THOMAS GIBSON, JR. AND BARBARA GIBSON, INDIVIDUALLY AND ON BEHALF OF THEIR FATHER, THOMAS GIBSON (D)
JEFFERSON PARISH HOSPITAL SERVICE DISTRICT NO 2 D/B/A EAST JEFFERSON GENERAL HOSPITAL & OCHSNER CLINIC FOUNDATION
APPLICATION FOR SUPERVISORY REVIEW FROM THE TWENTY-FOURTH
JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF
LOUISIANA NO. 789-884, DIVISION "E" HONORABLE FRANK
A. BRINDISI, JUDGE PRESIDING.
COUNSEL FOR PLAINTIFF/RESPONDENT, THOMAS GIBSON, JR. AND
BARBARA GIBSON, INDIVIDUALLY AND ON BEHALF OF THEIR FATHER,
THOMAS GIBSON (D) Christopher A. Gross
COUNSEL FOR DEFENDANT/RELATOR, OCHSNER CLINIC FOUNDATION
Shelly S. Howat William K. Wright, IV
composed of Judges Fredericka Homberg Wicker, Jude G.
Gravois, and Robert A. Chaisson
A. CHAISSON JUDGE.
medical malpractice action, Ochsner Clinic Foundation
("Ochsner") seeks this Court's supervisory
review of a judgment of the trial court that overruled its
exceptions of prescription and no cause of action. Ochsner
requests that we reverse the judgment of the trial court,
sustain both of its exceptions, and dismiss this case as to
Ochsner. We grant Ochsner's writ application to address
the issues raised; however, for the following reasons, we
deny the relief requested by Ochsner.
AND PROCEDURAL HISTORY
December 19, 2012, Claire Betty Gibson ("Mrs.
Gibson"), individually and on behalf of her deceased
husband, Thomas J. Gibson, Sr. ("Mr. Gibson"),
filed a request with the Commissioner of Administration,
pursuant to the provisions of La. R.S. 40:1231.1, et
seq. ("the Louisiana Medical Malpractice Act"
or "LMMA"), for the formation of a medical panel to
review allegations of malpractice against Ochsner Medical
Center and Ochsner Extended Care Hospitalregarding their
care and treatment of Mr. Gibson. The request specified the
dates on which Mr. Gibson allegedly received negligent
medical treatment from Ochsner as May 6, 2011, through May
29, 2011. Mrs. Gibson's request clearly
indicated that she was making a survival claim "…
for her husband's pain and suffering prior to his
death," as well as her own wrongful death claim.
January 30, 2013, Mrs. Gibson amended her request for review
to provide more details regarding the alleged negligent
medical treatment of Mr. Gibson. Specifically, Mrs. Gibson
alleged that during his treatment at Ochsner Medical Center
from May 6, 2011, through May 12, 2011, Mr. Gibson was
over-medicated and under-nourished. Additionally, Mrs. Gibson
alleged that during his treatment at Ochsner Extended Care
Hospital from May 12, 2011, through May 29, 2011, Ochsner
employees inflicted a wound upon Mr. Gibson, failed to
properly treat the wound, and prematurely removed a
tracheotomy tube. Although Mrs. Gibson further alleged that
Mr. Gibson was immediately placed in the intensive care unit
of Ochsner Medical Center from May 29, 2011, until his death
on December 19, 2011, she did not allege that he received any
negligent medical treatment during this time period. This
amended request, like her initial request, was filed only by
Mrs. Gibson, individually and on behalf of her deceased
husband, Mr. Gibson.
no document submitted with Ochsner's writ application
established the date of Mrs. Gibson's death, it appears
the parties do not dispute that she died on December 6, 2013.
Further, it appears the parties also do not dispute that,
subsequent to the death of Mrs. Gibson, no one formally
substituted himself as a claimant before the Division of
Administration to pursue the claims that Mrs. Gibson had
brought. Regardless, the matter clearly proceeded before the
Division of Administration, because, over four years later,
on July 19, 2018, the medical review panel issued its opinion
finding that none of the named defendants were negligent in
their treatment of Mr. Gibson or had breached the applicable
standards of care.
to a petition for damages subsequently filed by Thomas
Gibson, Jr. ("Thomas") and Barbara Gibson
("Barbara"), the children of Mr. and Mrs. Gibson,
they received notice of the medical review panel opinion by
certified mail on August 30, 2018. On November 28, 2018,
within ninety days of their receipt of the opinion, Thomas
and Barbara filed a pro se petition for damages
against Ochsner in which they made a survival
claim and individual wrongful death claims for
the death of their father. They brought this petition on
their own behalf, individually, "...
and on behalf of their deceased father, Thomas Gibson, Jr.
