Shantell Washington and Alex Ducre, Individually and on behalf of Alex Ducre, Jr. (decedent) VS Dr. Phillis D. Waring and Slidell Memorial Hospital and Medical Center

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STATE OF LOUISIANA COURT` OF APPEAL F1RST CIRCUIT NO. 2.013 CA 0078 SHANTELL WASHINGTON AND ALEX DUCRE, INDIVIDUALLY AND ON BEHALF OF ALEX DUCRE, JR (DECEDENT) VERSUS Q' DS DR. PHYLLIS D. WARING AND f SLIDELL MEMORIAL HOSPITAL AND MEDICAL CENTER Judgment Rendered: FEB 8 ('{ c On Appeal from the 22nd Judicial District Court, Cj In and for St. Tammany Parish, 1, 3tate of Louisiana Trial Court No. 2003- 12951 k The Honorable Reginald T. Badeaux, III, Judge Presiding Delbert G. Attorneys for Plaintiffs/ Appellees, Talley David L. Thornhill Shantell Washington and Covington, Louisiana Alex Ducre, Sr. C. William Bradley, Jr. Natalie J. Dekaris Attorneys for Defendant/ Appellant, Phyllis D. Waring, M.D. New Orleans, Louisiana Thomas H. Wartelle Attorneys for Defendant/ Appellant, Randall L. Champagne Slidell Memorial Hospital and Baton Rouge, Louisiana Medical Center BEFORE: PARRO, MCDONALD, WELCH, CRA1N, & THERIOT, JJ i G,. o Q -.:- CRAIN, J. This is the appeal of a judgment in a medical malpractice action arising out of death the We reverse in part, vacate in part, amend, and as infant. of an amended, affirm. FACTS AND PROCEDURAL HISTORY Alex Ducre, Jr. was born at Slidell Memorial Hospital and Vledical Center on Wednesday, October 11, 2000, at 8: 41 a. m. Shantell Washington went into premature labor and gave birth to Alex at a gestational age of 35 weeks and 6 days. Dr. Phyllis D. Waring was the attending pediatrician, providing coverage for Washington' s chosen pediatrician, Dr. Helen Stevenson. Washington' s membrane ruptured approximately 37 hours before Alex was born, placing Alex at risk for infection. While Dr: Waring' s initial examination of Alex did not reveal any significant abnormalities, Dr. Judith Zatarain, a neonatologist, was consulted due to the infection risk. Dr. Zatarain' s examination shortly after Alex' s birth revealed a well " near- term" baby. She recommended serial CBC blood work to monitor for any infection. No infection developed, and Dr. Zatarain was not further involved in Alex' s care during this hospitalization. Dr. Waring examined Alex Thursday morning and he appeared to be doing well. On Thursday night at 9: 00 pm., an attending nurse noted that Alex, for the first time, was jaundiced, a condition causing a yellowing of the skin. The medical testimony established that jaundice is a manifestation of excessive bilirubin in the bloodstream, or " hyperbilirubinemia," and often occurs in newborn infants until the liver develops sufficiently to filter the bilirubin from the infant' s system. Although jaundice is not uncommon in newborn infants, the timing of its onset is important, particularly hyperbilirubinemia can with lead to a premature infant, a serious condition called " brain damage, z because unresolved kernicterus," a form of The nurse did not notify Dr: Waring of the jaundice. However, Dr. Waring testified that nurses nortnally would nct immediately report such a finding unless it was accompanied by other symptoms such as sleepiness, not eating, not drinking, or not voiding, none of which was identified by the nurse. Dr. Waring saw no need for the nurse to notify her that night since she would be examining Alex the following morning. Dr. Waring examined Alex on Friday, October 13, 2000, at 9: 00 a.m., the day he was examination discharged from the and found no hospital. abnormalities, but She conducted a " head to toe" noted " mild jaundice." Alex and Washington were discharged with instructions to make a follow-up appointment with Dr. Stevenson and to contact Dr. Stevenson if Alex' s condition changed. Washington was also instructed to place Alex in indirect sunlight periodically for no more than thirty minutes, which, according to the medical evidence, helps remove excessive bilirubin from the body. According to Washington, there were no particular concerns expressed about Alex when he was discharged from the hospital. After discharge, Alex was placed in indirect sunlight as the nurse instructed, and his physical condition appeared fine until Monday afternoon, October 16, 2000. At that time, Washington noticed that Alex was mare sleepy, was not nursing as