Maestri v. Pazos

171 So. 3d 369, 2015 La. App. LEXIS 1060, 2015 WL 3440341
CourtLouisiana Court of Appeal
DecidedMay 28, 2015
DocketNo. 15-CA-9
StatusPublished
Cited by5 cases

This text of 171 So. 3d 369 (Maestri v. Pazos) 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
Maestri v. Pazos, 171 So. 3d 369, 2015 La. App. LEXIS 1060, 2015 WL 3440341 (La. Ct. App. 2015).

Opinions

STEPHEN J. WINDHORST, Judge.

| ^Appellants, Kathy Maestri and Kurt C. Burgenthal, individually, and on behalf of the estate of their deceased mother, Dorothy Lucille Reynolds, appeal the trial court’s September 4, 2014 judgment sustaining the exception of prescription filed by Cheríe Pazos, N.P., appellee. For the reasons which follow, we affirm.

Facts and Procedural History

On August 3, 2012, Dorothy Reynolds was admitted to Oceans Behavioral Hospital of Greater New Orleans (“Oceans”), a geriatric psychiatric hospital. Mrs. Reynolds’ admission history and physical were performed by appellee under the supervision of Dr. Parimal Parikh.1 At the time of her admission, Mrs. Reynolds did not have any decubitus ulcers (bed sores).

Appellants’ petition alleged that on August 9, 2012, appellee noted Mrs. Reynolds had “sacral redness” and ordered Bou-dreaux’s butt paste to be applied. ^Appellants also alleged that appellee noted Mrs. Reynolds’ skin problems were worsening and altered the topical regimen; however, she did not notify Mrs. Reynolds’ treating physician or family. The petition further alleged that appellee failed to order pressure reduction measures and chose not to order that Mrs. Reynolds be turned at least every two hours.

Mrs. Reynolds’ decubitus ulcer continued to deteriorate, and she was transferred to East Jefferson General Hospital for treatment on August 15, 2012. The petition further alleged that Mrs. Reynolds’ decubitus ulcer worsened, and was a substantial factor in her death on October 24, 2012.

On October 16, 2013, appellants filed a complaint with the Louisiana Patients Compensation Fund (PCF) which claimed that Mrs. Reynolds’ injuries and death were caused by the joint negligence of Oceans, Dr. Parikh, and appellee. On October 30, 2013, the PCF sent a letter to appellants’ counsel notifying appellants that Oceans and Dr. Parikh were qualified health care providers, but appellee was not a qualified health care provider, thus she was not covered under the Louisiana Medical Malpractice Act (LMMA). Appellants received the notice on October 31, 2013.

On February 20, 2014, appellants filed a wrongful death and survival action against appellee in the Twenty-Fourth Judicial District Court, Jefferson Parish. Appellants contended that Mrs. Reynolds’ decu-bitus ulcer was preventable and should not have occurred while she was a patient at Oceans. Appellants also claimed that ap-pellee deviated from the applicable medical standards and her breach was a substantial factor in Mrs. Reynolds’ prolonged infection, pain and suffering, sepsis, and death. Appellants further claimed that their claim was timely filed with the PCF on “October 15, 2013,” and they were notified on “December 23, 2013,” that appellee was not a qualified health care provider.

|40n July 28, 2014, appellee filed an exception of prescription contending that appellants’ petition was untimely because it was filed more than 90 days after the notification letter from the PCF stating that appellee was not a qualified health care provider.

[371]*371On August 22, 2014, appellants filed a motion and order for leave to file their First Supplemental and Amending Petition for Damages which was granted by the trial court. The First Supplemental and Amending Petition alleged that appellants filed a timely claim with the PCF on October 16, 2013. It also claimed that the PCF complaint previously named appellee, Oceans, and Dr. Parikh. The First Supplemental and Amending Petition also státed that appellee was the only non-covered health care provider, whereas the other joint tortfeasors, Oceans and Dr. Parikh, were deemed to be covered providers. The First Supplemental and Amending Petition further stated that, because Oceans and Dr. Parikh are joint tortfea-sors with appellee and are covered under the LMMA, appellants’ claim against ap-pellee is timely pursuant to the second sentence of La. R.S. 40:1299.47 A(2)(a).

Appellants filed an opposition to appel-lee’s exception of prescription arguing that the filing of the claim with the PCF suspended the accrual of the prescriptive period against all joint tortfeasors. La. R.S. 40:1299.47 A(2)(a).2 Appellants claimed that, because the medical review panel is still pending as to qualified health care providers, Oceans and Dr. Parikh, the claim is also suspended, under the second sentence of La. R.S. 40:1299.47 A(2)(a), against appellee, a nonqualified health care provider who is a joint tortfeasor.

|fiOn September 4, 2014, the trial court granted appellee’s exception of prescription. This appeal followed.

Discussion

Appellants contend that the trial court erred, as a matter of law, in granting appellee’s exception of prescription and dismissing appellants’ claims with prejudice. Alternatively, appellants contend that they should be allowed to amend their petition for damages to allege facts demonstrating their claims against appellee are not prescribed.

The burden of proving prescription ordinarily lies with the party raising the exception, but when prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show that the action has not prescribed. In re Noe, 05-2275 (La.5/22/07), 958 So.2d 617, 621-622. Evidence may be introduced to support or controvert an exception of prescription Id. at 622; La. C.C.P. art. 981.

Prescription in this medical malpractice case is governed by La. R.S. 9:5628 A and provides, in part:

A. No action for damages for injury or death against any physician, chiropractor, nurse, licensed midwife practitioner, dentist, psychologist, optometrist, hospital or nursing home duly licensed under the laws of this state, or community blood center or tissue bank as defined in R.S. 40:1299.41(A), whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless 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: however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.

Further, La. R.S. 40:1299.47 A(2)(a) provides, in pertinent part:

[372]*372(a) The filing of the request for a review of a claim shall suspend the time within which suit must be instituted, in accordance with this Part, until ninety days following notification, by certified mail, as provided in Subsection J of this Section, to the claimant or his |fiattorney of the issuance of the opinion by the medical review panel, in the case of those health care providers covered by this Part, or in the case of a health care provider against whom a claim has been filed under the provisions of this Part, but who has not qualified under this Part, until ninety days following notification by certified mail to the claimant or his attorney by the board that the health care provider is not covered by this Part. The filing of a request for review of a claim shall suspend the running of prescription against all joint and solidary obligors, and all joint tort-feasors, including but not limited to health care providers, both qualified and not qualified, to the same extent that prescription is suspended against the party or parties that are the subject of the request for review.

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171 So. 3d 369, 2015 La. App. LEXIS 1060, 2015 WL 3440341, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maestri-v-pazos-lactapp-2015.