Judgment rendered August 10, 2022. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 54,258-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
SARAH JOHNSON, JUANITA Plaintiffs-Appellants LEICHMAN, AND TONETTE DIXON versus
RUSTON LOUISIANA HOSPITAL Defendants CO., LLC D/B/A NORTHERN LOUISIANA MEDICAL CENTER, AND ITS EMPLOYEES, AND DR. GREGG KEITH ARENA, JOINTLY AND INSOLIDO
Appealed from the Third Judicial District Court for the Parish of Lincoln, Louisiana Trial Court No. 60,707
Honorable Bruce E. Hampton, Judge
DAVIS LAW OFFICE, LLC Counsel for Appellants By: S.P. Davis, Sr.
NELSON, ZENTNER, SARTOR & Counsel for Defendant- SNELLINGS, LLC Appellee, Dr. Gregg By: F. Williams Sartor, Jr. Keith Arena
Before MOORE, PITMAN, STONE, STEPHENS, and HUNTER, JJ.
STONE, J., dissents with written reasons.
HUNTER, J., dissents with written reasons. PITMAN, J.
In this medical malpractice case, Plaintiffs Sarah Johnson, Juanita
Leichman and Tonette Dixon appeal a judgment of the trial court sustaining
a peremptory exception of prescription and dismissing Defendant Dr. Gregg
Keith Arena1 from the lawsuit. For the following reasons, we affirm the
judgment of the trial court.
FACTS
On January 7, 2015, Plaintiffs’ father, Tommy McNeal, was admitted
to Ruston Louisiana Hospital Co., LLC, d/b/a Northern Louisiana Medical
Center, (“the Hospital”), for rectal bleeding. He had no signs of heart
problems at the time of admission. Over the next two days, McNeal’s blood
pressure severely destabilized, and he began experiencing bloody, dark
stools and blood clots. His treating physician, Dr. Derrick McClusky,
recommended that he undergo colectomy surgery. McNeal was sedated by
Dr. Arena, the anesthesiologist and, thereafter, suffered a heart attack and
died. The causes of death listed on his death certificate were acute cardiac
event, lethal cardiac arrhythmia and “gastrointestinal bleeding anal renal
failure.” Plaintiffs stated that Dr. McClusky informed them that their father
had been sedated, and then he died. He did not tell them that the anesthesia
caused their father’s death, and nothing on the death certificate indicated that
the cause of death was administration of anesthesia.
On January 4, 2016, Plaintiffs filed a petition under the Louisiana
Medical Malpractice Act (“LMMA”) for medical malpractice review based
on the care and treatment provided by the Hospital and its employees. The
1 Dr. Arena’s first name is spelled Gregg in some parts of the record and Greg in others. original complaint, paragraph 6 states that Dr. McClusky “advised them on
January 9, 2015, that their father had a heart attack after being administered
anesthesia medication in preparation for his surgery.” Paragraph 7 alleges
that their father died as a result of the substandard conduct and medical
malpractice on the part of the Hospital and its employees, “including but not
limited to administering the wrong and/or improper dosage of anesthesia in
preparation for their father[’s] surgery.” Paragraph 8 alleges that the
Hospital and its employees breached the standard of care by failing to timely
and appropriately determine the anesthesia medication and dosage to be
administered and failing to ensure that the anesthesiologist was properly
trained and competent to administer the anesthesia based on their father’s
medical signs, symptoms and status. Dr. Arena was not named as a
defendant in the original complaint. He is not a Hospital employee and was
self-employed.
Plaintiffs allegedly only became aware that Dr. Arena was the
anesthesiologist who administered their father’s sedation after the Hospital
answered discovery. On October 12, 2017, allegedly within a year of
“discovery” and within three years from the date of their father’s death,
Plaintiffs filed an amended complaint naming Dr. Arena in their request for
review by the medical review panel (“the Panel”). They claimed that until
then, they did not know that Dr. Arena was their father’s anesthesiologist,
did not know that the anesthesia had anything to do with his death and had
only just discovered that he was not an employee of the Hospital.
The Panel convened in June and July 2019 and reviewed Plaintiffs’
allegations against the Hospital and Dr. Arena. On July 16, 2019, it
rendered a unanimous opinion finding that the evidence did not support the 2 conclusion that the Hospital violated the standard of care as charged in the
complaint. With regard to Dr. Arena:
[T]he panel (2-1) found that the evidence does not support a conclusion that Gregg K. Arena, M.D. . . . failed to comply with acceptable standard of care for an anesthesiologist in the care and treatment of Tommy McNeal, a very sick patient who presented to the Emergency Medicine Department with multiple medical problems and co-morbidities, including hypertension and renal issues [.]
