DONNA M. GILLY, WIFE OF/AND KURT NO. 21-CA-381 KLEINDIENST FIFTH CIRCUIT VERSUS COURT OF APPEAL JAMES E. RICCIARDI, M.D., LSU HEALTHCARE NETWORK AND BOARD OF STATE OF LOUISIANA SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND AGRICULTURE AND MECHANICAL COLLEGE
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 767-497, DIVISION "M" HONORABLE SHAYNA BEEVERS MORVANT, JUDGE PRESIDING
April 13, 2022
STEPHEN J. WINDHORST JUDGE
Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and Stephen J. Windhorst
AFFIRMED SJW JGG RAC COUNSEL FOR PLAINTIFF/APPELLANT, DONNA M. GILLY, WIFE OF/AND KURT KLEINDIENST Anthony L. Glorioso
COUNSEL FOR DEFENDANT/APPELLEE, PAMELA ANN KNOX RICCIARDI, AS THE SUBSTITUTED DEFENDANT FOR JAMES E. RICCIARDI, M.D. AND THE BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND AGRICULTURAL AND MECHANICAL COLLEGE Jeffrey M. Landry Bryan J. Knight Mark E. Kaufman WINDHORST, J.
In this medical malpractice action, plaintiffs/appellants, Donna Gilly and Kurt
Kleindienst, appeal the trial court’s December 23, 2020 judgment granting the
exception of prescription filed by defendants/appellees, Pamela Ann Knox Ricciardi
as the substituted defendant for James Ricciardi, M.D., the LSU Healthcare
Network, and the Board of Supervisors of Louisiana State University and
Agricultural and Mechanical College (hereinafter collectively referred to as “LSU
Healthcare Network”), thereby dismissing these defendants from this matter with
prejudice. For the following reasons, we affirm.
FACTS and PROCEDURAL HISTORY
This is a medical malpractice action against state healthcare providers under
La. R.S. 40:1237.1 et seq. for alleged medical malpractice related to medical care
Dr. James Ricciardi provided to Donna Gilly, while he was employed by LSU
Healthcare Network. Dr. Ricciardi provided the medical care at issue to Ms. Gilly
in August 2006.
On August 2, 2007, plaintiffs initiated the Medical Review Panel (“MRP”)
process against Dr. Ricciardi only. On September 5, 2007, plaintiffs filed an
amended complaint in the MRP to assert claims against the LSU Healthcare
Network. The MRP convened on August 15, 2016, and ruled in favor of the named
health care providers, and opined that the evidence did not support the conclusion
that they failed to meet the applicable standard of care.
On December 16, 2016, plaintiffs filed suit against Dr. Ricciardi and the LSU
Healthcare Network. Dr. Ricciardi died during the pendency of this litigation. After
his death, pursuant to this Court’s order, Pamela Ann Knox Ricciardi, the
Independent Executor of Dr. Ricciardi’s Estate, substituted herself as a defendant in
his place.
21-CA-381 1 In the petition, plaintiffs seek damages for injuries Ms. Gilly allegedly
suffered from the surgery Dr. Ricciardi performed on her. Dr. Ricciardi performed
a revision lumbar fusion on Ms. Gilly. Plaintiffs alleged that Dr. Ricciardi deviated
from the standard of care in performing the operation because, after the surgery, a
surgical screw inserted by Dr. Ricciardi was impinging on a nerve. This
complication was identified soon after the surgery and was repaired within a few
days of the initial operation.
On December 16, 2016, plaintiffs requested service of process on Dr.
Ricciardi through Michelle Bourque, the attorney who represented defendants
during the MRP proceedings. Plaintiffs did not request service of their petition on
the LSU Healthcare Network until years later on August 29, 2019.
By letter dated March 14, 2017, Ms. Bourque informed plaintiffs that their
requested service of Dr. Ricciardi on her did not comply with the law and that they
had not requested service on the LSU Healthcare Network. This letter was mailed,
faxed, and e-mailed a few days before the expiration of plaintiffs’ ninety (90) day
window to request service under La. R.S. 13:5107. According to defendants, Ms.
