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Medical Review Complaint by Downing

Court of Appeals of Louisiana, Fourth Circuit

May 8, 2019

MEDICAL REVIEW COMPLAINT BY DARON DOWNING, ANDRUS DOWNING, ANDRIA DOWNING, AND ANDRE DOWNING FOR MELISSA DOWNING (D)

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2015-09813, DIVISION "J" Honorable D. Nicole Sheppard.

          Wanda A. Davis LEEFE, GIBBS, SULLIVAN, DUPRE AND ALDOUS, L.L.C. COUNSEL FOR PLAINTIFFS/APPELLANTS

          Benjamin J. Biller C. William Bradley, Jr. Richard S. Crisler BRADLEY MURCHISON KELLY & SHEA, LLC Carl E. Hellmers, III D. Burke Stough FRILOT L.L.C. Karen M. Fontana Young KEAN MILLER LLP COUNSEL FOR DEFENDANTS/APPELLEES

          Court composed of Judge Daniel L. Dysart, Judge Joy Cossich Lobrano, Judge Rosemary Ledet.

          Rosemary Ledet Judge.

         This is a medical malpractice case involving both private and state health care providers. Both the Medical Malpractice Act ("MMA") (currently codified in La. R.S. 40:1231.1, et seq.), which governs claims against private qualified health care providers, and the Medical Liability for State Services Act ("MLSSA") (currently codified in La. R.S. 40:1237.1, et seq.), which governs claims against state health care providers, apply here.[1] This case is in the pre-suit, medical review panel stage.[2]

         This case arises out of alleged malpractice in the treatment of Melissa Downing on July 13, 2014, at Interim Louisiana State University Hospital in New Orleans ("LSU Hospital"). On the night of July 11, 2014, Ms. Downing was seriously injured in a high-speed automobile accident.[3] Ms. Downing was initially treated at a local hospital (former River Parish Hospital in LaPlace, Louisiana). Due to the nature of her injuries, Ms. Downing was transferred to LSU Hospital in New Orleans on the next day. On July 13, 2014, Ms. Downing sustained an anoxic brain injury, which led to her death on April 20, 2015. Ms. Downing's death certificate listed the following three causes of death: (i) respiratory failure; (ii) anoxic brain injury; and (iii) motor vehicle accident.

         On July 13, 2015, Ms. Downing's estate and four of her five surviving children (collectively "the "Downing Family") filed a request for a medical review proceeding with the Division of Administration (the "DOA"), alleging malpractice by twelve named defendants in the treatment provided to Ms. Downing on July 13, 2014, at LSU Hospital (the "Complaint"). Five of the named defendants were private health care providers covered by the MMA; five were state providers covered by the MLSSA;[4] and two were never properly identified and thus dismissed.[5]

         On October 13, 2015, four of the five state providers filed in the Civil District Court for the Parish of Orleans a Petition to Institute Discovery pursuant to La. R.S. 40:1237.2(D)(4) (the "CDC Case").[6] In the fall of October 2017, before the completion of the medical review panel proceedings, three of the private health care providers-University Medical Center Management Corp. d/b/a Interim LSU Hospital ("Interim LSU"), [7] Dr. Rebecca Schroll, and Dr. Charles Clark (collectively the "Private Providers")-filed peremptory exceptions of prescription in the CDC Case.[8]

         The grounds for the Private Providers' exceptions was the Downing Family's failure to comply with La. R.S. 40:1231.8(A)(1)(c), which provides:

A claimant shall have forty-five days from the date of receipt by the claimant of the confirmation of receipt of the request for review in accordance with Subparagraph (3)(a) of this Subsection to pay to the board a filing fee in the amount of one hundred dollars per named defendant qualified under this Part.[9]

         The penalty for failure to comply with Subparagraph (c) is set forth in La. R.S. 40:1231.8(A)(1)(e), which provides:

Failure to comply with the provisions of Subparagraph (c) or (d) of this Paragraph within the specified forty-five day time frame in Subparagraph (c) of this Paragraph shall render the request for review of a malpractice claim invalid and without effect. Such an invalid request for review of a malpractice claim shall not suspend time within which suit must be instituted in Subparagraph (2)(a) of this Subsection.

         In support of their exceptions, the Private Providers argued that the Downing Family's failure to timely pay the entire filing fee they owed for invoking a medical review panel-$500 ($100 for each of the five qualified private health care providers named in the Complaint)-rendered the entire request invalid and without effect. Accordingly, they contended that the Downing Family's medical malpractice claim against them prescribed, by operation of law, on April 20, 2016, one year from the date of Ms. Downing's death.

