In Re: Medical Review Panel Proceedings of Ruth McCoy Ouder
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2007 CA 1266 01 IN RE MEDICAL REVIEW PANEL PROCEEDINGS OF RUTH MCCOY OUDER On Appeal from the 22nd Judicial District Court Parish of St Tammany Louisiana B Docket No 2006 14423 Division Honorable Elaine W DiMiceli J Kevin Attorney for Ruth McCoy Ouder McNary Covington LA Deborah Deo Gracias Trahan Covington Judge Presiding LA Attorney for Defendant Appellee Fidel F Sendra M D Mark W Verret Attorneys Brett M Defendant Bollinger for Appellee Regional Elliot M Lonker NorthShore Allen L LC d b Gooch a Medical Center NorthShore Metairie LA David A WOOlridge Jr Carlton Jones III Attorneys for Roedel Louisiana Patient s Regional Medical Center Amicus Curiae Parsons Koch Blache Balhoff McCollister A L C Compensation Fund Oversight Board Baton Rouge LA BEFORE PARRO KUHN AND DOWNING JJ Judgment rendered May 2 2008 11II PARRO J Ruth McCoy Ouder appeals a judgment that sustained exceptions raising the objection of prescription and dismissed her medical malpractice claims against Dr Sendra and Northshore Fidel F Medical Center Regional Regional Medical NorthShore Center We affirm the L Lc d b NorthShore a judgment FACTUAL AND PROCEDURAL HISTORY Fidel F Sendra Dr NorthShore on performed open heart surgery April 23 2004 to remove it the requiring corrective surgery 8 Ms 2005 Ouder filed a request for a Sendra and NorthShore Compensation Fund PCF 2005 the PCF March 21 This and request following day medical assigned was would not or suspend the time within which suit 200 2005 458 and filing fee Ouder paying the that the March 8 no was on In a Patient s letter dated a 200 filing fee a must be instituted the PCF informed her 2005 Dr medical must be the request would be rendered invalid and without effect and the fee should be waived effect panel with the Louisiana acknowledged receipt of Ms Ouder s request for Ms 17 letter dated March a malpractice claims against PCF File No at left in her was forwarded to the Louisiana days had elapsed without May By review panel and notified her through her attorney that paid within 45 days McCoy Ouder during the surgery of Administration to evaluate her medical Division review A sponge used Ruth on filing fee through 2005 request was or a was more than 45 providing evidence that letter to her attorney on deemed invalid and without longer considered filed by this office May 25 2005 After rejected by the PCF Her remittance of the as untimely and was refunded to her On June 29 sent the No 1 filing fee 2005 1209 2005 Ms Ouder to the PCF with her the a petition under the Louisiana Medical to extend the life of a medical review request This request proceeding before this 2006 Dr Sendra filed moved again requested court involves this to institute a Malpractice Act On On September in this proceeding September 11 2006 considering and assigned PCF File filing discovery docket the medical review panel 2 was panel Dr Sendra the claim in PCF In November 2006 File No 2005 1209 the objection Ouder signed of Ms and this Ouder s motion for a exceptions raising exceptions and dismissed The malpractice claims against the defendants February 8 2007 on denied The court sustained the prescription medical s he and NorthShore filed stayl and for Ms judgment was trial were a new suspensive appeal followed ANALYSIS states Louisiana Revised Statute 9 S628 A in pertinent part No action for damages for injury or death against any physician hospital or nursing home duly licensed under the laws of this state whether based upon tort or breach of contract or otherwise arising out of patient care shall be brought unless filed within one year from the date of the alleged act omission or neglect or within one year from the date of discovery of the alleged act omission or neglect year from the date of such be filed at the latest within a all shall discovery of three years from the date of the alleged act omission or period however even as to claims filed within one events such claims in neglect Emphasis added The prescriptive period for occurrence of the HOSD 2004 the date the sponge file her medical by 1 La left in her are App 5th Cir Ms Ouder had body and she is initiated LSA in was by filing 5 R 40 47 1299 Baldini v one year from April 23 informed of that fact to 2 panel before suit request for a the upon 2008 WL 183642 1 22 08 malpractice claims against qualified health medical review commences immediately apparent can A care be instituted review of the claim with the Louisiana Division of Administration the PCF states a was malpractice c1aim All medical panel 07 0489 In this case therefore So 2d procedure malpractice claim injury when the damages East Jefferson Gen reviewed medical a providers must be against them by a medical review which forwards the Louisiana Revised Statute 40 The 47 1299 request to A 2 a pertinent part to a memorandum in the record Ms Ouder also filed a petition for writ of mandamus to the peF to allow the earlier filed matter to proceed as well as a declaratory judgment action require to have the statute declared unconstitutional After the courts reasons were assigned but before the According judgment concluded 2 in this case was That motion signed was Ms Ouder filed a motion to denied by the trial court in See LSA C C art 3454 3 a stay until those other cases judgment signed March 21 2007 were The of the filing request for review of a claim shall a suspend the time within which suit must be instituted until ninety days the claimant or his to following notification by certified mail attorney of the issuance of the