(sic)," but not purportedly on behalf of their deceased
January 25, 2019, in response to Thomas and Barbara's
petition for damages, Ochsner filed peremptory exceptions of
prescription and no cause of action. After a hearing on these
exceptions, at which no testimony was taken and no exhibits
were introduced,  the trial court rendered judgment
overruling both of Ochsner's exceptions, memorialized in
a judgment dated May 14, 2019. It is from this judgment that
Ochsner now seeks this Court's supervisory review.
application for supervisory writs, Ochsner maintains that the
trial court erred in overruling its exceptions in three
respects: 1) the filing of Mrs. Gibson's request with the
Division of Administration only suspended prescription as to
her individual claims against Ochsner, not the claims of any
other un-named potential plaintiffs; 2) as to survival
"claims" of all potential plaintiffs, those
"claims" were already prescribed when Mrs. Gibson
filed her initial request with the Division of
Administration; and 3) Thomas and Barbara's petition for
damages does not state a cause of action for wrongful death
because it does not state a link between Ochsner's
alleged tortious conduct and Mr. Gibson's death.
begin our analysis by observing that the LMMA is
"special legislation in derogation of the rights of tort
victims, and as such, the coverage of the act should be
strictly construed." Billeaudeau v. Opelousas
General Hospital Authority, 16-0846 (La. 10/19/16), 218
So.3d 513, 520.
of Prescription pursuant to the LMMA
maintains that pursuant to the LMMA, the filing of a request
for a medical review panel only suspends prescription for the
filing of a lawsuit in favor of the named claimant in the
request, not in favor of un-named potential plaintiffs.
Although this Court has not addressed this issue previously,
the First, Third and Fourth Circuits have. Ochsner urges this
Court to adopt the rationale and holding of the First Circuit
in Parks v. Louisiana Guest House, Inc., 13-2121 and
13-2122 (La.App. 1 Cir. 9/30/14), 155 So.3d 609, writ
denied, 14-2281 (La. 1/16/15), 157 So.3d 1131, that the
filing of a request for review only serves to suspend the
running of prescription as to the claim of the named claimant
and does not serve to suspend the running of prescription in
favor of un-named potential plaintiffs. Ochsner further urges
this Court to reject the opposite conclusion of the Fourth
Circuit in Truxillo v. Thomas, 16-0168 (La.App. 4
Cir. 8/31/16), 200 So.3d 972, as "based on erroneous
reasoning" and "inconsistent with other Louisiana
law regarding prescription in medical malpractice
Parks, Mr. Parks, the injured patient, on his own
behalf, timely and contemporaneously filed both a petition
for damages alleging medical malpractice and a separate
request for review of his malpractice complaint with the
Division of Administration. Mr. Parks died during the
pendency of the medical review panel proceeding. The
recitation in the opinion of the arguments of defendants
indicates that no one substituted for Mr. Parks during the
pendency of the medical review panel proceeding, either in
the medical review panel proceeding or in the lawsuit.
the medical review panel issued its opinion, Mr. Parks'
widow and children, within the applicable time periods
provided by the LMMA, filed a new lawsuit (separate from the
previous lawsuit filed by Mr. Parks himself), making not only
a survival claim for the injuries suffered by Mr. Parks prior
to his death (which was the same claim for damages made by
Mr. Parks on his own behalf in both his lawsuit and his
request for review), but also wrongful death claims on their
own behalf due to the death of Mr. Parks allegedly as a
result of the malpractice.
response, the defendants filed an exception of prescription
in the Parks' new lawsuit, arguing that upon Mr.
Parks' death, his widow and children were required to
file their own request for review of their individual claims
within the applicable prescriptive period in order to receive
the benefit of suspension of prescription pursuant to the
LMMA as to their claims. Additionally, the defendants filed
exceptions of no cause of action and no right of action in
Mr. Parks' initial lawsuit, arguing that because no one
had substituted himself as a party plaintiff for Mr. Parks
upon his death, the action could not be maintained.
hearing, the trial court sustained the exception of
prescription and dismissed all of the Parks' claims, both
survival and wrongful death, in the new lawsuit. The trial
court also sustained the exception of no right of action in
Mr. Parks' initial lawsuit, but granted fifteen days for
the defect to be cured (ostensibly by the substitution of Mr.
