In Re: Medical Review Panel Proceedings of Vincent Smithson

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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2007 CA 2262 IN RE MEDICAL REVIEW PANEL PROCEEDINGS OF VINCENT SMITHSON If 7J lff On f Appeal from the 22nd Judicial District Court Parish of St Tammany Louisiana Docket No 2006 16291 Division Honorable Donald M Fendlason Stephanie Gretna Reuther C H Judge Presiding Attorneys for Plaintiff Appellant LA Vincent J Smithson and Sherif K sakla Gretna LA and Alan B Tusa Carol T Richards Tusa Richards LLC Covington LA Franklin D Beahm Attorneys Jacob Best Beahm for Defendant Appellee NorthShore Green Regional New Orleans LA Nicholas Gachassin Jr Attorneys Julie savoy Lafayette LA Defendant Deborah Deo Gracias Trahan Medical Center Attorney for Defendant Appellee Covington for Appellee Dr Ernest Hansen III LA Dr Terrell M Hemelt BEFORE PARRO KUHN AND DOWNING JJ Judgment rendered f 1 June 6 2008 PARRO J plaintiff appeals The of judgment that sustained exceptions raising the objection a prescription dismissed his medical malpractice claims against three private health care providers and dismissed his petition for For the and costs following and remand for further reasons a declaratory judgment attorney fees we reverse in part affirm in part render in part proceedings FACTUAL AND PROCEDURAL HISTORY On was August cutting grass with NorthShore Center NorthShore open 7 30 2005 4 for confirmed Dr foreign object weedeater At 7 15 emergency s room The globe injury a m a a Hansen ophthalmologist diagnosis s left eye as he sought treatment for his eye injury at from Dr Ernest Hansen When s the front lawn of NorthShore Regional Medical Smithson a m consultation a on entered Vincent J Smithson on Dr III whose impression call Dr Terrell Hemelt was Hemelt examined Smithson and recommended urgent repair costs of the recommended surgery and the fact that Smithson was an contacted at at noon he Considering the uninsured was Dr charity hospital in New to arrange for the transfer which Hemelt advised Smithson that he should be transferred to the Orleans for surgery Hansen contacted the Dr occurred at by ambuiance Smithson was taking place examined at 10 30 p hold of Smithson s charity hospital approximately 2 30 p m It was not by the charity hospital s ophthalmology m left eye The next day until 7 30 p team m that with surgery it was clear that a violent infection had taken necessitating the surgical removal of his eye on August 8 2005 On a August 3 2006 Smithson sent the Louisiana Division of Administration DOA request for a medical review two state health care Campus Hemelt to evaluate his medical and LSU Health and three private health care s Sciences Center at New Orleans collectively Charity the state providers NorthShore Dr Hansen and collectively the private defendants Louisiana Patient malpractice claims against providers Medical Center of Louisiana Charity Hospital defendants panel The DOA forwarded this Compensation Fund Oversight Board 2 PCF Board request which Dr to the assigned PCF File No Board In a letter dated 2006 01057 to the claim acknowledged receipt of Smithson notified him through his attorneys that private defendants request for s 300 a a 5 R 40 paying the was re After a more non even the latter defendants and that a new though he had A letter from of the never was 300 also filing acknowledged receipt filing as to was a response from the DOA fee in connection with the the private defendants on assigned against the two state defendants were LSA Medical Malpractice Act 200 longer considered filed November 14 against the private defendants original complaint attorney advising that the payment of the no received acknowledged until November 3 2006 when the DOA the State 5 R fee for his claims of his sent him a letter care et seq 2006 the DOA Smithson acknowledged was not through his providers under and against them within 45 days 300 requesting That letter filing fee for that claim and advised that this request along with the original request for review had been forwarded handling medical That letter showed defendants state 39 1299 2006 to the claim qualified health 40 a was supplemental and amending petition against the private defendants along with the Board for record 2006 that the August 3 2006 the PCF Board file number PCF File No 2006 01604 s no filing fee and the October 26 2006 request for to review the claims Smithson time within malpractice complaint against the private defendants His remittance of the accepted by the PCF Board panel request days had elapsed without Smithson than 45 filing of the supplemental and amending request review suspend the not the qualified under the provisions of letter dated October 19 averred his medical acknowledged receipt or supplemental and amending request dated October 26 2006 and the state defendants as to considered were invalid and without effect In a 2006 providing evidence that the fee should be waived the PCF or through deemed by this office Smithson fee filing Board informed him request et seq 41 1299 300 they the PCF against the The letter also stated that the PCF Board had which suit must be instituted LSA 2006 fee for the claims filing would