Appealed from the First Judicial District Court for the
Parish of Caddo, Louisiana Trial Court No. 597, 467-A
Honorable Ramon Lafitte, Judge
SINGLETON LAW FIRM Counsel for Appellant By: W. James
Singleton Phillip Deron Washington
& PEARCE, APLC Counsel for Appellees By: Claude W.
Bookter, Jr. State of Louisiana and Christopher Atkins, M.D.
WATSON, BLANCHE, WILSON Counsel for Appellees & POSNER
Willis Knighton Medical By: Randall L. Champagne Center and
Jacquelyn M. William A. Fell Bowers, M.D.
IRION, SALLEY, CARLISLE Counsel for Appellee & GARDNER,
APLC Magnolia Manor Nursing By: Ronald E. Raney and
BROWN, WILLIAMS, MOORE, COX, and GASKINS (Ad Hoc), JJ.
GASKINS (AD HOC), JUDGE.
medical malpractice lawsuit, Philip Deron Washington appeals
a judgment granting defendants' exceptions of no right of
action and dismissing his lawsuit because he failed to timely
assert a filiation claim. Concluding that Washington timely
asserted a filiation claim, we vacate the judgment and
P. Pennywell ("Pennywell") was a resident at
Magnolia Manor Nursing Home located in Shreveport. On
February 27, 2014, Pennywell was taken to the Emergency Room
at Willis Knighton Medical Center ("WKMC") after he
was found bleeding from the mouth. Dr. Jacquelyn Bowers, the
emergency room physician, consulted with Dr. Christopher
Atkins, who extracted a deteriorated molar from
Pennywell's mouth. Pennywell was discharged to Magnolia
Manor later that day. Unfortunately, Pennywell died that
night from asphyxia due to obstruction of air passages caused
by clotted blood.
February 13, 2015, Phillip Washington Pennywell
("Washington") filed on behalf of Pennywell a
request for a Medical Review Panel against WKMC, Magnolia
Manor, and Dr. Bowers. Nowhere in the complaint did
Washington state his relationship to Pennywell. On December
9, 2015, Washington filed an amended complaint in which he
alleged for the first time that he was the child and sole
heir of Pennywell. Dr. Atkins and University
Health-Shreveport were named as additional defendants.
December 19, 2016, following the dissolution of the Medical
Review Panel, Washington, now using the name "Phillip
Deron Washington, " filed a medical malpractice lawsuit
seeking survival and wrongful death damages against Dr.
Atkins, Dr. Bowers, Magnolia Manor, Willis Knighton Medical
Center, and the State of Louisiana.
and Dr. Bowers filed the exception of no right of action.
They argued that Washington was required to prove filiation
to Pennywell by clear and convincing evidence in a civil
proceeding instituted within one year of Pennywell's
death. Attached to their memorandum in support of the
exception was Washington's birth certificate, which
listed no father. These defendants noted that the words
"filiation, " "illegitimate, " and
"acknowledgement" were not mentioned in the
petition. They added that the petition did not state that
Washington is Pennywell's illegitimate child, that he was
ever formally or informally acknowledged by Pennywell, or
that he is entitled to filiation.
Atkins and the State of Louisiana also filed the exception of
no right of action. They asserted that there were no
allegations in the petition or documents attached to the
petition that established Washington's right to sue or
qualified him as a beneficiary under La. C.C. arts. 2315.1 or
2315.2. Magnolia Manor also filed the exception of no right
of action, adopting the arguments of its codefendants.
argued in opposition to the exceptions of no right of action
that he timely raised the issue of paternity because his
December 14, 2015, amended medical complaint, which stated
that he was the child and sole heir of Pennywell, related
back to the original complaint. Washington asserted that this
meant that he had instituted a civil proceeding alleging that
he is the child and sole heir of Pennywell within one year of
Pennywell's death. Washington noted that one method of
establishing paternity is for the child to bring an action to
prove filiation under La. C.C. art. 197. He then referred to
the comments to that article, which provide that all relevant
evidence is admissible to prove paternity and that an example
of relevant evidence is an informal acknowledgement. Attached
to Washington's opposition were what he considered to be
evidence of informal acknowledgement, namely an affidavit
from decedent's sister, and the programs from the
funerals of Pennywell and Pennywell's mother. Washington
also claimed that his mother was available to testify.
considering the filiation issue, the trial court stated at
the hearing on the exceptions that the issue was whether or
not the amended complaint related back to the original
complaint that was filed within the one-year period following
Pennywell's death. The trial court subsequently granted
the exceptions of no right of action. The court considered
Ratliff v. LSU Bd. of Supervisors, 2009-0012
(La.App. 4 Cir. 5/7/10), 38 So.3d 1068, writs
denied, 2010-1312 (La. 9/24/10), 45 So.3d 1079 and
2010-1314 (La. 9/24/10), 45 So.3d 1080, where the appellate
court held that the petition for filiation clearly related
back to the supplemental and amended petition because it
arose out of the same factual situation set forth therein.
The trial court noted that if there had been some indication
in the original complaint that Washington was Pennywell's
child, then the court could reason that the amended complaint
raised a filiation complaint that related back. However,
based on the supreme court's ruling in Naghi v.
Brener,  2008-2527 (La. 6/26/09), 17 So.3d 919, the
court concluded that the amended complaint filed more than a
year after the date of Pennywell's death did not relate
back to the original complaint.
appealed the judgment granting the exceptions of no right of
action and dismissing his lawsuit.
function of an exception of no right of action is to
determine whether a plaintiff belongs to the class of persons
to whom the law grants the cause of action asserted in the
petition. La. C.C.P. art. 927; Turner v. Busby,
2003-3444 (La. 9/9/04), 883 So.2d 412. The exception of no
right of action serves to question whether the plaintiff in
the particular case is a member of the class of persons that
has a legal interest in the subject matter of the litigation.
recover under a claim for wrongful death and survival
damages, a plaintiff must fall within the class of persons
designated as a beneficiary under La. C.C. arts. 2315.1 and
2315.2. Turner v. Busby, supra. The primary
category under both wrongful death and survival actions
includes "children" of the decedent. Reese v.
State Dept. of Public Safety & Corrections,
2003-1615 (La. 2/20/04), 866 So.2d 244.
exception of no right of action presents a question of law;
therefore, a court conducts a de novo review of the
trial court's action on these exceptions. Waggoner v.