STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
07-579
HARRY JOHN WALSH, JR., ET AL.
VERSUS
DR. JASON MORRIS, ET AL.
************
APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 224,306 HONORABLE GEORGE C. METOYER, JR., DISTRICT JUDGE
MICHAEL G. SULLIVAN JUDGE
Court composed of Marc T. Amy, Michael G. Sullivan, and James T. Genovese, Judges.
REVERSED.
Jean Walsh In Proper Person 2511 33rd Avenue Meridian, Mississippi 39301 Plaintiff/Appellant: Jean Walsh
David R. Sobel Provosty, Sadler, deLaunay, Fiorenza & Sobel Post Office Drawer 1791 Alexandria, Louisiana 71309-1791 (318) 445-3631 Counsel for Defendants/Appellees: Dr. Jason Morris Louisiana State University Medical Center—Family Practice Clinic SULLIVAN, Judge.
Jean Walsh appeals the dismissal of the medical malpractice lawsuit filed by
her and her husband. For the following reasons, we reverse.
Facts and Procedural Background
Harry Walsh was a patient of the LSUHSC Family Practice Medical Center
(Medical Center) in Alexandria, Louisiana, for a period of time beginning in 2001.
Pertinent to this matter are visits he made to the Medical Center on April 30 and
May 5 and 6, 2003. On April 30, Mr. Walsh presented to the Medical Center with
complaints of dizziness and stated that he had been doing yard work without drinking
enough liquids. Mr. Walsh was being treated by the Medical Center for high blood
pressure, and he related recent blood pressure readings he had obtained when visiting
Wal-Mart. The staff physician, Dr. Brian Morris, recommended that Mr. Walsh
remain adequately hydrated and to return if his symptoms persisted.
Mr. Walsh returned to the clinic on May 6, complaining of dizziness and some
chest discomfort, which Dr. Morris believed were related to his heart beating rapidly.
Mr. Walsh told Dr. Morris that he had been working in his yard despite his chest
discomfort. Dr. Morris ordered an EKG, which revealed that Mr. Walsh was in atrial
fibrillation. According to Mr. Walsh’s chart, Dr. Morris wanted to admit Mr. Walsh
into the hospital and/or wanted him to consult with a cardiologist, but Mr. Walsh
refused.
Mr. Walsh returned the next day as recommended by Dr. Morris. Another
EKG was performed, which revealed that he was still in atrial fibrillation. Mr. Walsh
told Dr. Morris that he felt better, explaining that his heart still was beating fast but
1 not as fast as the previous day. Dr. Morris made changes in Mr. Walsh’s medication
and scheduled him to return in one month.
On May 11, 2003, Mr. Walsh suffered a massive stroke which caused partial
paralysis and brain damage. He was hospitalized for some time at Christus
St. Francis Cabrini Hospital and was then transferred to a rehabilitation facility. In
June 2003, he returned home where his wife cared for him until his death on
November 19, 2006.
Believing Dr. Morris committed malpractice in his medical treatment of
Mr. Walsh, the Walshes filed a complaint against him and LSUHSC Family Practice
Center with the Patient’s Compensation Fund. The medical review panel rendered
a unanimous opinion that Dr. Morris’s treatment of Mr. Walsh did not fall below the
standard of care.
On May 9, 2006, Mrs. Walsh filed this medical malpractice suit pro se.
Defendants sought and were granted a thirty-day extension of time within which to
file an answer. On August 7, Defendants filed a Dilatory Exception of Vagueness,
Motion to Strike and Exception of No Cause of Action and Request for Attorneys
Fees and a Motion to Dismiss. The Motion to Dismiss was based on La.R.S.
40:1299.47(I)(2)(c), which requires the plaintiff in a medical malpractice suit to post
cash or a bond if the medical review panel renders a unanimous opinion in favor of
the health care provider. Mrs. Walsh deposited the sum of $2,981.30 as specified in
Defendants’ Motion to Dismiss with the Clerk of Court by check dated August 11.
A hearing was set on Defendants’ Exceptions and Motion for September 11.
The parties appeared for the hearing as scheduled; however, the hearing was
rescheduled for October 2. Mrs. Walsh did not attend the October 2 hearing, and the
2 trial court granted the relief sought by Defendants in their Dilatory Exception of
Vagueness, Motion to Strike and Exception of No Cause of Action, and Request for
Attorneys Fees, ordering Mrs. Walsh to amend her Petition within thirty days or face
dismissal of her claims, to strike the request for a specific damage award from the
Petition, and to pay attorney fees in the amount of $500.00 to defense counsel. On
October 9, Mrs. Walsh filed a Revised Petition as ordered by the trial court.