Dr. Son Manh Dang, the physician who dissented, found that
Dr. Arena failed to comply with the acceptable standard of care for an
anesthesiologist in regard to McNeal’s care and that the deviation of care
was a factor in the resultant damages. The opinion was mailed to counsel on
August 8, 2019, and was received on August 12, 2019.
On November 6, 2019, within 90 days of the Panel’s opinion,
Plaintiffs filed suit against the Hospital and its employees and also against
Dr. Arena. They alleged that the defendants were liable to them jointly and
in solido for the death of their father. The allegations against Dr. Arena
were (1) that he administered and/or ordered the anesthesia for their father
prior to the fatal heart attack and that the death was preventable and
avoidable; (2) that he negligently deviated from the standard of care in his
treatment by administering the drug Propofol, which contributed to their
father’s heart attack and death; and (3) that he should have considered their
father’s hemodynamically compromised condition and administered an
alternative anesthesia such as Etomidate, which would not have exacerbated
or fatally increased their father’s hypotension. These allegations echo the
opinion of Dr. Dang from the Panel. The petition further alleges that the
Hospital and Dr. Arena are liable jointly and in solido, but the prayer
requested judgment against the Hospital alone. 3 The Hospital filed an answer on December 9, 2019, and denied the
allegations of the petition relevant to Dr. Arena’s administration of the drug
Propofol (found in paragraph 15 of the petition). The Hospital also further
raised the affirmative defense of third-party fault in paragraph 18 that:
[t]o the extent that Mr. McNeal was injured or died as a result of the fault of a third party, defendant is not responsible for the actions of said third party and pleads herein with specificity the affirmative defense of Third Party Fault.
On December 23, 2019, Dr. Arena filed his own answer in response to
the petition and stated that at all times he was a “qualified healthcare
provider” as defined by the LMMA and that he was entitled to all defenses
under that act, including a cap of liability of $100,000. He also alleged that
the opinion of the Panel does not support the allegation that he breached the
standard of care. Dr. Arena is represented by different counsel from the
Hospital.
The Hospital filed a motion for summary judgment on May 28, 2020,
alleging that Plaintiffs failed to provide an expert opinion to establish
essential elements of their cause of action, i.e., the standard of care, any
conduct by the Hospital that was a breach of that standard of care and that
any breach of the standard of care by the Hospital actually caused the
alleged damages. For these reasons, the Hospital argued that Plaintiffs
would be unable to carry their burden of proof at trial, and summary
judgment was warranted.
The Hospital’s summary judgment was granted on July 13, 2020, and
it was dismissed from the lawsuit with prejudice. This judgment was not
appealed by Plaintiffs.
4 On September 17, 2020, Dr. Arena filed a peremptory exception of
prescription claiming that although Plaintiffs had filed a request for a
medical review panel against the Hospital on January 4, 2016, they did not
amend the complaint to name him until October 12, 2017, two years and ten
months after their father’s death. Dr. Arena argued that on May 26, 2020,
when the Hospital was dismissed from the lawsuit by summary judgment,
there was no longer a timely-named defendant with whom he would be a
joint or solidary obligor. He argued that prescription was neither suspended
nor interrupted by the original complaint for review naming only the
Hospital as a defendant. He and the Hospital are not joint or solidary
obligors; thus, the filing of the complaint against the Hospital did not
interrupt or suspend prescription as to him, and the claim against him must
also be dismissed.
On November 30, 2020, Plaintiffs filed a request for leave to amend
their petition and, in the request, amended paragraph 7 to reflect that it was
not until late September 2017 that they learned Dr. Arena was the
anesthesiologist in charge of their father’s sedation and that he was not an
employee of the Hospital. They also alleged that they had no reason to
know at that time that the anesthesia had anything to do with his death.
They alleged that the original complaint was filed against the Hospital; but
as soon as they realized Dr. Arena was involved, they amended their
complaint to include him in the scope of the Panel and that this was done
within the three-year period provided by law. Plaintiffs also asked for leave
to amend paragraphs 15 and 16 of the petition and also to amend the prayer
for judgment to include Dr. Arena.
