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In re Medical Review Panel Proceedings of Jonathan Junior

Court of Appeals of Louisiana, Fifth Circuit

May 1, 2019

IN RE: MEDICAL REVIEW PANEL PROCEEDINGS OF JONATHAN JUNIOR, IN RE CHARLES W. THOMAS, M.D. AND SOUTHERN SURGICAL SPECIALISTS, L.L.C.

          APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE WILLIAM C. CREDO, III JUDGE PRO TEMPORE, DIVISION ''E'', NUMBER 788-597

          Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and John J. Molaison, Jr.

         Relators, Charles W. Thomas, M.D. and Southern Surgical Specialists, L.L.C., seek this Court's supervisory review of the trial court's February 20, 2019 judgment which overruled relators' peremptory exception of prescription concerning respondent, Jonathan Junior's, medical malpractice claims against relators, and which further allowed respondent 30 days (or through March 15, 2019) within which to send a request/authorization for release of his medical records to relators, and ordered relators to provide a copy of respondent's medical records to him upon timely receipt of such a request.

         Relators' writ application demonstrates that respondent claims an injury resulting from an alleged act of medical malpractice that occurred on February 20, 2017. Respondent's request to convene a medical review panel was filed on July 6, 2018, more than one year after the alleged date of malpractice. Because respondent's request for a medical review panel is untimely on its face, he bears the burden under La. R.S. 9:5628 of demonstrating that his claim was brought "within one year from the date of discovery of the alleged act, omission, or neglect."

         As a result of respondent's self-representation, the trial court continued the hearing on relators' exception of prescription from its original date on December 13, 2018, to allow respondent time to retain counsel. At the time of the February 13, 2019 hearing, however, respondent was still unrepresented. The application shows that the court gave respondent great latitude in arguing against the exception of prescription. Upon being questioned by the court, respondent contended that he did not learn of the alleged malpractice until he consulted with "Dr. Habit" on September 22, 2017, and that Dr. Habit "told me what happened to me." Respondent offered no evidence to show that Dr. Habit advised respondent that he had received improper medical treatment by relators. Respondent also asserted, without offering supporting evidence, that he had been denied access to his medical records by relators and Dr. Habit. While the trial court implicitly acknowledged on the record that respondent had failed to present any evidence to support his claim that he was not aware of the alleged malpractice until September 22, 2017, the court also opined:

THE COURT:
… There is a question of fact as to the date of discovery of the alleged malpractice under R.S. 9:5628. If the Court were to - - If Mr. Junior were to be able to sustain his statement that he did not discover it until September 22nd, 2017 then his claim would not be prescribed on it, although it is prescribed on its face, if you go strictly by the date of treatment.

         Thus, the court concluded that respondent could potentially defeat the prescription exception if he had the evidence to do so. To that end, the trial court ordered relators to provide respondent with all pertinent medical records, even though there was no evidence that respondent had previously sought the documents.

         In In re Med. Review Panel of Hurst, 16-0934 (La.App. 4 Cir. 5/3/17), 220 So.3d 121, reh'g denied (May 11, 2017), writ denied, 17-0803 (La. 9/22/17), 228 So.3d 744, reconsideration not considered sub nom. In re Med. Review Panel of Hurst, 17-0803 (La. 4/27/18), 239 So.3d 837, the Fourth Circuit addressed a similar issue of whether a self-represented plaintiff in a medical malpractice action had provided sufficient evidence to defeat an exception of prescription filed by his treating physician. As in the instant case, the plaintiff in Hurst presented no evidence of his medical history. During trial on the exception, the trial court asked the plaintiff if he had any "medical reports, anything to indicate when you found out about your condition," to which the plaintiff responded, "No, sir." Id. at 127. Based on the foregoing, the Fourth Circuit found no error on the part of the trial court in granting the exception of prescription because the plaintiff had failed to satisfy his burden of proof.[1]

         When prescription is raised by peremptory exception, with evidence being introduced at the hearing on the exception, the trial court's findings of fact on the issue of prescription are subject to the manifest error-clearly wrong standard of review. Specialized Loan Servicing, L.L.C. v. January, 12-2668 (La. 6/28/13), 119 So.3d 582, 584. In the instant case, at trial on the matter, respondent produced no evidence to support his claim that he was not aware of the alleged malpractice until he was treated by Dr. Habit on September 22, 2017. Accordingly, we find that the trial court erred in denying the exception of prescription. Relators' writ application is granted; the subject judgment overruling relators' peremptory exception of prescription is hereby reversed; relators' peremptory exception of prescription is hereby sustained; respondent's medical malpractice claims against relators are hereby dismissed with prejudice at respondent's costs; and the pending medical review panel proceeding is hereby dissolved.[2]

         JJM

         SMC

         JGG

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