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Cabrera v. Lewis

Court of Appeals of Louisiana, Third Circuit

November 6, 2019

SELENE CABRERA
v.
JOSHUA JAMES LEWIS, JR., ET AL.

          APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2017-5364 HONORABLE RONALD F. WARE, DISTRICT JUDGE

          Aub A. Ward Naquin & Ward COUNSEL FOR PLAINTIFF-APPELLANT: Selene Cabrera

          Matthew J. Ungarino Heather Cheesbro Ungarino & Maldonado, LLC COUNSEL FOR DEFENDANT-APPELLEE: Stonebridge Health Systems, LLC

          Court composed of John D. Saunders, Elizabeth A. Pickett, and Van H. Kyzar, Judges.

          ELIZABETH A. PICKETT JUDGE

         Selene Cabrera appeals a judgment of the trial court granting the exceptions of prescription and prematurity filed by the defendant, Stonebridge Health Systems, LLC (Stonebridge).

         FACTS

         Ms. Cabrera's original petition alleges that while she was a patient at Calcasieu Behavioral Health Services, LLC (CBHS) on December 29, 2016, an employee of the facility, Joshua James Lewis, Jr., sexually assaulted her. She filed a Petition for Damages on December 29, 2017, naming Mr. Lewis, CBHS, and an unknown insurer as defendants. The petition alleged an intentional tort by Mr. Lewis. The petition further alleged that Mr. Lewis was an employee of CBHS in the course and scope of his employment at the time of the assault, and therefore CBHS was responsible for the acts of its employee. The petition also alleged the negligence of CBHS in failing to properly supervise Mr. Lewis, failing to provide a safe living condition for Ms. Cabrera, failing to properly screen Mr. Lewis for criminal convictions and arrest, failure to warn Ms. Cabrera of Mr. Lewis's criminal history, and failure to provide proper monitoring equipment to alert other employees that a sexual assault was taking place in Ms. Cabrera's room.

         Stonebridge made an appearance for the purpose of filing a Declinatory Exception of Improper Service, arguing that CBHS is unrelated to Stonebridge and service on Craig Johnson as agent of CBHS was insufficient to require any responsive pleading by Stonebridge. A hearing on the exception was scheduled for June 1, 2018, but was continued.

         On June 14, 2018, Ms. Cabrera filed a First Supplemental and Amending Petition for Damages substituting Stonebridge Health Systems, LLC d/b/a Calcasieu Behavioral Health Services, LLC. This petition alleged the same theories of recovery against Stonebridge as the original petition had alleged against CBHS. On July 6, 2018, Ms. Cabrera filed a Second Supplemental and Amending Petition for Damages. This amended petition substituted Stonebridge Health Systems, LLC for Stonebridge Health Systems, LLC d/b/a Calcasieu Behavioral Health Services, LLC. The allegations against Stonebridge were the exact same as those pleaded against CBHS in the original petition and against Stonebridge d/b/a CBHS in the first amended petition.

         Stonebridge filed a Peremptory Exception of Prescription and Dilatory Exception of Prematurity and Memorandum in Support on July 26, 2018. Stonebridge argued that a one-year prescriptive period applies to Ms. Cabrera's tort action, and that she did not file a claim against Stonebridge until July 6, 2018, more than eighteen months after the alleged assault occurred. Thus, the claims against Stonebridge are prescribed on their face pursuant to La.Civ.Code art. 3492. Further, Stonebridge argued that it is completely unrelated to CBHS, and thus any claims against Stonebridge cannot relate back to the date of the filing of the original petition.

         Stonebridge also argued that it is a qualified health care provider pursuant to the Louisiana Medical Malpractice Act (LMMA). Stonebridge argued that all the claims against it sound in medical malpractice. Pursuant to the LMMA, all medical malpractice claims against qualified health care providers must be submitted first to a medical review panel before filing suit in district court.

         In response, Ms. Cabrera alleged that the amendment to the petition naming Stonebridge simply corrected the name of the defendant, and therefore relates back to the filing of the original petition. Thus, the claims against Stonebridge are not prescribed. Ms. Cabrera further argued that the claims against Stonebridge are intentional torts, namely intentional infliction of emotional distress and sexual assault. These claims fall outside of the scope of the LMMA, and a medical review panel is not required before the filing of suit.

         On September 26, 2018, Ms. Cabrera filed a motion to appoint a private process server to serve Mr. Lewis, as the sheriff of Calcasieu Parish had been unable to serve him at the address provided. The trial court signed ...


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