In Re: Medical Review Panel Proceedings of Don Singleton

CourtLouisiana Court of Appeal
DecidedFebruary 28, 2024
Docket23-CA-190
StatusUnknown

This text of In Re: Medical Review Panel Proceedings of Don Singleton (In Re: Medical Review Panel Proceedings of Don Singleton) 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 Proceedings of Don Singleton, (La. Ct. App. 2024).

Opinion

IN RE: MEDICAL REVIEW PANEL NO. 23-CA-190 PROCEEDINGS OF DON SINGLETON FIFTH CIRCUIT

COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 793-446, DIVISION "N" HONORABLE STEPHEN D. ENRIGHT, JR., JUDGE PRESIDING

February 28, 2024

SUSAN M. CHEHARDY CHIEF JUDGE

Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and John J. Molaison, Jr.

AFFIRMED SMC JGG JJM COUNSEL FOR PLAINTIFF/APPELLANT, DON SINGLETON Ann M. Johnson-Griffin

COUNSEL FOR DEFENDANT/APPELLEE, WARREN R. BOURGEOIS, III, M.D. C. William Bradley, Jr. Christoper R. Handy CHEHARDY, C.J.

In this medical malpractice action, plaintiff, Don Singleton, appeals the trial

court’s September 21, 2021 judgment that sustained an exception of prescription

filed by defendant, Dr. Warren R. Bourgeois, III, dismissing Mr. Singleton’s

claims against Dr. Bourgeois with prejudice. For the following reasons, we affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On February 6, 2019, Mr. Singleton filed a request for a medical review

panel against Dr. Warren R. Bourgeois, III, with the Louisiana Division of

Administration (“DOA”), LPCF File No. 2019-00147. In his request, Mr.

Singleton alleged that in or around May 2017, Dr. Bourgeois negligently

performed a cervical procedure on him whereby he removed degenerative discs

and implanted prosthetic devices, resulting in injury to Mr. Singleton. Mr.

Singleton also alleged in his request that he did not discover the alleged

malpractice by Dr. Bourgeois until February 10, 2018, when he experienced a

sudden onset of excruciating pain as he was “walking home from a Mardi Gras

function at his local church[.]”

Dr. Bourgeois responded to Mr. Singleton’s request by filing a Petition to

Institute Discovery Docket in the 24th Judicial District Court. Later, Dr. Bourgeois

filed a peremptory exception of prescription alleging that Mr. Singleton’s action

was untimely filed and, thus, prescribed. In support of his exception, Dr.

Bourgeois attached an affidavit wherein he attested that he did not perform a

cervical procedure on Mr. Singleton in May 2017, and that the only cervical

surgery or cervical procedure of any kind that he performed on Mr. Singleton

occurred on October 22, 2013. Attached to Dr. Bourgeois’ affidavit was his two-

page operative report from the 2013 cervical procedure. Dr. Bourgeois argued that

Mr. Singleton’s February 6, 2019 medical review panel request, filed more than

five years after the date of the cervical procedure that he performed on Mr.

23-CA-190 1 Singleton, was prescribed, as to both the one-year and three-year prescriptive

periods for medical malpractice actions provided in La. R.S. 9:5628. Additionally,

in the alternative, Dr. Bourgeois argued that, even if May 2017 was the correct date

of the procedure for which malpractice was alleged, Mr. Singleton presented “no

evidence to carry his burden of showing that his February 6, 2019 panel request

was timely,” given that it was filed more than one year after the date of the alleged

malpractice.

In response to Dr. Bourgeois’ exception of prescription, Mr. Singleton filed

with the trial court a motion and order for leave of court to file a First Amended

and Supplemental Petition for medical malpractice, in which he clarified that the

actual May 2017 procedure that Dr. Bourgeois allegedly negligently performed on

him was a lumbar procedure, not a cervical procedure. The trial court granted Mr.

Singleton’s motion and allowed the purported first amended and supplemental

petition to be filed into the trial court record prior to the hearing on Dr. Bourgeois’

peremptory exception of prescription. Mr. Singleton then filed a memorandum in

opposition to Dr. Bourgeois’ exception in which he argued that his amended and

supplemental petition, which corrected the “typographical error” in his original

request for a medical review panel that described the procedure performed by Dr.

Bourgeois as a cervical procedure rather than a lumbar procedure, rendered Dr.

Bourgeois’ exception of prescription moot.

Dr. Bourgeois’ exception of prescription came for a hearing on June 12,

2019.1 Based on the evidence admitted at the hearing, the trial court sustained Dr.

1 At the hearing, Dr. Bourgeois introduced as evidence Mr. Singleton’s February 6, 2019 medical review panel request, the DOA’s February 18, 2019 acknowledgement of that request, his own April 4, 2019 affidavit regarding the date of the cervical procedure that he performed on Mr. Singleton, and his October 22, 2013 two-page dictated operative report for that procedure. Despite the argument of Mr. Singleton’s counsel, that “[t]here are medical records. I have not attached any but the medical records do exist evidence in that [Mr. Singleton] was not even aware that the May 2017 surgery was faulty until the event occurred in [February] 2018,” Mr. Singleton did not introduce any evidence at the hearing on the exception. Instead, Mr. Singleton relied on his purported First Amended and Supplemental Petition to establish that the procedure for which he was requesting a medical review panel was in fact a lumbar procedure, rather than a cervical procedure, and that the May 2017 date alleged was the correct date of that procedure. Neither party called any witnesses to testify at the hearing.

23-CA-190 2 Bourgeois’ exception and dismissed Mr. Singleton’s lawsuit with prejudice.

Plaintiff appealed (hereafter Singleton I).2 On appeal, this Court amended the trial

court’s June 12, 2019 judgment, affirmed the judgment as amended, and remanded

the matter to give Mr. Singleton 20 days to amend his medical malpractice

complaint, specifically to remove the allegedly incorrect dates of surgery and/or

discovery of the alleged malpractice. See In re Singleton, 19-578 (La. App. 5 Cir.

9/2/20), 303 So.3d 362.3

Following remand, on or about September 16, 2020, Mr. Singleton sent a

First Supplemental and Amending Complaint to the DOA, wherein he requested

that his original complaint be amended to allege malpractice as to a lumbar

procedure performed by Dr. Bourgeois in May 2017, and to replace all references

to “cervical” and “neck” with “lumbar” and “back.” As a result, the DOA assigned

Mr. Singleton’s supplemental and amending complaint a new file number, LPCF

File No. 2020-01086.4

On June 21, 2021, in response to Mr. Singleton’s new supplemental and

amending complaint, Dr. Bourgeois filed a second or re-urged peremptory

exception of prescription, which came for a hearing on July 28, 2021. At the

hearing on the exception, Dr. Bourgeois introduced evidence showing that the

alleged May 2017 lumbar surgery actually occurred on May 10, 2016, as

evidenced by his two-page operative report for a lumbar procedure (decompressive

laminectemies with medial facetectomies and foraminolomies and diskectomies at

2 The June 12, 2019 judgment sustaining Dr. Bourgeois’ exception of prescription also ordered that the medical malpractice complaint that Mr. Singleton filed with the DOA, captioned Don Singleton v. Warren Bourgeois, LPCF File No. 2019-00147, be dismissed with prejudice and that the pending medical review panel proceeding in the matter be dissolved. On June 19, 2019, the Patient’s Compensation Fund notified all parties, via certified mail/return receipt requested, that the medical review panel had been dissolved. Subsequently, on June 21, 2019, Mr.

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