DIANA M. LEBRETON Vs. PENDLETON MEMORIAL METHODIST HOSPITAL, PATRICK C. BREAUX, M.D., FELIX O. RABITO, M.D., AND THOMAS A. KREFFT, M.D.

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NOT DESIGNATED FOR PUBLICATION DIANA M. LEBRETON * NO. 2002-CA-0801 VERSUS * COURT OF APPEAL PENDLETON MEMORIAL METHODIST HOSPITAL, PATRICK C. BREAUX, M.D., FELIX O. RABITO, M.D., AND THOMAS A. KREFFT, M.D. * FOURTH CIRCUIT * STATE OF LOUISIANA * * ******* APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2001-13435, DIVISION “B-15” Honorable Rosemary Ledet, Judge ****** Judge David S. Gorbaty ****** (Court composed of Judge Joan Bernard Armstrong, Judge Charles R. Jones, Judge David S. Gorbaty) Richmond C. Odom 6010 Perkins Road, Suite A P. O. Box 66862 Baton Rouge, LA 70896 COUNSEL FOR PLAINTIFF/APPELLANT Richard E. Gruner, Jr. Nicole Duarte Martin LEMLE & KELLEHER, L.L.P. 601 Poydras Street 2100 Pan-American Life Center New Orleans, LA 70130-6097 COUNSEL FOR DEFENDANT/APPELLEE, PENDLETON MEMORIAL METHODIST HOSPITAL Arthur F. Hickham, Jr. Edward J. Rice, Jr. ADAMS AND REESE LLP 701 Poydras Street 4500 One Shell Square New Orleans, LA 70139 COUNSEL FOR DEFENDANT/APPELLEE, THOMAS A. KREFFT, M.D. Aldric C. Poirier, Jr. Guice A. Giambrone, III BLUE WILLIAMS, L.L.P. 3421 North Causeway Boulevard Ninth Floor Metairie, LA 70002-3760 COUNSEL FOR DEFENDANTS/APPELLEES, DR. FELIX O. RABITO AND DR. PATRICK C. BREAUX AFFIRMED Diana M. LeBreton appeals a judgment in which her Motion to Set Aside Judgment was denied, and an Exception of Res Judicata filed on behalf of Dr. Thomas Krefft was maintained. For the following reasons, we affirm the judgment of the trial court. FACTS AND PROCEEDINGS BELOW: Diana LeBreton’s father was brought to Pendleton Memorial Hospital on August 13, 1991, after suffering a heart attack. Mr. LeBreton was unconscious and was placed on life support. On August 18, the decision was made to remove the patient from life support. Mr. LeBreton died on August 20, 1991. Diana LeBreton originally filed suit against Drs. Felix O. Rabito, Patrick C. Breaux, and Thomas A. Krefft in August of 1992. In her petition, she alleged that the doctors’ decision to remove her father from life support constituted intentional acts, and, therefore, were not covered by the Medical Malpractice Act. Rather, the doctors’ actions were a violation of the Louisiana constitutional provision prohibiting euthanasia. Despite her argument that her cause of action did not arise under the Medical Malpractice Act, Ms. LeBreton filed a request for review by a medical review panel shortly after filing her petition. All three defendants filed exceptions of prematurity in the trial court, which were granted, dismissing plaintiff’s suit, without prejudice. Ms. LeBreton did not challenge that ruling. In August of 1996, the medical review panel issued its findings in favor of the three doctors. Ms. LeBreton did not refile her lawsuit until February of 1997, more than ninety days after the ruling of the review panel. The doctors filed exceptions of prescription, which were denied by the trial court, and applied for supervisory writs to this Court, which denied the writs. However, the Supreme Court granted the doctors’ writ, and reversed the ruling of the trial court. LeBreton v. Rabito, 97-2221 (La. 7/8/98), 714 So.2d 1226. In LeBreton, supra, the Supreme Court overruled Hernandez v. Lafayette Bone & Joint Clinic, 467 So.2d 113 (La.App. 3 Cir. 1985), a decision that approved the simultaneous application of interruption and suspension of prescription in a medical malpractice case. The Court explained that the filing of a request for review by a medical review panel triggered the suspension of prescription specially provided by the Medical Malpractice Act, rather than interruption of the liberative prescriptive period provided in the Civil Code. The Court, having overruled Hernandez, ordered, adjudged and decreed on July 8, 1998, that the “wrongful death action of Diana LeBreton against Drs. Felix O. Rabito, Patrick C. Breaux, and Thomas A Krefft is dismissed with prejudice.” On August 17, 2001, Ms. LeBreton filed another suit against Drs. Rabito, Breaux, and Krefft, and named as an additional defendant, Pendleton Memorial Methodist Hospital (hereinafter Methodist Hospital). Based on facts identical to the earlier filed lawsuit, she alleged that the defendant doctors and hospital violated her father’s due process rights under the Louisiana Constitution by removing him from life support, and that the doctors’ actions were in violation of the Louisiana Unfair Trade Practices Act. An amended petition was filed on September 13, 2001, that included additional factual allegations. In response to the petitions, Drs. Rabito and Breaux filed an exception of res judicata, and, alternatively, exceptions of prescription, peremption, no cause of action and no right of action. Methodist Hospital filed exceptions of prescription, peremption, no