Cynthia Peed v. Cherie Lesaicherre, Cherie P. Lesaicherre, Dds, LLC, Dachiell A. Rowdon, Trustee of the Dachiell A. Rowdon Exempt Trust, Jon S. D'azzo, Trustee of the Jon Sheffield D'Azzo Exempt Trust, and Abc Insurance Company

Opinion

CYNTHIA PEED * NO. 2024-CA-0263

VERSUS * COURT OF APPEAL CHERIE LESAICHERRE, * CHERIE P. LESAICHERRE, FOURTH CIRCUIT DDS, LLC, DACHIELL A. * ROWDON, TRUSTEE OF THE STATE OF LOUISIANA DACHIELL A. ROWDON ******* EXEMPT TRUST, JON S. D'AZZO, TRUSTEE OF THE JON SHEFFIELD D'AZZO EXEMPT TRUST, AND ABC INSURANCE COMPANY

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2022-11376, DIVISION “C” Honorable Sidney H. Cates, Judge ****** Judge Daniel L. Dysart ******

(Court composed of Judge Daniel L. Dysart, Judge Joy Cossich Lobrano, Judge Dale N. Atkins)

LOBRANO, J., CONCURS IN PART, DISSENTS IN PART, AND ASSIGNS REASONS

Rene Paul Frederick Jeanne M. Mauldin RENE FREDERICK & ASSOCIATES, LLC 222 N. Vermont Street Covington, LA 70433

COUNSEL FOR PLAINTIFF/APPELLANT Guice A. Giambrone, III Ivana Dillas BLUE WILLIAMS, L.L.P. 3421 North Causeway Boulevard Suite 900 Metairie, LA 70002-3760

COUNSEL FOR DEFENDANT/APPELLEE

AFFIRMED

NOVEMBER 4, 2024 DLD In this personal injury action, the plaintiff, Cynthia Peed (“Ms. Peed”), DNA appeals the trial court’s judgment maintaining a dilatory exception of prematurity

in favor of the defendants, Dr. Cherie LeSaicherre and Cherie P. LeSaicherre,

DDS, LLC (hereinafter sometimes collectively referred to as “Dr. LeSaicherre”),

and the denial of her motion for new trial. For the following reasons, we affirm the

trial court’s judgment.

BACKGROUND

On January 27, 2022, Ms. Peed presented for a dental appointment at Dr.

LeSaicherre’s office. While she was seated in the examination chair during a

procedure, an overhead dental examination light fell and struck Ms. Peed, causing

injuries to her face and eye. As a result of the injuries she sustained, Ms. Peed has

undergone several eye surgeries.

Ms. Peed filed a petition for damages on December 16, 2022, naming as

defendants: Dr. LeSaicherre, Cherie P. LeSaicherre, DDS, LLC, as well as the

property owners, Dachiell A. Rowdon, trustee of the Dachiell A. Rowdon Exempt

1 Trust, and Jon S. D’Azzo, trustee of the Jon Sheffield D’Azzo Exempt Trust, and

ABC Insurance Company, named fictitiously as defendant’s general liability

carrier.1 On February 23, 2023, Dr. LeSaicherre filed an exception of prematurity,

alleging that Ms. Peed’s claims fall under the Louisiana Medical Malpractice Act

(“LMMA”)2 and must first be presented to a medical review panel. Ms. Peed

opposed the exception arguing that her claims sounded in general negligence,

rather than medical malpractice. A hearing on the exception was held on June 16,

2023. On June 16, 2023, the district court sustained the exception in open court.

The district court issued a signed judgment on July 18, 2023, dismissing without

prejudice all of Ms. Peed’s claims against Dr. LeSaicherre.

On July 24, 2023, Ms. Peed filed a motion for new trial on the grounds that

the judgment granting the exception of prematurity was contrary to the law and

evidence. A hearing on the motion was held on September 29, 2023. The district

court signed a judgment denying Ms. Peed’s motion for new trial on December 21,

2023. Ms. Peed filed her appeal with this Court on February 16, 2024.

DISCUSSION

In her assignment of alleged errors, Ms. Peed contends that the “District

Court was in error when it denied the Motion for New Trial despite evidence

supporting that the judgment granting Defendant’s Exception of Prematurity was

contrary to the law and evidence in this case, and a miscarriage of justice.”