Bourque did not have authority to accept service on behalf of Dr. Ricciardi because
the State had not yet appointed her to represent defendants in this post-MRP lawsuit.
On August 23, 2018, the LSU Healthcare Network filed an exception of
insufficiency of service of process and motion for involuntary dismissal, asserting
that plaintiffs’ failure to timely request service on LSU Healthcare Network
warranted dismissal. On March 3, 2020, the district court granted this exception and
dismissed the LSU Healthcare Network from this case without prejudice. On July
29, 2020, this Court denied plaintiffs’ writ application challenging the judgment
granting the exception of insufficiency of service of process.
On July 8, 2020, Dr. Ricciardi filed a motion for involuntary dismissal based
on plaintiffs’ failure to properly serve Dr. Ricciardi. On September 1, 2020, the
21-CA-381 2 district court granted the motion for involuntary dismissal and dismissed Dr.
Ricciardi without prejudice.
On September 2, 2020, plaintiffs filed a second supplemental and amending
petition against the same defendants. In response, on October 13, 2020, defendants
filed an exception of prescription, asserting that plaintiffs’ claims in the second
amended petition were prescribed. The district court granted this exception, thereby
dismissing plaintiffs’ claim against defendants with prejudice. Plaintiffs then filed
a motion for reconsideration, which the district court denied. This appeal followed.
LAW and ANALYSIS
In this appeal, plaintiffs challenge the district court’s granting of defendants’
exception of prescription. Plaintiffs assert that service on Dr. Ricciardi through
defendants’ attorney during the MRP proceedings and this litigation is sufficient and
that prescription was interrupted under the Gettys v. Wong, 13-1138 (La. App. 4 Cir.
5/7/14), 145 So.3d 460 case.
The standard of review of a district court’s ruling on a peremptory exception
of prescription is determined by whether or not evidence is introduced at the hearing
on the exception. When no evidence is introduced, review of judgments sustaining
an exception of prescription by appellate courts is de novo, accepting the facts
alleged in the petition as true. Id.; Lennie v. Exxon Mobil Corporation, 17-204 (La.
App. 5 Cir. 6/27/18), 251 So.3d 637, 642, writ denied, 18-1435 (La. 11/20/18), 256
So.3d 994. However, when evidence is introduced at a hearing on an exception of
prescription, the district court’s findings of fact are reviewed under the manifest
error standard. Id.; Tenorio v. Exxon Mobil Corp., 14-814 (La. App. 5 Cir. 4/15/15),
170 So.3d 269, 273, writ denied, 15-1145 (La. 9/18/15), 178 So.3d 149. When
evidence is introduced but the case involves only the determination of a legal issue,
not a dispute regarding material facts, an appellate court must review the issue de
novo, giving no deference to the trial court’s legal determination. Cawley v.
21-CA-381 3 National Fire & Marine Ins. Co., 10-2095 (La. App. 1 Cir. 5/6/11), 65 So.3d 235,
237.
Issues as to Service of Process
Plaintiffs assert that their service of process on Dr. Ricciardi’s attorney during
the MRP proceedings was sufficient to interrupt prescription as to Dr. Ricciardi and
the LSU Healthcare Network. Defendants argue that plaintiffs were required under
La. R.S. 13:5107 and La. R.S. 39:1538 to timely serve Dr. Ricciardi and LSU
Healthcare Network through the head of the department for the Board of
Supervisors, the Office of Risk Management, and the Attorney General, but failed
to do so. La. R.S. 13:5107 A and D provide, in pertinent part:
A. (1) In all suits filed against the state of Louisiana or a state agency, citation and service may be obtained by citation and service on the attorney general of Louisiana, or on any employee in his office above the age of sixteen years, or any other proper officer or person, depending upon the identity of the named defendant and in accordance with the laws of this state, and on the department, board, commission, or agency head or person, depending upon the identity of the named defendant and in accordance with the laws of this state, and on the department, board, commission, or agency head or person, depending upon the identity of the named defendant and the identity of the named board, commission, department, agency, or officer through which or through whom suit is to be filed against.
