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Gibson v. Jefferson Parish Hospital Service District No. 2

Court of Appeals of Louisiana, Fifth Circuit

June 27, 2019

THOMAS GIBSON, JR. AND BARBARA GIBSON, INDIVIDUALLY AND ON BEHALF OF THEIR FATHER, THOMAS GIBSON (D)
v.
JEFFERSON PARISH HOSPITAL SERVICE DISTRICT NO 2 D/B/A EAST JEFFERSON GENERAL HOSPITAL & OCHSNER CLINIC FOUNDATION

          ON 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

          Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Robert A. Chaisson

          ROBERT A. CHAISSON JUDGE.

         In this 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.

         FACTS AND PROCEDURAL HISTORY

         On 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 Hospital[1]regarding their care and treatment of Mr. Gibson.[2] The request specified the dates on which Mr. Gibson allegedly received negligent medical treatment from Ochsner as May 6, 2011, through May 29, 2011.[3] 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.

         On January 30, 2013, Mrs. Gibson amended her request for review to provide more details regarding the alleged negligent medical treatment of Mr. Gibson.[4] 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.

         Although 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.

         According 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[5] 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 mother.[6]

         On 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, [7] the trial court rendered judgment overruling both of Ochsner's exceptions, memorialized in a judgment dated May 14, 2019.[8] It is from this judgment that Ochsner now seeks this Court's supervisory review.

         In its 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. DISCUSSION

         We 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.

         Suspension of Prescription pursuant to the LMMA

         Ochsner 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 cases."[9]

         In 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.[10] 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.

         After 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.

         In 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.

         After a 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).[11] The Parks appealed the judgment sustaining the exception of prescription.

         On 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.[12] In reaching this conclusion, the Court looked to the language of the LMMA itself.[13] 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)."[14] Id. We respectfully disagree.

         The 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.

         The 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.

         If the 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).

         We note 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.

         Furthermore, 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.

         The 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 ...


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