dr. Breaud
as well as the anesthesiologist, Dr. James Sharpless, and the
nurse anesthetist, Ms. Amanda Meckes. In the request, Mr.
Harris stated that "as a result of [defendants'
negligent and careless treatment and monitoring of Mr.
Harris, he was inflicted with cardiac arrest, which resulted
in intensive care hospitalization, continued treatment of the
vitreous hemorrhage to the left eye, and further cardiac
instability." After reviewing the submissions of the
parties, the MRP issued its opinion finding no evidence that
Dr. Breaud failed to meet the applicable standard of care and
pointed out that the record indicated subsequent improvements
of vision and resolution of the vitreous hemorrhage, that
indicated Mr. Harris suffered no negative effects from Dr.
December 3, 2012, Mr. Harris and his wife, Lisa Harris, filed
suit in section D of the 19th Judicial District Court,
assigned as case number 617, 420, alleging Dr. Breaud
breached the applicable standard of care in failing to
conduct a proper examination, failing to order appropriate
testing, performing unnecessary laser surgeries, failing to
perform laser surgery in an appropriate fashion, failing to
perform vitrectomies in an appropriate medically acceptable
fashion, failing to render appropriate follow-up treatment,
and such other acts/and or omissions as were presented before
the MRP. According to the Harrises' petition Dr.
Breaud's negligence resulted in Mr. Harris experiencing a
loss of vision, physical and mental pain, physical
impairment, and loss of enjoyment of life. The Harrises'
petition pointed specifically to the procedures performed by
Dr. Breaud on May 11 and 28, 2009, December 29, 2009, April
20, 2010, and October 25, 2010.
Harrises' petition was met with an exception of
prematurity filed by Dr. Breaud on all claims other than the
claims related to the December 29, 2009 procedure, because
the other procedures were not raised before a MRP as required
by La. R.S. 40:1231.8(B)(1)(a)(i). The Harrises acknowledged
that the claims related to all procedures other than the
December 29, 2009 procedure were premature and signed a
stipulated judgment on the exception of prematurity
dismissing all of their claims "referable to any care
rendered by [Dr. Breaud] to [Mr. Harris] on any date other
than December 29, 2009." The stipulated judgment
acknowledged that "the claim for breach of the standard
of care on December 29, 2009, previously submitted for review
by a duly convened [MRP] [was] not subject to this
15, 2013, Mr. Harris filed a second request with the Division
of Administration, for invocation of an MRP seeking review by
the MRP of the procedures performed by Dr. Breaud on May 11
and 28, 2009, December 29, 2009, April 20, 2010, and October
25, 2010, alleging that the treatment Dr. Breaud provided to
Mr. Harris "was of continuing nature and had a
cumulative effect." The second request for an MRP
expired without an opinion by operation of law on or about
September 12, 2015.
on December 8, 2015, the Harrises filed a second suit, the
present petition for damages, (19th Judicial District Court
Section 22 case number 644, 353) pointing out the same
procedures performed by Dr. Breaud as discussed in their
petition filed under case number 617, 420, including the
vitrectomy performed on December 29, 2009. In response, Dr.
Breaud filed a declinatory exception of lis pendens
contending that the procedure performed on December 29, 2009,
is the same procedure for which a claim was made and not
dismissed in the case pending under docket number 617, 420.
Thus, because there are two suits pending on the same
transaction and occurrence and between the same parties, Dr.
Breaud maintained that the current suit should be dismissed
in accordance with La. Code Civ. P. art. 531. Dr. Breaud also
filed a peremptory exception of prescription on the remaining
claims asserted by the Harrises, contending that all acts
complained of in the second MRP request occurred more than
one year prior to the filing of that request, on May 15,
2013, and all but the October procedure occurred more than
three years prior to the invocation of the MRP. The lis
pendens and prescription exceptions came before the
trial court on October 24, 2016, wherein the trial court
heard arguments of counsel, but no evidence was offered or
received. After the hearing, both exceptions were granted in
favor of Dr. Breaud.
trial court signed two separate judgments: one granting Dr.
Breaud's lis pendens exception and the other
granting Dr. Breaud's prescription exception. As each
judgment was a partial judgment lacking the proper decretal
language, and neither was designated as final judgment by the
trial court, this court issued an order to the parties to
show cause why the appeal should not be dismissed and
remanded for the limited purpose of allowing the trial court
to sign a judgment addressing the noted defects. In response,
the trial court signed a new single judgment on August 2,
2017, that granted both the exception of prescription as well
as the exception of lis pendens and decreed that
because the present judgment dismissed all claims asserted by
the Harrises and left no claim or issue unresolved, the
judgment constituted a final judgment. In response, this
court maintained the Harrises' appeal, but reserved a
final determination as to whether this appeal was to be
maintained to this panel, the panel assigned the appeal. As
the issues in both appeals were included in a single
judgment, we maintain the appeal and address both appeals in
this opinion. In their appeals, the Harrises ...