long, and had developed yellow spots in his eyes. Concerned, she called the hospital nursery and spoke to a nurse who asked if Alex was eatin g and voiding. Washington confirmed that he was, and the nurse advised her to keep a previously scheduled appointment the following morning with the lactation nurse and to call if anything changed. The next morning Washington noticed Alex' s skin was more yellow, almost orange, and the whites of his eyes were mostly yellow. She presented Alex at the scheduled appointment with the lactation nurse, who noted that Alex was 3 jaundiced all over, lethargic, a ad had poor_muscle tone. Washington was told to bring Alex immediately to Dr. Ste° enson' s offic:,. Dr. Stevenson then performed a lumbar puncture and admitted Alex to a pediatric intensive care unit with an extremely high bilirubin level of 44. 8. An exchange transfusion was attempted but did not work, and the next day Alex was transferred to Children' s Hospital in Neiv Orleans, where he underwent an exploratory laparotomy and other procedures. One of his lungs collapsed, his kidneys began to fail, and he was placed on life support. His condition became terminal, and the decision was made to remove the life support. Alex died on October 20, 2000, nine days after his birth. The cause of death was kernicterus, secondary to hyperbilirubinemia. On October 2, 2001, Washington and Alex' s father, Alex Ducre, Sr., filed a request for a medical review panel to review the care provided by one of the physicians at Children' s HospitaL The claim was amended on May 15, 2002, to request review of the care provided by Dr. Waring and Slidell Memorial Hospital. This medical review panel rendered a decision on May 29, 2003, with two members finding no breach of the standard of care by Slidell Memorial Hospital or Dr. Waring, and one member, Dr. Harold R. York, finding a breach of the standard of care by both providers that was a factor in the resultant damage. Although Dr. York found three deviations from the standard of care by Dr. Waring, he ultimately conceded that, in his opinion, only one of those deviations contributed to Alex' s death, specifically, Dr. Waring' s faiiure to obtain a " bilirubin on a clinically jaundiced premature infant, 48 hours old." Dr. York also found that Slidell Memorial Hospital deviated from the standard of care because the attending nurses should have notified Dr. Waring of Alex' s " abnormal respiratory rate of 68 at the time of discharge." 4 After the parties learned that one of the ariginal panel members had a prior employment relationship with Dr. u'aring, another panel was formed to review the claims. On January 16, 200'7, the new panel iound no deviations from the standard of care by either Dr. Waring or Lhe r ospital. The reasoning as to Dr. Waring was iJt was nof the standard of car. in 2 00 o order e baseline bilirubin in a 48- hour- old infant with minimal jaundice." Washington and Ducre then sue Dr.. Waring and Slidell Memorial Hospital asserting breaches of the standard of care in the treatment of Alex that caused or contributed to his death. Both defendants requested a trial by jury, however, Washington and Ducre filed into the record the following stipulation signed by them and their attorney: Now Into Court, through undersigned counsel, come Shantell Washington and Alex Ducre Sr., Individually and on behalf of Alex Ducre, Jr., who hereby stipulate that the cause of action of each plaintiff does not exceed $ 50, 000. 00 exclusive of interest and costs. The matter proceeded to a two- day trial by a judge. The plaintiffs relied upon the testimony of Dr. York, who opined that Dr. Waring deviated from the standard of care by not determining Alex' s bilirubin level through a blood test prior to his discharge and that Washington should have been instructed at discharge to follow up with her pediatrician the next day. According to Dr. York, Dr. Waring' s deviations from the standard of care caused or contributed to Alex' s death. Regarding the hospital, Dr. Yark testified that the nursing staff breached the standard of care by failing to notify Dr. Waring of the first observation of jaundice at approximately 37 hours of age and of the rise in Alex' s respiratory rates above 60 breaths per minute. The defendants countered with the opinion of the second medical review panel and the testimony of Dr. Waring, Dr. Nicholas Danna, III, and Dr. Zatarain. s These doctors testified that th stanciard of care in 2000 did not require a bilirubin test priar to Alex' s discharge. After taking the matter under advisement, ihe trial court rendered judgment both defendants against and in iavor of. (1) Washington in Che amount of 50, 000, 00, ( 2) Alex Ducre, Sr. in the amount of$ 50, 000. 