Defendants then filed an Answer and, on October 19, filed a Motion for
Summary Judgment, seeking dismissal of all claims against them. By order dated
October 23, a hearing on the Motion for Summary Judgment was scheduled for
November 13.
On October 20, Mrs. Walsh wrote a letter to the Clerk of Court, indicating that
she had filed a request for a continuance of the matter on September 18. The
September 18 letter is not in the record, but Mrs. Walsh attached a copy of her
September 18 letter to her October 20 letter. In her September 18 letter, Mrs. Walsh
requested a one-year continuance to allow her time to find legal representation. On
October 26, the trial court issued an order continuing the matter from October 9 until
January 8, 2007. The record does not contain an order setting a hearing for
October 9.
On November 4, Mrs. Walsh wrote another letter, asking for a continuance of
the November 13, 2006 and January 8, 2007 hearings until sometime in June 2007,
stating her “husband’s health had taken a turn for the worse.” The trial court denied
the request. On November 13, Defendants filed a Motion to Continue and Reset
Hearing Date of its motion for summary judgment because service had not been
effected on the Walshes, as prescribed in La.Code Civ.P. art. 966(B). Defense
3 counsel appeared in court for the scheduled hearing, and the trial court reset the
hearing for January 8, 2007. Mrs. Walsh did not attend the hearing.
By letter written November 29, Mrs. Walsh notified the trial court that
Mr. Walsh died on November 19. She did not specifically request a continuance of
the hearing scheduled for January 8, 2007, but asked for “time in which to go through
the grieving process so that my mind will be able to focus on what I need to do.” A
handwritten notation on the letter reads: “File into record.” The initials “G.M.” and
the date “12-5-06” appear under the notation.
Defendants’ Motion for Summary Judgment was heard January 8 as scheduled.
Mrs. Walsh did not attend, and the trial court granted judgment, dismissing all claims
against Defendants. On February 22, 2007, Mrs. Walsh filed a letter appealing the
judgment.
Assignments of Error
Mrs. Walsh directed a letter to this court concerning her appeal in which she
asserts that she was unable to attend the hearing on Defendants’ Motion for Summary
Judgment due to her husband’s illness. She further states: “I requested an extension
and that request was denied.” We read Mrs. Walsh’s letter as assigning error with the
trial court’s denial of her request for a continuance of the hearing on Defendant’s
Motion for Summary Judgment and its grant of summary judgment in favor of
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
07-579
HARRY JOHN WALSH, JR., ET AL.
VERSUS
DR. JASON MORRIS, ET AL.
************
APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 224,306 HONORABLE GEORGE C. METOYER, JR., DISTRICT JUDGE
MICHAEL G. SULLIVAN JUDGE
Court composed of Marc T. Amy, Michael G. Sullivan, and James T. Genovese, Judges.
REVERSED.
Jean Walsh In Proper Person 2511 33rd Avenue Meridian, Mississippi 39301 Plaintiff/Appellant: Jean Walsh
David R. Sobel Provosty, Sadler, deLaunay, Fiorenza & Sobel Post Office Drawer 1791 Alexandria, Louisiana 71309-1791 (318) 445-3631 Counsel for Defendants/Appellees: Dr. Jason Morris Louisiana State University Medical Center—Family Practice Clinic SULLIVAN, Judge.
Jean Walsh appeals the dismissal of the medical malpractice lawsuit filed by
her and her husband. For the following reasons, we reverse.
Facts and Procedural Background
Harry Walsh was a patient of the LSUHSC Family Practice Medical Center
(Medical Center) in Alexandria, Louisiana, for a period of time beginning in 2001.
Pertinent to this matter are visits he made to the Medical Center on April 30 and
May 5 and 6, 2003. On April 30, Mr. Walsh presented to the Medical Center with
complaints of dizziness and stated that he had been doing yard work without drinking
enough liquids. Mr. Walsh was being treated by the Medical Center for high blood
pressure, and he related recent blood pressure readings he had obtained when visiting
Wal-Mart. The staff physician, Dr. Brian Morris, recommended that Mr. Walsh
remain adequately hydrated and to return if his symptoms persisted.
