In re Medical Review Panel Proceeding of Robinson

135 So. 3d 670, 2013 WL 163735, 2013 La. App. LEXIS 36
CourtLouisiana Court of Appeal
DecidedJanuary 16, 2013
DocketNo. 47,380-CA
StatusPublished
Cited by1 cases

This text of 135 So. 3d 670 (In re Medical Review Panel Proceeding of Robinson) 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 Proceeding of Robinson, 135 So. 3d 670, 2013 WL 163735, 2013 La. App. LEXIS 36 (La. Ct. App. 2013).

Opinion

WILLIAMS, J.

| j Plaintiff, Ruthie Robinson, appeals a district court’s ruling sustaining peremptory exceptions of prescription filed by defendants, Dr. Michael Banda and Dr. Paul Cole, and denying plaintiffs motion for new trial. For the following reasons, we affirm.

[671]*671FACTS

On August 23, 2009, the decedent, Eddie Robinson, presented to the emergency room at Willis Knighton-Bossier Health Care System (“Willis Knighton”) complaining of abdominal pain and vomiting. The decedent was diagnosed with a small bowel obstruction secondary to an incarcerated hernia, and was admitted to the hospital under the care of Dr. Erick Salvatierra. That same day, defendant, Dr. Michael Banda, performed surgery to repair the hernia and to correct the bowel obstruction. Following the surgery, defendant, Dr. Paul Cole, a cardiologist, was consulted to care for the decedent due to a history of “cardiac problems.”

Plaintiff, Ruthie Robinson (the decedent’s sister), alleged that she visited the decedent in the hospital on August 24, 2009. During plaintiffs visit, hospital personnel assisted the decedent from the bed to the chair. According to plaintiff, the decedent was experiencing weakness and shortness of breath prior to being assisted to the chair; however, at least one member of the hospital’s staff insisted that the decedent get out of bed. Soon thereafter, the decedent stopped breathing and attempts to resuscitate him were unsuccessful. The autopsy revealed that the decedent’s death was caused by a pulmonary embolus.

On August 20, 2010, plaintiff filed a request for a medical review | ^panel with the Patient’s Compensation Fund (“PCF”). The request was filed in proper person and named Willis Knighton, Dr. Salvatierra, Dr. Banda and Dr. Cole as defendants. The complaint was mailed to the PCF via certified mail and was received by the PCF on August 27, 2010.

Subsequently, on September 3, 2010, plaintiff filed a request for a medical review panel with the Division of Administration. The complaint was acknowledged as received by the Division of Administration on September 7, 2010.

On November 17, 2010, Willis Knighton and Dr. Salvatierra filed an exception of prescription. They argued that plaintiffs medical malpractice claim had prescribed because the claim was not submitted to the Division of Administration until September 3, 2010, more than one year after the alleged act(s) of malpractice. A hearing was held, at which plaintiff did not appear. In plaintiffs absence, the district court sustained the exception of prescription and dismissed with prejudice “all claims asserted by the plaintiff in the matter entitled ‘Eddie Robinson (D) et al. vs. Willis Knigh-ton!,]’ bearing Louisiana Patient’s Compensation Number 2010-00993[.]”

On June 8, 2011, Dr. Banda filed an exception of prescription. Subsequently, Dr. Cole filed an exception of prescription on June 22, 2011. A hearing was held on July 18, 2011, and again, plaintiff did not appear at the hearing. The district court sustained the exceptions.

On July 20, 2011, plaintiff filed, in proper person, a “Motion for Another Trial Date.” Plaintiff argued that she failed to appear at the hearing Ron the exceptions of prescription filed by Dr. Banda and Dr. Cole because she “went to the wrong court room as directed by a court house authority.” A hearing was scheduled for September 12, 2011. However, defendants were not provided with notice of the hearing on plaintiffs motion; therefore, defendants did not appear. The hearing was rescheduled for November 7, 2011. Following the hearing, the district court denied plaintiffs motion for new trial, concluding that the claims had prescribed. The court stated:

[T]he letter mailed to the division of administration ... was received, return receipt requested, green card returned, showing Ms. Latoya Bell from the divi[672]*672sion of administration received that. That is the proper entity for you to file your claim, which would interrupt prescription. The only problem is you didn’t mail it until September 3rd. That’s why the filing date is September 3rd. The receipt from the post office where you paid for it to be mailed by certified mail is dated September 3rd, with expected delivery of September 7th, which shows that Ms. Bell received it on September 7th.
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You did not file it with the proper administrative body within the one year of the alleged malpractice of August 23rd. As a result of that, I am going to deny your motion for new trial and uphold the previous order granting the defendants’ request on the dismissing [sic] the case based on prescription[.]
Plaintiff appeals.

DISCUSSION

Plaintiff contends the district court erred in denying her motion for new trial. She argues that the court’s conclusion that she failed to file the medical malpractice claim within one year of the alleged act(s) of malpractice is erroneous. According to plaintiff, the court based its ruling on the date the request for a medical review panel was received by the | ^Division of Administration, rather than the date the request was mailed.

A new trial shall be granted upon contradictory motion of any party when the judgment appears clearly contrary to the law and the evidence or when the party has discovered new evidence which he could not have obtained before or during trial. LSA-C.C.P. art. 1972. A new trial may be granted if there is good ground therefor. LSA-C.C.P. art. 1973. The denial of a motion for new trial is considered under the abuse of discretion standard of appellate review. Carthon v. Johnson Controls, Inc., 47,037 (La.App.2d Cir.4/11/12), 92 So.3d 417, writ denied, 2012-1076 (La.9/12/12), 98 So.3d 311; Jones v. LSU/EA Conway Medical Center, 45,410 (La.App.2d Cir.8/11/10), 46 So.3d 205.

The prescriptive period for medical malpractice is found in LSA-R.S. 9:5628. That statute provides that an action for damages against a physician or a hospital based upon tort and/or arising out of patient care must be filed within one year from the date of the alleged act, omission or neglect, or within one year from the date of discovery of the alleged act, omission or neglect.

Generally, the burden of proving that a suit has prescribed rests with the party pleading prescription. However, when the plaintiffs petition shows on its face that the prescriptive period has expired, the burden shifts to the plaintiff to allege and prove facts indicating that the injury and its causal relationship to the alleged misconduct were not apparent or discoverable until within one year before the action was filed. Thomas v. Crawford, 42,386 (La.App.2d Cir.9/26/07), 966 So.2d 786; Cruse v. LSU Medical Center, 34,-779 (La.App.2d Cir.6/20/01), 792 So.2d 798. An appellate court may not set aside a trial court’s finding of fact unless it is clearly wrong. Stobart v. State, 617 So.2d 880 (La.1993).

LSA-R.S. 40:1299.47 provides, in pertinent part:

A. (l)(a) All malpractice claims against health care providers covered by this Part, other than claims validly agreed for submission to a lawfully binding arbitration procedure, shall be reviewed by a medical review panel[.]
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135 So. 3d 670, 2013 WL 163735, 2013 La. App. LEXIS 36, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-medical-review-panel-proceeding-of-robinson-lactapp-2013.