Angelo v. Billings

690 So. 2d 1013, 96 La.App. 5 Cir. 509, 1997 La. App. LEXIS 547, 1997 WL 106373
CourtLouisiana Court of Appeal
DecidedMarch 12, 1997
DocketNos. 96-CA-509, 96-CA-875
StatusPublished
Cited by1 cases

This text of 690 So. 2d 1013 (Angelo v. Billings) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Angelo v. Billings, 690 So. 2d 1013, 96 La.App. 5 Cir. 509, 1997 La. App. LEXIS 547, 1997 WL 106373 (La. Ct. App. 1997).

Opinion

IbDALEY, Judge.

Plaintiff, Hilda Angelo, appeals the dismissal of two related medical malpractice lawsuits which she filed following her husband’s death in 1989. The two suits were consolidated for appeal. For the reasons that follow, we affirm.

The facts of these cases were gleaned from the pleadings, memoranda and arguments of counsel. Both cases were dismissed before the merits were submitted to the trial court.

On January 26, 1989, Bernard Angelo was admitted to the Acute Psychiatric Unit of Alton Ochsner Medical Foundation and Ochs-ner Clinic. On February 12, 1989, Angelo was transferred to the Stress Treatment Unit where he was not under constant observation. While there, Mr. Angelo slashed his wrists and stabbed himself in both eyes with a coat hanger. He subsequently left Ochsner and, on December 25, 1989, he committed suicide.

¡4Mi\ Angelo’s wife, Hilda Angelo, alleges that in late July 1990, she was informed by a nurse who had worked at Ochsner during her husband’s stay that Mr. Angelo was mistreated and' that there was a cause of action against Ochsner. Suit was filed on July 5, 1991, against Alton Ochsner Medical Foundation, Ochsner Clinic, Drs. Charles K. Billings and Deborah Simkin and Nurses Leila Weaver and Nancy Davis. A medical review panel was formed and the lawsuit was dismissed as per the Medical Malpractice Statute. Thereafter the panel found no breach of the standard of care by any defendant with the exception of Nurse Weaver wherein they opined that there was “... a material issue of fact, not requiring expert opinion, bearing on liability for consideration by the court.” The fact issue was “... [wjhether or not Mr. Angelo clearly communicated to Nurse Weaver active suicidal ideation and intent and/or that he was hallucinating ...” A post panel petition1 (the Burns suit) was filed naming Alton Ochsner Medical Foundation, Ochsner Clinic, Nurse Weaver and Nurse Davis. A First Supplemental and Amending Petition was filed on May 17, 1995, adding Mr. Angelo’s son, Tony Casanave, as a party plaintiff. The suit proceeded in a normal course and, on September 10,1995, plaintiff moved to set the ease for trial.

A Pre-Trial order was signed by Judge Burns setting trial for February 5, 1996. Plaintiff requested leave on January 29,1996, eight days before the scheduled trial, to file an amending petition adding Dr. Simkin and Dr. Billings as defendants and filed a Motion to Continue Trial based on the discovery of [1015]*1015“new evidence”. Also, plaintiffs counsel asserted that Mr. Angelo’s son, Tony Casanave, was not under contract with plaintiffs counsel and plaintiffs counsel was, therefore, unable tojsrepresent him. The “new evidence” discovered by plaintiffs counsel was a notation in Mr. Angelo’s Ochsner medical records from 1989. According to plaintiffs counsel, on January 11, 1996, two weeks before his expert’s deposition he learned for the first time that the Ochsner medical records stated that Mr. Angelo had suicidal ideations during his hospital stay in January through February 1989.

The Motion to Amend was denied as was the Motion to Continue the Trial date. On February 1,1996, counsel moved to withdraw as counsel of record for Mr. Casanave. The Court allowed Mr. Raspanti, plaintiffs counsel, to withdraw as counsel for Mr. Casanave.