opinion by the medical review Emphasis added In a medical panel review serves initially prescription the health 9 5628 in action malpractice as care the plaintiffs application for provider can assert any jurisdiction and A Ms 2 a Ouder 47 1299 s B and 29 July Administration asked for a professional the act of medical April 23 before the date of this on its prescribed face the plaintiff s running of to LSA R S See LSA R S request for a through malpractice is medical review the PCF to malpractice is more than a Therefore this claim panel of The letter described The critical date of act of alleged Commissioner Louisiana to be invoked malpractice and stated year was Ordinarily the party pleading prescription bears the burden of However when the face of the the burden prescribed running of prescription Schmidt 595 So 2d 624 628 of the to medical review panel claim has demonstrate that the letter 2005 proving the claim has prescribed that medical at any time without complete is a a The date of the 2004 venue proper conduct of Dr Sendra and NorthShore review the alleged 2 the exception pursuant regard to whether the medical review panel process 40 suspend the petition and functions to of competent a court in which panel La 1992 was In this shifts suspended case Ms or petition reveals to the plaintiff interrupted to Lima v Ouder bore that burden proof Ms review panel medical on March 8 2005 which her was malpractice claim should be suspension of the prescriptive period authority request for the convening of Ouder contends that her first as an timely initial well within the considered remit the filing fee 5 R 40 47 1299 A 1 usurped judicial invalid and without effect The PCF claims it e the year medical period for filing operative claim a for the Ms Ouder argues that the PCF exceeded its administrative agency and filing as one a power when it deemed simply because she did not timely Simply followed the statutory mandate of LSA which states 4 Failure to comply payment of filing fees of fees of this Paragraph provIsions of Subparagraph c waiver of filing 100 per defendant or d with the within the specified time frame in Subparagraph from the confirmation of Paragraph days receipt of review the request for shall render the request for review of a Such an invalid malpractice claim invalid and without effect request for review of a malpractice claim shall not suspend time within 45 of this c within which suit must be instituted in Subsection Ms 40 801 that case case App 2nd Cir 3 8 06 929 So 2d 1261 as of Golden a a petition for steps writ of The court stated that the in the law to issue a declaration the was co u rt Fund Oversiqht Bd La 6 2 06 06 0837 never paid in the district court equivalent of asserting t an valid and ordered the PCF to convene a panel which no authority to the extent Therefore it found the In analyzing the statute stated Apparently the PCF Board would interpret the statutory language invalid and without effect more broadly than just causing an impact on the suspension of prescription It would render Golden s claim totally invalid regardless of whether or not the applicable prescriptive time for the action was close to being tolled T he view that Golden s filing fee submission reputedly received two days late results in the total invalidity of the claim over and beyond the concept of prescription is absurd For example if the act of malpractice or Golden s discovery of the malpractice had occurred only days before her initial filing of the claim in May 2004 her two day delinquency in July 2004 could not cause the total invalidity of her claim which would effectively impose a two month prescriptive period on it Despite any delinquency in the submission of the filing fee even with the statute s suspending effect on prescription briefly ending the panel process may continue prescription has not necessarily run and suspension begins anew Interpreting the effect of suspension of 5 was objection of prescription stopping the process except implicitly at 463 panel The court on the basis he PCF Board is granted Golden 924 SO 2d In days beyond the 45 day judgment of the district which it could not do filing of this to convene a medical review was fee is Como writ denied mandamus The Second Circuit affirmed the filing s check that it received several that the PCF s action that the a support for her position that the PCF exceeded its authority the PCF refused claimant then filed Patient v 924 SO 2d 459 deadline and refused to take further granted 2 Emphasis added Ouder cites the La Subparagraph prescription caused by the panel review process the Supreme Court has indicated that upon conclusion of suspension as provided in the MMA plaintiffs entitled to the are that remains unused when the filed Guitreau Likewise 575 request for a medical review 99 2570 La 5 16 2000 Kucharchuk v the First Circuit for its refusal to allow the refiling of together those Considered panel was 763 So 2d mandamused the PCF Board claim in the Pierson case In re properly Medical Review Panel of Pierson 845 So 2d 1275 writ denied of time under La R S 9 5628 period a 02 1598 03 1559 La La App 1st Cir 5 9 03 10 10 03 two cases show that the 855 So 2d 324 panel proceeding should continue I t is not the PCF Board s place to assert prescription and effectively dismiss plaintiff The defendant alone may prejudice choose to assert prescription s claim with 924 So 2d at 463 64 Golden In this court s Pierson case cited above the attorney chairman within the time allotted by LSA 5 R 40 PCF advised the claimant that it had dismissed the submitted second a claimant then filed