be rendered invalid and without effect and would so 11 medical review panel and be paid within 45 days of August 11 must of the state defendants August paid the the 200 fee to the DOA and on to the PCF November 17 timely receipt of the filing fee for the 3 state According to the letter defendants the claim assigned Medical Review Panel Number 06 Based within 45 Hemelt on Smithson the petition for a the in and costs Smithson of objection on private defendants Dr Smithson the issue of the timeliness a hearing petition for s and Dr Hansen prescription Following costs exceptions and dismissed Smithson fees the NorthShore declaratory judgment complaint and sought attorney fees and judgment attorney in a filing fee for directed as separately filed exceptions raising court sustained erred 2006 was MR 107 failure to submit the days of August 11 responded by filing of the s against the state defendants the trial declaratory a appeals contending that the trial court determining that his claims against the private defendants had prescribed and dismissing those claims and his petition for a declaratory judgment ANALYSIS Louisiana Revised Statute 9 5628 A states in pertinent part 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 No action for neglect however of such discovery period of three years neglect Emphasis added within or year from the date in all events such claims shall be filed at the latest even as to of the occurrence medical a injury when the damages 5th Cir ignorance of actionable harm may delay is able to state a cause of action See Guitreau v Louisiana has two one care App Kucharchuk 99 2570 statutory LSA 5 R 40 1299 39 et seq commences including a wrongful to medical services 5 R 40 41 1299 et seq Smithson s claims in this 4 case 749 580 malpractice liability state health regulating malpractice liability claims for medical services provided by qualified private health LSA 746 East act and resultant provided by and the other v prescription until 763 So 2d 575 La 5 16 00 upon the Baldini 976 SO 2d commencement of regulating malpractice liability claims for medical providers 1 22 08 pertaining Parts act omission immediately apparent However damages La are Gen plaintiff 07 0489 alleged malpractice claim Jefferson the HOSD one from the date of the a prescriptive period for The claims filed within care providers allege medical malpractice liability the on part of both state and qualified private health malpractice claims against either state health care providers must be reviewed against them by In both instances 5 R 40 With states in 47 1299 procedure qualified private health or panel before is initiated suit can be instituted by filing with the DOA See LSA medical review panel All medical providers 5 R 40 a 39 1299 1 2 a A to state respect a providers medical review the request for review of the claim by and LSA a care care health LSA R S providers care 40 1 A 39 1299 perti ne nt pa rt The filing of the request for review of a a time within which suit must be instituted claim shall suspend the in accordance with this until to the ninety days following notification by certified mail claimant or his attorney of the issuance of the opinion by the state medical review panel in the case of the state or persons covered by this Part The filing of a request for review of a claim shall suspend the running of prescription against all joint or solidary obligors including but not limited to health care providers both qualified and not qualified to the same extent that prescription is suspended against the party or parties that are subject of the request for review Filing a request for review of a malpractice claim required by this Section with any agency or entity other than the division of administration shall not suspend or interrupt the running of Emphasis added prescription Part Louisiana Revised Statute 40 respect to claims against private health plaintiffs application for in which the petition and functions care of provider can to medical review 47 1299 The 40 47 1299 B assert any a care a a has virtually identical provisions with providers In a medical medical review exception available pursuant panel process 2 2 panel suspend the running of prescription competent jurisdiction and proper 40 A 47 1299 is venue at to LSA 5 R 1 e initially or a the private health 5 R 9 5628 in regard as a court to whether the 40 1299 39 1 B 2 a and LSA 5 R 1 exceptions filed by the private defendants in this A serves state any time without See LSA complete a malpractice action case are based on which states comply with the provisions of Subparagraph c payment waiver of filing fees of this of filing fees of 100 per defendant or d Paragraph within the specified time frame in Subparagraph c of this Failure to 1 patient s malpractice claim alleges liability against both private health care provider unless all parties agree otherwise only We note also that when a provider and a a state one care medical review panel will be convened to review the claims under both medical malpractice systems 5 applicable to both Parts governs the panel deliberations See LSA R 40 1299 39 2 5 health and the law days from the mailing date of the confirmation of receipt of the request for review