Tina M. Hebert VS Dr. Troy Drewitz, Dr. Natchez Maurice and LAMMICO Insurance Company
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2009 CA 0798 TINA M HEBERT VERSUS TROY DREWITZ M D NATCHEZ MORICE M D AND LAMMICO INSURANCE COMPANY Judgment Rendered October 27 Appealed from 2009 the 16th Judicial District Court In and for the Parish of St Mary State of Louisiana Case No 118 187 The Honorable Charles L Porter Judge Presiding Tina M Hebert Plaintiff Appellee Pierre Port Louisiana In Marc W Judice Counsel for Defendant Lafayette Louisiana Dr Proper Person Troy Drewitz Appellant Dr Natchez Morice and Louisiana Medical Insurance Company GAIDRY J In this medical malpractice defendants case appeal the trial court s judgment dismissing plaintiff s suit against them without prejudice where the of terms with consent a We amend and prejudice between the judgment FACTS as Insurance Company medical review amended affirm filed a LAMMICO 47 1299 40 the cost I 2 in their I C of the medical review bond defendants the motion to would post a sought dismiss a to care requested Hebert that Hebert file judgment was 1 being not filed a support a surety bond for Prior to to file such the hearing a on entered providing that Hebert surety bond by July 8 2008 The judgment further ordered that if Hebert failed to file the appropriate surety bond lawsuit suit In accordance with La R S have her suit dismissed consent s When Hebert failed panel against providers had deviated from the of Hebert treatment defendants to found that the evidence did panel unanimously care action malpractice and Louisiana Medical Mutual Prior the conclusion that the defendant health standard of medical Dr Natchez Morice Troy Drewitz for dismissal PROCEDURAL HISTORY Plaintiff Tina M Hebert Dr parties provided shall be dismissed with Louisiana Revised Statutes 40 In a medical 47 1299 The prejudice I malpractice 2 c by July 8 2008 Hebert consent judgment provides suit filed by the claimant in which a opinion was rendered in favor of the defendant health care provider provided in the expert opinion stated in Paragraph G 2 of this Section the claimant who proceeds to file such a suit shall be required to post a cash or surety bond approved by the court in the amount of all costs of the medical review panel Upon the conclusion of the medical malpractice suit the court shall order that the cash or surety bond be forfeited to the defendant health care provider for reimbursement of the costs of the medical review panel unless a final judgment is rendered finding the defendant liable to the claimant for any damages If a final judgment is rendered finding the defendant liable to the claimant for any damages the court shall order that the defendant health care provider reimburse the claimant an amount equal to the cost of obtaining the cash or surety bond posted by the claimant unanimous as 2 s was signed by judgment On Hebert both s 8 September prejudice appropriate an Hebert mailed to all was claims with file attorney s claims as parties that the trial judgment court and of the final on the court bond After timely on June 6 2008 a motion consent dismiss Hebert judgment for failure the hearing a to However the Defendants prejudice modifying the court s to dismissed court the defendants because the surety bond filed erred in was dismissal of Hebert s s appeal this judgment alleging terms and substance of the dismissing defendants without prejudice contrary consent Notice of June 12 2008 in accordance with the against without was as 2008 defendants filed untimely and improper claims well to consent the terms judgment DISCUSSION A consent their differences judgment is by mutual a bilateral consent gain against his fear of loss La Its App than the adjudication La App annulled Borchardt force arises from the by the or court rescinded for an error At the time the consent date for the defendants was not filed subject 10 31 07 a to 84 of fact See La C C A consent of the was dismissal to dismiss in 973 art 3071 parties rather may be judgment principal dismiss entered in this was See Harrison v exchange for 3 an case approaching bond in accordance with La R S 40 to of the of Richardson 02 2415 p 4 or error 47 1299 Minardi 07 514 968 So 2d 1221 The defendants their motion v hope cause of at 973 judgment motion 1993 his 617 So 2d 970 Carline Richardson the agreement Borchardt 617 So 2d had v balancing voluntary acquiescence 859 So 2d 81 1 Cir 7 9103 by which the parties adjust with each party writ denied 620 So 2d 844 4 Cir binding contract agreed to I the hearing Since Hebert 2 La her suit c App 3 Cir forego the hearing agreement from Hebert to on either file appropriate an dismissed with consent erred prejudice judgment in bond within prejudice as specified period of time Neither party in this annulled dismissing a or Hebert s rescinded for suit matter error without or have her suit sought As such to have the court rather than prejudice the trial with ordered in the consent judgment DECREE The judgment Drewitz Dr Morice prejudice plaintiff and as of the court dismissing Hebert and LAMMICO is modified amended affirmed to s claims Dr order dismissal with Costs of this appeal Tina M Hebert AMENDED AND AS AMENDED AFFIRMED 4 against are cast to STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2009 CA 0798 TINA M HEBERT VERSUS TROY DREWITZ M D NATCHEZ MORICE M D AND LAMMICO INSURANCE COMPANY f 4 Downing J concurs A consent a and judgment valid enforceable assigns s reasons binding judgment that 08 239 996 So 2d 1187 1190 La force also arises from the fact that it is must App be obeyed See Black 5 Cir 10 28 08 v Comfort
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