00, and ( 3) the " Estate of Alex Ducre, Jr." in the amount of$ 50, OQ0. 00, The awards included interest from the date of judicial demand. In wrztten reasons, the trial court found that Dr. York' s testimony was the most credible and agreed that Dr. Waring breached the standard of care by not ordering a bilirubin test for a " jaundiced, high-risk, premature infant," and by failing to instruct Washington to have Alex examined by a pediatrician within two to three days of his hospital discharge. The trial court found that Slidell Memorial Hospital breached the standard of care when its nurses failed to mention to Dr. Waring the first observation of jaundice and failed to report that Alex' s " temperature had not stabilized," both of which " delayed treatment of Alex and contributed substantially to his death." Dr. Waring appealed the judgment and assigned the following as errors: ( 1) the award allocate of $ 50, 000. 00 to " the Estate fault among the defendants, ( 3) of Alex Ducre, Jr.," ( 2) the failure to the finding that the standard of care required Dr. Waring to order a bilirubin test; ( 4) the finding that Dr. Waring' s discharge instructions were inadequate, and ( 5) Yhe failure to impose comparative fault on Washington. Slidell Memarial Hospital appealed and assigned the following as errors: ( 1) the finding that Alex had " temperature instability" and that the hospital breached the standard of care by not reporting it to the treating physician, ( 2) the finding that Slidell Memarial Hospital breached the standard of care in failing to notify Dr. Waring of the appearance of jaundice, and ( 3) the finding that the nursing staff' s failure to notify Dr. Waring of the jaundice 6 contributed substantially to the infant' s death. The hospital also assigned as error the award to the " Estate of Alex Ducre, Jr." Washington and Ducre answered the appeai and ssserted that the trial court erred in awarding legal interest from the date ofjndicaal deznand instead of the date of the filing af Yhe medical revieu pan l LAV' ANll ANALYSIS A. Fault and Causation We first consider the assignments of error concerning the trial court' s findings of fault and causation. In a medical malpractice action, the plaintiff must prove by a preponderance of the evidence the applicable standard of care, a violation of that standard of care, and a causal connection between the violation of the standard of care and the claimed injuries. Pfiffner v. CoYrea, 94- 0924 ( La. 10/ 17/ 94), 643 So. 2d 1228, 1233; see also La. R.S, 9: 2794.A. Resolution of each of these inquiries are detertninations of fact which should not be reversed on appeal absent manifest enar. Martin v. E. Jefferson Gen. Hosp., 582 So. 2d 1272, 1276 ( La. 1991). Expert testimony is generally required ta establish the applicable standard of care and whether that standard of care was breached, except where the negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony. Pfiffner, 643 So. 2d at 1233- 34. Where there are two permissible views of the evidence, the fact- finder' s choice between them cannot be manifestly erroneous. Adams v. Rhodia, Inc., 07- 2110 ( La. 5/ 21/ 8), 983 So. 2d 798, 806. Further, where the findings are based on determinations regarding the credibility of witnesses, the manifest error standard demands great deference to the findings of fact. Adams; 983 So. 2d at 806- 807. Indeed, where the fact- finder' s determinarion is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous. Adams, 983 So. 2d at 807. This rule applies ecually to the evaluatiUi n' ex ert testimony, including the evaluation and re eor olutie n £ flgc in s e p s z *. inaon y. dams, 983 So. 2d at 807. Where expert witness s present differirag testi r ony, it is ±he responsibility of the trier-of-fact to determi t w ic eGic e ea is the rri st crea ible. Graf v. Jim Walter- Homes, Inc., 97- 1143, ( Ia. l pp. 1 CiY. 5/ 15% 81, 713 So, 2d 682, 691. The defendants argue that ti e trial cou rt should have given greater