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