(2) Service shall be requested upon the attorney general within ninety days of filing suit. This shall be sufficient to comply with the requirements of Subsection D of this Section and also Code of Civil Procedure Article 1201(C)....
* * * D. (1) In all suits in which the state, a state agency, or political subdivision, or any officer or employee thereof is named as a party, service of citation shall be requested within ninety days of the commencement of the action or the filing of a supplemental or amended petition which initially names the state, a state agency, or political subdivision or any officer or employee thereof as a party. This requirement may be expressly waived by the defendant in such action by any written waiver. If not waived, a request for service of citation upon the defendant shall be considered timely if requested on the defendant within the time period provided by this Section, notwithstanding insufficient or erroneous service. [Emphasis added.]
21-CA-381 4 (2) If service is not requested by the party filing the action within the period required in Paragraph (1) of this Subsection, the action shall be dismissed without prejudice, after contradictory motion as provided in Code of Civil Procedure Article 1672(C), as to the state, state agency, or political subdivision, or any officer or employee thereof, upon whom service was not requested within the period required by Paragraph (1) of this Subsection.
Louisiana courts have held that service shall be requested within ninety days
of filing suit where the State or a state agency, officer, or employee is a named party.
La. R.S. 13:5107 D and La. C.C.P. art. 1201 C. Davis v. Caraway, 14-264 (La. App.
5 Cir. 10/29/14), 164 So.3d 223, Velasquez v. Chesson, 13-1260 (La. App. 4 Cir.
10/8/14), 151 So.3d 812, 813-14, writ denied, 14-2361 (La. 2/27/15), 159 So.3d
1067. The purpose behind the ninety-day notice requirement is to make sure that
the defendant receives notice of the suit within a reasonable time after it has been
commenced. Llopis v. Louisiana State Bd. of Dentistry, 13-0659 (La. App. 4 Cir.
6/11/14), 143 So.3d 1211, 1214, writ denied, 14-1483 (La. 10/31/14), 152 So.3d
152. Plaintiffs are strictly held to the obligation of serving the correct agent for
service of process, as well as to the obligation of serving the named state defendants
within the time period specified by La. R.S. 13:5107 D(1). Velasquez, 151 So.3d at
814. Consequently, unless service is made on an authorized recipient, it will be
deemed insufficient and improper. Tranchant v. State, 08-978 (La. 1/21/09), 5 So.3d
832, 837.
This Court previously addressed and found no error in the trial court’s March
5, 2020 judgment granting of defendant’s exception of insufficiency of service of
process and motion for involuntary dismissal given that plaintiffs did not timely
request service on the LSU Health Network within the ninety-day window. Donna
Gilly v. James Ricciardi, M.D., et al., 20-200 (La. App. 5 Cir. 7/29/20) (unpublished
writ disposition). This appeal contains nothing to support a contrary result. Thus,
according to the record, the LSU Health Network was properly dismissed pursuant
21-CA-381 5 to the granting of its exception of insufficiency of service of process and motion for
involuntary dismissal.
Although plaintiffs attempted to serve Dr. Ricciardi through Ms. Bourque,
this service did not comply with the statutory requirements of La. R.S. 13:5107, La.
C.C.P. arts. 1201 and 1672 C, and La. R.S. 39:1538. In actions brought against the
state or any of its agencies to recover damages in tort for personal injury caused by
the negligent act or omission of any employee while acting within the scope of his
employment in which the state or such agency would be liable to the claimant,
process shall be served upon the head of the department concerned, the office of risk
management, and the attorney general. La. R.S. 39:1538; Whitley v. State ex rel.
Bd. of Sup’rs of Louisiana State Univ. Agr. Mech. Coll., 11-40 (La. 7/1/11), 66
So.3d 470, 481.
With regard to service on a state agency or state employee, courts have also
required that “service shall be requested within ninety days of filing suit where the
State or a state agency, officer, or employee is a named party.”. Wright v. State on
Behalf of Alleyn, 19-0499 (La. App. 4 Cir. 8/5/20), — So.3d —, 2020 WL 4499654,
at p. 9 (emphasis in original); Velasquez, 151 So.3d at 814. Unless good cause is
shown, the action shall be dismissed as to the party for whom service has not been
timely requested upon sustaining said party’s declinatory exception. Id. Good cause
is not established based on mere confusion over a party’s proper service information.