weight to the testimony of the defense experts because they were more qualified and two were treating physicians. In its reasons for judgment, the trial court stated, " While Defendants' expert witnesses make good points, this Court finds Dr. York' s testimony be the most to We find no abuse of discretion in this credible." determination. Neither defendant objected to the tender and acceptance of Dr. Yark as an expert in the field of pediatric care. greater New Orleans area since He practiced in the field of pediatrics in the 1973 and is an associate clinical professor of pediatrics at the LSli School of Medicine. He served as the chief of the pediatric departments for Methodist Hospital and Humana/Lakeland Medical Center. In support of his opinions, he cited excerpts from Nelsons Textbook of Pediatrics, which suggested that a bilirubin test should be performed for a premature infant who developed jaundice within 36 hours of birth. Dr. Danna described Nelsons as and Dr. Zatarain said she would defer to Nelsons " as a an " excellent reference," standard." The plaintiffs also presented a document to Dr. Zatarain bearing her name and captioned " NICti Goals and Objectives 2" a years" that was used for training medical students. Dr. Zatarain acknowledged the document indicated a jaundiced, premature infant should undergo a bilirubin test. One particular area of disagreement among the experts was whether Alex was a higher-ri k " premature infant," or a lesser- risk " near- term" infant. s The plaintiffs presented a practice guidel ne from the American Aeac'lemy of P diatrics that supported Dr. York' s opinion that an infant born under 3? weeks of gestation was a premature infant. The expert testimony conceming the standard of care applicable to Dr. Waring was confliating. The trial court' s xespo nsibility was to determine which evidence w as the rnosti credible. GNaf, 7 3 So. 2d at 691. The trial aurt expressly found Dr. York' s test:mony r_ aore c.r. dible, and we must give great deference to e that finding. Presented wiYh two ernlissible vierus of the evi ence, the trial court' s choice between them cannot be manifestly erroneous. Adams, 983 So. 2d at 806. Accordingly, we find the trial court did not commit manifest error in accepting Dr. Yark' s testimony that Dr. Waring' s care deviated from the standard of care and those deviations caused or contributed to Alex' s death. Dr. York' s testimony concerning Slidell Memorial Hospital was iimited to two criticisms ( 1) the failure of the attending nurse to notify Dr. Waring of the finding of jaundiee at 9: 00 pm. on October 12, 2000, the night before Alex' s discharge; and ( 2) the failure to notify Dr. Waring when Alex' s respiration rate rose above 60 breaths per minute during the last 23 hours of the hospitalization. In the written reasons for judgment, the trial court found that the hospital staff breached the standard of care by failing to report the jaundice and failing to report that Alex' s " temperature k ad not stabilized," but m_ de no findings regarding the a respirations. In reviewing the correctn ss of the tr'ial court' s judgment against the hospital, we are not limited to the written reasons far judgment. It is well settled that appeals are taken from judgments, not written reasons, and if the trial court reached the proper result, the judgment should be affirmed. Elliott v. Elliott, 10- 0755 ( La. App: 1 Cir. 9/ 10/ 10), 49 So. 3d 407, 416 n. 3, writ denied, 10- 2260 ( La. 10/ 27/ 10), 4E So. 3d 1088. Therefore, we will eXamine each of the theories of 9 recovery against the hospital to d ternnine v°hEther th tr:al court erred in finding the hospital liable. In a medioal malpractice action agai st a hcs ita?.;the piaintiff must prove that the defer darzt o ed th piai.t tiff a du y io protect a air.st th: risk involved, that the defegidant bre ched that dazty, that th p[ i ift s affere defendant' s acti ns zN e a subsYanxial caua- through Departrrcent of HEalth " in- facg of an injury; axacl that the tl- in ie ur}. S' ith v. State m u»aan l esource,s Admizxistration, 523 So. 2d 815, 819 ( La. i98$). First, we find no manifest error in the trial court' s finding that the failure to report the jaundice was a breach of the standard of care. That finding is supported by direct testimony of Dr. York that the attending nurse should have immediately reported this