Greer v. Johnson

855 So. 2d 898, 2003 La. App. LEXIS 2492, 2003 WL 22201910
CourtLouisiana Court of Appeal
DecidedSeptember 24, 2003
DocketNo. 37,655-CA
StatusPublished
Cited by6 cases

This text of 855 So. 2d 898 (Greer v. Johnson) 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
Greer v. Johnson, 855 So. 2d 898, 2003 La. App. LEXIS 2492, 2003 WL 22201910 (La. Ct. App. 2003).

Opinion

I,GASKINS, J.

In this survival and wrongful death ease, the plaintiffs, Betty Greer, Roger Greer, and Michael Greer, appeal a judgment rendered by the trial court in favor of the defendant, Dr. Thomas R. Johnson, sustaining his peremptory exception of prescription. For the following reasons, we reverse and remand.

FACTS

On or about January 28, 2000, Gerald Greer was admitted to Glenwood Regional Medical Center in West Monroe, Louisiana, for therapy treatments intended to achieve a remission of his leukemia. Approximately four days later, on February 1, 2000, Gerald Greer died while in the course of receiving the cancer therapy treatments. Mr. Greer was survived by the plaintiffs in the present action, Betty Greer, his wife, and Roger and Michael Greer, his children.

On or about February 1, 2001, the plaintiffs filed a complaint against Glenwood Regional Medical Center with the Patient’s Compensation Fund (PCF) alleging that it had breached the acceptable standard of medical care in treating Mr. Greer and that this breach was the cause of his death. In particular, the complaint stated that a Glenwood nurse administered three shots through his I.V. and that he collapsed immediately thereafter while being helped to the restroom by his granddaughter. No other defendants were named in the plaintiffs’ complaint.

On May 15, 2001, the plaintiffs supplemented their complaint to the PCF and named Dr. Thomas Johnson as an additional defendant. The complaint alleged that, as the physician administering the cancer therapy ^treatments, Dr. Johnson failed to order appropriate monitoring of the patient for negative reaction to the cancer therapy, failed to recognize symptoms indicating a negative reaction, failed to take the appropriate measures to treat the reaction and failed to place him in intensive care. Subsequently, the plaintiffs discovered that Dr. Johnson was not covered under the PCF and as such their [900]*900claims against him were not subject to the procedural requirements of the Louisiana Medical Malpractice Act. Accordingly, on September 18, 2002, the plaintiffs filed a petition against Dr. Johnson in district court making the same basic allegations as were made in their supplemental complaint filed with the PCF.

On October 17, 2002, Dr. Johnson filed a peremptory exception of prescription and sought dismissal of the plaintiffs’ claims. Dr. Johnson alleged that the claims were prescribed on the face of the petition since it was filed more than two years after the death of the decedent. The plaintiffs opposed the exception on the basis that the timely filing of their claim against Glen-wood, coupled with the allegation in their petition that Dr. Johnson was solidarily liable with the Glenwood, served to suspend the running of prescription on their claim against him. The exception was taken up and granted at a hearing on December 19, 2002, with the plaintiffs waiving their appearance therein. (Since the proceedings were not recorded by a court reporter, the record does not contain a transcript of this hearing.) On January 29, 2008, the trial court signed a judgment granting the exception of prescription and dismissing the plaintiffs’ claims. The instant appeal followed.

I .¿DISCUSSION

The question presented here is whether prescription as to Dr. Johnson was suspended by the plaintiffs’ filing of a request for review of their claim against Glenwood. The plaintiffs filed wrongful death and survival claims.1

Suspension is alleged to have occurred under La. R.S. 40:1299.47(A)(2)(a) of the Louisiana Medical Malpractice Act, which provides in pertinent part:

The filing of a request for review of a claim shall suspend the running of prescription against all joint and solidary obligors, and all joint tortfeasors, including but not limited to health care providers, both qualified and not qualified, to the same extent that prescription is suspended against the party or parties that are the subject of the request for review.

This principle is also recognized in La. R.S. 40:1299.41(G) which provides:

Notwithstanding the provisions of Subsection D, the running of prescription against a health care provider who is answerable in solido with a qualified health care provider against whom a claim has been filed for review under this Part shall be suspended in accordance with the provisions of R.S. 40:1299.47(A)(2)(a).

In general, the burden of proving that a suit has prescribed rests with the party pleading prescription. Wilkes v. Carroll, 30,066 (La.App.2d Cir.12/10/97), 704 So.2d 938. In those instances, however, when the petition shows on its face that the prescriptive period has expired, the burden shifts |4to the plaintiff to demonstrate suspension or interruption of the prescriptive period. Lima v. Schmidt, 595 So.2d 624 (La.1992).

Dr. Johnson argues that the burden of defeating the exception rested with the plaintiffs because the petition was filed [901]*901more than two years from the date of Mr. Greer’s death and the dates of alleged acts of medical malpractice, making it prescribed on its face. The plaintiffs argue that the burden remained with Dr. Johnson because the petition clearly alleged facts invoking the suspension of prescription under La. R.S. 40:1299.47(A)(2)(a).

In resolving this question, we must first examine the contents of the plaintiffs’ pleadings. While it is clear that the death of Mr. Greer and the conduct which allegedly caused it occurred more than a year before the plaintiffs filed their petition, the crux of whether the petition is prescribed on its face rests on the language in the following allegation made in the petition:

The same allegations as alleged herein are presently pending against Glenwood Regional Medical Center pursuant to LSA-R.S. 40:1299.41, with whom the present defendant is alleged to be liable in solido, under Section 41(G) of the Louisiana Medical Malpractice Act.

Dr. Johnson argues that despite the petition language quoted above, the plaintiffs failed to make any specific allegations which would support a conclusion that Dr. Johnson is solidarity and/or jointly liable with Glenwood. We disagree. For prescription to be interrupted, Dr. Johnson must be solidarily or jointly liable with Glenwood. The petition specifically alleges that Dr. Johnson breached the standard of care by failing to recognize symptoms indicating a negative reaction and failing to take the | ^appropriate measures to treat the reaction. The petition makes the same allegations by reference against Glenwood. A joint tort-feasor is one whose conduct (whether intentional or negligent) combines with the conduct of another so as to cause injury to a third party. Therefore, the petition clearly makes a prima facie showing that Dr. Johnson and Glenwood were joint tort-feasors in bringing about the damages suffered by the plaintiffs.

The Medical Malpractice Act clearly provides that the timely filing of a request for review suspends the running of prescription against all those who are joint and solidary obligors and joint tort-feasors with the timely sued party, whether or not they are health care providers and whether or not they are qualified under the PCF. La. R.S. 40:1299.47(A)(2)(a). Neither party disputes that a timely request for a medical review panel was made against Glenwood.

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855 So. 2d 898, 2003 La. App. LEXIS 2492, 2003 WL 22201910, Counsel Stack Legal Research, https://law.counselstack.com/opinion/greer-v-johnson-lactapp-2003.