5 In addition to the request for leave to amend the petition, Plaintiffs
submitted to the trial court their affidavit stating that they amended their
complaint to the Panel concerning Dr. Arena as soon as they discovered he
was the anesthesiologist responsible for their father’s sedation. They also
stated that until May 21, 2020, they were unaware that Dr. Arena was not an
employee of the Hospital but, instead, is self-employed and that they only
came to this realization when they received responses to their discovery
requests.2
A hearing was held on Dr. Arena’s peremptory exception of
prescription, and the trial court sustained the objection and rendered reasons
for judgment, finding that prescription had not been suspended or interrupted
by the filing of the request for medical review panel against the Hospital
because it and Dr. Arena were not solidary obligors, and the Hospital had
been dismissed.
The trial court also addressed Plaintiffs’ argument that prescription
only runs upon the discovery of the wrongdoing. It noted that it was clear
from Plaintiffs’ own allegations in the complaint to the Panel that they
actually were aware of the issues involving anesthesia and of the alleged
connection between the issues with the anesthesia and their father’s death.
The trial court’s reasons for judgment indicate that the amended
complaint submitted to the Panel adding Dr. Arena was filed more than two
years and nine months after the date of the alleged malpractice, which was
clearly outside the one-year prescriptive period of the discovery of the
2 The timing of Plaintiffs’ discovery that Dr. Arena is self-employed, rather than being a Hospital employee, is unclear. In briefs, Plaintiffs claim both that they discovered his self-employed status while the Panel was still sitting, hence the amendment to name him in October 2017 and, later, that they discovered he was self- employed in May 2020. 6 injury-causing malpractice. For that reason, the trial court found that the
claim against Dr. Arena had prescribed and dismissed him from the suit.
Plaintiffs appeal the judgment sustaining Dr. Arena’s exception of
prescription and dismissing all their claims against him.
DISCUSSION
Prescription
Plaintiffs argue that the trial court erred in sustaining Dr. Arena’s
exception of prescription because they timely sought review by the Panel
against the Hospital within a year of the date of their father’s death and
amended their complaint to add Dr. Arena approximately one month after
they discovered that he was the anesthesiologist who administered the drugs
to their father and that he was not an employee of the Hospital, which was
within the three-year period set forth in La. R.S. 9:5628. They contend that
they had no reason to believe Dr. Arena was not the Hospital’s employee.
Further, they argue that because of their medical naïveté, they did not
understand that the anesthesia was the cause of their father’s death. This,
they contend, is the reason prescription did not begin to run until they
discovered, through the Hospital’s submission to the Panel, that Dr. Arena
was the person whose treatment caused their father’s death. Plaintiffs also
argue that the trial court erred in sustaining the exception of prescription
after it allegedly ignored the amended petition and affidavit it had allowed
them to file.
Dr. Arena asserts that the trial court did not err in sustaining his
exception of prescription because the statute requires that an action for
medical malpractice must be filed within one year from the date of the
alleged act of negligence or within one year from the date of discovery of 7 the alleged act of negligence. He points out that the timely filing of a
complaint against a qualified healthcare provider suspends the running of
prescription against all joint and solidary obligors and all joint tortfeasors to
the same extent as prescription is suspended against the party subject to the
request for review. However, because the original complaint filed under the
LMMA alleged that the Hospital and he were joint and solidary obligors,
and the Hospital was dismissed from the lawsuit by the uncontested
summary judgment, Dr. Arena argues that the complaint against the Hospital
did not suspend prescription as to him.
Dr. Arena states that Plaintiffs contend they only discovered the
claims against him after reading the Hospital’s panel submission, but he
argues that such reliance of discovery of his name and self-employed status
is misplaced. He contends that Plaintiffs had constructive knowledge, if not
actual knowledge, of sufficient facts to excite attention and put them on call
for inquiry before filing the original complaint. He claims that the only
issue was whether he was an employee of the Hospital, and that was a
question which could have easily been answered within the relevant time
period. For these reasons, he asserts that Plaintiffs’ amendment of the
complaint, which was filed two years and ten months after the date of death,
could not be deemed timely and must have prescribed.
Prescription in a medical malpractice case is controlled by La.
R.S. 9:5628, which provides, in pertinent part, as follows:
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. 40:1231.1(A), whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be 8 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. (Emphasis added.)
Suspension of the prescriptive period is provided for in La.