information to Dr. Waring. Second, there is no basis in the record t support the finding that the nursing staff breached the standard of care by not reporting that Alex' s " temperature had not stabilized." No testimony was provided by any expert, including Dr. York, that Alex actually experienced temperature instabilit} or that any instability should have been reported to Dr. Waring, The medical record does reflect some fluctuations in Alex' s temperature, but no e pert testified tlxat those changes amounted to temperature instability. To the contrary, both Dr. Danna and Dr. Zatarain testified that the changes did not indicate temperature instability. Therefore, we ftnd no basis in the recard to support Yhe t:ial court' s finding that the hospital staff brea hed the stazidard of care by noi reporting tennperature instability. Third, the record contains eviden e td at tkze failure tc report the increase in Alex' s respflrations was also a breach of the standard of care. Although a point of disagreement among the experks, Dro York testified that the attending nurses should have inform d Dr. W aring of the ncreased respirations. Consequzntly, the record contains sufticient evidence to establish two io deviations from the standard o£ are by nursing staff at Slid ll Merr qrial TrIospital, specifically, the failure to report to Dr. Waring tb.e o set of jaundice and the iricreasad resparations. In addition to proving a breach of Ylhe standa d of care, a laintiff must also establish with adequate evidence a causal cpnnection between the substandard care and the plaintiff s Anjuries. Pfffner, 643 So. 2d at 1230, Louisiana Revised Statute 9: 2794A( 3) requires the plai ntiff to rove that as a " proximat result" of the defendant' s failure to exerczse t e required degzee uf care; " the plaintiff suffered injuries that would not otherwise have been incurred." Smith, 523 So. 2d at 820. Normally, in cases involving patients with complicated medical histories and complex medical condit ons, causation is simply beyond the province of lay persons to assess. Pfiffner, 643 So. 2d at 1234. The hospital argues that the trial court erred in finding causation because the record contains no evidence that the nursing staff' s failure to report the jaundice and increased respirations to Dr. Waring caused or contributed to Alex' s death. According to the hospital, the plaintiffs failed to offer any proof that such notifications to Dr. Waring " would have changed any-thing in the course of the infant' s treatment." We agree. Dr. York offered no testimony explaining Ihow the nursing staff', deviations from the standard of care caused or contributed to Alex' s death, and no evidence was presented that Dr. Waring would b.ave pursued a different course oz treatment if she had been imrriediately notified of the jaundice or res, iratory rates the night before Alex' s discharge. To the contrary9 Dr. Waring testi ed hat she examined Alex from " head to toe" the next morning, October 13, 2000, noted the jaundice, and nevertheless considered him a " healthy new6orn" because Alex' s vital signs were normal, including his respiratory rate, and he was eating, voiding, and active. Dr, w'aring also testified that the prior respiratory rates were documented in the record and were available for her to review i1 when she examined Alex. She considered his doeumented re4+ iratory rates tq he within tk e norn: al limits, and described Lhe high sY ra4e f fz$ s a " one- im,e chazage" that " weuldri' t eoneern me too much unless I examin d tkxe baby and sav th baby was ] ha-ving respiratory distress," which Alex ras ra at ing. experienc. Waring testz ¢; d rhaK slae sa a `' no r; s n" tc keep Aware of tlxi.s information, Dr. l x 1n thE hospi al r or. any need to order a biliruk in zest, Given the absence of evider. ce stablishln a causal link between the nursing staff' s deviations from the standard of care and Alex' s death, ive find that the trial court erred in entering a judgment against Slidell Memorial HospitaL See Harris v. St. Tammany Parish Hosp. Serv. Dist. No. 1, 11-0941 ( La. App. 1 Cir. 12/ 29/ 11), 20ll WL` 6916523 (unpublished), writs denied, 12- 0585 and 12- 0678 La. 4/ 20/ 12), 85 So: 3d 1275, 1277 ( plainriff failed to prove cause- in-fact where nurse' s failure to chart medication did not cause patient' s death). A cordingly, we reverse that