shall render the request for review of a malpractice claim invalid and without effect Such an invalid request for review of a malpractice claim shall not suspend time within which 2 a of this Subsection suit must be instituted in Subparagraph Emphasis added within 45 Paragraph They contend that Smithson to review the claims panel not initial against them filing fee 2006 They contend that because it was beyond Smithson 40 1299 39 1 A against a all joint even is liability 3 2006 2 August 3 2006 for a or not these care qualified parties that it should be waived within 45 medical review October 26 2006 this request on August arguments based to which the was not timely which he lost his left eye on filing of a the request for review of claim a to the same extent that the a both providers prescription is suspended against subject of the request for review review of the when he filed his care He contends that because the Therefore August complaint against the state defendants supplemental and amending request the letter He urges that pursuant acknowledging receipt and notifying him that the to the of his state above statute were 2006 medical review panel within 45 days thus a qualified suspended prescription against the private defendants for 90 days Smithson contends the were the DOA s November 3 August 3 2006 request for defendants was running of prescription had been suspended and his claims against the private defendants timely 5 R provisions of LSA but not limited to health joint and solidary among all the defendants pending of days provider shall suspend the running of prescription against are original request for not remit the though he submitted the filing fee with his year from the date according a on solidary obligors including or party one counters state health qualified and still on rendered invalid and without effect and did was provide evidence that or supplemental and amending request the request suspend the time within which suit must be instituted because he did 300 11 s or until the running of February filing fee for his claims against the state defendants 1 2007 was paid making the filing against the state defendants effective and preserving his claims against them and against the private defendants who and solidarily liable with them 6 were jointly Smithson additionally argues that his supplemental and amending request against the private defendants date of his timely because it discovery that he may have was negligent because he consciousness the an realized that the to private defendants therefore was on an was forced to and seek legal attorney at that time that he examining him and their recommendation in for financial October 26 2006 might constitute medical reasons potential malpractice exception of prescription based fees filing of the La 562 v 976 SO 2d 746 WL 508645 App recent Bosarae e v In In re or re year of that discovery and a number of cases v s s involving the failure to submit days from the confirmation of receipt Patient Como s writ denied Fund Oversight Bd 06 0837 La La In re 1st Cir App 3rd Cir 07 0150 La 959 So 2d 979 So 2d 489 App 1st Cir 11 2 07 La 6 2 06 Como Fund 06 1354 La App Iawike 06 0167 La App 4th Cir 5 23 07 Fund Oversiaht Bd 5 2 08 1 30 08 App Baldini 974 So 2d 924 1st Cir 2 27 08 2008 Medical Review Panel Proceedinas of Ouder 07 1266 2008 WL 1930316 we In this court s most SO 2d concluded that when a claimant does not remit proof of waiver of filing fees within the 45 day time limit that claimant request for review of an one malpractice claimant Golden Herring 07 1087 So 2d 1st Cir g Louisiana Patient opinion concerning this issue payment medical 924 So 2d 459 Jackson 06 2403 Patient s Como v See review 960 So 2d 1063 Latiolais Lane on a App 2nd Cir 3 8 06 929 So 2d 1261 5 4 07 within recently reviewed evidence of waiver thereof within 45 or request for 40 801 was timely This court and others have such he not return home only after consulting with Charity Hospital in and out of July 2006 his supplemental and amending request for review of his claims against until La and did He contends that because he did not discover this malpractice the was year from the against them for medical pain and moving in extreme was private defendants delays him to move It one Within weeks after his surgery day of the injury July 2006 filed within actionable claim leave his home because of Hurricane Katrina advice until was initially realize that his treatment by the private He claims he did not malpractice defendants was a medical malpractice claim is invalid and without effect invalid request does not suspend the time within which 7 s Because suit must be instituted a subsequent request filed beyond claim Ouder timely was not the one period for filing year So 2d at factually identical circumstances would be we medical malpractice a If the matter before obliged us involved to follow that decision and affirm the trial court Smithson However included review request for defendants has case s claims to Diana A According an against both Schenk in that his and private additional factual circumstance DOA a defendants state employee who testified by deposition receives concerning the handling of such claims the usual procedure when the