In Re: Medical Review Panel for the Claim of Cecily Rae Crane

CourtLouisiana Court of Appeal
DecidedApril 22, 2021
Docket20-CA-259
StatusUnknown

This text of In Re: Medical Review Panel for the Claim of Cecily Rae Crane (In Re: Medical Review Panel for the Claim of Cecily Rae Crane) 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
In Re: Medical Review Panel for the Claim of Cecily Rae Crane, (La. Ct. App. 2021).

Opinion

IN RE: MEDICAL REVIEW PANEL FOR THE NO. 20-CA-259 CLAIM OF CECILY RAE CRANE FIFTH CIRCUIT

COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 786-641, DIVISION "P" HONORABLE LEE V. FAULKNER, JR., JUDGE PRESIDING

April 22, 2021

JUDE G. GRAVOIS JUDGE

Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and Hans J. Liljeberg

AFFIRMED JGG RAC HJL COUNSEL FOR PLAINTIFF/APPELLANT, CECILY RAE CRANE Brian E. Sevin, Sr. Christopher J. Stahulak

COUNSEL FOR DEFENDANT/APPELLEE, OLGA KRIVITSKY, M.D. Stephen M. Pizzo Elicia D. Ford Carolan D. Luning GRAVOIS, J.

In this medical malpractice case, plaintiff/appellant, Cecily Rae Crane,

appeals a final judgment that sustained a peremptory exception of prescription filed

by defendant/appellee, Dr. Olga Krivitsky, and dismissed her medical malpractice

claims against Dr. Krivitsky with prejudice. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On July 6, 2018, Cecily Rae Crane filed a request for a medical review panel

with the Division of Administration (“DOA”), alleging malpractice by Dr. Barrett

Day, Dr. Cassandra Williams, Dr. Olga Krivitsky, and Advanced Medical Center

Uptown, LLC. In the request, Ms. Crane alleged that as a result of a slip and fall

accident which occurred “[o]n or about September 18, 2015,” she sustained soft

tissue injuries to her neck, back, left hip, and wrists. She also alleged that on

January 19, 2016, Dr. Krivitsky determined that Ms. Crane was a candidate for

trigger point injections, and that from January 21, 2016 until September 27, 2016,

she received “an extraordinary number of injections.” Following this treatment,

Ms. Crane alleged that she began experiencing severe hair loss, weight gain,

depression, anxiety, severe lethargy, mental fogginess, and severe and irregular

menstrual periods. Though she informed Dr. Krivitsky of these symptoms, Ms.

Crane alleged that Dr. Krivitsky never indicated that the trigger point injections

could have caused or were related to her symptoms and never changed her

treatment regimen. On July 10, 2017, Ms. Crane was informed by another

physician that the trigger point injections might be the cause of her symptoms.

On September 23, 2018, the Patient’s Compensation Fund (“PCF”) sent Ms.

Crane a certified letter advising her that on July 17, 2018, it had informed her that

she had forty-five days to remit a filing fee of $300.00 in accordance with “La.

R.S. 40:1231.8[A](1)(c)” and that the failure to comply with the request for

20-CA-259 1 payment would render her request for review “invalid and without effect.”1 In the

letter, the PCF stated that it had not received the filing fees due, and thus Ms.

Crane’s request for review was considered “invalid and without effect.”

Subsequently, on October 17, 2018, Ms. Crane filed another request for a

medical review panel with the DOA. In this second request, Ms. Crane again

named Dr. Williams, Dr. Krivitsky, and Advanced Medical Center Uptown, LLC

as defendants, and made the same allegations of malpractice as she had done in her

original request. Additionally, she stated that after filing her original request, she

received a letter on August 13, 2018 from the DOA notifying her that Dr. Day was

not a qualified provider. She alleged that under La. R.S. 40:1231.8(A)(2)(a),2 she

was allowed ninety days from receipt of that letter to institute an action against Dr.

Day and any joint and solidary obligors and/or joint tortfeasors. Because the

ninety-day delay had not yet expired and since the defendants named in the second

request are joint and solidary obligors and/or joint tortfeasors, she alleged that her

right to bring the action was maintained.