portion of the judgment in favor of Washington, Ducre, and the EstaCe of Alex Ducre, Jr. against Slidell Nlemorial Hospital. Dr. Waring also assigned as error the trial court' s failure to assign any comparative fault to Washing#on, arguing that she should have contacted her pediaYrician when Alex' s condition appeared to change. Washington testified that she nQticed an inerease in the yellow coloring on ' vlonday aftennoo a and that Alex was sleeping more and not rursing as much: She called the nursery- at Slidell Memorial Hospital and spoke to a nurse about his condition. After confirming that Alex was still eating and having urine ana stool output, VGashington was instructed to keep her appointment the next morning with the lactation nurse and to call again if anything changed. Washington followed those instructions arid presented Alex In l;ght of our deci ion regarding the judgment against Sl; de11 Memorial Hospital, we need not considex the assignn?ent of error related to the trial court' s failure to allncat fau2t between Dr. Waring and the hospltal. For this same reason, we deny the Joint Motion for Remand Far the Limited Purpose of Determining Percenta$es of Fauit fil d on behalf of Dr. Waring and the hospial. 12 to lactation the nurs khe next day, who immediaeely referred them to Dr. Stevensor, wha then admit[ed Al x into tl- hospztal. ie, We find no abuse of disc: etion ir the trial coezrt' s allacation of no fault to Washin ton. The fact that she first contacYed tkie hospita.l as oppc sed to her pediatrician does not give rzse to any fault on her part. Whezi she perceived that Alex' s condition may hava changed, she promptdy contacted the hospital - the last healthcare provider to treat Alex only a few days earlier. As directed, she reported for her appointment the following morning with Alex. The record establishes that Washington complied with the healthcare provider' s instructions, and acted in a reasonably prudent manner in monitoring her child' s condition and reporting that condition to the providers. This assignment of error has no merit. Award to the Estate of Alex Ducre, Jr. B. The trial court awarded $ 50, 000. 00 each to Washington, Alex Ducre, Sr., and the " Estate of Alex Ducre, Jr." No party disputes that the Estate of Alex Ducre, Jr. was not a plaintiff in the proceeding and could not be a plaintiff pursuant to Louisiana Civil Code article 2315. 1A( 2), which vests the right to pursue a survival action exclusively in Washington and Alex Ducre, Sr. Counsel for Washington and Ducre acknowled es that the survrva: action award should have been { ganted] to the Sarents as [ Alex' s] beneficiaries," but contends that the " award was proper" because the survival action is a separate and distinct cause of action from thE wroxigft i death ac ion. V6' tiile fhat distinction is correct, it offers no support for an award to n estate which is neither a party to the proceeding nor capable of enforcing the ri Code art. 2315. 1,; t to pursue the claim. See La. Civ. La. Code of Civ. Pro. art, 685. To the ea tent Washington and Ducre suggest that the award to the estate should be re- allocated to them, we note that their answer to the defendants' appeal was confcned to a request to modify the trial court' s aw ard of legal interest and did 13 not include any reference tc the tr a: court' s faiiure ta allocate the estate' s award to them. Louisiana CacYe of Civil P c c dure article 213 A pr vides that an appellee must state the relief demandeci in t17e answer t the appeal. this article to n ean that an ana ver to ari appEal those aspee s a th Baton Rouge Ea ne a judgy~i2 b ut 6' ( have interpreted perates as an appeal only from hY h the Iedical C' enPer, 9f3 1 `'' a sw ex T. a. t cars. plair. pp._ ]. (: r i Samuel v. 2l R' QOj, 757 So. 2d 43, 46, writs denied, 00- i314, 00- 1329 ( La. 6/ 23/ 00), 7(i5 So, 2d 1044, 1046. Given the absence in the answer of any demand for relief concerning the damage awards, the appellees' argument that the trial court' s judgment should be modified to increase their awards is not properly before this court. See Samuel, 757 So. 2d at 46. Accordingly, we vacate that portion of the judgment awarding the " Estate of Alex Ducre, Jr." the sum of$ 50, 000, 00 plus interest. C. Answer to Appeal (Award of Legal Interest) In answering the appeal, Washington and Ducre assert that the trial court erred in awarding legal interest from the daYe of judiciai demand rather than the date of filing of their complaint with the Pati nt' s C mpensation_Fund Oversight Board. We agree. Louisiana Retiised Statute 40: 1299. 