Gibson v. Jefferson Parish Hosp. Serv. Dist. No 2

275 So. 3d 482
CourtLouisiana Court of Appeal
DecidedJune 27, 2019
DocketNO. 19-C-283
StatusPublished

This text of 275 So. 3d 482 (Gibson v. Jefferson Parish Hosp. Serv. Dist. No 2) 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
Gibson v. Jefferson Parish Hosp. Serv. Dist. No 2, 275 So. 3d 482 (La. Ct. App. 2019).

Opinion

CHAISSON, J.

In this medical malpractice action, Ochsner Clinic Foundation ("Ochsner") seeks this Court's supervisory review of a judgment of the trial court that overruled its exceptions of prescription and no cause of action. Ochsner requests that we reverse the judgment of the trial court, sustain both of its exceptions, and dismiss this case as to Ochsner. We grant Ochsner's writ application to address the issues raised; however, for the following reasons, we deny the relief requested by Ochsner.

FACTS AND PROCEDURAL HISTORY

On December 19, 2012, Claire Betty Gibson ("Mrs. Gibson"), individually and on behalf of her deceased husband, Thomas J. Gibson, Sr. ("Mr. Gibson"), filed a request with the Commissioner of Administration, pursuant to the provisions of La. R.S. 40:1231.1, et seq. ("the Louisiana Medical Malpractice Act" or "LMMA"), for the formation of a medical panel to review allegations of malpractice against Ochsner Medical Center and Ochsner Extended Care *485Hospital1 regarding their care and treatment of Mr. Gibson.2 The request specified the dates on which Mr. Gibson allegedly received negligent medical treatment from Ochsner as May 6, 2011, through May 29, 2011.3 Mrs. Gibson's request clearly indicated that she was making a survival claim "... for her husband's pain and suffering prior to his death," as well as her own wrongful death claim.

On January 30, 2013, Mrs. Gibson amended her request for review to provide more details regarding the alleged negligent medical treatment of Mr. Gibson.4 Specifically, Mrs. Gibson alleged that during his treatment at Ochsner Medical Center from May 6, 2011, through May 12, 2011, Mr. Gibson was over-medicated and under-nourished. Additionally, Mrs. Gibson alleged that during his treatment at Ochsner Extended Care Hospital from May 12, 2011, through May 29, 2011, Ochsner employees inflicted a wound upon Mr. Gibson, failed to properly treat the wound, and prematurely removed a tracheotomy tube. Although Mrs. Gibson further alleged that Mr. Gibson was immediately placed in the intensive care unit of Ochsner Medical Center from May 29, 2011, until his death on December 19, 2011, she did not allege that he received any negligent medical treatment during this time period. This amended request, like her initial request, was filed only by Mrs. Gibson, individually and on behalf of her deceased husband, Mr. Gibson.

Although no document submitted with Ochsner's writ application established the date of Mrs. Gibson's death, it appears the parties do not dispute that she died on December 6, 2013. Further, it appears the parties also do not dispute that, subsequent to the death of Mrs. Gibson, no one formally substituted himself as a claimant before the Division of Administration to pursue the claims that Mrs. Gibson had brought. Regardless, the matter clearly proceeded before the Division of Administration, because, over four years later, on July 19, 2018, the medical review panel issued its opinion finding that none of the named defendants were negligent in their treatment of Mr. Gibson or had breached the applicable standards of care.

According to a petition for damages subsequently filed by Thomas Gibson, Jr. ("Thomas") and Barbara Gibson ("Barbara"), the children of Mr. and Mrs. Gibson, they received notice of the medical review panel opinion by certified mail on August 30, 2018. On November 28, 2018, within ninety days of their receipt of the opinion, Thomas and Barbara filed a pro se petition for damages against Ochsner in which they made a survival claim5 and *486individual wrongful death claims for the death of their father. They brought this petition on their own behalf, individually, "... and on behalf of their deceased father, Thomas Gibson, Jr. (sic)," but not purportedly on behalf of their deceased mother.6

On January 25, 2019, in response to Thomas and Barbara's petition for damages, Ochsner filed peremptory exceptions of prescription and no cause of action. After a hearing on these exceptions, at which no testimony was taken and no exhibits were introduced,7 the trial court rendered judgment overruling both of Ochsner's exceptions, memorialized in a judgment dated May 14, 2019.8 It is from this judgment that Ochsner now seeks this Court's supervisory review.

In its application for supervisory writs, Ochsner maintains that the trial court erred in overruling its exceptions in three respects: 1) the filing of Mrs. Gibson's request with the Division of Administration only suspended prescription as to her individual claims against Ochsner, not the claims of any other un-named potential plaintiffs; 2) as to survival "claims" of all potential plaintiffs, those "claims" were already prescribed when Mrs. Gibson filed her initial request with the Division of Administration; and 3) Thomas and Barbara's petition for damages does not state a cause of action for wrongful death because it does not state a link between Ochsner's alleged tortious conduct and Mr. Gibson's death.

DISCUSSION

We begin our analysis by observing that the LMMA is "special legislation in derogation of the rights of tort victims, and as such, the coverage of the act should be strictly construed." Billeaudeau v. Opelousas General Hospital Authority , 16-0846 (La. 10/19/16), 218 So.3d 513, 520.

Suspension of Prescription pursuant to the LMMA

Ochsner maintains that pursuant to the LMMA, the filing of a request for a medical review panel only suspends prescription for the filing of a lawsuit in favor of the named claimant in the request, not in favor of un-named potential plaintiffs. Although this Court has not addressed this issue previously, the First, Third and Fourth Circuits have. Ochsner urges this Court to adopt the rationale and holding of the First Circuit in Parks v. Louisiana Guest House, Inc. , 13-2121 and 13-2122 (La. App. 1 Cir. 9/30/14), 155 So.3d 609, *487writ denied , 14-2281 (La. 1/16/15), 157 So.3d 1131, that the filing of a request for review only serves to suspend the running of prescription as to the claim of the named claimant and does not serve to suspend the running of prescription in favor of un-named potential plaintiffs. Ochsner further urges this Court to reject the opposite conclusion of the Fourth Circuit in Truxillo v. Thomas , 16-0168 (La. App. 4 Cir. 8/31/16), 200 So.3d 972, as "based on erroneous reasoning" and "inconsistent with other Louisiana law regarding prescription in medical malpractice cases."9

In Parks , Mr.

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Bluebook (online)
275 So. 3d 482, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gibson-v-jefferson-parish-hosp-serv-dist-no-2-lactapp-2019.