Mr. Walsh returned to the clinic on May 6, complaining of dizziness and some
chest discomfort, which Dr. Morris believed were related to his heart beating rapidly.
Mr. Walsh told Dr. Morris that he had been working in his yard despite his chest
discomfort. Dr. Morris ordered an EKG, which revealed that Mr. Walsh was in atrial
fibrillation. According to Mr. Walsh’s chart, Dr. Morris wanted to admit Mr. Walsh
into the hospital and/or wanted him to consult with a cardiologist, but Mr. Walsh
refused.
Mr. Walsh returned the next day as recommended by Dr. Morris. Another
EKG was performed, which revealed that he was still in atrial fibrillation. Mr. Walsh
told Dr. Morris that he felt better, explaining that his heart still was beating fast but
1 not as fast as the previous day. Dr. Morris made changes in Mr. Walsh’s medication
and scheduled him to return in one month.
On May 11, 2003, Mr. Walsh suffered a massive stroke which caused partial
paralysis and brain damage. He was hospitalized for some time at Christus
St. Francis Cabrini Hospital and was then transferred to a rehabilitation facility. In
June 2003, he returned home where his wife cared for him until his death on
November 19, 2006.
Believing Dr. Morris committed malpractice in his medical treatment of
Mr. Walsh, the Walshes filed a complaint against him and LSUHSC Family Practice
Center with the Patient’s Compensation Fund. The medical review panel rendered
a unanimous opinion that Dr. Morris’s treatment of Mr. Walsh did not fall below the
standard of care.
On May 9, 2006, Mrs. Walsh filed this medical malpractice suit pro se.
Defendants sought and were granted a thirty-day extension of time within which to
file an answer. On August 7, Defendants filed a Dilatory Exception of Vagueness,
Motion to Strike and Exception of No Cause of Action and Request for Attorneys
Fees and a Motion to Dismiss. The Motion to Dismiss was based on La.R.S.
40:1299.47(I)(2)(c), which requires the plaintiff in a medical malpractice suit to post
cash or a bond if the medical review panel renders a unanimous opinion in favor of
the health care provider. Mrs. Walsh deposited the sum of $2,981.30 as specified in
Defendants’ Motion to Dismiss with the Clerk of Court by check dated August 11.
A hearing was set on Defendants’ Exceptions and Motion for September 11.
The parties appeared for the hearing as scheduled; however, the hearing was
rescheduled for October 2. Mrs. Walsh did not attend the October 2 hearing, and the
2 trial court granted the relief sought by Defendants in their Dilatory Exception of
Vagueness, Motion to Strike and Exception of No Cause of Action, and Request for
Attorneys Fees, ordering Mrs. Walsh to amend her Petition within thirty days or face
dismissal of her claims, to strike the request for a specific damage award from the
Petition, and to pay attorney fees in the amount of $500.00 to defense counsel. On
October 9, Mrs. Walsh filed a Revised Petition as ordered by the trial court.
Defendants then filed an Answer and, on October 19, filed a Motion for
Summary Judgment, seeking dismissal of all claims against them. By order dated
October 23, a hearing on the Motion for Summary Judgment was scheduled for
November 13.
On October 20, Mrs. Walsh wrote a letter to the Clerk of Court, indicating that
she had filed a request for a continuance of the matter on September 18. The
September 18 letter is not in the record, but Mrs. Walsh attached a copy of her
September 18 letter to her October 20 letter. In her September 18 letter, Mrs. Walsh
requested a one-year continuance to allow her time to find legal representation. On
October 26, the trial court issued an order continuing the matter from October 9 until
January 8, 2007. The record does not contain an order setting a hearing for
October 9.
On November 4, Mrs. Walsh wrote another letter, asking for a continuance of
the November 13, 2006 and January 8, 2007 hearings until sometime in June 2007,
stating her “husband’s health had taken a turn for the worse.” The trial court denied
the request. On November 13, Defendants filed a Motion to Continue and Reset
Hearing Date of its motion for summary judgment because service had not been
effected on the Walshes, as prescribed in La.Code Civ.P. art. 966(B). Defense
3 counsel appeared in court for the scheduled hearing, and the trial court reset the
hearing for January 8, 2007. Mrs. Walsh did not attend the hearing.
By letter written November 29, Mrs. Walsh notified the trial court that
Mr. Walsh died on November 19. She did not specifically request a continuance of
the hearing scheduled for January 8, 2007, but asked for “time in which to go through
the grieving process so that my mind will be able to focus on what I need to do.” A
handwritten notation on the letter reads: “File into record.” The initials “G.M.” and
the date “12-5-06” appear under the notation.
