In Re: Medical Review Panel of Clarence Noble, Jr., Betty Jean Johnson, Beverly Jean Culpepper, Cynthia Noble, Bruce Noble, Dorothy Ann Scott

• Court: Louisiana Court of Appeal
• Decided: September 21, 2022
• Docket: 54,642-CA
• Status: Published

Opinion

Judgment rendered September 21, 2022. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.

No. 54,642-CA

COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

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IN RE: MEDICAL REVIEW Plaintiffs-Appellants PANEL OF CLARENCE NOBLE, JR., BETTY JEAN JOHNSON, BEVERLY JEAN CULPEPPER, CYNTHIA NOBLE, BRUCE NOBLE AND DOROTHY ANN SCOTT *****

Appealed from the Twenty-Sixth Judicial District Court for the Parish of Bossier, Louisiana Trial Court No. 162,055

Honorable Charles A. Smith, Judge

DAVIS LAW OFFICE, LLC Counsel for Appellant By: S.P. Davis, Sr. Kharmen K. Davis-Taylor

LOUISIANA DEPARTMENT OF Counsel for Appellee, JUSTICE Louisiana Department of By: Jeffrey M. Landry Veteran Affairs d/b/a Attorney General Northwest Louisiana Veterans Home By: Elizabeth P. Grozinger Jabrina C. Edwards Assistant Attorneys General

Before PITMAN, ROBINSON, and HUNTER, JJ.

HUNTER, J., dissents with written reasons. PITMAN, J.

Plaintiffs-Appellants Clarence Noble, Jr. (“Noble”), who is deceased,

and his children Betty Jean Johnson, Beverly Jean Culpepper, Cynthia

Noble, Bruce Noble and Dorothy Ann Scott appeal the trial court’s granting

of the exception of prescription filed by Defendant-Appellee the Louisiana

Department of Veterans Affairs d/b/a Northwest Louisiana Veterans Home

(the “Veterans Home”). We dismiss this appeal for lack of appellate

jurisdiction.

FACTS

On February 10, 2020, Plaintiffs filed a complaint for medical

malpractice. They alleged that Noble developed a stage IV decubitus ulcer

and sustained a femoral fracture while living at the Veterans Home. They

argued that the Veterans Home negligently failed to prevent Noble from

acquiring the ulcer and sustaining the fracture, which caused him

unnecessary pain, suffering and medical treatment.

On May 10, 2021, the Veterans Home filed a peremptory exception of

prescription. It alleged that Noble began treatment for the ulcer on June 30,

2018; Plaintiffs learned of the ulcer on August 6, 2018; and Plaintiffs filed

the complaint on February 10, 2020. It argued that because Plaintiffs filed

their complaint more than one year after the discovery of the alleged act,

omission or neglect, this claim prescribed and should be dismissed.

On June 21, 2021, Plaintiffs filed an opposition to the exception.

They argued that this claim had not prescribed because the Veterans Home

continuously breached its standard of care from June 30, 2018, to April 18,

2019, and that prescription was suspended during this time. They contended

that prescription did not begin to run until April 18, 2019, i.e., the date of his last treatment, or May 8, 2020, i.e., the date of his discharge from the

Veterans Home. They also argued that their claim regarding Noble’s

femoral fracture had not prescribed.

On June 25, 2021, the Veterans Home filed a reply. It contended that

Plaintiffs cannot establish a continuous tort because Noble was transferred to

another facility in August 2018 for treatment of the ulcer. It also noted that

its exception of prescription did not include Plaintiffs’ claim regarding

Noble’s femoral fracture.

A hearing was held on June 29, 2021. The trial court determined that

when Noble was transferred to another facility for treatment of the ulcer in

August 2018, prescription began to run; and, therefore, the February 2020

complaint was not timely filed.

On July 22, 2021, the trial court filed a judgment and granted the

exception of prescription. It found that Plaintiffs possessed sufficient

knowledge to begin the prescriptive period on August 20, 2018, more than

one year prior to the filing of their complaint on February 10, 2020.

Pursuant to La. R.S. 9:5628, the trial court dismissed with prejudice

Plaintiffs’ claim concerning the ulcer.

On September 20, 2021, Plaintiffs filed a motion for devolutive

appeal.

DISCUSSION

The Veterans Home argues that the trial court’s judgment on its

exception of prescription is a nonappealable partial judgment and that this

court does not have jurisdiction to consider the judgment. We agree.

2 A final judgment is appealable in all causes in which appeals are

given by law. La. C.C.P. art. 2083(A). An interlocutory judgment is

appealable only when expressly provided by law. La. C.C.P. art. 2083(C).

La. C.C.P. art. 1915(B) states:

(1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories against a party, . . . the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay. (2) In the absence of such a determination and designation, any such order or decision shall not constitute a final judgment for the purpose of an immediate appeal and may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.

In this case, the trial court granted the exception of prescription and

dismissed with prejudice Plaintiffs’ claim concerning the ulcer. This

judgment is a partial judgment because it did not adjudicate all of the claims

between the parties—the femoral fracture claim is still pending. This partial

judgment is not an appealable judgment because the trial court did not

designate it as a final judgment. See Delahoussaye v. Tulane Univ. Hosp. &

Clinic, 12-0906 (La. App. 4 Cir. 2/20/13), 155 So. 3d 560; Massi v. Rome,

08-1281 (La. App. 5 Cir. 6/23/09), 19 So. 3d 485.

Accordingly, this court lacks appellate jurisdiction to consider this

matter.

CONCLUSION

For the foregoing reasons, this appeal is dismissed. The matter is

remanded to the trial court for a complete disposition of the claims between

the parties.

APPEAL DISMISSED; REMANDED.

3 HUNTER, J., dissenting.

I recognize the trial court did not designate the judgment as a final

judgment. Nevertheless, this Court allowed this appeal to proceed, including

continuing the matter from the June docket to the August docket, to the

inconvenience of the parties.

In Cariere v. The Kroger Store, 50,637 (La. App. 2 Cir. 11/16/16),

208 So. 3d 987, the trial court granted a partial motion for summary

judgment but did not designate the judgment as final and appealable. This

Court allowed the appeal to proceed, stating:

The trial court’s judgment was a partial judgment and was not certified by the trial court as suitable for appeal pursuant to La. C.C.P. art. 1915(B). This court issued an order allowing the jurisdictional defect to be cured with an order of certification by the trial court. Such an order was obtained and filed in this court, allowing this appeal to proceed.

Id., fn 1.

Pretermitting the merits of the instant case, rather than dismissing the

appeal, I would allow the jurisdictional defect to be cured by procuring an

order of certification from the trial court. Once such order is obtained and

filed, this appeal should be allowed to proceed.

For this reason, I dissent.