cause of action and no right of action. At the time of the hearing, Dr. Krefft had not been served with the original or amended petition. The trial court rendered judgment on November 14, 2001, maintaining the doctors’ exceptions of res judicata and Methodist Hospital’s exception of prescription, and dismissing plaintiff’s claims as to those defendants, with prejudice. On November 26, 2001, Ms. LeBreton filed a motion to set aside judgment, memorandum in support, and a request for written reasons for judgment. She also informed the clerk that Dr. Krefft had relocated to Florida and requested service pursuant to the Long Arm Statute. In her memorandum in support of her motion to set aside judgment, Ms. LeBreton argued that because the defendants were jointly and severally liable for the damages claimed, it was improper to dismiss her claims against the other defendants prior to Dr. Krefft being served. Dr. Krefft was eventually served, and on December 11, 2001, he also filed an exception of res judicata, and, in the alternative, exceptions of prescription, peremption, no cause of action and no right of action, and a motion and order to set the exceptions for hearing. The trial court set Dr. Krefft’s exceptions and plaintiff’s motion to set aside judgment for hearing on January 4, 2002. On January 11, 2002, the trial court rendered judgment denying plaintiff’s motion to set aside judgment and maintaining Dr. Krefft’s exceptions. The trial court also assigned written reasons for both the November 14 and the January 11 judgments. The court explained that the July 8, 1998, ruling by the Supreme Court granting the exception of prescription filed by Drs. Rabito, Breaux and Krefft constituted a final judgment. Because the allegations of the August 2001 lawsuit arose from the same factual circumstances as the earlier lawsuit, the doctrine of res judicata applied. Further, because the cause of action alleged in the instant lawsuit occurred in August of 1991, plaintiff’s claims against Methodist Hospital had clearly prescribed. Ms. LeBreton filed a motion and order for appeal on February 15, 2002, requesting a suspensive appeal from the judgment of January 11, 2002, which was granted. DISCUSSION: In her first assignment of error, Ms. LeBreton claims the trial court erred in sustaining the exception of res judicata in favor of Drs. Rabito and Breaux because there was never a final judgment on the merits in the earlier filed lawsuit. This issue is not properly before this Court because Ms. LeBreton has not appealed the judgment maintaining the exception of res judicata. Rather, she appealed the judgment of January 11, 2002, which was the denial of her motion to set aside judgment. The motion to set aside judgment was brought pursuant to La. Code Civ. Proc. arts. 2002 and 2004, both actions of nullity. The filing of a petition to annul a judgment does not suspend the delays for taking a suspensive appeal. La. Code Civ. Proc. art. 2123. Therefore, she has not timely appealed the November 14, 2001, judgment maintaining the exception of res judicata as to Drs. Rabito and Breaux. Further, because Ms. LeBreton has not briefed the issue of trial court error for denying her motion to set aside, we consider that issue abandoned. Uniform Rules – Courts of Appeal 2-12.4. In her second assignment of error, Ms. LeBreton claims that the trial court’s judgment of November 12, 2001, erroneously dismissed the claims against Dr. Krefft, because Dr. Krefft had not yet been served. Additionally, Ms. LeBreton argues that the trial court erred in entertaining the exception of res judicata filed by Dr. Krefft after he was finally served with the petition, because he had already been dismissed from the lawsuit. Further, the trial court improperly considered the exception on January 4, 2002, when only her motion to set aside judgment should have been heard. She claims that she was not prepared for a hearing on the exceptions because she was not aware that the exceptions would be heard that day. Our review of the record indicates that the November 14, 2001, judgment dismissed the claims against Drs. Rabito and Breaux, and Methodist Hospital only. The judgment does not dismiss the claims against Dr. Krefft. Thus, that argument lacks merit. Accordingly, Dr. Krefft did not file his exceptions after being dismissed. Further, on December 11, 2001, the same day he filed his exceptions, Dr. Krefft filed a motion and order to set exceptions for hearing. The trial court set January 4 as the hearing date. The record further indicates that Ms. LeBreton’s attorney was served with the exceptions on December 20. Therefore, Ms. LeBreton’s argument that the trial court improperly considered Dr. Krefft’s exceptions at a hearing set only for her motion to set aside judgment is baseless. For the reasons assigned, we affirm the judgment of the trial court. AFFIRMED

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