47M provides that legal interest shall " acerue from the date of filing of the complaint with the board on a judgment rendered by a court in a suit for medical malpractice brought after compliance with this Part." The filing of the complaint with the board is not considered a " judicial demand," so the trial eourt' s award of interest from the date of" judicial demand" was erroneous. See La. C ade of Civ. Pro. art. 421; Melancon v. Insurance Corp, of America, 633 So. 2d ? 31, 233 ( La. App. 1 Cir. 1993) Z r` dditionally, w noie that to all w tk ese two plaintiffs to recovez the $ 50, 000 da t!ages awarded to the " Estate of Alex Ducre, Jx." would appeas 4o vi aPate tbe stipulation cvhich provides that the cause of action for each plaintiif' does not exceed $ SO, JGO. ll recognizing that a conciplaint fil c witr, a med`zca revYew panel Ys not a " judicial demand" sinc; e iY is not a` However, our ¢ rev ev it" Yi1ec: an a ouril. of the issue ' rs not compleie becaase we must determine , vhich af t.he folloiving op;* itutes the " date of fllang of tl e c mplaint" under Section. A2 9. 47M t e filing o the c riginal e> mplaint an Oc'taber 2, 2001, or the filing of the am: ndad obnplaint an May i5, ZG02. The original complaint was filed against only one party, Dr. Charles Hill, but it wa amended later to add claims against Dr. Waring and Slidell Memorial Hospital. The claims against Dr. Hill were voluntarily dismissed on or about August 5, 2002, prior to the convening of the first medical review panel, and neither medical review panel rendered an opinion concerning the care provided by Dr. Hill. Dr. Hill was never named as a defendant in this litigation, and noparty asserted at trial that Dr. Hill was negligent in his care of Alex. The judgment rendered by the trial court did not name Dr. Hill or otherwise suggest that he was at fault for Alex' s death. Section 1299. 47M refers only to " the complaint" and does not expressly address the present situation wherein multiple complaints were filed in the same proceading: an original complaint against a defendant who was subsequently dismissed from the medical review panel proceeding, and an amended complaint that added new defendants, one of whom has been iound on appeal to be solely at fault and liable for the plaintiffs' claims. Our supreme court has addressed the issue in an analc gous context under Louisiana Revised Statute 13 4203 far purposes of determining legal interest in a tort suit when an origin: l petition was amended to include claims against a additional dePendantsa In Burton v. Forzt, 498 So. 2d 706 ( La. 1986), the court c nsi.dered two consolidated tort suits that arose out of automobile accidents, and both proceedings involved amendments of the original petitions to add nevv parties. The petition in one suit (the " Burton" claim) was amended to assert claims against 15 the plaintiff' s uz flnstued mo orist catri r while the petition in the othe_ suit ( the r Keith" ciaim) was amended to inuYude claims against a polic jury and its insurer based on allegations that the pali e jury was res ponsibie for causing the accident at issue in that clairba. z ¬rt n, 498 Su. 2d at 707- 70$. Both proceedings resulted in judgtnents against th defendants acide by the apr_ endments, and the common issue before the supreme equrt was wher leg l intierest sk csuld begin to accrue on the judgments against those def ncia i se Burtan, 49$ Sa 2d at 71 J. The court held that legal interest should accrue from the date of the filing of the original petitions in each case, but based its holding on the fact that the parties cast in judgment were solidary obligors with the parties named as defendants in the original petitions. Citing Hoefly v: Government Employees Ins. Co., 418 So. 2d 575 La. 1982), the court explained: Under Hoefly, suit against one solidary obligor interrupts prescription as to other solidary obligors. Where defendants are solidarily liable, they are jointly and severally liable for the entire debt, which would include interest from the date on which plaintiff made judicial demand on the first of those parties. Under LSA R.S. 13: 4203, legal