In re Medical Review Proceedings of DeBram

102 So. 3d 830, 2011 La.App. 1 Cir. 0280, 2012 WL 3757000, 2012 La. App. LEXIS 1093
CourtLouisiana Court of Appeal
DecidedAugust 27, 2012
DocketNo. 2011 CA 0280
StatusPublished

This text of 102 So. 3d 830 (In re Medical Review Proceedings of DeBram) 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 Proceedings of DeBram, 102 So. 3d 830, 2011 La.App. 1 Cir. 0280, 2012 WL 3757000, 2012 La. App. LEXIS 1093 (La. Ct. App. 2012).

Opinions

McClendon, j.

|2Glenda DeBram appeals a judgment that sustained an exception raising the objection of prescription and dismissed her medical malpractice claims against Dr. George T. Keshelava and his insurer, Louisiana Medical Mutual Insurance Company. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Ms. DeBram was admitted to St. Tammany Parish Hospital Emergency Room on November 21, 2008, by her attending physician, Dr. Keshelava, with complaints of painful urination, fever, and cough. Ms. DeBram’s discharge summary indicates that she was treated with IV antibiotics for an E. coli urinary tract infection prior to her discharge from the hospital on December 12, 2008. During the course of her treatment, Ms. DeBram “developed fluid volume overload with some components of congestive heart failure,” and was treated with diuretics, to which she responded well. According to the December 1, 2008 consultation notes from Dr. Leonardo Ore-jarena, “[f]rom the cardiac standpoint, [Ms. DeBram] may have been fluid overloaded in the setting of aortic regurgitation that is moderate.” Ms. DeBram was stable at the time of her discharge from the hospital. On the day of her discharge, December 12, 2008, Ms. DeBram executed a patient authorization for release of medical records. The form is marked “Pd. by cash 12-16-08” on the bottom right hand corner.

On October 15, 2009, pursuant to LSA-R.S. 40:1299.47 A(2)(a), Ms. DeBram filed a request for a medical review panel with the Patient’s Compensation Fund (PCF), naming St. Tammany Parish Hospital and Dr. Keshelava as defendants. Ms. De-Bram alleged that defendants’ actions fell below the standard of care owed to her in the following ways: (1) failure to use reasonable care and diligence while treating and caring for her; (2) failure to adequately monitor her during her care; (3) delay in addressing her fluid overload; (4) administration of medication that contributed [832]*832to fluid overload after being advised that her problems may be the result of fluid overload; and (5) all other standards of care that a medical care provider in similar circumstances would have followed in using reasonable care, diligence, and best judgment. Subsequently, on January 29, 2010, Ms. DeBram filed the same request for a medical preview panel with the Division of Administration, the proper agency as set forth in LSA-R.S. 40:1299.47 A(2)(a). Her request was acknowledged by the Division of Administration on February 4, 2010, and the dates of the alleged malpractice were noted as “11/21/2008-12/2/2008.”

On September 7, 2010, Ms. DeBram filed an amended request for medical review panel with the Division of Administration, citing dates of alleged malpractice as “11/21/2008-10/20/2009.” In her amended request, Ms. DeBram recounted three visits to St. Tammany Parish Hospital following her initial treatment there in November and December 2008. Ms. DeBram described reporting to the emergency room all three times with almost the exact same symptoms she had during her prior stay at the hospital, only to be discharged each time without a diagnosis. Finally, Ms. DeBram was seen on October 29, 2009, at Ochsner Hospital, again with the same symptoms. However, this time she was diagnosed as suffering from sepsis.

On March 16, 2010, Dr. Keshelava filed a petition to institute discovery pursuant to LSA-R.S. 40:1299.47, et seq. Dr. Keshelava subsequently filed a peremptory exception raising the objection of prescription. Dr. Keshelava argued that Ms. DeBram’s initial filing with the PCF on October 15, 2009, was incorrect pursuant to LSA-R.S. 40:1299.47 A(2)(a) and did not interrupt or suspend prescription. Dr. Keshelava further alleged that Ms. DeBram’s complaint was prescribed on its face as it was filed on January 29, 2010, more than one year following her discharge from the hospital stay during which she claims he breached the standard of care. Thus, Dr. Keshelava maintained, the burden of proof on the exception shifted to Ms. DeBram to prove that her claim had not prescribed.

Following a hearing on September 16, 2010, the trial court sustained the exception. The trial court found that the October 15, 2009 complaint filed with the PCF was without legal effect and did not serve as a basis to interrupt or suspend prescription. The court further found that Ms. DeBram “did not prove any other lawful basis which would serve to interrupt prescription or to otherwise make the complaint filed January 29, 2010 timely.” The trial court’s original judgment was signed on October 14, 2010. However, following a show cause order by this court concerning the | flack of appropriate decretal language, the trial court signed an amended judgment on September 8, 2011, adding language that dismissed Ms. DeBram’s claims against Dr. Keshelava and his insurer, Louisiana Medical Mutual Insurance Company, and declaring that the October 14, 2010 judgment was final in accordance with LSA-C.C.P. art. 1915. This appeal by Ms. DeBram followed.

On appeal, Ms. DeBram assigns the following specifications of error:

1. The [trial court] erred in finding that the evidence introduced at trial supported a finding that appellant’s PCF Complaint was prescribed.
2. The [trial court] erred by placing the burden of proving the Complaint was timely filed on appellant rather than requiring the defendant/movant to prove the claim was prescribed.
3. The [trial court] erred in their statutory interpretation of [LSA-] R.S. 40:1299.47, by finding the statute does [833]*833not require the [PCF] to inform potential claimants that their claim is properly/improperly filed and to forward otherwise properly filed claims to the correct administrative agency.

LAW AND DISCUSSION

The PCF’s Duties Pursuant to LSA-R.S. 4.0:129947

On appeal, Ms. DeBram contends that the trial court erred in finding that LSA-R.S. 40:1299.47 does not require the PCF to notify claimants when their claims have not been officially received. Ms. DeBram urges this court to follow In re Elliott, 06-1440, pp. 12-18 (La.App. 3 Cir. 4/9/08), 980 So.2d 881, 889, writ denied; 08-1008 (La.8/29/08), 989 So.2d 102, wherein, based on the unique facts of that case, the third circuit found the PCF was required to alert the claimant, in writing by certified mail, that her complaint had not been “officially” accepted by it for processing. In response, Dr. Keshelava argues this case is controlled by the clear and unambiguous language of LSA-R.S. 40:1299.47 and this court’s holding in Berthelot v. Patients’ Compensation Fund Oversight Bd., 07-0112, p. 10 (La.App. 1 Cir. 11/2/07), 977 So.2d 967, 973, writ denied, 07-2328 (La.2/1/08), 976 So.2d 720. We agree with Dr. Keshelava on this issue and find the facts of Elliott easily distinguishable from the facts herein.

In Elliott, the plaintiff sent three different letters to the PCF regarding a malpractice complaint against a dentist who had treated her. Included in one of the | gletters was a check in the amount of $100.00, made payable to the PCF, which represented “payment for the convening of the medical review panel.” Elliott, 06-1440 at p. 2, 980 So.2d at 882. After having received no response from the PCF concerning this matter and following a chance meeting, with Cheryl Jackson, the PCF medical malpractice compliance director, during which Ms.

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102 So. 3d 830, 2011 La.App. 1 Cir. 0280, 2012 WL 3757000, 2012 La. App. LEXIS 1093, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-medical-review-proceedings-of-debram-lactapp-2012.