In Re: Medical Review Panel for the Claim of Joseph Burns and Letricia Burns VS Kenneth Blue, M. D., John Howe, M. D., L.S.U. Mid City Clinic and Earl K. Long Medical Center
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2012 CA 0333 IN RE MEDICAL REVIEW PANEL FOR THE CLAIM OF JOSEPH BURNS AND LETRICIA BLJRNS Judgment Rendered C 8 2 93 Appealed from the 19 Judicial District Court In and for the Parish ofEast Baton Rouge Louisiana Trial Court Number 572 026 Honorable Todd W Hernandez Judge I William D Attorney for Appellant Baton Plaintiff Letricia Burns Grimley Rouge LA James D Buddy Caldwell Attorney General and Katherine Wheeler Assistant Attorney Baton Rouge LA General BEFORE PARRO Attomeys for Appellees Defendants Kenneth Blue D M John Howe M D LSU Mid City Clinic and Earl K Long Medical Center HLTGHES AND WELCH JJ WELCH J Appellant Letricia Burns appeals a judgment sustaining a peremptory exception raising the objection of prescription filed by defendants Kenneth Blue D M John Howe M LSU Mid City Clinic and Earl K Long Medical Center D We affirm BACKGROUND On June 13 2008 Joseph Burns and his daughter Letricia Burns filed a request to convene a medical review panel in the Division of Administration Therein they asserted that the State of Louisiana through the LSU Healthcare Services Division d Earl K Long Medical Center LSU Mid City Clinic Dr a b Kenneth Blue and Dr John Howe had been negligent in their care and treatment of Mr Burns who had been diagnosed with stage 4 lung cancer in 2008 The Burnses acknowledged that Mr Burns cancer may have first appeared in July 2006 on a chest x however they claimed that the defendants failed to take ray appropriate action and as a consequence of the delay in diagnosing Mr Burns cancer Mr Burns life expectancy had been significantly reduced Mr Burns died on September 18 2008 On October 21 2008 Dr Blue Dr Howe LSU Mid City Clinic and Earl K Long Medical Center filed a peremptory exception raising the objection of prescription in the 19 Judicial District Court The matter was assigned to Section 27 over which Judge Todd Hernandez presided and assigned docket 572 In 026 the exception the defendants asserted that on July 12 2006 Mr Burns refused hospitalization to investigate a suspicious CT scan and on July 24 2006 Dr Troy Dotson and Dr Paul Failla Mr Burns pulmonary physicians notified him that he probably had lung cancer and that he needed further testing to confirm the diagnosis However the defendants claimed Mr Burns refused to return to the clinic for the recommended testing Moreover they asserted on August 3 2006 2 Dr John Stuart Mr Burns internist discussed the seriousness of the test results with him and admonished Mr Burns to return to the pulmonary clinic for a follow up Defendants contended that Mr Burns cause of action arose in July 2006 and this lawsuit filed nearly two years from that time was prescribed on its face In opposition to the exception Ms Burns asserted that the doctors failed to schedule an appropriate diagnostic follow visit to confirm Mr Burns diagnosis up and to begin treatment and that Dr Blue in particular failed to determine that Mr Bums on right side chest side and shoulder pain were related to the lung going cancer She also denied that Mr Burns was ever told he might have cancer She urged that the Earl K Long Medical Center had a continuing duty to treat Mr Burns and had the opportunity to discuss the concerns reflected in the July 2006 pulmonary visit In support of the prescription exception the defendants offered medical records and the affidavits of Dr Failla Dr Dotson Dr John Howe and Patricia Holmes a nurse In opposition thereto Ms Burns offered medical records the affidavit of Dr Leo Farmer and excerpts of the depositions of Dr Failla Dr Stuart and Mr Bums In addition Ms Burns submitted an amended petition for damages filed on November 24 2008 in which Drs Dotson Failla and Stuart were added as defendants A hearing on the prescription exception was held on January 5 2009 Judge Todd Hernandez issued written reasons signed on March 19 2009 in which he found that plaintiffs claim had prescribed In his written reasons Judge Hernandez found that the evidence showed the following Mr Burns was told in July 2006 that he had an abnormal chest x and CT scan and was told he needed ray to be admitted for further testing but refused Several weeks later Mr Burns was told by two doctors that he likely had lung cancer was told to return in three weeks was given a plan of care and was told to make an appointment however 3 Mr Burns failed