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Harris v. Breaud

Court of Appeals of Louisiana, First Circuit

February 27, 2018


         On 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

          Alan K. Breaud Timothy W. Basden Lafayette, LA Attorneys for Defendant-Appellee, Stephen M. Breaud, M.D.

          Steve Adams Baton Rouge, LA Attorney for Plaintiffs-Appellants, Milton Lee Harris and Lisa Harris


          HIGGINBOTHAM, J.

         In this 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.


         In 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.

         Thereafter, 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. Breaud's actions.

         On 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.

         The 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).[1] 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 dismissal."

         On May 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.[2]

         Thereafter, 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.

         The 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 ...

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