Medical Review Panel of Williams v. Emsa Louisiana, Inc.

203 So. 3d 419, 2015 La.App. 4 Cir. 1178, 2016 La. App. LEXIS 1936
CourtLouisiana Court of Appeal
DecidedOctober 21, 2016
DocketNO. 2015-CA-1178
StatusPublished
Cited by13 cases

This text of 203 So. 3d 419 (Medical Review Panel of Williams v. Emsa Louisiana, Inc.) 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
Medical Review Panel of Williams v. Emsa Louisiana, Inc., 203 So. 3d 419, 2015 La.App. 4 Cir. 1178, 2016 La. App. LEXIS 1936 (La. Ct. App. 2016).

Opinions

SANDRA CABRINA JENKINS, JUDGE

| ]This is a medical malpractice case arising out of a physician’s failure to diagnose and treat bacterial meningitis in a 25-day-old infant brought to the emergency room more than 20 years ago. Appellant Dichelle Williams, the infant’s mother, settled with the physician’s employer and its liability insurer for $100,001.00, and then sued ap-pellees, the Louisiana Patient’s Compensation Fund and the Louisiana Patient’s Compensation Fund Oversight Board (collectively, the “PCF”), for damages in excess of the settlement amount. The issue presented is whether the trial court erred in granting the PCF’s Motion for Summary Judgment. Finding that genuine issues of material fact exist that preclude the granting of summary judgment, we reverse and remand for- further proceedings.

APPELLATE JURISDICTION

Before we proceed with the explanation of our holding, we address a procedural matter concerning the lack of decretal language in the judgment granting the PCF’s Motion for Summary Judgment.

We cannot determine .the merits of an appeal unless our jurisdiction is properly invoked by a final judgment. Tomlinson v. Landmark Am. Ins. Co., 15-0276, p. 2 (La.App. 4 Cir. 3/23/16), 192 So.3d 153, 156. “A judgment is the ^determination of the rights of the parties in an action, and may award relief to which the parties are entitled.” La. Code Civ. P. art. 1841. A valid judgment must be precise, definite and certain. The quality of definiteness is essential to a proper judgment. Tomlinson, 15-0276, p. 2, 192 So.3d at 156.

A final judgment shall be identified as such by appropriate language. La. Code Civ. P. art. 1918. “A final appealable judgment must contain decretal language that names 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.” Tomlinson, 15-0276, p. 2, 192 So.3d at 156 (citing Bd. of Supervisors of La. State Univ. v. Mid-City Holdings, L.L.C., 14-0506, p. 2 (La.App. 4 Cir. 10/15/14), 151 So.3d 908, 910). “ ‘The specific relief granted should be determinable from the judgment without reference to an extrinsic source such as pleadings or reasons for judgment.’ ” Id.

[423]*423The judgment which Dichelle Williams wishes to appeal merely provides, “It is ordered, adjudged and decreed that the Motion for Summary Judgment filed herein on behalf of Defendant, PCF is granted.” The judgment does- not decree the dismissal of Ms. Williams’s lawsuit with prejudice. Because the judgment from which Ms. Williams appealed is ‘“lacking in definitive decretal language necessary for the exercise of our appellate jurisdiction, the appellant is not entitled as of right to appellate review, but may nonetheless invoke our supervisory jurisdiction, which is discretionary with us to grant.’ ” Tomlinson, 15-0276, pp. 2-3, 192 So.3d at 156-57 (quoting Bd. of Supervisors, 14-0506 at p. 3, 151 So.3d at 910); La. Code Civ. P. art. 2201.

This court has converted appeals of non-appealable interlocutory judgments to applications for supervisory writs in cases where the appeals were filed within | athe 30-day period allowed for the filing of applications for supervisory review. Barham, Warner & Bellamy, L.L.C. v. Strategic Alliance Partners, L.L.C., 09-1528, p. 4 (La.App. 4 Cir. 5/26/10), 40 So.3d 1149, 1152. In this matter, Ms. Williams’s petition/motion for devolutive appeal was filed within 30 days of the September 10, 2015 judgment denying Ms. Williams’s Motion for New Trial. Accordingly, we will convert the appeal of the judgment to an application for supervisory writs, and consider it under our supervisory jurisdiction.

