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In re Medical Review Panel Proceedings in Boudoin

Court of Appeals of Louisiana, Fifth Circuit

March 14, 2018

IN RE: MEDICAL REVIEW PANEL PROCEEDINGS IN THE MATTER OF MEAGAN BOUDOIN AND SHERIE BOUDOIN
v.
OCHSNER CLINIC FOUNDATION, OLAWALE SULAIMAN, M.D., ABBAS EL-SAY ED ABBAS, M.D., DONALD GAINER, M.D., MELISSA MATTE, M.D. AND CHRISTIE DEGRANGE, M.D.

         ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 740-992, DIVISION "N" HONORABLE STEPHEN D. ENRIGHT, JR., JUDGE PRESIDING

          FOR PLAINTIFF/APPELLANT, MEAGAN BOUDOIN AND SHERIE BOUDOIN DaShawn Hayes

          FOR DEFENDANT/APPELLEE, OCHSNER CLINIC FOUNDATION, ET AL Raymond P. Ward, William K. Wright, IV.

          Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Robert A. Chaisson

          ROBERT A. CHAISSON JUDGE.

         In this medical malpractice claim, plaintiffs appeal a judgment of the trial court that sustained defendants' exception of prescription. For the reasons that follow, we affirm the judgment of the trial court.

         FACTS AND PROCEDURAL HISTORY

         On January 2, 2014, pursuant to the provisions of La. R.S. 40:1299.41 et seq., Meagan Boudoin[1] and Sherie Boudoin filed a Petition for Medical Review Panel with the Division of Administration, alleging damages as the result of various acts of medical negligence by defendants. In the petition, Meagan Boudoin brought a claim for medical malpractice for injuries that she sustained as a result of alleged negligent medical treatment that she received as a patient of defendants.[2] Also in the petition, Meagan's mother, Sherie Boudoin, brought a wrongful death claim against defendants based upon the same alleged acts of medical negligence. The petition alleges that the medical negligence occurred during surgeries that Meagan underwent on January 5 and 6, 2011, which ultimately resulted in her death on January 6, 2011. The petition further alleges that Sherie Boudoin did not become aware that Meagan's death was the result of the surgical procedures and anesthesia until February 4, 2013.

         In response to the Boudoins' petition, on August 6, 2014, defendants filed a Petition to Allot A Case Number and a Peremptory Exception of Prescription in the 24th Judicial District Court. This initial exception of prescription, which was filed based upon the facts as alleged in the Boudoins' petition, was overruled by the trial court. Subsequently, defendants took the deposition of Sherie Boudoin and thereafter filed a second exception of prescription relying upon the responses of

          Ms. Boudoin in her deposition. On February 13, 2017, the trial court sustained defendants' second exception of prescription. The Boudoins now appeal that judgment, arguing that it was error for the trial court to consider defendants' second exception of prescription when no new evidence was presented on the second exception, and further that the trial court erred in its application of the substantive law of prescription in sustaining the exception.

         DISCUSSION

         The Boudoins, contending that defendants have presented no new evidence in support of their re-urged exception of prescription, argue that the law of the case doctrine precludes the trial court from considering the re-urged exception.

La. C.C.P. art. 928(B) provides:
The peremptory exception may be pleaded at any stage of the proceeding in the trial court prior to a submission of the case for a decision and may be filed with the declinatory ...

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