district court request for petition for a timely appointment of the claim or us has the PCF no The and the which the PCF refused mandamus in the district claim when attorney chairman no action The court which the has been taken to the statute does not to dismiss the claim with secure the prohibit the prejudice re Pierson not address whether either the first or the opinion did to the matter we are Moreover in the matter before despite a late be deemed reviewing recently considered several other payment of pauperis certificate the claimant can c accepted and filed the second complaint Therefore the Pierson holding This court has panel panel 2 The claimant then complaint complaint would be considered timely application whether an a authorize the PCF 845 SO 2d at 1276 second filed writ of A an appoint judgment commenting that although the language of the provides for dismissal of filing of medical review 47 1299 to granted ordering the PCF to accept and file the second complaint This court affirmed that statute a parties failed s a filing fee otherwise or a late cases raising the production timely request for a of issue an in of forma medical review timely for the purpose of suspending the prescriptive period for bringing the medical malpractice claim In Lane 6 v Patient s Compo Fund Oversiaht Bd 07 0150 claimant filed the filing fee or a on certificate an in eventually provided the for timely request a the basis that it forma The claimant then filed deem that a original request for judgment medical provider had judgment The a of Bosarge suit for district court requesting a determined that the involved party in the to the court s the rule to the trial court So 2d at s as court because the health care No decision s on late filing fee a was a When the PCF refused to petition for judicial to be deemed filed panel petition for judicial as a suit a plaintiffs of the date of the and original case it appropriate proceeding declaratory judgment Holding that the action should have been made declaratory judgment judgment and remanded the review of that When this court reviewed the underlying medical malpractice plaintiffs suit for as review was not an for 1st Como Fund 06 1354 La App The district court ruled in favor of the medical review but considered the matter defendant and the declaratory judgment this Lane Louisiana Patient v declared that the complaint letter Although the PCF and remanded to the district court 960 So 2d 1063 in the named panel request must be deemed accept the untimely filing fee the claimants filed decision were This court noted rendered case Cir 5 4 07 timely defendants was review not been named or served was as where the court and that the PCF must declaratory judgment a Analogizing this situation to vacated the panel no requested specifically seek declared that her timely filed the merits did not filed accept this certificate invalid and without effect day of the original filing medical review was was she However it was retroactive to in the district court cause cause was only party upon which service cause a The PCF refused to and stated her claim of the as that when the rule to show show filed was rule to show indigent was the medical review panel but did not timely submit pauperis certificate that stated untimely was a 2008 WL 508645 showing in forma pauperis status original date when her claim ruled that she So 2d App 1st Cir 2 27 08 La a this court vacated the trial matter to allow the defendant to be made a 7 party to the plaintiffs suit Bosarge 960 So 2d at 1067 68 address the substantive merits of the suit for Another 06 2403 La factually similar original request for a So 2d medical review panel and assigned an in filing certificate for a request for a new forma applied was medical review filings thus was There timely but the filing fee no longer Within the time limits pauperis certificate to both as was an was not considered filed received The by peF to the second applicable The claimant contended this submitted curing any problems with the original request Apparently the timeliness of the complaint panel Jackson v 2007 WL 3246737 medical review panel which file number issue in the medical review a a did not declaratory judgment timely submitted and PCF dismissed the claim claimant refiled his case this court has considered is Latiolais case 11 2 07 App 1st Cir Again this was put at panel proceedings because the claimant eventually filed petition for damages against the PCF and its medical malpractice director alleging that his medical prescribed He malpractice complaint also sought a was in writ of mandamus the process of ordering the defendants his claim and rescind their dismissal of his first claim tried and the district court rendered to reconstitute his declaration that the ordering the PCF defendants judgment in his favor was to be considered to receive the pauper order This court converted the PCF s and as not an was ordering the defendants nullifying filed assessing all appeal to as to reinstate The mandamus issue petition under the original filing number original filing being dismissed or the PCF s without effect costs against the application for supervisory granted writs and reversed the trial court stating review The trial court erred in granting mandamus in this case ordering the defendants to reconstitute Latiolais s January 21 2004 petition and nullifying the PCF s declaration that the January 21 2004 petition is considered as not filed or without effect in this case as it did in Golden The PCF did not overstep its Latiolais was not prevented authority from continuing the process and in fact did