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In re Medical Review Panel Proceedings

Court of Appeals of Louisiana, Second Circuit

November 20, 2019

IN RE: MEDICAL REVIEW PANEL PROCEEDINGS FOR THE CLAIM OF RHONDA FERGUSON Plaintiff-Appellant
v.
DR. JAMES G. HOWELL, DR. MICHAEL BANDA AND WILLIS KNIGHTON MEDICAL CENTER D/B/A WILLIS KNIGHTON BOSSIER HEALTH CENTER Defendants-Appellees

          Appealed from the Twenty-Sixth Judicial District Court for the Parish of Bossier, Louisiana Trial Court No. 157347 Honorable Robert Lane Pittard, Judge

          LAW OFFICE OF SUSAN E. HAMM By: Susan Elizabeth Hamm Counsel for Appellants, Rhonda Ferguson and Marshall Ferguson

          CARAWAY LEBLANC, L.L. By: Kathryn Montez Caraway Erica L. Andrews Counsel for Appellee, Dr. Michael Banda

          WATSON, BLANCHE, WILSON & POSNER By: Callie M. Boudreaux Counsel for Appellee, Willis Knighton Bossier Health Center

          Before PITMAN, COX, and McCALLUM, JJ.

          MCCALLUM, J.

         Rhonda and Marshall Ferguson appeal a judgment granting the exception of prescription and dismissing their medical malpractice claim as prescribed. For the following reasons, we affirm the judgment.

         FACTS

         On November 2, 2016, Rhonda Ferguson underwent hernia repair surgery that was performed by Dr. James Howell. Dr. Michael Banda and surgical assistant Jacqueline Phelps assisted in the surgery. Two weeks later, Dr. Howell, with Phelps assisting, performed an incision and drainage surgical procedure on Ferguson. On November 21, Dr. Howell performed an exploratory laparotomy and small-bowel resection on Ferguson. Dr. Banda and Phelps assisted. All three surgeries took place at Willis-Knighton Bossier Health Center.[1]

         On October 31, 2017, Ferguson and her husband, Marshall Ferguson, mailed a request for the formation of a Medical Review Panel ("MRP") to the Division of Administration, which received the request on November 3, 2017. Named as defendants were Dr. Howell, Dr. Banda, Phelps, and Willis-Knighton Medical Center d/b/a Willis-Knighton Bossier Health Center. It was alleged that the medical malpractice occurred from November 2 to December 12, 2016. The request was forwarded to the Patient's Compensation Fund ("PCF").

         On November 20, 2017, the PCF wrote to the Fergusons' attorney, Susan Hamm, that the request for an MRP had been received. The request was given file number 2017-01195. The letter from the PCF notified Hamm that Willis-Knighton and Drs. Banda and Howell were qualified providers, but that the PCF was still verifying whether Phelps was a qualified provider. The letter further stated (all emphasis as in original):

In accordance with R.S. 40:1231.8(A)(1)(c) a filing fee of $100 per qualified defendant must be received by the [PCF] within 45 days of your receipt of this notice. Please remit full payment to the [PCF] in the amount of $300. This filing fee may only be waived upon receipt of an affidavit from a physician or a district court's in forma pauperis ruling as set forth in R.S. 40:1231.8(A)(1)(d). Failure to comply shall render the request invalid and without effect as to all named health care providers including any previously qualified providers. The request shall not suspend the time within which suit must be instituted.

         Dr. Banda, Dr. Howell, and Willis-Knighton were given notice of Fergusons' request for an MRP on November 20, 2017.

         On December 7, 2017, the PCF wrote to Hamm to acknowledge receipt of a $300 money order as payment of the filing fees for Willis-Knighton, Dr. Howell, and Dr. Banda. The letter also instructed Hamm concerning the process for selecting a chairman for the MRP.

         On January 5, 2018, the PCF notified Hamm that Phelps was also a qualified provider. The letter from the PCF stated (all emphasis as in original:

In accordance with R.S. 40:1231.8(A)(1)(c) a filing fee of $100 per qualified defendant must be received by the [PCF] within 45 days of your receipt of this notice. Please remit full payment to the [PCF] in the amount of $100. This filing fee may only be waived upon receipt of an affidavit from a physician or a district court's in forma pauperis ruling as set forth in R.S. 40:1231.8(A)(1)(d). Failure to comply shall render the request invalid and without effect as to all named health care providers ...

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