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Miller v. Acadian Ambulance Service, Inc.

Court of Appeals of Louisiana, Third Circuit

May 23, 2018

BRENNA ASH MILLER, ET AL
v.
ACADIAN AMBULANCE SERVICE, INC., ET AL

          APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. C-20126808 HONORABLE EDWARD B. BROUSSARD, DISTRICT JUDGE

          Robert 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.

          Clint 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.

          Court composed of Elizabeth A. Pickett, Billy H. Ezell, and Candyce G. Perret, Judges.

          CANDYCE G. PERRET JUDGE.

         Brenna 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.

         FACTS AND PROCEDURAL HISTORY:

         In this 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 personnel.
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 injuries.
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 Interim LSU.
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.

         On 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.

         Thereafter, 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.

         On June 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.

         In 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.

         On July 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 signs.'"

         In 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 Protocol.

         On July 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.

         On July 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."

         Also on 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 ...


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