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In re Medical Review Panel for Claim of Brock

Court of Appeals of Louisiana, Fourth Circuit

June 19, 2019

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

          Alvin P. Perry, Jr. COUNSEL FOR THE RELATOR

          Paul A. Tabary, III Elizabeth Borne Justin W. Stephens TABARY & BORNE, L.L.C. COUNSEL FOR THE RESPONDENTS

          (Court composed of Judge Terri F. Love, Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins)

          ROSEMARY LEDET JUDGE.

         This is 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, [1] 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[2](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 court's judgment.

         FACTUAL AND PROCEDURAL BACKGROUND

         On May 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. 40:1231.8(D)(4).

         In the 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.

         One week after the notices were issued, the Respondents filed a Motion to Quash the documents requested by the Relators in both notices.[3] 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.

         DISCUSSION

         The 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").

         The 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.

         The 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 ...


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