1 On December 20, 2022, Ms. Peed also filed a complaint against Dr. LeSaicherre with the

Patient’s Compensation Fund, alleging that Dr. LeSaicherre had breached the standard of care by medical professionals and committed medical malpractice. 2 La. R.S. 40:1231.1, et seq.

2 The issue of whether a claim sounds in medical malpractice is a question of

law conducted under a de novo standard of review. See Matherne v. Jefferson Par.

Hosp. Dist. No. 1, 11-1147, pp. 3-4 (La. App. 5 Cir. 5/8/12), 90 So.3d 534, 536

(citation omitted). No action against a qualified healthcare provider may be

commenced in any court before the claimant’s proposed complaint has been

presented to a medical review panel. See La. R.S. 40:1231.8 (B)(1)(a)(i).

“[A] medical malpractice claim against a qualified healthcare provider is

subject to dismissal on a timely exception of prematurity if such claim has not first

been reviewed by a pre-lawsuit medical review panel.” Dupuy v. NMC Operating

Co., 15-1754, p. 3 (La. 3/15/16), 187 So.3d 436, 438 (citing La. R.S. 40:1231.8).

The burden of proving prematurity is on the moving party, which, in a medical

malpractice case, must show that it is entitled to the medical review panel because

the allegations fall within the scope of the LMMA. Kelleher v. Univ. Med. Ctr.

Mgmt. Corp., 21-00011, pp. 3-4 (La. 10/10/21), 332 So.3d 654, 657 (citing Dupuy,

15-1754, p. 4, 187 So.3d at 439). Where no evidence is presented at the trial of a

dilatory exception, “the court must render its decision on the exception based upon

the facts as alleged in the petition, and all allegations therein must be accepted as

true.” LaCoste v. Pendleton Methodist Hosp., 07-0008, 0016, p. 8 (La. 9/5/07),

966 So.2d 519, 525 (citing Blakely v. Powers, 590 So.2d 1286, 1290 (La. App. 1st

Cir. 1991)).

An appellate court “reviews a ruling on a motion for new trial under an

abuse of discretion standard of review.” Sunset Harbour, LLC v. Brown, 22-0572,

3 p. 9 (La. App. 4 Cir. 1/9/23), 356 So.3d 1167, 1173 (citing Jouve v. State Farm

Fire & Cas. Co., 10-1522, p. 15 (La. App. 4 Cir. 8/17/11), 74 So.3d 220, 229).

The party that files a motion for a new trial carries the burden to show that he or

she is entitled to a new trial. See Jackson v. Wise, 17-1062, p. 18 (La. App. 1 Cir.

4/13/18), 249 So.3d 845, 856 (citation omitted). “[A] motion for a new trial based

on the contention that a judgment is contrary to the law and evidence should be

denied if the trial court’s ruling is supportable by any fair interpretation of

evidence, and a trial court judgment denying a motion for new trial should not be

reversed unless the appellate court finds that the trial court abused its great

discretion.” 1137 N. Robertson, LLC v. Jackson, 19-0553, pp. 7-8 (La. App. 4 Cir.

11/20/19), 364 So.3d 72, 77 (citing FIE, LLC v. New Jax Condo. Ass’n, Inc., 16-

0843, 17-0423, p. 23 (La. App. 4 Cir. 2/21/18), 241 So.3d 372, 391).

Under the LMMA, no action against a qualified healthcare provider can

commence until the claimant’s proposed complaint has been presented to a medical

review panel. See La. R.S. 40:1231.1, et seq. In Coleman v. Deno, 01-1517, 1519,

1521, pp. 17-18 (La. 1/25/02), 813 So.2d 303, 315-16 (citations omitted), the

Louisiana Supreme Court set forth six factors to determine if an action falls under

the LMMA:

[1] whether the particular wrong is treatment-related or caused by a dereliction of professional skill, [2] whether the wrong requires expert medical evidence to determine if the standard of care was breached, [3] whether the pertinent act or omission involved assessment of the patient’s condition, [4] whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital is licensed to perform,

4 [5] whether the injury would have occurred if the patient had not sought treatment, and [6] whether the tort alleged was intentional.