interest runs from the date of plaintiffs first judicial claim against all parties responsiblefor a single tortious occurrence. LSA C.C.P. art. 1153. Burton, 498 So. 2d at 7I2 ( emphasis added). SEe also LeBouefv. Gr, ss, 506 So. 2d 879; 881 ( La. App. 1 Cir, 198 7). In the present case, the oniy partv ultimately found " responsi l.e" for causing Alex' s death is Dr. Waring. Dr. iVaring was not named as a defendant in the original medical review panel complaint, anc she is not a solidary obligor or jointtortfeasor with Dr. Hill, the party named in the original complaint. Although Dr. Waring and Dr. Hill were both defendants for a period of time in the medical review panel proceeding, all claims against Dr. Hill were voluntarily dismissed, and no fault in connection ivith Alex' s death has since been asserted or assessed to Dr. Hill. Cansequently, the complaint against Dr. Hill was nor one against a respoqsibl party and cannot serve as the sta t date or the accrual of legal interest 16 on the judgment LeBouef v. rendered against Gross, SQ6 So, 2d amend the trial s S?, l ( La. r pp 1 C' ir. 1987`. Accordingly, we r urt' s ai ard of zxlterest aa d revise the judgment to grant legal interesY on the j°adgment against I)r VVarzn complaint a See BurPon, 448 So. 2d at 712; Dr. Warin, ainst ; eer e n Ma- 15, trann he date of the filing of the 0. COl iCLUSIUN For these in favor of reasons, we affizm Washington and ftie trial co Ducre in the rt jud amounts ent agarnst Dr. Waring and of $50, 000. 00 to each. We reverse the judgment against Slidell Memorial Hospital, and we vacate the judgment in favor of the Estate of Alex Ducre, Jr. We further amend the award of legal intexest in the judgment against Dr. Waring and xevise the judgment to grant legal interest from May 15, 2002. We assess one- half of the costs of this appeal to Dr. Waring and one- half to Washington and Ducre. MOTION PART, TO VACATED REMAND IN DENIED; PART, JUDGMEIV" T AMENDED, AFFIRMEA 1 AND REVERSED AS IN AMENDED, SHANTELL WASHINGTON, NO. 2013 CA 0078 AND ALEX DUCRE, INDIVIDUALLY AND ON BEHALF OF ALEX DUCRE, JR. (DECEDENT) FIRST CIRCUIT VERSUS COURT OF APPEAL DR. PHILLIS D. WARING AND SLIDELL MEMORIAII HOSPITAL MEDICAL CENTER STATE OF LOUISIANA WELCH, J., concurring in part, dissenting in part. I respectfizlly concur in part and dissent in part with the majarity opinion in this matter. While I agree with the result reached by the majority concerning fault and causation of damages with regard to Dr. Waring and Slidell Memorial Hospital and the award of damages to the estate of Alex Ducre, Jr., I disagree with regard to the award of legal interest to the date of the filing of the amended complaint. In my opinion, the award of legal interest should be awarded to the date that the plaintiffs filed their original complaint with Yhe board. Louisiana Revise Statutes 40: 1299. 47( M) mandates that "[ 1] egal interest shall accrue from the date of filing of the complaint with the board on a judgment rendered by a court in a suit for medical malpractice brought after compliance with this [ p] art." ( Emphasis added). Althoug a the plaintiff' s ariginal medical review panel complaint was filed against Dr. Charles Hiil, who was not a defendant in this lawsuit and not cast in judgment, the object of the original complaint and the amended complaint concerned the death of Alex and cause thereof. Reading both complaints together, the plaintiffs essentially claimed that the negligence of Dr. Hill, Dr. Waring, and Slidell Memorial Hospital was the cause of death of Alex Ducre. Thus, at that time, the plaintiffs were asserting that Dr. Hill, Dr. Waring, and Slidell Memorial hospital were joint tortfeasors, even though Dr. Hill was ultimately dismissed from the medical review board proceedings. See La. C.C. art. 2324( B). Thus, as noted by the majority, under the jurisprudence, legal interest for all parties responsible for a single tortious occurrence runs from the date of first judicial demand against any one of the responsible parties. See Burton v. Foret, 498 So. 2d 706, 712 ( La. 1986), 506 So. 2d 879, 881 ( La. App. lst Cir. 1987). Accordingly, I would amend the judgment to award legal interest from the date of the filing of the original complaint with the board. Thus, I respectfully concur in part and dissent in part.

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