On February 2, 1996, plaintiff through its counsel, Mr. Raspanti, filed a separate lawsuit alleging the same cause of action and naming Alton Ochsner Medical Foundation, Ochsner Clinic and Drs. Charles K. Billings and Deborah Simkin as defendants2. This new suit was allotted to Division N, Judge Susan Chehardy.

The parties appeared for trial before Judge Burns as assigned on February 5, 1996. The case was called for trial. Plaintiff moved for a dismissal without prejudice which was opposed by defendants. Plaintiffs counsel also requested a continuance to allow Mr. Casanave the opportunity to obtain new counsel. Further, counsel requested Judge Burns transfer the suit, assigned to Judge Chehardy to his Division which would also necessitate a continuance. Because Judge Burns refused to continue the case or transfer the other case, plaintiffs counsel requested a dismissal without prejudice reserving unto plaintiffs the “... right to bring any and all other claims or actions not asserted in this case and/or any claims or actions against any other parties not named in this litigation.”

|6The record shows the arguments made on the morning of trial for a continuance were also made in chambers on February 1, 1996, the Thursday before trial. Judge Burns refused the requested continuance in chambers. At trial he again denied the continuance and instructed plaintiff to proceed with his case or he would “... dismiss this case with full prejudice and end this litigation.” Plaintiffs counsel objected to the dismissal with prejudice and again requested a dismissal without prejudice. Judge Burns then denied the Motion to Dismiss Without Prejudice and instructed plaintiff to proceed with his case. Counsel stated he would not proceed with the trial and Judge Burns stated if he did not proceed he would dismiss the ease. Counsel again stated he would not proceed with the case and an order of “... dismissal with complete and full prejudice ...” was entered for lack of prosecution.

Thereafter, in the proceeding before Judge Chehardy, defendants filed an Exception of Prescription on behalf of Drs. Simkin and Billings and an Exception of Res Judicata on behalf of Ochsner Foundation and Ochsner Clinic. Following arguments, the exceptions were granted and that suit dismissed. Plaintiff timely appeals both suits. The suits were consolidated for appeal.

On appeal, plaintiff contends that Judge Burns erred in dismissing the claims with prejudice and in refusing to grant the Motion to Continue in the suit filed March 8, 1993. He also contends Judge Chehardy erred in holding the prepanel petition filed July 5, 1991, was prescribed; that the suit filed February 2, 1996, was prescribed; and that the suit filed February 2, 1996, was res judicata as to Ocshner Medical Foundation and Ochs-ner Clinic.

Plaintiffs first argument centers around Judge Burns’ refusal to grant a continuance to allow the addition of Drs. Simkin and Billings as defendants. Plaintiff contends the defense to this action was based on the fact Mr. Angelo had no prior phistory of suicidal thinking during the seventeen-day stay at Ochsner in 1989. He argues the first time plaintiff, any defendant or their counsel became aware of the fact Mr. Angelo had suicidal ideations during his 1989 Ochsner [1016]*1016stay was on January 26,1996, when plaintiffs nurse expert was deposed. In response to a defense question, plaintiffs expert responded that the Ochsner record reflected that on the fourth day of Mr. Angelo’s Ochsner stay (January 30, 1989) he experienced suicidal thinking. This notation was contained in part of Angelo’s Ochsner medical record known as the “Beck Inventory.” Shortly after this deposition, plaintiff moved to add Drs. Simkin and Billings as defendants. This motion was denied as well as a request for a continuance based on this “new evi-' dence.” Plaintiff argues Judge Burns abused his discretion in refusing the continuance to allow him to prepare a ease against Drs. Simkin and Billings.

We disagree. LSA-C.C.P. Art.

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Bluebook (online)
690 So. 2d 1013, 96 La.App. 5 Cir. 509, 1997 La. App. LEXIS 547, 1997 WL 106373, Counsel Stack Legal Research, https://law.counselstack.com/opinion/angelo-v-billings-lactapp-1997.