proceed to assert his claim The PCF accepted the filing of his April 27 2004 petition and sent out the notice letter to all parties just as it had with the January 21 2004 petition Therefore there is no basis for the trial court s judgment Latiolais So 2d at Again this decision does substantive issue before this court in the matter 8 we are not address considering or decide the Since this court yet ruled has not on to see if these can this issue will turn to the decisions of other we at the Golden However the court in that did not have plaintiffs claim with before us the case was authority us reinstate the That is case panel process Golden rationale in this case a was of In re Iawike 06 0167 s or waiver Neither days pauperis affidavit fee was were La request for an a medical review or was provided within that time period a was not 9 a petition for sought and refused to her claim Circuit determined that the PCF had followed all the notice was not in forma timely and refused to The claimant filed panel process with respect an by the request for waiver of the and the district court denied her the relief pauperis affidavit but not letter to her a waiver document must be received take any further action with respect to her claim and that her in forma 959 SO 2d panel of fee document The PCF sent eventually provided to the PCF with reinstate the medical review we untimely in forma pauperis App 4th Cir 5 23 07 The PCF determined that the document review Therefore case presented with the claimant filing fee part of this proceeding is not attorney telling him that the filing fee PCF in 45 Also The case statute not the PCF matter certificate in the judicial court of procedurally different from the Golden Fourth Circuit filing in the matter case second The accompanied by assert only involves the second complaint filed by Ms Ouder which In that to was no in the apply the proceed raising the objection by the district case was to choose may Unlike the Golden dismissed complaint that she originally filed 562 alone by the filing of the original complaint by the claimant There complaint filed cannot defendant defendants did assert the exception were to prescription and effectively dismiss assert that the result of the Golden we note before to should be allowed s implication its attention to the action of the PCF directing 924 So 2d at 464 prescription and the claims initiated Ms Ouder as The prejudice Golden prescription from the second Circuit the clear case from the decision is that claims such it courts provide guidance Looking back stating appellate to The Fourth requirements in the received by the PCF within time applicable the claim Therefore period 974 So 2d 924 is Circuit case In number to the a case the amount of of the fee 200 must be malpractice complaint against to convene a medical 200 including the When that time paid The claimant filed another a case filing fee number That second In the days filing a court stated was was considered longer no accepted by the PCF and court which were Ouder in this authority by dismissing his claims This dismiss Mr argument has Herring s claims 2343 La 12 8 06 of the complaint and v defect payment of the fee Therefore the fee language the 939 So 2d 539 pursuant are Health Sciences Ctr 543 writ denied was The inexorably joined paid Herring not incidental to the 5 R 40 filing is 974 SO 2d at 926 complaint nor was it The court 47 1299 A 1 e negates the application of this argument here as it provides that failure to timely pay filing fees renders a complaint s request for review 10 06 complaint by amendment of the complaint of subsection La to 974 So 2d at 926 concluded The clear several the Third Circuit also observed that the 943 So 2d 1092 that could be removed on that contention Herrinq Louisiana State Univ not considered to be filed until the fee is emphasis added sustained that the PCF had The trial court dismissed his claims App 2nd Cir 8 25 06 the the application here because the PCF director did no Citing Medical Review Panel of Davis La case Addressing exceptions of prescription filed by the defendants Shreveoort 41 273 fee in complaint with the PCF this time complaint Ms care The PCF plaintiff appealed the dismissal of his medical malpractice claims exceeded its a health two proceeding involving the second complaint grounds including the argument made by not matter before period elapsed without payment defendants filed exceptions of prescription with the trial The malpractice panel review and advised that within 45 filing the PCF notified the claimant that his claim by this office assigned review of her Herring 07 1087 La App 3rd Cir 1 30 08 re medical a providers and requested the PCF filed a factually and procedurally indistinguishable from the There the claimant filed assigned request for invalid and without effect was A recent Third us her invalid and without effect and that such not invalid request does an must be instituted Herring s no effect because he failed to pay his filing fee as Therefore it did not suspend 5 R 40 47 1299 A 1 c time within suspend complaint had required by La which suit Mr and there the time within which suit had to be instituted was no time remaining which allowed him to pay the filing fee more than forty five 5 La R days after the PCF s September 6 letter was mailed 40 A 47 1299 1 e Herrinq 974 So 2d at 926 Again in the Baldini case medical review panel without submitting the for a her attorney that if the fees were After the 45 days elapsed the PCF complaint was sent lawsuit of On the the one year was 300 fee with this a medical filing suit attorney stating that invalid