Id.
The LSU Health Network is a state-owned facility under the Board of
Supervisors. Thus, Dr. Ricciardi was a state-employed physician, and plaintiffs
were required to serve the head of the department for the Board of Supervisors, the
Office of Risk Management, or the Attorney General of Louisiana. Ms. Bourque,
counsel for the LSU Health Network and Dr. Ricciardi in the MRP proceedings did
not satisfy this service requirement. As a result, plaintiffs did not properly serve Dr.
21-CA-381 6 Ricciardi, and he was properly dismissed pursuant to his motion for involuntary
dismissal.
Given that plaintiffs did not request service on one of the mandated agents for
service of process in a timely manner, the trial court properly dismissed the LSU
Health Network and Dr. Ricciardi from this lawsuit.
Issues as to Prescription
Plaintiffs assert that prescription was interrupted pursuant to service on Dr.
Ricciardi, and that because the LSU Healthcare Network was named solely as Dr.
Ricciardi’s employer, it was timely added to the suit. Plaintiffs further argue that
the claim against the LSU Healthcare Network is solely derivative of the timely-
filed claim against Dr. Ricciardi and that the claims are one and the same.
The Louisiana Supreme Court has held that actions for medical malpractice
are governed by special laws which delineate the applicable liberative prescription.
Borel v. Young, 07-0419 (La. 11/27/07), 989 So.2d 42, 66, on reh’g (July 1, 2008).
Thus, the prescription provisions in the medical malpractice statute apply to this
case. La. R.S. 9:5628 A provides as follows:
A. No action for damages for injury or death against any physician ... duly licensed under the laws of this state, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year for the date of the alleged act, omission, or neglect, or within one year of the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.
The Medical Malpractice Act (“MMA”) specifies that the filing of a request
for review before a panel suspends prescription because it prohibits the filing of a
medical malpractice claim against a qualified health care provider prior to panel
review. La. R.S. 40:1299.47 A(2)(a). The statute also prevents prescription from
lapsing while the medical review panel process is pending by suspending
prescription from the time of filing until ninety days following notification to the
21-CA-381 7 claimant or his attorney of the panel opinion. Id. Taking these rules into
consideration, the Supreme Court stated that “it is evident that there is no need for
the general rules of interruption of prescription to combine with suspension to
synergistically benefit the plaintiff.” Borel, 989 So.2d at 67; Matranga v. Parish of
Anesthesia of Jefferson, LLC, 17-73 (La. App. 5 Cir. 8/29/18), 254 So.3d 1238,
1245. In reaching this conclusion, the Louisiana Supreme Court relied on the
language of the statute, legislative intent, and public policy concerns.
In interpreting the plain language of La. R.S. 9:5628, the Supreme Court
pointed out the use of the word “shall” in the statement that: “No action ... shall be
brought unless filed within one year ...; however, even as to claims filed within one
year ... of such discovery, in all events such claims shall be filed at the latest within
... three years....” Borel v. Young, 07-0419 (La. 11/27/07), 989 So. 2d 42, 50, on
reh’g (July 1, 2008). The Court stated that use of “shall” meant it must be interpreted
as a mandatory provision thereby indicating that the prescriptive period was
peremptive.
In considering the Legislature’s intent and the purpose, the Supreme Court
found that the Legislature intended La. R.S. 9:5628 to extinguish medical
malpractice actions after the lapse of three years from the date of the alleged act,
omission, or neglect to limit the duration of the right to bring a medical malpractice
claim. Borel, 989 So.2d at 50.