         Agreeing with the Private Providers, the trial court orally reasoned that it did not "find that the requisite fees were appropriately paid." For this reason, the trial court sustained the exceptions of prescription and ordered that the Downing Family's "proposed claim of medical malpractice . . . PCF File No. 2015-00753, is DISMISSED WITH PREJUDICE and the pending medical review panel proceeding in that matter is dissolved."[10] This appeal followed.

         Standard of Review

         In a medical malpractice case in which the plaintiff's complaint requesting a medical review panel serves initially as the petition and serves to suspend prescription, "the health care provider can assert a prescription exception in a court of competent jurisdiction and proper venue at any time without regard to whether the medical review panel process is complete." In re Med. Review Panel for Claim of Moses, 00-2643, p. 6 (La. 5/25/01), 788 So.2d 1173, 1177; La. R.S. 40:1231.8 (B)(2)(a).[11] Such is the procedural posture of this case. In this procedural posture, the Louisiana Supreme Court has noted that "we resolve the issue of the placement of the burden of proof based on a logical application of the general principle that the party asserting a suspension or interruption of prescription bears the burden." Id. The Supreme Court has further noted that "[s]ince the party asserting a suspension is plaintiff, logic dictates that plaintiff have the burden of proof." Id., 00-2643, p. 6, 788 So.2d at 1178. The Downing Family, as the party asserting a suspension, has the burden of proof here.

         The standard of review applied to address a trial court's judgment sustaining a prescription exception "varies based on whether evidence was introduced in the trial court at the hearing on the exception." Barkerding v. Whittaker, 18-0415, p. 13 (La.App. 4 Cir. 12/28/18), 263 So.3d 1170, 1180, writ denied, 19-166 (La. 4/8/19), ___ So.3d ___. "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." London Towne Condo. Homeowner's Ass'n v. London Towne Co., 06-401, p. 4 (La. 10/17/06), 939 So.2d 1227, 1231 (citing Carter v. Haygood, 04-0646, p. 9 (La. 1/19/05), 892 So.2d 1261, 1267. Such is the case here.

         This case, however, also presents an issue of statutory construction regarding the suspension of prescription under the MMA and the MLSSA. Statutory construction presents a question of law and, thus, is subject to a de novo standard of review. Succession of Dauterive, 18-0131, p. 4 (La.App. 4 Cir. 7/18/18), 251 So.3d 1204, 1207, writ denied, 2018-1382 (La. 11/14/18), 256 So.3d 293 (citing Benjamin v. Zeichner, 12-1763, p. 5 (La. 4/5/13), 113 So.3d 197, 201); Burnette v. Stalder, 00-2167, p. 5 (La. 6/29/01), 789 So.2d 573, 577). Simply put, legal decisions are reviewed de novo. Thibodeaux v. Donnel, 08-2436, p. 3 (La. 5/5/09), 9 So.3d 120, 122.

         In sum, both the manifest error and the de novo standard apply here.

         Special Prescription Rules Governing Medical Malpractice Actions

         The special prescriptive period governing medical malpractice actions is set forth in La. R.S. 9:5628(A), which generally provides a prescriptive period of one year from the date of the alleged negligent treatment.[12] This case involves both wrongful death and survival action claims. Although survival action claims are governed by La. R.S. 9:5628(A), wrongful death claims are governed by the one- year period applicable to delictual actions set forth in La. C.C. art. 3492. Taylor v. Giddens, 618 So.2d 834, 842 (La. 1993). Wrongful death claims, nonetheless, "continue to be governed and procedurally controlled by the provisions of the Act [here the MMA and the MLSSA]." Taylor, 618 So.2d at 841.

