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In re Medical Review Panel of Benoit

Court of Appeals of Louisiana, Fourth Circuit

April 11, 2018


          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2015-00558, DIVISION "C-10" Honorable Sidney H. Cates, Judge



          Court composed of Judge Terri F. Love, Judge Edwin A. Lombard, Judge Paula A. Brown, Judge Tiffany G. Chase, Judge Dennis R. Bagneris, Sr., Pro Tempore

          Paula A. Brown, Judge

          This matter involves a medical malpractice action. Plaintiff/Appellant, Mariah Benoit ("Ms. Benoit"), appeals the district court's judgment which granted the exception of prescription filed on behalf of Defendants/Appellees, Leslie K. Greco, M.D. ("Dr. Greco") and Nikki Clary, PA ("PA Clary). For the reasons that follow, we reverse the judgment.


         On November 13, 2014, Ms. Benoit filed a formal complaint, pursuant to La. R.S. 40:1231.8[1] to convene a Medical Review Panel ("MRP"). [2] Ms. Benoit named Iberia Medical Center, Pediatric Group of Acadiana, Women's & Children's Hospital in Lafayette and Children's Hospital in New Orleans as defendants (the "Original Defendants"). Ms. Benoit alleged she sustained a "compression injury that developed into an open sore" when the Original Defendants placed splints/cast over her broken foot too tightly. The alleged malpractice occurred from November 27, 2013 through December 10, 2013.

         On January 21, 2015, Children's Hospital filed a petition to institute discovery in Civil District Court for the Parish of Orleans.[3] Almost a year later, on January 15, 2016, Children's Hospital filed an unopposed motion to extend the life of the MRP. The parties noted in the motion that the MRP was set to expire on February 25, 2016, panel members had not met, and discovery was still on-going. The district court granted the motion, extending the life of the MRP until February 25, 2017.

         Before the life of the MRP expired, on February 9, 2017, Ms. Benoit amended her MRP complaint to add Dr. Greco and PA Clary (collectively, "Defendants"), amongst others, as additional defendants to the pending complaint.[4]The amended complaint asserted that on November 27, 2013, Dr. Greco was the treating physician and PA Clary placed the cast on Plaintiff's leg too tightly, causing the injuries complained of. [5]

         On April 4, 2017, Defendants filed an exception of prescription, arguing that on the face of the amended complaint, Ms. Benoit failed to timely convene a MRP against them within the three year prescriptive period pursuant to La. R.S. 9:5628(A). Defendants maintained that Ms. Benoit's amended complaint, which was filed against Defendants more than three years after the date of the alleged malpractice, had prescribed and should be dismissed with prejudice.

         Ms. Benoit, relying on Borel v. Young, [6] countered that the three-year time period for filing a medical malpractice action was prescriptive, rather than preemptive. Ms. Benoit maintained that her amended complaint against Defendants had not prescribed because Defendants were jointly and solidarily liable with Original Defendants who were named in the original, timely filed MRP complaint. Ms. Benoit further argued that, pursuant to La. R.S. 40:1231.8 (A)(2)(a), because the MRP had not rendered a decision on the merits at the time the amended MRP was filed, the prescriptive period had tolled.

         After the argument of counsel, on August 4, 2017, the district court sustained Defendants' exception of prescription, reasoning that: "I think the law is clear. You've got to file [a request for a MRP], at the absolute latest, in three years." The written judgment of the district court dismissed Ms. Benoit's claims against Defendants with prejudice, and ordered the Louisiana Patient's Compensation Fund to dismiss Defendants from the pending medical review panel proceeding captioned Mariah Benoit, et al. v. Iberia Medical Center, et al., bearing file number 2014-01224.

         Thereafter, Ms. Benoit filed a timely motion for a suspensive appeal.


         Before we review the merits of Ms. Benoit's appeal, we must first address whether this case is properly before this Court. Appellate courts have a duty to determine, sua sponte, whether subject matter jurisdiction exists, even when the parties do not raise the issue. Moon v. City of New Orleans, 2015-1092, 2015-1093, p. 5 (La.App. 4 Cir. 3/16/16), 190 So.3d 422, 425. Appellate courts cannot consider the merits of an appeal unless our jurisdiction is properly invoked by a valid final judgment. Bd. of Supervisors of Louisiana State Univ. v. Mid City Holdings, L.L.C., 2014-0506, p. 2 (La.App. 4 Cir. 10/15/14), 151 So.3d 908, 910. The prerequisites of a final judgment are discussed in Tsegaye v. City of New Orleans, 2015-0676, p. 3 (La.App. 4 Cir. 12/18/15), 183 So.3d 705, 710, as follows:

For a judgment to be "a valid final judgment, " it must contain "decretal language." Mid City Holdings, L.L.C., 2014-0506, p. 2, 151 So.3d at 910. The absence of necessary decretal language means that the judgment is not final and appealable. Id., 2014-0506, p. 3, 151 So.3d at 910. Importantly, for the language of a judgment to be considered "decretal, " it "must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted or denied.

         La. C.C.P. art. 1918 provides that "[a] final judgment shall be identified as such by appropriate language." Established jurisprudence requires that a valid judgment be precise, definite and certain. Input/Output Marine v. Greatbatch Techs, Inc., 2010-0477, p. 12 (La.App. 5 Cir. 10/29/10), 52 So.3d 909, 915. "The decree alone indicates the decision. The result decreed must be spelled out in lucid, unmistakable language. The quality of definiteness is essential to a proper judgment." Input/Output Marine, 2010-0477, p. 13, 52 So.3d at 916 (footnote and internal citations omitted).

         In the present matter, the judgment lacks the requisite decretal language because it does not specifically name the party against whom the ruling is ordered. The judgment merely states that "plaintiffs' claim of malpractice against defendants is dismissed. . . . " The plaintiffs are not readily identifiable from the judgment or from the case caption of the litigation filed in the district court. The judgment also creates ambiguity in identifying the defendants in whose favor the judgment was rendered as the underlying MRP complaint involves other defendants who were not parties to this exception. In the absence of said decretal language, the August 4, 2017 judgment cannot be considered a final, appealable judgment over which this Court can exercise its appellate jurisdiction. Tsegaye, 2015-0676, p. 3, 183 So.2d at 710.

         Although we find Ms. Benoit is not entitled to appellate review as a matter of right, nonetheless, this Court has the authority to invoke our discretionary supervisory jurisdiction. See Bd. of Supervisors, 2014-506, pp. 2-3, 151 So.3d at 910. See also La. C.C.P. art. 2201.[7] Here, Ms. Benoit's motion for appeal was filed within thirty days of rendition of the judgment; thus, it was filed within the time period for the filing of an application for supervisory writs. Accordingly, this Court elects to exercise its discretionary jurisdiction and convert Ms. Benoit's appeal to a writ application, which we grant.

         We now turn to address the merits of Ms. Benoit's claim.


         A judgment granting the peremptory exception of prescription is generally reviewed under the de novo standard of review because the exception raises a legal question. Scott v. Zaheri, 2014-0726, p. 8 (La.App. 4 Cir. 12/3/14), 157 So.3d 779, 785. In a case involving no dispute over material facts, but only the determination of a legal issue, such as the present matter, the de novo review standard is applied, under which the district court's legal conclusions are not entitled to deference. Felix v. Safeway Ins. Co., 2015-0701, p. 6 (La.App. 4 Cir. 12/16/15), 183 So.3d 627, 632.


         Ms. Benoit's sole assignment of error is whether the district court erred in sustaining ...

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