and without effect a second request for care for her medical bringing trial court sustained the a They filed exceptions raising the objection providers since the lawsuit and the second period a request The PCF accepted day she submitted her second filing to the PCF she also filed against the health prescription and the time for to her The claimant then filed filing fees medical review panel and included the filing suspend another letter longer considered filed no due to the failure to pay this not request and the PCF advised fees filing paid within 45 days her request for not panel would be without effect and would review the from the Fifth Circuit the claimant filed her filing with the PCF were filed after malpractice claim had prescribed exceptions and dismissed her case On her appeal The of that judgment the Fifth Circuit stated Because plaintiffs second Petition for Damages and second peF year after the date of the alleged have prescribed on their face complaint were filed over one malpractice plaintiff s claims Consequently on defendants Exceptions of Prescription the burden shifted to plaintiff to show that her claims had not prescribed The trial court found that Baldini plaintiff did So 2d at not meet this burden Analyzing still be considered valid and should the We agree question of whether her initial filing should suspend the time within which suit must be filed the court stated Plaintiff further contends that the PCF that the filing of plaintiff s medical 2005 was untimely due December 1 However the PCF did not determine December 1 2005 was incorrectly determined malpractice first complaint on to failure to timely pay filing fees that plaintiff s first complaint filed Rather untimely 11 the PCF sent a letter to plaintiffs counsel notifying him that plaintiff s complaint considered filed and was failure to pay was no longer invalid and without effect due to plaintiff s In fact the PCF never found either of filing fees plaintiffs complaints or requests for a medical review panel to be untimely Further although plaintiff argues that her December 1 2005 complaint should not have been rendered invalid due to failure to pay filing fees plaintiff never took any action or filed any pleadings such as a mandamus action complaint was that her first Instead plaintiff simply filed to contest the PCF s determination invalid and without effect second lawsuit and a new second request for and included the 300 fee with this request a An invalid request for of review a a medical review panel malpractice claim does not suspend the time within which suit must be instituted as per LSA R S 1 e 40 47A 1299 Without interruption or suspension of prescription in this case plaintiffs Petition for Damages and second request for a medical review panel filed April 25 2006 were untimely because they were not filed within one year of the alleged malpractice Considering the record before us the parties arguments and the applicable law we find that the trial court did not err in granting defendants Exceptions of Prescription So 2d Baldini The Herring and Baldini cases are directly rationale used by the Third and Fifth Circuits Fourth Circuit in the Iqwike the on point and suspend the which time within which prescription began complaint PCF File 2005 within 45 No days case was or the no to run in Ms Ouder s clear failure to pay the PCF notified her were not not paid and longer conSidered filed 12 invalid request shall The case was by certified was sent complaint would The fees an suit must be instituted 2005 458 On March 21 be instituted her more of the filing fees within the allotted time period shall render the request for review of malpractice claim invalid and without effect and such 8 agree with the in those cases and the decision The statute could not be case we by not operative date upon April 23 2004 mail a a Her initial letter dated March attorney that filing fees had to be paid suspend the time within which suit must on May 17 2005 the PCF advised that That invalid request for review of her malpractice claim did not suspend the time within which suit must be instituted one year complaint filed with the PCF her second Therefore period for filing a medical malpractice claim on June 29 was 2005 prescribed 3 beyond the 4 CONCLUSION The judgment sustaining and dismissing Ms Ouder s the exceptions raising the objection of prescription medical malpractice claim against Dr All costs of this NorthShore is affirmed appeal are Sendra and assessed to Ms Ouder AFFIRMED 3 In so concluding 99 2570 we La 5 16 00 no conflict with the supreme court s conclusion in Guitreau v Kucharchuk 763 So 2d 575 579 that when the statutory 90 day period of suspension after find the decision of the medical review entitled to the remainder of the medical review panel started the suspensive 4 was filed period panel is completed plaintiffs in medical malpractice actions are prescriptive period that was unused at the time their request for a That case presumes the request for a medical review panel which was valid An invalid request has In briefs to the trial court and this court Ms no indication such suspensive effect Ouder ciaimed LSA R S both the Louisiana and the United States Constitutions pleadings and there is proceeding See Vallo v no that the However those Attorney General Gavle Oil was 40 47 1299 arguments served A with 94 1238 La 11 30 94 646 So 2d 859 eo Inc agree with the trial court that the constitutionality issue was not properly raised in this 13 1 e violated were not raised in copy of the Therefore we a proceeding
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