The Supreme Court also pointed out that there were strong and definitive
public policy concerns underlying the enactment of La. R.S. 9: 5628. The legislative
limitation on the amount of time within which an injured patient may bring a
malpractice action directly responded to sharp increases in medical malpractice
insurance rates that created a crisis, whether real or imagined, which threatened
health care to patients. Borel, 989 So.2d at 50. Because doctors were unwilling to
practice without reasonably priced liability insurance, the Legislature responded by
21-CA-381 8 adopting measures designed to rectify the situation. Borel, 989 So.2d at 50-51. The
public interest in controlling insurance costs to ensure the availability of health care
for citizens mitigates against suspension, interruption, or renunciation of the three-
year time limitation in favor of certainty in the termination of causes of action and
directly reducing the number of malpractice claims and ostensibly liability rates.
The Louisiana Fourth Circuit Court of Appeal recently addressed a
substantially similar situation in Wright v. State on Behalf of Alleyn, 19-499 (La.
App. 4 Cir. 8/5/20), — So.3d —, 2020 WL 4499654. The Fourth Circuit recognized
under the applicable statutes, La. R.S. 13:5107 and La. R.S. 39:1538, service on a
state employee must be requested on one of three designated parties for service of
process: (1) the head of the department for the Board of Supervisors; (2) the Office
of Risk Management; or (3) the Attorney General of Louisiana. Because plaintiff
failed to comply with the service requirements within the mandated time period, the
Fourth Circuit held that the trial court erred in denying the exception of prescription,
reversed that ruling, and dismissed plaintiff’s claims with prejudice. Wright, supra.
Plaintiffs rely on Gettys v. Wong, a 2014 Fourth Circuit opinion, which
involved a medical malpractice claim initially filed only against a state-employed
physician. After the one-year prescriptive period and the ninety-day suspension
period provided by the MMA had passed, plaintiff named the physician’s employer,
LSU Health Science Center. The Fourth Circuit considered whether plaintiff’s
lawsuit against the physician interrupted prescription against LSU. In finding that
the claim was not prescribed, the Fourth Circuit concluded that the claim against
LSU was solely derivative of the claim against the physician, and that the claims
were one and the same. We note, however, that the Gettys case did not address the
service issues presented in the instant matter and was rendered well before the
Wright case, which directly addresses the same issues as the present situation. Thus,
we find plaintiffs’ reliance on Gettys misplaced.
21-CA-381 9 In light of the foregoing, the general rules of prescription and interruption do
not apply in this case. The only suspension of prescription in this case is from the
initiation of the medical review panel phase until ninety days after plaintiffs’ counsel
received notification of the medical review panel opinion by certified mail. The
alleged medical malpractice at issue in this case occurred between June 2006 and
August 4, 2006. Plaintiffs filed a MRP complaint on August 2, 2007, two days
before the expiration of the one-year prescriptive period. Plaintiffs’ counsel received
the MRP opinion regarding their complaint on September 19, 2016. Thus, plaintiffs
had ninety days from September 19, 2016 plus the two remaining days left in the
one-year prescriptive period when they filed the MRP panel complaint. As a result,
they had to file their lawsuit by December 20, 2016. Plaintiffs timely filed the
original complaint on December 16, 2016. As discussed above, however, plaintiffs’
timely-filed lawsuit was properly dismissed pursuant to the LSU Health Network
and Dr. Ricciardi’s motion for involuntary dismissal.
On September 2, 2020, plaintiffs filed a second supplemental and amending
petition. Prescription was not interrupted during the pendency of plaintiffs’ lawsuit
that was filed on December 16, 2016. The time for filing suit passed on December
20, 2016. As a result, plaintiffs’ claim had prescribed at the time they filed the
second amended petition.
DECREE
For the reasons stated above, and considering the foregoing authorities, we
find no error in the trial court’s judgment granting defendants’ exception of
prescription. Accordingly, we affirm the trial court’s judgment granting the
exception of prescription and dismissing plaintiffs’ claims against defendants.
AFFIRMED
21-CA-381 10 SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
NANCY F. VEGA FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON SUSAN S. BUCHHOLZ STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400
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21-CA-381 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE SHAYNA BEEVERS MORVANT (DISTRICT JUDGE) BRYAN J. KNIGHT (APPELLEE) MARK E. KAUFMAN (APPELLEE) MICHELLE A. BOURQUE (APPELLEE)
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