         Despite the one-year prescriptive period, "medical malpractice lawsuits are virtually never actually filed in courts of competent jurisdiction within one year of the alleged act of malpractice." In re Noe, 05-2275, p. 8 (La. 5/22/07), 958 So.2d 617, 622 (Calogero, C.J., concurring in part, dissenting in part). This is because "[f]iling a complaint with the review panel is a mandatory initial step in a malpractice claim and a requirement before filing suit 'in any court.'" Nathan v. Touro Infirmary, 512 So.2d 352, 353 (La. 1987). Acknowledging this initial step, the Louisiana Legislature has expressly "provided that the filing of the request for a review of a claim suspend[s] the running of prescription, . . . just as the filing of a suit in a competent jurisdiction suspends the running of prescription." Id. at 354.[13]

         Two special suspension provisions are codified in La. R.S. 40:1231.8(A)(2)(a) of the MMA and La. R.S. 40:1237.2(A)(2)(a) of the MLSSA.[14] These statutes each contain two sentences. As former Chief Justice Calogero explained:

The first sentence . . . expressly suspends the one-year prescriptive period for filing a medical malpractice action in a court of competent jurisdiction until 90 days following notification of the issuance of the medical review panel's opinion. ["Sencence One"]. The second sentence expressly suspends prescription against all joint and solidary obligors/tortfeasors "to the same extent" prescription has been suspended against one or more other joint or solidary obligors/tortfeasors when a timely request for review has been filed against that obligor/tortfeasor. ["Sentence Two"].

Noe, 05-2275, p. 9, 958 So.2d at 623.[15]

         Resolution of the issue presented here requires a separate consideration of both of these provisions; hence, we divide our analysis into the following two parts: (i) Sentence One-Medical Review Proceeding Suspension;[16] and (ii) Sentence Two-Joint Tortfeasor Suspension.[17]

         Sentence One-Medical Review Proceeding Suspension

         If a claimant perfects a request for a medical review panel against a qualified health care provider, Sentence One provides that prescription is suspended on the malpractice claim until 90 days following notification of the issuance of the medical review panel's opinion. Here, the first question is whether the Complaint qualified as a perfected request for review such that, pursuant to Sentence One, prescription was suspended. We find that it did not qualify as a perfected request.

         To perfect a request for review, a claimant must pay the full filing fee of $100 per provider in accordance with La. R.S. 40:1231.8(A)(1)(c), which imposes a 45-day deadline. The 45-day deadline runs from the date of mailing of the confirmation of receipt of the request for review.[18] If, within 45 days after the Patient Compensation Fund (the "PCF") sends a confirmation of receipt, the claimant fails to pay the full filing fee, La. R.S. 40:1231.8(A)(1)(e) provides the penalty, which is that the request for review is invalid and without effect.

         Both the filing of the request for review and the payment of the filing fee are "inexorably joined"; hence, the request for review is not considered to be filed until the claimant pays the filing fee. Med. Review Panel of Davis v. Louisiana State Univ. Health Sciences Ctr.-Shreveport, 41, 273, p. 6 (La.App. 2 Cir. 8/25/06), 939 So.2d 539, 543. Again, the penalty for failing to pay the full filing fee is that the request for review is considered invalid and without effect. La. R.S. 40:1231.8(A)(1)(e). "Because such an invalid request does not suspend the time within which suit must be instituted, a subsequent request, filed beyond the one-year period for filing a medical malpractice claim, [will] not [be] timely." In re Smithson, 07-2262, pp. 7-8 (La.App. 1 Cir. 6/6/08), 991 So.2d 1075, 1080.[19]

         Under both the MMA and the MLSSA, a request for a medical review panel is initiated in the same manner-the claimant files a request for review of the claim by a medical review panel with the DOA. Smithson, 07-2262, p. 5, 991 So.2d at 1078. When, as here, a joint request for both a state and a private panel is made, the DOA's general procedure is to retain a copy of the request and forward the original to the PCF. Smithson, 07-2262, p. 8, 991 So.2d at 1080. Thereafter, the DOA sends a notification letter regarding the state defendants, which includes a request for payment of the applicable filing fee within 45 days. Id. The PCF Board sends a similar notification letter regarding the private defendants, which includes a request for payment of the applicable filing fee within 45 days. Id. These events occurred here.[20]

         The record reflects that both the DOA and the PCF sent notifications letters to the Downing Family, through their attorney, which included requests for payment of the filing fee to the respective administrative agency within a 45-day period. The applicable filing fees were $500 due the PCF and $500 due the DOA (or the commissioner of administration (the "Commissioner")).[21] Stated otherwise, the chain of correspondence in the record between the administrative agencies and the Downing Family's attorney reflects that, for purposes of collecting the filing fees, this case was administered as a bifurcated proceeding-the PCF as to the private defendants (PCF No. 2015-00753); the DOA as to the state defendants (15 MR 003).

         To provide the necessary framework for analyzing the prescription issue presented here, we summarize, in chronological order, the chain of correspondence between the ...


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