FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF
LAFAYETTE, NO. C-20126808 HONORABLE EDWARD B. BROUSSARD,
J. David Walter C. Morison, IV Kathy A. Rito Gainsburgh,
Benjamin, David, Meunier & Warshauer, L.L.C. COUNSEL FOR
PLAINTIFFS-APPELLANTS: Brenna Ash Miller Brenna Ash Miller on
behalf of the Estate of Richard A. Miller, Jr. Brenna Ash
Miller as legal guardian of minor Skylar Miller.
L. Pierson Pierson Law Firm COUNSEL FOR
PLAINTIFFS-APPELLANTS: Brenna Ash Miller Brenna Ash Miller on
behalf of Estate of Richard A. Miller, Jr. Brenna Ash Miller
as legal guardian of minor Skylar Miller.
Charles J. Foret Jason R. Garrot Briney Foret & Corry,
LLP COUNSEL FOR DEFENDANT-APPELLEE: Northshore EMS, L.L.C.
composed of Elizabeth A. Pickett, Billy H. Ezell, and Candyce
G. Perret, Judges.
CANDYCE G. PERRET JUDGE.
Ash Miller, individually, as the duly appointed guardian of
the minor child, Skyler Miller, and as the individual
authorized to make the claim on behalf of the estate of
Richard A. Miller, Jr., appeals the judgment of the trial
court that granted summary judgment in favor of defendant,
Northshore EMS, L.L.C., and dismissed her lawsuit against it
with prejudice. For the following reasons, we affirm.
AND PROCEDURAL HISTORY:
court's prior opinion, Miller v. Acadian Ambulance
Service, Inc., 13-1269, pp. 1-5 (La.App. 3 Cir. 3/5/14)
134 So.3d 250, 252-254, (footnote omitted) writ
denied, 14-698 (La. 5/16/14), 139 So.3d 1028, this court
recited the facts and procedural history, as follows:
On December 28, 2011, Richard A. Miller, Jr. ("Mr.
Miller") was involved in a serious motorcycle accident
in Washington Parish. The Northside [Northshore] Emergency
Medical Service ("Northshore") responded to a 911
call and transported Mr. Miller to the Riverside Medical
Center ("Riverside") where he was attended to by
Dr. Barbara Cohn and other Riverside Emergency Room
Dr. Cohn determined that Mr. Miller's condition was
critical. As a result of the accident, he had sustained
extensive internal injuries, which included lacerations of
the lung, heart, and kidney, extensive blood loss, multiple
fractures, and a flail chest, which is a crushing chest
injury due to the fracture of several ribs.
In Dr. Cohn's opinion, Mr. Miller's critical medical
condition required her to contact LERN [Louisiana Emergency
Response Network], as Riverside did not have the necessary
level of medical resources to properly treat Mr. Miller's
injuries. Dr. Cohn's call to LERN was the first step in
initiating the procedure to have Mr. Miller transported to a
trauma facility equipped to treat Mr. Miller's extensive
LERN was designed to serve as the clearing house for all of
the resources of each medical facility and to determine which
facility is best equipped to treat a particular patient's
condition. The LERN dispatch center is staffed with a trained
paramedic who receives the incoming calls, and based on the
information provided from the transferring health care
provider, LERN makes a determination as to the appropriate
trauma facility to treat the injured patient.
The LERN dispatcher informed Dr. Cohn that Mr. Miller should
be transferred to Interim LSU [Interim LSU Public Hospital].
A call was then placed by a member of the Riverside staff at
5:36 p.m. to Acadian [Acadian Ambulance Service, Inc.] to
request that a helicopter be dispatched to Riverside in order
to transport Mr. Miller to Interim LSU.
The recorded telephone conversation between Riverside and
Acadian reflects that Riverside was informed that due to a
required crew change and the need for refueling of its
helicopter, it would be an hour to an hour and fifteen
minutes before Acadian could respond and arrive at Riverside
to transport Mr. Miller. The Riverside staff member indicated
to the Acadian dispatcher that if this period of time was not
acceptable to Dr. Cohn, he would call back. No call canceling
the helicopter transportation of Mr. Miller was received, and
the Acadian helicopter arrived at Riverside at 7:08 p.m.,
some seventeen minutes after the anticipated arrival time.
Once the determination by LERN was made to transport Mr.
Miller to Interim LSU, Dr. Cohn began the testing on Mr.
Miller required by Interim LSU prior to his transport by
Acadian. Upon arrival at Riverside, Acadian was not permitted
to immediately transport Mr. Miller as the testing required
by Interim LSU was not complete. Once the testing was
completed, Mr. Miller was cleared for transport at 7:40 p.m.,
thirty-two minutes after Acadian's arrival at Riverside.
Mr. Miller was taken to the aircraft by Riverside personnel
and Acadian's EMT/paramedic Kimberly Wesley
("Wesley"). Mr. Miller was loaded and secured for
takeoff. Wesley provided constant critical care monitoring
and medical treatment throughout the transport, which
included placing Mr. Miller on a ventilator and suctioning
his chest tube. Mr. Miller's condition rapidly declined
right before the helicopter landed in New Orleans near the
Superdome, as Interim LSU did not have a helicopter landing
pad and the Superdome site was the closest landing pad to
Mr. Miller was then transported by ambulance to Interim LSU,
with the ambulance staff continuing to attempt to maintain
Mr. Miller's medical status. Mr. Miller unfortunately
died at approximately the same time as his arrival at Interim
LSU at approximately 8:12 p.m.
On December 27, 2012, the Millers timely filed a medical
malpractice complaint with the Division of Administration and
the Louisiana Patient's Compensation Fund, naming Interim
LSU, LERN, and Acadian . . . .
