IN RE: MEDICAL REVIEW PANEL FOR THE CLAIM OF COURTNEY M. BROCK, DECEASED, ET AL
APPLICATION FOR WRITS DIRECTED TO ST. BERNARD 34TH JUDICIAL
DISTRICT COURT NO. 2017-1148, DIVISION "D"
HONORABLE JUDGE DARREN M. ROY
P. Perry, Jr. COUNSEL FOR THE RELATOR
A. Tabary, III Elizabeth Borne Justin W. Stephens TABARY
& BORNE, L.L.C. COUNSEL FOR THE RESPONDENTS
composed of Judge Terri F. Love, Judge Rosemary Ledet, Judge
Sandra Cabrina Jenkins)
ROSEMARY LEDET JUDGE.
a medical malpractice case under the Louisiana Medical
Malpractice Act (the "MMA"). This case is in the
pre-suit, medical review panel stage. In this writ
application, Mary and Harlon Brock (collectively the
"Relators") seek review of the trial court's
April 26, 2019 judgment, which granted a Motion to Quash two
Notice of Records Depositions that the trial court, in this
pre-suit discovery proceeding,  issued on the Relators'
behalf. The Motion to Quash was filed by two of the health
care providers in the underlying medical review panel
proceeding- St. Bernard Parish Hospital Service District and
Dr. Stephen Hendry, II(collectively the "Respondents").
The trial court's judgment granting the Motion to Quash
provided that the Relators were prohibited from disclosing
any of the records that they obtained by the Notice of
Records Depositions. The effect of this ruling is to preclude
the Relators from presenting this evidence to the medical
review panel. For the reasons that follow, we grant the
Relators' writ application and reverse the trial
AND PROCEDURAL BACKGROUND
22, 2017, the Relators filed a complaint with the Louisiana
Patient Compensation Fund requesting the formation of a
medical review panel in connection with alleged acts of
medical malpractice by the Respondents committed on May 23,
2016. According to the complaint, the alleged malpractice
resulted in the death of Courtney Brock, who was thirty-one
years old. Thereafter, one of the named health care
providers, St. Bernard Parish Hospital Service District,
instituted a discovery proceeding pursuant to La. R.S.
discovery proceeding, the Relators filed two separate notices
of record depositions. The first notice was directed to Dr.
Dwight McKenna, in his capacity as Orleans Parish Corner,
requesting information regarding Dr. Hendry, who died on
April 27, 2017. The requested information included Dr.
Hendry's death certificate, death investigation
information, autopsy reports, and other accompanying
documents. The second notice was directed to Dr. Vincent
Cullotta, in his capacity as Executive Director of the
Louisiana State Board of Medical Examiners (the
"Board"), requesting documentation from the Board
regarding Dr. Hendry's medical license.
week after the notices were issued, the Respondents filed a
Motion to Quash the documents requested by the Relators in
both notices. After a hearing, the trial court granted
the Motion to Quash and prohibited the Relators from
disclosing to the medical review panel any of the records
obtained by the notices. This writ followed.
narrow issue presented is whether the trial court had the
authority to impose restrictions on the evidence to be
submitted to the medical review panel. The applicable
standard of review, contrary to the Respondents'
contention, is not the abuse of discretion standard
ordinarily applicable to pre-trial discovery matters. See
Cacamo v. Liberty Mut. Fire Ins. Co., 99-1421, p. 4
(La.App. 4 Cir. 10/10/01, 4); 798 So.2d 1210, 1214 (observing
that "Louisiana trial courts have broad discretion when
regulating pre-trial discovery"). The issue presented
here turns on the construction of the statutory provision
defining the evidence that a medical review panel may
consider-La. R.S. 40:1231.8(D)(2). Thus, the applicable
standard of review is the de novo standard. Med.
Review Complaint by Downing, 18-1027, p. 6 (La.App. 4
Cir. 5/8/19), ___So.3d ___, ___, 2019 WL 2033947 *3
(observing that "legal decisions are reviewed de
novo" and that "[s]tatutory construction
presents a question of law and, thus, is subject to a de
novo standard of review").
starting point in our analysis is the language of the statute
itself. Perritt v. Dona, 02-2601, pp. 14-15 (La.
7/2/03), 849 So.2d 56, 65. The statute provides that
"[t]he evidence may consist of medical charts, x-rays,
lab tests, excerpts of treatises, depositions of witnesses
including parties, interrogatories, affidavits and reports of
medical experts, and any other form of evidence allowable by
the medical review panel." La. R.S. 40:1231.8(D)(2). The
catchall provision at the end of the statute is the language
at issue here.
Relators contend that the catchall provision expressly
reserves the decision on what evidence will be allowed to be
presented to the panel and that the trial court lacks the
authority to make that determination. The Respondents counter
that the catchall provision must be strictly construed in the
context of the MMA to limit the type of evidence to that
which specifically relates to the health care, or lack
thereof, the plaintiff asserts was provided in deviation of
the applicable standard of care. Based on this construction,
they contend that the items requested in the Notice of
Records Depositions were not the type of evidence that could
be considered by the medical review panel. In support, they
point out that none of the documents identified in the
notices relate to the breach of the applicable standard of
care with respect to health care provided to Courtney ...