Santiago v. Tulane University Hospital & Clinic

115 So. 3d 675, 2012 La.App. 4 Cir. 1095, 2013 WL 1775165, 2013 La. App. LEXIS 814
CourtLouisiana Court of Appeal
DecidedApril 24, 2013
DocketNo. 2012-CA-1095
StatusPublished
Cited by12 cases

This text of 115 So. 3d 675 (Santiago v. Tulane University Hospital & Clinic) 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
Santiago v. Tulane University Hospital & Clinic, 115 So. 3d 675, 2012 La.App. 4 Cir. 1095, 2013 WL 1775165, 2013 La. App. LEXIS 814 (La. Ct. App. 2013).

Opinion

SANDRA CABRINA JENKINS, Judge.

12Plaintiff, Luz Santiago, appeals a district court ruling sustaining the Peremptory Exception of Peremption in favor of defendants, Dr. Robert L. Barrack, Dr. Scott Montgomery, Dr. Michael Adams, Dr. Sujal Shah, Dr. Brian Rogers, and their employer, the Administrators of the Tulane Educational Fund (hereinafter, “Administrators”). At issue is whether or not the trial court erred in dismissing all of the plaintiffs claims against these defendants as untimely.

For the reasons assigned below, the trial court’s judgment is affirmed in part and reversed in part. In particular, we find that the trial court erred in dismissing all of the plaintiffs claims against an originally named defendant, Dr. Robert Barrack, as untimely where the claims in the original petition were filed well within the three year deadline set forth in La. R.S. 9:5628. [678]*678We further find that because La. R.S. 9:5628’s deadline is prescriptive, rather than peremptive in nature, the plaintiffs remaining claims should have instead been dismissed as prescribed. The trial court’s judgment is affirmed in all other respects.

LFACTS AND PROCEDURAL HISTORY

This is a medical malpractice case arising out of allegations that Ms. Santiago received fall-related injuries following left hip replacement surgery performed at Tulane University Hospital and Clinic on April 14, 2003. The facts and dates which are relevant to her appeal are delineated below:

Original PCF Complaint and Petition for Damages

On April 8, 2004, Ms. Santiago filed a complaint with the Louisiana Patient’s Compensation Fund and Oversight Board (“PCF”) against her surgeon, Dr. Robert Barrack; an unidentified x-ray technician; and their alleged employer/contractor, Tulane University Hospital and Clinic (“TUHC”).1 In the complaint, Ms. Santiago alleged that she was “dropped or improperly and inadequately restrained” while undergoing post-operative testing and while still under general anesthesia. As a result of the fall, the plaintiff claimed that she sustained multiple severe and disabling injuries including but not limited to injury to her “right leg fibula.” She claimed that these injuries were caused by the individual and collective acts of each of the named defendants, whose actions she alleged fell below the applicable standard of care.

The medical review panel rendered a unanimous decision in favor of Dr. Barrack on July 10, 2006, finding no evidence that he breached the standard of care. The medical review panel also found no evidence that Dr. Barrack’s employer, Administrators (improperly identified in the plaintiffs PCF complaint as TUHC),2 breached the applicable standard of care as charged in the complaint. [^Specifically, the medical review panel concluded that the medical records showed no evidence of a right fibula fracture as alleged by the plaintiff. Rather, the records showed the existence of a left femur fracture, which the panel explained was a well-known complication total hip replacement surgery.

[679]*679The medical review panel rendered a split opinion as to TUHC. While two of the members concluded that there was also no breach in the standard of care by TUHC, the third member found there to be an issue of fact as to whether or not the plaintiff had been dropped by an x-ray technician. The record indicates that the plaintiff received the medical review panel’s opinion on August 24, 2006.

On July 21, 2006, the plaintiff filed a Petition for Damages in Orleans Parish Civil District Court. Like the plaintiffs original PCF complaint, the petition named only Dr. Barrack, the unidentified x-ray technician, and TUHC as defendants. Ms. Santiago’s petition also made the exact same allegations that were made in her original PCF complaint, including allegations that she was dropped and/or improperly restrained, resulting in a broken right leg fibula. The petition additionally alleged that plaintiffs right femur fracture3 was caused by the negligence of these defendants.

| Supplemental and Amending Petitions

On February 7, 2007, the plaintiff filed a First Supplemental and Amending Petition. This petition was amended to name University Healthcare System, L.C., (hereinafter, also referred to as “TUHC”)4 as the defendant employer of both Dr. Barrack and the unnamed x-ray technician. In its Answer, TUHC expressly denied employing Dr. Barrack.5

Plaintiff then filed a Second Supplemental and Amending Petition for Damages on May 14, 2007, which differed from the prior amendment in four significant ways:

First, this second amended petition named four additional doctors as defendants for the first time: Drs. Michael Adams, Scott Montgomery, Sujal Shah, and Brian Rodgers. Administrators was also named as a defendant for the first time, in its capacity as the employer of Dr. Barrack and the newly named doctors.

Second, this petition added two radiologic technologists and two nurses as defendants. This amended petition alleged that these technologists and nurses were directly responsible for the plaintiffs fall, rather than Dr. Barrack and the “unidentified x-ray technician.”

Third, the plaintiff amended her petition to allege injury to her left, rather than right femur.

Fourth, the plaintiff set forth completely new allegations of negligence in this petition. She claimed that the doctors, including Dr. Barrack, were at fault for failing to diagnose and report her left femur fracture; failing to take immediate faction to prevent further harm; and falsifying her operative and x-ray reports. She also claimed that the doctors were incompetent and unprofessional.

In response to this Second Supplemental and Amending Petition, the doctors filed an Exception of Prematurity, alleging that the claims against them should be dismissed as premature because they had not [680]*680been submitted to a medical review panel as required by the Louisiana Medical Malpractice Act, La. R.S. 40:1299.47(A)(1). In an apparent attempt to remedy the issues raised in the defendants’ exception, the plaintiff filed a “supplemental complaint” with the PCF which named all five doctors, and the nurses and technologists as defendants.6 This supplemental PCF complaint addressed the issues that had been newly raised in plaintiffs second amended petition.

The plaintiff simultaneously filed a motion to voluntarily dismiss her district court claims against the four newly added doctors. The four doctors were dismissed without prejudice by the district court on September 13, 2007, with the plaintiff reserving her right to pursue her claims against the other defendants.7

Exception of Peremption

In February of 2012, Administrators and all five defendant doctors filed an Exception of Peremption seeking a dismissal of the claims against them. They argued that the medical malpractice claims against Dr. Barrack should be |7dismissed pursuant to La. R.S. 9:5628 because the original PCF complaint and the original district court petition against Dr. Barrack could not suspend prescription where no specific allegations were lodged against him in those actions. They allege that Administrators and Drs.

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115 So. 3d 675, 2012 La.App. 4 Cir. 1095, 2013 WL 1775165, 2013 La. App. LEXIS 814, Counsel Stack Legal Research, https://law.counselstack.com/opinion/santiago-v-tulane-university-hospital-clinic-lactapp-2013.