In re Medical Review Panel of Hurst

220 So. 3d 121, 2016 La.App. 4 Cir. 0934, 2017 WL 1719051, 2017 La. App. LEXIS 794
CourtLouisiana Court of Appeal
DecidedMay 3, 2017
DocketNO. 2016-CA-0934
StatusPublished
Cited by10 cases

This text of 220 So. 3d 121 (In re Medical Review Panel of Hurst) 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 of Hurst, 220 So. 3d 121, 2016 La.App. 4 Cir. 0934, 2017 WL 1719051, 2017 La. App. LEXIS 794 (La. Ct. App. 2017).

Opinion

JUDGE SANDRA CABRINA JENKINS

hln this medical malpractice action, Mario Hurst appeals the trial court’s July 1, 2016 judgment granting the Exception of Prescription filed by appellees, the State of Louisiana and Dr. Heather Murphy La-voie. For the reasons that follow, we affirm the trial court’s judgment.

JURISDICTION

“Before considering the merits in any appeal, appellate courts have the duty to determine sua sponte whether subject matter jurisdiction exists, even when the parties do not raise the issue.” Moon v. City of New Orleans, 15-1092, 15-1093 (La. App. 4 Cir. 3/16/16), 190 So.3d 422, 425. This court “cannot reach the merits of an appeal unless our appellate jurisdiction has been properly invoked by a valid final judgment.” Id. A valid final judgment is “one that determines the merits in whole or in part and is identified as such by appropriate language.” Id., 15-1092, pp. 5-6, 190 So.3d at 425 (citing La. C.C.P. arts. 1841, 1918). “ ‘A final appealable judgment must contain decretal language, and it must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted or denied.’ ” Id., 15-1092, p. 6, 190 So.3d at 425 (quoting Mid City Holdings, 14-0506, pp. 2-3 (La.App. 4 Cir. 10/15/14), 151 So.3d 908, 910). “The result decreed must be spelled out in lucid, unmistakable language. The quality of definiteness is essential to a proper judgment.” Id. “The specific relief granted should be determinable from the judgment without reference to an extrinsic source such as pleadings or reasons for judgment.” Id.

In this matter, the July 1, 2016 judgment from which Mr. Hurst appeals states as follows:

This matter came for hearing on Defendants’ Exception of Prescription on the 1st day of July, 2016.
PRESENT: Kelli M. Khalaf, Attorney for Defendants, State of Louisiana, Louisiana State University Health - Sciences Center and Dr. Heather Murphy Lavoie
Mario Hurst, Plaintiff, in proper person
After hearing the pleadings, evidence, applicable law, and argument of counsel, the Court granted the Defendants’ Exception of Prescription for the reasons orally assigned, and accordingly,
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Defendants’ Exception of Prescription is hereby granted.

We find that this judgment lacks definitive decretal language necessary for the exercise of our appellate jurisdiction. We cannot determine from the face of the judgment whether the granting of the Ex[125]*125ception of Prescription results in the dismissal of all or some of Mr. Hurst’s claims. Although reference to the transcript suggests that the trial court intended to dismiss Mr. Hurst’s case, such relief was not granted in the written judgment. In the absence of decretal language specifying the relief granted, the July 1, 2016 judgment cannot be considered a final, appeal-able judgment. Hence, this court lacks jurisdiction to consider the merits of Mr. Hurst’s appeal.

“This court has converted appeals of non-appealable interlocutory judgments to applications for supervisory writs in cases where the appeals were filed within lathe 30-day period allowed for the filing of applications for supervisory review.” In re Medical Review Panel of Williams v. EMSA Louisiana, 15-1178, pp. 2-3 (La. App. 4 Cir. 10/21/16), 203 So.3d 419, 423. In this matter, Mr. Hurst’s petition for appeal was filed within 30 days of the July 1, 2016 judgment granting appellees’ Exception of Prescription. Accordingly, we will convert the appeal of the judgment to an application for supervisory writs, grant the writ, and consider it under our supervisory jurisdiction.

We now turn to the merits of the substantive issue before us.

FACTS AND PROCEDURAL HISTORY

On May 21, 2013, Mr. Hurst arrived at the emergency department at University Medical Center in New Orleans, where he was seen by Dr. Lavoie, who supervised the health care team. Mr. Hurst complained of a cough with occasional streaks of blood in the phlegm, decreased appetite, occasional blood in the stool, and “left chest pain for several years that originate[d] in left side of throat and radiate[d] to chest.”

Mr. Hurst testified in his deposition that, after seeing Dr. Lavoie, he went to another building across the street where he was seen by Dr. Thomas Clay Crouch, who was a resident. Mr. Hurst complained only of cold symptoms, including a cough and chills. Mr. Hurst’s medical records show that Dr. Crouch ordered various tests, including a chest x-ray, an EKG, blood work, a urine screen, and a stool sample.

Mr. Hurst’s medical records from May 21, 2013 show that his final diagnosis was an upper respiratory infection and a cough. Mr. Hurst was instructed to see his primary care physician for a recheck and routine health maintenance. Dr. Lavoie discharged Mr. Hurst “in good condition.”

|40n July 13, 2015, Mr. Hurst filed a medical malpractice complaint based on the May 21, 2013 visit to Dr. Lavoie. Mr. Hurst alleged negligence based on lack of testing and failure to diagnose his chest pain. Mr. Hurst stated in his complaint that the “discovery date” for the alleged malpractice was January 1, 2015, when the pain in his left chest became “unbearably worse.”

On April 13, 2016, appellees filed an Exception of Prescription, asserting that Mr. Hurst’s medical malpractice claims were barred by prescription because Mr. Hurst did not file his complaint until July 13, 2015, more than two years after the date of the alleged malpractice.

After a hearing at which Mr. Hurst testified, the trial court signed a July 1, 2016 judgment granting appellees’ Exception of Prescription.

DISCUSSION

Standard of Review

“When prescription is raised by peremptory exception, with evidence being introduced at the hearing on the [126]*126exception, the trial court’s findings of fact on the issue of prescription are subject to the manifest error-clearly wrong standard of review” Specialized Loan Servicing, L.L.C. v. January, 12-2668, pp, 3-4 (La. 6/28/13), 119 So.3d 582, 584. “The relevant issue in a manifest error inquiry is not whether the finder of fact was right or wrong, but whether its decision was a reasonable one.” Marino v. Tenet Healthsystem Med. Ctr., 09-0915, p, 4 (La.App. 4 Cir. 11/24/09), 26 So.3d 297, 300.

Prescriptive Periods for Medical Malpractice Actions

Under La. R.S. 9:5628, there are two prescriptive periods within which to bring a medical malpractice action, one. year from the date of the alleged act, omission, or neglect, or one year from the date of discovery. Santiago v. Tulane Univ. Hosp. & Clinic, 12-1095, p. 8 (La. App. 4 Cir. 4/24/13), 115 So.3d 675, 681 (citing La. R.S. 9:5628(A)). The outermost window for filing a malpractice case, regardless of the date of discovery, is three years. Id.

“Ordinarily, the movant bears the burden of proof on the trial of the peremptory exception of prescription.” Ferguson v. Sugar, 05-0921, 05-0922 (La. App. 4 Cir. 6/25/08), 988 So.2d 816, 824. The burden remains with the movant where the plaintiffs petition makes “a prima facie showing” that the suit was filed within the delays set forth in La. R.S. 9:5628. Id.

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220 So. 3d 121, 2016 La.App. 4 Cir. 0934, 2017 WL 1719051, 2017 La. App. LEXIS 794, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-medical-review-panel-of-hurst-lactapp-2017.