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

FACTS AND PROCEDURAL HISTORY

On the evening of July 3, 1995, 25-day-old Dan’esia1 Williams,was taken to the emergency room at Meadowcrest Hospital in Gretna, Louisiana, where she was seen by emergency room physician Dr. Thomas Louisville, an employee of EMSA Louisiana, Inc. (“EMSA”). Dr. Louisville ordered a chest x-ray, gave Dan’esia Tylenol for her fever, and discharged her with a diagnosis of “mild constipation.” The next afternoon, on July 4, 1995, Dan’esia was taken to the emergency room at Children’s Hospital in New Orleans, where she was diagnosed with Beta streptococcus bacterial meningitis and was hospitalized until July 18,1995.

On July 23, 1995, Dan’esia was again admitted to the emergency room at Children’s Hospital with seizures, a fever, and a “suspected recurrence” of bacterial meningitis. Dan’esia was given intravenous antibiotics, prescribed Phenobarbital for her seizures, and was discharged on July 26, 1995. .

|4On May 30, 1996, Dan’esia was again admitted to the emergency room at Children’s Hospital with seizures and a fever while she was being weaned off of Phenobarbital.

Thereafter, Dan’esia’s mother, Dichelle Williams, as tutrix for Dan’esia, filed a Medical Review Panel complaint against several healthcare providers, including EMSA. While the panel complaint was pending, EMSA and its professional liability insurer, AIG, agreed to settle for $100,001.00. On September 4, 2002, Ms. Williams filed a Petition for Approval of Agreed Settlement and Demand, naming the PCF as a defendant. On February 28, 2003, the trial court signed a judgment approving the settlement, and reserving Ms. Williams’s rights against PCF.

[424]*424In January 2003, Ms. Williams filed a First Amending and Supplementing Petition seeking damages from the PCF in excess of the amount received from EMSA and its insurer. The PCF answered the amending petition asserting, inter alia, that “plaintiffs claims [had] been sufficiently satisfied through their settlement with EMSA and its insurer, AIG, for a total of $100,001.00, and that plaintiffs [were] not entitled to an excess from the [PCF].”

Litigation and formal discovery proceeded through early 2006. On January 25, 2011, the PCF obtained an ex parte order of dismissal based on abandonment. Ms. Williams filed a Motion to Vacate the Order of Dismissal, which the trial court denied. In an unpublished opinion, this court reversed the trial court’s order of dismissal, and remanded the matter. In Re: Medical Review Panel of Dichelle Williams, Tutrix for Dan’esia Williams v. EMSA La., Inc., 11-1579 (La.App. 4 Cir. 5/23/12), 90 So.3d 563 (unpub.), writ denied, 12-1313 (La. 9/28/12), 98 So.3d 843.

|fiOn November 15, 2013, the trial court ordered Ms. Williams to provide an expert report from each witness from whom she would or might solicit expert testimony. Msi Williams submitted expert reports from Dr. Marc Zimmerman, a psychologist, and Dr. Charles Herring, a chiropractor. In response to the PCF’s interrogatories, Ms. Williams also identified Dr. Larry Lutwick as a may call expert witness in the area of infectious diseases.

On July 24, 2014, the PCF filed a Motion for Summary Judgment, arguing that Ms. Williams could not satisfy her evidentiary burden of proving that the acts or omissions of the settling defendants caused any injury to Dan’esia that would not otherwise have occurred. Ms. Williams filed a timely memorandum in opposition to the PCF’s Motion for Summary Judgment, in which she submitted the affidavits and expert reports of Drs. Zimmerman and Herring, as well as the affidavit of Dr. Larry Lutwick.

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203 So. 3d 419, 2015 La.App. 4 Cir. 1178, 2016 La. App. LEXIS 1936, Counsel Stack Legal Research, https://law.counselstack.com/opinion/medical-review-panel-of-williams-v-emsa-louisiana-inc-lactapp-2016.