to do sa In August 2006 Dr Stuart discussed the seriousness of the chest x with Mr Burns However Mr Burns failed to follow up on any of ray the doctors warnings In November 2006 Mr Bums saw Dr Howe and failed to mention the information the doctors had given him over the summer From this evidence Judge Hernandez concluded that Mr Burns made a decision to ignore statements and warnings given to him that should have led him to believe that his health was compromised and chose not to take the needed steps to seek treatment or up follow on the possible diagnosis he was given in July 2006 Judge Hernandez ruled that the prescriptive period began to run at that time when the doctors warned Mr Burns of his possible condition and the malpractice claim filed in 2008 had prescribed On April 20 2009 Judge Hernandez signed a judgment sustaining the exception of prescription filed on behalf of defendants Dr Blue Dr Howe LSU Mid City Clinic and Earl K Long Medical Center and dismissing the pending Medical Review Panel proceeding with prejudice Ms Burns filed a motion for a new trial for argument only in which she noted that the trial court dismissed the Medical Review Panel as to the named defendants but did not dismiss the panel as to Drs Travis Failla and Stuart who had been added to the malpractice action prior to the hearing on the exception of prescription On July 10 2009 Ms Burns filed a motion to extend the Medical Review Panel and an order was signed by Judge Hernandez extending the panel to January 18 2010 A second motion to extend the Medical Review Panel was granted in December 2010 extending the Medical Review Panel to July 21 2011 On January 11 2011 Drs Dotson Failla and Stuart filed an exception of prescription They asserted that Judge Hernandez ruling that the case had s prescribed against Mr Burns later treating physicians Drs Blue and Howe was 4 equally applicable to the defendants who treated Mr Burns almost two years before the medical malpractice claim was fled On January 20 2011 the Medical Review Panel met and rendered a decision finding that the standard of care was not breached in the treahnent of Mr Burns by the State of Louisiana or by Drs Blue Hou Dotson Failla and Stuart On e January 26 2011 Ms Burns filed a petition for wrongful death and a survival action in the 19 Judicial District Court against the State of Louisiana through the LSU Healthcare Services Division d Earl K Long Medical Center and Drs a b Blue Howe Dotson Failla and Stuart The case was assigned to Division 24 of the 19 JDC presided over by Judge Michael Caldwell and assigned docket 690 598 On January 31 20ll in the lawsuit pending before Judge Caldwell Ms Bums filed a motion to stay the proceedings in Judge Hernandez scourt including the hearing on the later defendants exception of prescription She asserted added that the proceeding before Judge Hemandez which was initiated by the defendants during the medical review panel stage of the claim to urge an exception of prescription had ended and therefore the filing of her petition for damages allotted to Judge Caldwell superseded the proceedings before Judge Hernandez In the proceedings pending before Judge Hernandez Ms Burns filed a motion to dismiss the prescription exception filed by the later physician defendants or added to continue the hearing on the exception without date On March 28 2011 Judge Hernandez granted Ms Burns motion to continue the proceedings pending the outcome ofthe April 11 2011 hearing on the motion to stay that was pending before Judge Caldwell Judge Hernandez denied Ms Bums motion to stay the proceedings in his court On April 11 2011 Judge Caldwell denied Ms Burns motion to stay the proceedings in Judge Hernandez s 5 court concluding that he lacked authority to stay another district court judge from acting on a matter pending before that judge On May 2 2011 Judge Hernandez signed a judgment denying Ms Burns motion for a new trial on the judgment granting the exception of prescription in favar of LSU Mid City Clinic Earl K Long Medical Center and Drs Blue and Howe Ms Burns filed a motion for a devolutive appeal ofthe judgment signed on May 2 201 l In her brief Ms Burns contends that her petition for damages filed in the 19 JDC and randomly allotted to Judge Caldwell supersedes the proceeding allotted to Judge Hernandez and that all judgments signed by Judge Hernandez are moot In her second assignment of error Ms Burns claims that in sustaining the prescription exception Judge Hemandez essentially granted a summary judgment despite the existence of