On June 13, 2019, Dr. Krivitsky filed a peremptory exception of

prescription, requesting that the medical malpractice claims brought against her be

dismissed as untimely. She argued that in accordance with La. R.S. 40:1231.8,

Ms. Crane’s original request for review was invalid and without effect because she

failed to pay the required filing fee, and thus the prescriptive period was not

suspended with its filing. As such, Ms. Crane’s second request for review filed on

October 17, 2018 was prescribed on its face because it was filed more than two

1 Although neither the July 17, 2018 letter from the PCF, nor a certificate of its mailing or receipt, were introduced into evidence, Ms. Crane does not dispute that she failed to pay the filing fee within the forty-five-day deadline. 2 Throughout the record and in this appeal, Ms. Crane references La. R.S. 40:1299.47(A)(2)(a). La. R.S. 40:1299.47(A)(2)(a) was redesignated as La. R.S. 40:1231.8(A)(2)(a) by H.C.R. No. 84 of the 2015 Regular Session. For ease of reference, we will reference the current statutory designation in this opinion.

20-CA-259 2 years after the alleged negligent treatment occurred and more than a year from the

date Ms. Crane allegedly discovered the malpractice.

In opposition, Ms. Crane argued that La. R.S. 40:1231.8(A)(2)(a) allows for

additional extensions of the applicable prescriptive period where a request for a

medical review panel results in the DOA advising the plaintiff that a named

defendant was not a qualified provider. Ms. Crane argued that when she was

notified on August 13, 2018 that Dr. Day was not a qualified provider, she was

allowed ninety days to bring an action against any joint and solidary obligors

and/or joint tortfeasors, during which time prescription would be suspended.

Within ninety days thereof, on October 17, 2018, she filed a timely request against

joint and solidary obligors, including Dr. Krivitsky.

Following a hearing on September 25, 2019, the trial court signed a written

judgment on October 1, 2019 sustaining the peremptory exception of prescription

and dismissing all claims against Dr. Krivitsky with prejudice.

On October 11, 2019, Ms. Crane filed a motion for a new trial. Following a

hearing on February 4, 2020, the trial court signed a judgment on February 12,

2020 denying the motion for a new trial. The trial court found that the peremptory

exception of prescription was amply supported by the facts and the law, and Ms.

Crane did not satisfy her burden of showing that the judgment was clearly contrary

to the law and the evidence. This appeal followed.

On appeal, Ms. Crane argues that the trial court erred in finding that her

action was prescribed. She raises the same arguments as she did in the trial court,

specifically that after timely filing her original request for review, she had an

additional ninety days from the time she was notified that Dr. Day was not a

qualified provider, during which time prescription would be suspended, to bring an

action against any joint and solidary obligors and/or joint tortfeasors pursuant to

La. R.S. 40:1231.8(A)(2)(a). Ms. Crane argues that she filed her second request on

20-CA-259 3 October 17, 2018, within the ninety-day period. She also contends that the

Louisiana Supreme Court’s decision in Milbert v. Answering Bureau, Inc., 13-0022

(La. 6/28/13), 120 So.3d 678, is instructive.

LAW AND ANALYSIS

At the heart of this matter is Louisiana Revised Statute 40:1231.8, which

provides, in pertinent part:

A.

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Related

Campo v. Correa
828 So. 2d 502 (Supreme Court of Louisiana, 2002)
In Re Herring
974 So. 2d 924 (Louisiana Court of Appeal, 2008)
In Re Medical Review Panel Proc. of Ouder
991 So. 2d 58 (Louisiana Court of Appeal, 2008)
Woods v. Cousins
102 So. 3d 977 (Louisiana Court of Appeal, 2012)
Milbert v. Answering Bureau, Inc.
120 So. 3d 678 (Supreme Court of Louisiana, 2013)
Jimerson v. Majors
211 So. 3d 651 (Louisiana Court of Appeal, 2017)
Primus v. Touro Infirmary
925 So. 2d 609 (Louisiana Court of Appeal, 2006)

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