Parks' children as party plaintiffs in his
stead). The Parks appealed the judgment
sustaining the exception of prescription.
appeal, the First Circuit affirmed the decision of the trial
court, finding that the filing of a request for review only
served to suspend the running of prescription as to the claim
of the named claimant and did not serve to suspend the
running of prescription in favor of un-named potential
plaintiffs. In reaching this conclusion, the Court
looked to the language of the LMMA itself. In
particular, the Court noted that "… a request for
review of a malpractice claim 'shall suspend the time
within which suit must be instituted … until ninety
days following notification, by certified mail, …
to the claimant or his attorney of the
issuance of the opinion by the medical review
panel.'" Parks, 155 So.3d at 613 (emphasis
in original). The Court found that "[t]his language
clearly indicates that only the person or persons who
actually presented a 'claim' for review are entitled
to the suspension of prescription granted under La. R.S.
40:1299.47(A)(2)(a)." Id. We respectfully
statutory language quoted by the Court in Parks
merely provides the mechanism by which the tolling of
prescription begins again, i.e., by notification to
the claimant. Since the named claimant is the only identified
claimant to whom notification can potentially be sent, this
method for re-commencing the tolling of prescription is
perfectly rational; however, in our view, it simply has no
bearing on who receives the benefit of the suspension of
prescription by the filing of the request.
Court in Parks also relied upon the provision of the
LMMA providing that "[t]he filing of a request for
review of a claim shall suspend the running of prescription
against all joint and solidary obligors, and all joint
tortfeasors, both qualified and not qualified, to the same
extent that prescription is suspended against the party or
parties that are the subject of the request for review."
La. R.S. 40:1231.8(A)(2)(a). The Court concluded that because
the legislature did not provide for a similar application of
the statute to benefit all other un-named potential
plaintiffs, allowing un-named potential plaintiffs to receive
the benefit of suspension would amount to an expansion of the
application of the statute. Parks, 155 So.3d at 613.
Again, we respectfully disagree with this reasoning.
legislature intended the suspension of prescription to only
benefit the named claimant in the request for review, it
could have clearly and unequivocally stated so. The LMMA has
no provision that specifically states in whose favor
suspension of prescription is allowed. Rather, the statute
provides that "[t]he filing of the request for a review
of a claim shall suspend the time within
which suit must be instituted," without any indication
that the suit must be instituted by the claimant who brings
the request for review or that is named in the request. La.
R.S. 40:1231.8(A)(2)(a) (emphasis added).
that, although the LMMA defines "claimant," it does
not define "claim." See La. R.S.
40:1231.1(A). If the LMMA had defined "claim" as a
specific individual's legal cause of action, then it
would leave no doubt that each individual claimant must
submit his claim to a review panel to receive the benefit of
suspension of prescription. However, without such a
definition, "review of a claim" may, in the
vernacular, simply refer to review of an allegation that the
defendant committed malpractice against a particular patient
that resulted in a particular harm to that patient.
the LMMA's definition of "claimant" includes
the sentence "[a]ll persons claiming to have sustained
damages as a result of injuries to or death of any one
patient are considered a single claimant." La. R.S. 40:
1231.1(A)(1)(4). While the purpose of this language is not
entirely clear, in our view, it would seem to suggest that a
request for review of a claim of malpractice can be brought
by one claimant on behalf of multiple potential plaintiffs.
See Truxillo, 200 So.3d at 975; see also Guffey,
__ So.3d at __ (Chief Justice Johnson
dissenting). And while the LMMA now requires that a request
for review shall contain "[t]he names of the
claimants," it does not require that it contain the
names of all claimants. See La. R.S.
40:1231.8(A)(1)(b)(iii) (emphasis added). As written, the
provision appears to refer to the names of the claimants who
are bringing the request, with no indication that all
potential plaintiffs are required to join in that request.
legislature, in enacting the LMMA, recognized "the need
to fully protect plaintiffs who would otherwise suffer the
detrimental effect of liberative prescription during the
panel review process that is required before an action can be
filed." Borel v. Young, 07-0419 (La. 11/27/07),
989 So.2d 42, 63, on reh 'g (July 1, 2008)
(emphasis added). "Mindful of the admonition that the
provisions of the Medical Malpractice Act must be strictly
construed because they grant immunities or advantages to
special classes in derogation of the general rights available
to tort victims, and that prescriptive statutes must be
strictly construed against prescription and in favor of the
obligation sought to be extinguished," Id. at
64 (citations omitted), we will not read into the statute
language that is simply not contained therein. Rather than an
expansion of the application of the statute as found by the
First Circuit in Parks, we view this as a
restriction on the application of the statute to ...