MEDICAL REVIEW COMPLAINT BY DARON DOWNING, ANDRUS DOWNING, ANDRIA DOWNING, AND ANDRE DOWNING FOR MELISSA DOWNING (D)
FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2015-09813,
DIVISION "J" Honorable D. Nicole Sheppard.
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
composed of Judge Daniel L. Dysart, Judge Joy Cossich
Lobrano, Judge Rosemary Ledet.
Rosemary Ledet Judge.
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. This case is in the pre-suit, medical
review panel stage.
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. 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.
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; and two were never properly identified and
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"). 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"),
Rebecca Schroll, and Dr. Charles Clark (collectively the
"Private Providers")-filed peremptory exceptions of
prescription in the CDC Case.
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.
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.
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.
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." This appeal followed.
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). 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.
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.
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.
both the manifest error and the de novo standard
Prescription Rules Governing Medical Malpractice Actions
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. 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.
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
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. 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.
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; and (ii) Sentence Two-Joint
One-Medical Review Proceeding Suspension
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.
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. 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.
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.
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.
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")). 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).
provide the necessary framework for analyzing the
prescription issue presented here, we summarize, in
chronological order, the chain of correspondence between the