See also Harris v. Sternberg, 01-1827, 2170, pp. 5-6 (La. App. 4 Cir. 5/22/02), 819

So.2d 1134, 1138.

Louisiana courts have held that any conduct by healthcare providers during

medical treatment that can reasonably fall within the definitions of the LMMA

must be handled under its procedures, even if alternative theories of liability are

presented. See Bolden v. Dunaway, 97-1425, p. 5 (La. App. 1 Cir. 12/28/98), 727

So.2d 597, 600 (citations omitted); W.P. v. Universal Health Servs. Found., 11-

801, p. 10 (La. App. 5 Cir. 3/27/12), 91 So.3d 1097, 1102.

In the instant case, Ms. Peed was seated in an examination chair for a dental

procedure when Dr. LeSaicherre allegedly mishandled an overhead dental

examination light, causing it to fall and strike Ms. Peed in the face. The act in no

way appears to be intentional. The injury would not have occurred had Ms. Peed

not sought treatment. The injury occurred in the context of a physician-patient

relationship during Dr. LeSaicherre’s assessment of Ms. Peed’s condition.

We also note that Dr. LeSaicherre has fulfilled all statutory requirements to

qualify as a healthcare provider under the LMMA, including procuring the

necessary insurance and enrolling in the Patient’s Compensation Fund (PCF). See

Sewell v. Drs. Hosp., 600 So.2d 577, 578 (La. 1992).

In Dupuy, 15-1754, p. 14, 187 So.3d at 445, the Louisiana Supreme Court

concluded that allegations regarding failure to sterilize medical equipment used to

sanitize surgical instruments fall under the LMMA. Likewise, the First Circuit, in

Andrews v. Our Lady of the Lake Ascension Comm. Hosp., Inc., 13-1237, p. 5 (La.

App. 1 Cir. 2/18/14), 142 So.3d 36, 39-40, affirmed the trial court’s granting of the

5 defendant’s exception of prematurity where a plaintiff claimed she was dropped by

hospital staff when they attempted to move her from her bed to a wheelchair,

holding that such handling of a patient is covered by the LMMA. Conversely, in

Williamson v. Hospital Service District No. 1 of Jefferson, 04-0451, pp. 1-2 (La.

12/1/04), 888 So.2d 782, 784, the Supreme Court found that an incident involving

a defective wheelchair wheel was distinguishable, as the effect was an obvious

mechanical issue, not related to professional medical treatment.

The record, in the instant case, contains no evidence or even makes mention

of a specific defect in the dental examination light. Ms. Peed’s petition does not

allege any intentional acts by Dr. LeSaicherre but focuses on her alleged

negligence in handling medical equipment. Dr. LeSaicherre and her practice were

qualified healthcare providers at the time of the incident and had met all statutory

requirements under the LMMA. As such, we find that the trial court properly

ruled that Ms. Peed’s allegations necessitated a review by a medical review panel,

as they pertain to the standard of care and professional skill required in medical

treatment, and properly maintained Dr. LeSaicherre’s exception of prematurity.

Ms. Peed has also failed to show that there was a “miscarriage of justice” to

warrant a new trial. This matter was dismissed without prejudice requiring Ms.

Peed to first proceed through a medical review panel to determine whether the

dental examination light was properly handled during the procedure. Ms. Peed’s

medical review panel complaint has already been filed and is ongoing. She has not

been deprived of any substantial rights, nor has there been a miscarriage of justice.

Furthermore, Ms. Peed’s motion for new trial was based on the contention that the

trial court erred in granting Dr. LeSaicherre’s exception of prematurity and we

have already determined that the evidence in the record reflects that the trial court

6 properly sustained the exception. Accordingly, we find that the trial court did not

abuse its wide discretion in denying Ms. Peed’s motion for new trial.

CONCLUSION

Based on the above and foregoing reasons, we affirm the trial court’s

maintaining of Dr. LeSaicherre’s exception of prematurity, as well as its denial of

Ms. Peed’s motion for new trial.

AFFIRMED