Raymond Cockerham, Jr. VS Ascension Parish, Jeffrey Wiley, Sheriff; Bobby Weber, Warden; Dr. Stephen Holmes, M.D., Michelle Guerin, R.N. and Rhonda (Unknown Last Name)

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL X7toI 0 II T40 NO 2011 CA 0796 RAYMOND COCKERHAM JR VERSUS ASCENSION PARISH ET AL Judgment rendered December 21 2011 Appealed from the 23rd Judicial District Court in and for the Parish of Ascension Louisiana Trial Court No 94 309 Honorable Thomas Kliebert Jr Judge PLAINTIFF APPELLANT RAYMOND COCKERHAM JR JACKSON LA IN PROPER PERSON JANIE LANGUIRAND COLES ATTORNEY FOR BATON ROUGE LA DEFENDANTAPPELLEE DR STEPHEN HOLMES MD BEFORE PETTIGREW McCLENDON AND WELCH 33 C l PETTIGREW J In this case plaintiff seeks review of the TwentyThird Judicial District Court s judgment sustaining defendant exception raising the objection of prematurity and s dismissing without prejudice plaintiffs claim against defendant For the reasons that follow we reverse and remand FACTS AND PROCEDURAL HISTORY On April 29 2010 plaintiff Raymond Cockerham Jr an inmate incarcerated at Ascension Parish Jail at the time filed what he captioned a Petition for Judicial Review 1 However in our view plaintiffs petition is actually a claim for damages alleging medical malpractice against several defendants including Dr Stephen Holmes Plaintiff asserted among other things that Dr Holmes intentionally willfully maliciously and with full knowledge caused him injury pain and suffering and mental anguish during the discharge of official duties andor within the course and scope of employment There is clearly no prejudice to Dr Holmes by the improper labeling of plaintiffs pleading This result serves the interest of justice and judicial economy See ANR Pipeline Co v Louisiana Tax Com n2011 0425 pp 9 10 La App 1 Cir 8 11 23 3d So In response to plaintiffs claim Dr Holmes filed an exception raising the objection of prematurity Dr Holmes alleged that plaintiffs claim was premature because he was a qualified health care provider and plaintiff had not first presented his claim to a medical 1 It is well settled in Louisiana law that e pleading shall be so construed as to do substantial very justice La Code Civ P art 865 Furthermore the jurisprudence holds that courts may overlook miscaptioning of a pleading where the other party is not prejudiced Higdon v Higdon 385 So 396 2d 398 La App 1 Cir 1980 Our courts look beyond the caption style and form of pleadings to determine from the substance of the pleadings the nature of the proceeding thus a pleading is construed for what it really is not for what it is erroneously called Rochon v Young 2008 1349 p 3 La App 1 Cir S U 09 13 3d 2 6 So 890 892 writ denied 20090745 La 1 25 So 824 cert denied 10 29 3d 130 S 3325 176 L 1216 2010 Ct 2d Ed 2 We note that throughout the record Dr Stephen Holmes is referred to as both Stephen and Steven 3 Plaintiff further asserted that he had presented his complaint in the prisoner grievance procedure s provided by Ascension Parish Jail but that he had not yet received a response to his Step One in the process However the record is insufficient to support plaintiffs contention that he began the administrative remedy procedure as set forth in the Corrections Administrative Remedy Procedure Act La R 15 et S 1171 seq 2 review panel as required by La R 40 S 1299 6The matter proceeded to hearing on 47 August 9 2010 at which time the attorney for Dr Holmes noted that plaintiff had not filed any opposition to the exception On August 18 2010 plaintiff filed a Notice of Opposition wherein he set forth his argument against Dr Holmes prematurity exception and notified the district court that in an abundance of caution he had filed a request for review of malpractice claim against Dr Holmes In a judgment signed August 20 2010 the district court sustained Dr Holmes prematurity exception dismissing plaintiffs claim against Dr Holmes without prejudice It is from this judgment that plaintiff has appealed arguing the district court erred in sustaining the prematurity exception and erred in failing to comply with the provisions of La R 15 S 1177 Prematurity is determined by the facts existing at the time the suit is filed Metro Riverboat Associates Inc v Louisiana Gaming Control Bd 992241 pp 5 6 La App 1 Cir 3 798 So 143 147 writ denied 2001 0818 La 1 01 7 2d 02 4 805 So 1188 2d Prematurity raises the issue of whether a cause of action has not yet come into existence because some prerequisite condition is unfulfilled Id The standard of review of a judgment sustaining a dilatory exception raising the objection of prematurity is that of manifest error Pinegar v Harris 20081112 p 10 La App 1 Cir 6 20 So 1081 1088 09 12 3d As previously discussed by this court in Walker v Appurao 2009 0821 p 3 La App 1 Cir 10 29 So 575 576 writ denied 20092822 La 3 28 09 23 3d 10 5 4 We note that this opposition was filed after the hearing on the exception and was not considered by the district court 5 According to the record plaintiff originally sought supervisory writs with this court from the August 20 2010 judgment of the district court In an order dated January 31 2011 this court granted the writ for the limited purpose of remanding the case to the district court with instructions that the district court grant plaintiff an appeal See Cockerham v Ascension Parish et al 2010 2212 La App 1 Cir 1 11 31 unpublished writ action N 3d So 1010 the plain language of La R 40 exempts prisoners S 1299 a A 1 39 with medical malpractice claims from the medical review panel process However this does not mean that prisoners are completely exempt from administrative review in the realm of medical malpractice claims Louisiana Revised Statutes 1 E 39 1299 40 clearly states that the medical malpractice claims of prisoners arising under the Malpractice Liability for State administrative review Services procedures Act shall established for be submitted administrative to correctional hearings in the correctional environment or established in accordance with express law including R S 1171 15 et seq R 49 and the administrative rules and regulations pertaining S 964 thereto La R 40 Thus because plaintiff was not required by S 1299 1 E 39 statute to submit his medical malpractice claim against Dr Holmes to a medical review panel the trial court erred in sustaining Dr Holmes prematurity exception CONCLUSION For the foregoing reasons the August 20 2010 judgment of the district court is reversed and the matter is remanded for further proceedings consistent with this opinion All costs associated with this appeal are assessed against defendant REVERSED AND REMANDED 6 At all times pertinent hereto La R 401299 provided in pertinent part as follows S 39 a A 1 A 1 All malpractice claims against the state its agencies or other persons a covered by this Part other than claims wherein the patients are prisoners and claims compromised or settled by the claimant and the division of administration with the concurrence of designated legal counsel for the state shall be reviewed by a state medical review panel established as provided in this Section to be administered by the commissioner of administration hereinafter referred to as commissioner The statute was amended in 2010 by La Acts 2010 No 398 1 when the legislature substituted subject to administrative review in a correctional facility in accordance with R 40 for wherein the S 1299 E 39 patients are prisoners in the first sentence of subparagraph A a 1 4

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