Defendants’ Motion for Summary Judgment was heard January 8 as scheduled.
Mrs. Walsh did not attend, and the trial court granted judgment, dismissing all claims
against Defendants. On February 22, 2007, Mrs. Walsh filed a letter appealing the
judgment.
Assignments of Error
Mrs. Walsh directed a letter to this court concerning her appeal in which she
asserts that she was unable to attend the hearing on Defendants’ Motion for Summary
Judgment due to her husband’s illness. She further states: “I requested an extension
and that request was denied.” We read Mrs. Walsh’s letter as assigning error with the
trial court’s denial of her request for a continuance of the hearing on Defendant’s
Motion for Summary Judgment and its grant of summary judgment in favor of
Defendants.
Motion to Continue
“[A] continuance may be granted in any case if there is good ground therefor.”
La.Code Civ.P. art. 1601. The trial court has great discretion in granting or denying
a motion for a continuance, and denial of a continuance will not be disturbed on
4 appeal, unless the trial court is shown to have abused its discretion. Jackson v. Royal
Ins. Co., 97-723 (La.App. 3 Cir. 12/17/97), 704 So.2d 424. Whether a trial court
should grant or deny a continuance depends on the particular facts of each case.
Some factors to consider in denying or granting a continuance are diligence,
good faith, and reasonable grounds. Demopulos v. Jackson, 33,560 (La.App. 2 Cir.
6/21/00), 765 So.2d 480. Fairness to both parties and the need for orderly
administration of justice are additional considerations in deciding whether to grant
or deny a continuance. Gilcrease v. Bacarisse, 26,318 (La.App. 2 Cir. 12/7/94), 647
So.2d 1219, writ denied, 95-421 (La. 3/30/95), 651 So.2d 845.
Mrs. Walsh requested three continuances in her correspondence: 1) a one-year
continuance in her September 18, 2006 letter which was attached to her October 20,
2006 letter; 2) a continuance of the November 13, 2006 hearing on Defendants’
Motion for Summary Judgment, and 3) a continuance of the January 8, 2007
rescheduled hearing on Defendants’ Motion for Summary Judgment. The trial court
may have thought that it had granted her continuances of two hearings, one scheduled
for October 9 and one scheduled for November 13; however, it only granted a
continuance of the November 13 hearing on Defendants’ Motion for Summary
Judgment because no hearing was scheduled for October 9. Furthermore, the
November 13 hearing date was premature because Defendants’ Motion for Summary
Judgment had not been effected on the Walshes fifteen days before that date.
Therefore, Mrs. Walsh had not actually been granted any continuance when she
requested a continuance of the January 8, 2007 hearing in her November 4 letter.
We recognize that the trial court may not have realized these facts when it
denied Mrs. Walsh’s November 4 and November 29 requests for a continuance
5 because Defendants did not file their Motion to Continue the November 13 hearing
date until the day of the hearing. Nevertheless, we find the trial court’s denial of a
continuance of the January 8, 2007 hearing to be an abuse of process in light of the
facts preceding the November 13 hearing date and the death of Mr. Walsh on
November 19.
This conclusion is based in part on Mrs. Walsh’s diligence and good faith in
attempting to proceed with this litigation, which is evidenced by prompt payment of
costs for the medical review panel, attendance in court on September 11, and
amendment of the Petition after being ordered to do so. Furthermore, we find that her
request for a continuance of the January 8 hearing was reasonable in light of
Mr. Walsh’s death on November 19.
Our conclusion is also based on Defendants having been granted a thirty-day
extension of time to file an answer and a continuance of the November 13 hearing
which was necessitated by their failure to obtain service on the Walshes in a timely
fashion. Additionally, the Walshes’ complaint was filed with the Division of
Administration in March 2004, and a medical review panel was appointed but did not
render an opinion until February 16, 2006. There is no indication that the medical
review panel’s delay in rendering an opinion is the fault of the Walshes. Under the
circumstances presented herein, continuance of the January 8 hearing would have
been fair and would not have unduly delayed this litigation which had been pending
for only eight months.
Disposition
The trial court’s grant of summary judgment in favor of Defendants is reversed.
Mrs. Walsh is given ninety days from the rendition date of this opinion within which
6 to secure counsel or proceed pro se. After said ninety-day period has lapsed, then
either party may proceed as desired.