IN RE: MEDICAL REVIEW PANEL PROCEEDINGS OF RITA FOSTER (D)
APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 772-530, DIVISION
"P" HONORABLE LEE V. FAULKNER, JR., JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLANT, JODY M. TAYLOR, GWENDOLYN F.
BOURGEOIS AND DONALD L. FOSTER, INDIVIDUALLY AND ON BEHALF OF
THE ESTATE OF RITA FOSTER Bobby R. Lormand, Jr.
COUNSEL FOR DEFENDANT/APPELLEE, CHARLES O. OLISA, M.D. AND
SMITA S. PECHITTY, M.D. C. William Bradley, Jr.
Benjamin J. Biller COUNSEL FOR DEFENDANT/APPELLEE, SMITA
PECHITTY, MD Thomas C. Cowan Philip E. Reso
composed of Judges Fredericka Homberg Wicker, Jude G.
Gravois, and Robert A. Chaisson
FREDERICKA HOMBERG WICKER JUDGE
medical malpractice action, plaintiffs, Jody Taylor,
Gwendolyn Bourgeois, and Donald Foster, individually, and on
behalf of their deceased mother, Rita Foster, appeal the
trial court's August 15, 2017 judgment sustaining an
exception of prescription in favor of defendants, Charles O.
Olisa, M.D. and Smita S. Pechitty, M.D., and dismissing, with
prejudice, only those claims plaintiffs made against
them for survival damages. Because we find the judgment at
issue is not a final, appealable judgment, we dismiss the
appeal for lack of jurisdiction.
BACKGROUND AND PROCEDURAL HISTORY
Foster was hospitalized at Ochsner Medical Center Baton Rouge
in August 2012, during which time defendant, Dr. Olisa,
ordered a CT scan of her chest. The radiologist's report
for the CT scan identified a "2 cm, irregular spiculated
appearing opacity in the right apex" of the lung, and
recommended that Ms. Foster undergo a follow-up CT scan in
three to six months. According to plaintiffs, Dr. Olisa
failed to report the radiologist's findings in any of his
daily progress notes and failed to document the
radiologist's recommendation of a follow-up chest CT scan
anywhere in Ms. Foster's medical records. Plaintiffs aver
that Dr. Olisa's omission contributed to the failure of
subsequent health care providers within the Ochsner Health
System to obtain the recommended follow-up CT scan of Ms.
Foster's chest. The record reflects that Dr. Olisa did
not provide any further treatment to Ms. Foster after August
Ms. Foster was discharged from Ochsner Medical Center Baton
Rouge in September 2012, defendant, Dr. Pechitty, prepared
her discharge summary, which was silent with regard to the CT
scan of Ms. Foster's chest and the radiologist's
findings. Plaintiffs aver that Dr. Pechitty's failure to
document the radiologist's findings or recommendations in
his discharge summary and/or instructions contributed to the
failure of subsequent health care providers within the
Ochsner Health System to obtain the recommended follow-up CT
scan of Ms. Foster's chest. The record indicates that Dr.
Pechitty's last treatment or evaluation of Ms. Foster
occurred on September 5, 2012.
ensuing days and years following her discharge from Ochsner
Medical Center Baton Rouge through the date of her death on
May 30, 2016, Ms. Foster was treated for various conditions
by other physicians and health care providers within (and
without) the Ochsner Health System. Plaintiffs aver that the
breakdown in communication among and between the Ochsner
Health System's employee-physicians, due to either the
lack of implementing policies and/or procedures by the
Ochsner Health System or its employee-physicians' refusal
to comply with them, resulted in their collective failure to
order the recommended follow-up CT scan of Ms. Foster's
chest during 2013, 2014, or 2015, and in their failure to
inform Ms. Foster or her family of the need for a repeat CT
February 2016, due to progressing respiratory symptoms, Ms.
Foster was evaluated by a pulmonologist and underwent a CT
scan of her chest, which revealed a mass in her right lung
and several nodules in the lobes of both lungs. Thereafter,
Ms. Foster was treated by an oncologist, who explained to her
and her daughter that, in his opinion, the CT scan indicated
that Ms. Foster had metastatic lung cancer with lymph node
involvement and a lesion in the T-9 thoracic vertebra.
According to plaintiffs, this was the first time that Ms.
Foster and/or her family had been advised of the "2 cm
spiculated opacity" that was identified on Ms.
Foster's initial August 2012 CT scan, which the
oncologist purportedly opined represented "the primary
source of the lung cancer that was found in the 2016 CT
scan." Ms. Foster died approximately three months later
on May 30, 2016. Plaintiffs aver that had Ms. Foster
undergone the repeat CT scan of her chest between November
2012 and February 2013 as recommended by the radiologist in
August 2012, she would have been diagnosed with cancer sooner
and possibly would have had the opportunity for a more
February 1, 2017, plaintiffs filed a complaint with the
Commissioner of the Louisiana Division of Administration to
convene a medical review panel to investigate whether
"Ochsner Clinic Foundation, the Ochsner Health System,
including its corporate components, Ochsner Health System,
Inc., the Ochsner Clinic, LLC, and the East Baton Rouge
Medical Center, LLC d/b/a Ochsner Medical Center Baton Rouge,
and its employees and members of its Ochsner physician
network, " including Drs. Olisa and Pechitty,
"breached the standard of care when providing patient
care services to Ms. Foster between August 10, 2012 and her
death on May 30, 2016."
25, 2017, Drs. Olisa and Pechitty alone filed a petition to
institute discovery. On that same day, in response to
plaintiffs' request to convene a panel, Drs. Olisa and
Pechitty filed a limited exception of prescription alleging
that, as to them, the survival action had prescribed under
the three-year limitation period set forth in La. R.S.
9:5628. Drs. Olisa and Pechitty only sought
dismissal of those claims brought against them on behalf of
Ms. Foster for the survival damages she allegedly suffered
during her lifetime as a result of their alleged malpractice.
Of significance is the fact that Drs. Olisa and Pechitty did
not move for a dismissal of any claims plaintiffs may have
against them for the wrongful ...