LEROY R. FARVE Vs. DAVID M. JARROT, M.D.
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LEROY R. FARVE * NO. 2004-C-1424 VERSUS * COURT OF APPEAL DAVID M. JARROTT, M.D. * FOURTH CIRCUIT * STATE OF LOUISIANA * * ******* TOBIAS, J., CONCURS AND ASSIGNS REASONS. I respectfully concur, but write separately because I question the reasoning of Sherman v. Touro Infirmary Hospital, 2000-1365, 2000-1366, 2000-2573, 2000-2574, 2002-1058, 2002-1059 (La. App. 4 Cir. 10/30/02), 832 So.2d 334 and its retroactive application of LeBreton v. Rabito, 97-2221 (La. 7/8/98), 714 So.2d 1226. The rationale of Sherman and LeBreton is that a party asserting a claim of medical malpractice must assume that the allegedly malpracticing health care provider is a qualified health care provider under La. R.S. 40:1299.41 et seq. (hereinafter, “the Act”). Before LeBreton, a person had a right to assume that his or her health care provider was not necessarily covered by the Act and could file a suit in the district court that would interrupt prescription. Thereafter, if the health care provider was determined to be a qualified health care provider, the district court suit would be deemed premature and had to be dismissed. The effect of LeBreton was to change the presumption, which has substantive as well as procedural aspects.
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