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In re Medical Review Panel Proceedings of Rita Foster (D)

Court of Appeals of Louisiana, Fifth Circuit

March 28, 2018

IN RE: MEDICAL REVIEW PANEL PROCEEDINGS OF RITA FOSTER (D)

          ON 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

          Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Robert A. Chaisson

          FREDERICKA HOMBERG WICKER JUDGE

         In this 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.

         FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         Rita 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 10, 2012.

         When 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.

         In the 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 scan.

         In 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 favorable outcome.

         On 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."

         On May 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 ...


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