DOA is to retain a copy of the such a PCF Board Then the defendants and asking joint request Board would send before a us the last page to the similar letter the regarding as a in its files amending request DOA without a was matter 2006 commenced In the matter Charity Hospital everything went The DOA did not keep concerning this matter but when Smithson concerning the November 3 Instead copy of it supplemental and s filed with the DOA it realized there must have been request against the state defendants Therefore Smithson review missed because it provider care maintaining state defendants was The PCF copy of the letter and did not send out a being named health pending but s an that As day noted previously on earlier August 3 2006 request for was not acknowledged until and the 45 day time limit for payment of the filing fee on to the regarding the state private defendants state defendants as letter payment of the applicable filing fee within 45 days regarding the PCF Board anything for notification a Ms Schenk said DOA did not retain notification letter on a DOA would send request and forward the original in that November 17 2006 the DOA acknowledged the timely receipt of the filing fee Based on our the issue raised the review of the by this factual statutory language unambiguous review of a in situation analyzing this According to LSA claim against a 5 R or Under our civilian res nova care 8 2 we must The statute the a filing of rely on is clear and a request for provider shall suspend the running of solidary obligors prescription is suspended against the party tradition issue 40 1299 39 1 A state health prescription against all joint it appears that no court has addressed jurisprudence or to the parties that are same the extent that subject of the request for review between Emphasis added joint and solidary obligors conspires with another is not liability be a Louisiana Civil Code article 2324 differentiates Solidary liability to commit an intentional or willful act solidary then liability for damages caused by joint and divisible obligation proceedings it state and damages resulting from the loss of his eye and state alleged This obligors as set a At this private defendants Therefore stage of forth in LSA 5 R 40 39 1299 A2 1 finding of solidary two or more filing fee for that claim valid because the claims against the private defendants 2 a Accordingly Smithson on the foregoing we filing against the was were not was state defendants was filing against the However as to find judgment Although petition for court erred in maintaining the the time that had Because are not in failing claims It to declare timely and suspended the running of against the allegedly joint obligors the private defendants authority for an award of declaratory judgment attorney fees so this in connection with a portion of the trial suit has yet been filed we note that under Article 2324 tortfeasor is effective against all joint tortfeasors against one joint interruption of prescription 3 a declaratory judgment and s court s was correct no suspension suspension no a state defendants was his claims we can successful 2 denying his petition for Smithson s 3 prescribed conclude that the trial filing deemed invalid and Therefore paid timely s running of the suspended exceptions raising the objection of prescription and dismissing Smithson prescription persons joint liability has clearly been defendants state The evidence shows that the without effect that his the Smithson claims that his prescription against the private defendants unless that filing also erred in If triggers the suspension of the running of prescription against all joint request for review against the Based in a by caused were person two or more persons shall However private defendants one LSA C C art 2324 A unlikely that the allegations would result seems including only when 2324 B LSA C C art liability among the of occurs is counted differs from and Of course in that when the a suspension of prescription interruption is not counted whereas time prescription commences to run again upon the before the run interruption of prescription C the effect interruption of an ceases that had accrued before the termination of the period of See LSA C C arts 3466 and 3472 we conclude prescribed we year from the date of on the basis of the statute that Smithson do not address the other timeliness discovery of the claims 9 s claims argument against the private defendants were filed within one that his claims DECREE The portion of the judgment of September 12 2007 maintaining the exceptions raising the objection of prescription dismissing Smithson petition for a declaratory judgment and costs judgment denying attorney fees that Smithson s claims judgment We remand this to NorthShore REVERSED affirmed against NorthShore awarding Smithson court assessed is costs in Dr IN PART claims reversed and denying his That portion of the hereby render judgment declaring Hansen connection with matter for further Dr Hansen We is s and Dr Hemelt his proceedings were petition for a All costs of this timely and declaratory appeal are and Dr Hemelt AFFIRMED IN PART REMANDED 10 RENDERED IN PART AND

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