disputed facts She asks this court to arder the dismissal of all proceedings before Judge Hernandez or to reverse Judge Hernandez s prescription ruling DISCUSSION A judgment denying a motion for a new trial is an interlocutory ruling that is not independently appealable in the absence of an appeal of the underlying judgment on the merits Nelson v Teachers Retirement System of Louisiana 1190 2010 La App l Cir 257 So 587 589 n 2 However an appeal 11 11 3d of a denial of a motion for a new trial will be considered as an appeal of the judgment on the merits when it is clear from the appeliant brief that the appeal s was intended to be on the merits Id As it is clear from her brief that Ms Burns is appealing the merits of the judgment sustaining the originally defendants named exception ofprescription we consider her appeal as an appeal of that judgment In her first assigrunent of error Ms Burns contends that the judgment rendered by Judge Hernandez on the original defendants prescription exception was rendered moot because the Medical Review Panel rendered its opinion and she 6 filed a petition for damages thereafter She insists that the filing of the malpractice petition superseded the proceedings in Judge Hernandez court and precluded s Judge Hernandez from entering any rulings thereafter on the prescription exception Ms Burns argues that a lawsuit ineolving the same issues and parties cannot coexist in two different courts in the same judicial district and therefore the original proceeding and any judgments signed in connection therewith must be declared moot and dismissed with prejudice She further contends that the judgment on the initial exception filed by the State and its doctors was never approved submitted or signed until after the fact and therefore the judgment is inchoate We disagree Louisiana Revised Statute 40 permits the State or a a 2 B 1 129939 person against whom a malpractice claim has been filed to raise any exceptions in a court of competent jurisdiction and venue at any time without need for the completion of the review process by the medical review panel sustaining the exception of prescription was signed by Judge The judgment Hernandez on April 20 2009 before Ms Burns filed her petition for damages in the 19 JDC that was allotted to Judge Caldwell division Judge Hernandez clearly had jurisdiction to s entertain the prescription exception at that time and we find that the filing of the petition for damages did not divest Judge Hernandez ofjurisdiction to conclude the proceedings on that prescription exception His delay in signing the judgment denying Ms Burns motion for a new triai from the judgment granting the exception of prescription merely had the effect of suspending the delay for appealing that judgment Accardingly we find no merit in Ms Burns first assignment of error The only issue before this court at this time is whether the trial court erred in entering judgment sustaining the exception of prescription filed by the original defendants and we express no opinion regazding the exception of prescription pending before Judge Hernandez that was filed by the subsequently added defendants 7 i In her second assignment of error Ms Burns contends that Judge Hernandez erred in granting the exception of pres Where as here evidence has been ription adduced on the exception of prescription the trial court findings of fact are s governed by the manifest wrong standard of review clearly error Carter v Haygood 2004 La 1 892 So 1261 1267 Under that standard if 0646 OS 19 2d the findings of the court are reasonable in light of the record reviewed in its entirety an appellate court may not reverse even if convinced that had it been sitting as the trier of fact it would have weighed the evidence differently Id After a thorough review of the evidence submitted on the prescription exception and the applicable law we find that a reasonable factual basis exists for the trial court finding that the malpractice lawsuit was prescribed Therefare we s conclude that the trial court did not err in granting the exception of prescription filed on behalf of LSU Mid City Clinic Earl K Long Medical Center Dr Kenneth Blue and Dr John Howe CONCLUSION For the foregoing reasons the judgment sustaining the peremptory exception raising the objection of prescription in favor of defendants Kenneth Blue M D John Howe M LSU Mid City Clinic and Earl K Long Medical Center is D hereby affirmed All costs of this appeal are AFFIRMED 8 assessed to appellant Letricia Burns I
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