On December 27, 2012, the Millers also filed a petition for
damages in the Fifteenth Judicial District Court, Parish of
Lafayette naming LERN and Acadian as defendants. The
Millers' "First Supplemental and Amending Petition
for Damages, " filed on April 2, 2013, added three other
health care providers as defendants, Interim LSU, Northside
EMS, LLC, Barbara Cohn, M.D., and her insurer, Proassurance
Specialty Insurance Company ("Proassurance").
All health care provider defendants, except Northside, filed
dilatory exceptions of prematurity in response to the
Millers' petitions. Each asserted they were qualified
health care providers pursuant to the LMMA [Louisiana Medical
Malpractice Act], La.R.S. 40:1299.39 & 40:1299.41. As
qualified health care providers under the LMMA, providing
medical care to Mr. Miller, each claimed to be entitled to
have the Millers' claims dismissed without prejudice
pending review and notification of an opinion by the MRP
[Medical Review Panel], pursuant to La.R.S.
40:1299.47(A)(2)(a) & (B)(1)(a)(i). In granting the
health care provider defendants' exceptions, the
exceptors assert that the Millers would not be prejudiced, as
under the LMMA prescription is suspended in state district
court until the MRP sends notification of its opinion,
following which the Millers would have ninety days to file
suit in state district court.
A hearing was held on the health care defendants'
exception of prematurity on July 22, 2013. At the beginning
of the hearing, the dilatory exception of prematurity filed
by Dr. Barbara Cohn and her insurer, Proassurance, was
granted by the trial court without opposition, and the
Millers' claims as to these defendants were dismissed
without prejudice in a separate judgment signed by the trial
court on July 22, 2013. The dismissal of Dr. Cohn and her
insurer is not subject to this appeal.
The hearing on Acadian, LERN, and Interim LSU's
exceptions of prematurity continued with oral argument, after
which the trial court took the matter under advisement. The
trial court issued its written reasons for judgment on July
26, 2013, and granted the exceptions of prematurity
dismissing the Millers' claims without prejudice for the
three remaining health care provider defendants, Acadian,
LERN, and Interim LSU. A judgment reflecting the trial
court's ruling was signed on August 15, 2013, and is the
source of the Millers' timely appeal to this court.
March 5, 2014, this court affirmed the trial court's
judgment that granted exceptions of prematurity filed on
behalf of Acadian, LERN, and Interim LSU, dismissing without
prejudice the claims of Brenna Ash Miller, individually and
as the duly appointed guardian of the minor child Skyler
Miller, and the individual authorized to make the claim on
behalf of the estate of Richard A. Miller, Jr., (collectively
"Plaintiff") pursuant to the LMMA.
the only claims that remained in this litigation were those
against defendant Northshore. Plaintiff alleges that
Northshore was negligent in its treatment of Mr. Miller by
transporting him to Riverside instead of a trauma center, in
failing to train its employees of proper protocols, and that
it breached its agreement with LERN.
22, 2017, Northshore filed a motion for summary judgment
alleging that there were no genuine issues of material fact,
and as a matter of law, Northshore has no liability to
Plaintiff for the alleged damages.
support of its motion for summary judgment, Northshore
attached: (1) the affidavit of the Northshore paramedic,
Ashley Harper ("Ms. Harper"); (2) certified medical
records from Riverside pertaining to Mr. Miller; (3) the
deposition of Dr. Cohn; (4) the deposition of David Marcus,
on behalf of Northshore; (5) the corporate deposition of
LERN; (6) certified medical records from Interim LSU
pertaining to Mr. Miller; (7) Mr. Miller's autopsy
report; and (8) the affidavit of Dr. Joseph Holley, Jr.
21, 2017, Plaintiff filed an opposition to the motion for
summary judgment alleging that issues exist as to whether
Northshore is entitled to civil immunity under La.R.S.
40:1133.13, and that even if La.R.S. 40:1133.13 is
applicable, material issues of fact exist as to whether
Northshore, through "the actions of its paramedic, Ms.
Harper, was grossly negligent in providing emergency medical
services to the decedent, Richard Miller." Plaintiff
argues that Ms. Harper did not follow proper protocol and
"unilaterally decided to bring Mr. Miller to the local
emergency department at Riverside Medical Center because of
his 'shortness of breath' and 'vital
support of her opposition, Plaintiff attached: (1) medical
records from Northshore; (2) the deposition and affidavit of
Ms. Harper; (3) the deposition of Dr. Cohn; (4) excerpts of
David Marcus's deposition, on behalf of Northshore; (5)
portions of the LERN deposition and a copy of the LERN
protocol guidelines; (6) answers to interrogatories; (7) the
affidavits of Roy D. Ary, Jr., and Dr. Carl J. Hauser; and
(8) a copy of the Washington Parish Major Trauma Destination
25, 2017, Northshore filed a supplemental memorandum in
support of its motion for summary judgment arguing that
Plaintiff's opposition, with exhibits, was untimely filed
pursuant to the provisions of La.Code Civ.P. art. 966.
26, 2017, Plaintiff filed an ex parte motion to continue the
hearing on the motion for summary judgment stating that
"Ms. Miller inadvertently filed her opposition to
summary judgment on July 21, 2017, less than fifteen days
before the hearing on this motion, set for July 31,
2017." Plaintiff requested that the trial court continue
the hearing in order to provide "both parties a fair
opportunity to present their arguments on the issue of
liability, and [that a continuance] does not impact any other
procedural deadline established by the court."
that date, Northshore filed objections to and a motion to
strike the affidavits of Dr. Carl Hauser and Dr. Roy Ary
arguing that the affidavits were untimely and that the
opinions of these doctors "concerning Northshore's
breach of the standard of care for paramedics are not