R.S. 40:1231.8(A)(2)(a), which states in pertinent part as follows:
(2)(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 attorney of the issuance of the opinion by the medical review panel, in the case of those health care providers 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 tortfeasors, 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[.] (Emphasis added.)
La. R.S. 40:1231.1(G) provides:
G. Notwithstanding the provisions of Subsection D of this Section, the running of prescription against a health care provider who is answerable in solido with a qualified health care provider against whom a claim has been filed for review under this Part shall be suspended in accordance with the provisions of R.S. 40:1231.8(A)(2)(a).
Typically, when prescription is raised by peremptory exception, the
trial court’s findings of fact on the issue of prescription are subject to the
manifest error-clearly wrong standard of review. Specialized Loan
Servicing, LLC v. Jan., 12-2668 (La. 6/28/13), 119 So. 3d 582; Med. Rev.
Panel for Lane v. Nexion Health at Minden, Inc., 53,901 (La. App. 2 Cir.
8/11/21), 326 So. 3d 340, writ denied sub nom. Med. Rev. Panel Proc. for
Lane v. Nexion Health at Minden, Inc., 21-01410 (La. 11/23/21), 328 So. 3d
82. However, when the sole issue before the court of appeal is the proper
interpretation of the statutes pertaining to prescription under the LMMA, the
9 case presents a question of law, which is reviewed by this court under a de
novo standard of review. Specialized Loan Servicing, LLC v. Jan., supra. A
de novo review means the court will render judgment after its consideration
of the legislative provision at issue, the law and the record, without
deference to the legal conclusions of the tribunals below. Id.
La. R.S. 9:5628(A) provides two periods for filing a malpractice
action—either one year from the date of the alleged act, omission or neglect,
or one year from the date of discovery of the act, omission or neglect,
provided that no more than three years have elapsed from the date of the
alleged act, omission or neglect. The second period is a codification of the
fourth category of contra non valentem that occurs where the cause of action
is not known or reasonably knowable by the plaintiff and when the damages
are not immediately apparent upon commission of the alleged malpractice.
Campo v. Correa, 01-2707 (La. 6/21/02), 828 So. 2d 502; Heirs of Jackson
v. O’Donovan, 44,314 (La. App. 2 Cir. 5/13/09), 12 So. 3d 435.
The plaintiff’s ignorance of his cause of action cannot be attributable
to his own willfulness or neglect, as a plaintiff is deemed to know what he
could have learned by reasonable diligence. Renfroe v. State ex rel. Dep’t.
of Transp. and Dev., 01-1646 (La. 2/26/02), 809 So. 2d 947; Edwards v.
Alexander, 42,000 (La. App. 2 Cir. 6/6/07), 960 So. 2d 336, writ denied,
07-1317 (La. 9/28/07), 964 So. 2d 371.
When Plaintiffs originally filed the complaint for review under the
LMMA, they named only the Hospital and its employees as defendants in
the case. The complaint specifically alleged that the administration of the
anesthesia, the amount and the type fell below the applicable standard of
care and were related to the death. The allegations in the complaint also 10 included that the Hospital fell below the standard of care regarding the
anesthesiologist’s training. These allegations were made without the
anesthesiologist being named. That application for review was timely filed
within a year of the date of their father’s death.
Two years and ten months later, Plaintiffs amended their complaint to
the Panel because they suddenly “discovered” Dr. Arena’s name and
employment status. This discovery is not the “discovery” envisioned by the
legislature in the second prescriptive period provided in La. R.S. 9:5628.
That statute gives parties the time from the discovery of “the act, omission
or neglect,” not the name of the person who performed the act or whether he
was an employee of the hospital. Those are facts which could have been
discovered with reasonable diligence. Dr. Arena’s name was certainly
included in the medical records from the date of surgery and death. Further,
the fact that he is self-employed is also easily discoverable, and Plaintiffs’
failure to discover these facts is unreasonable.
For the foregoing reasons, the complaint against Dr. Arena, filed more
than two years and ten months after the date of the alleged act of medical
malpractice, has prescribed on its face and this assignment of error is
without merit.
Amendment of the Petition
Plaintiffs argue that the trial court erred in “ignoring” that it allowed
them to amend their petition after the answer and to file an affidavit stating
various facts regarding the timing of their discovery of Dr. Arena’s
involvement in the case and his status as a self-employed physician. They
argue that the facts, as alleged in the petition and affidavit, prove that their
suit against him was filed within the three-year period of La. R.S. 9:5628 11 and had not prescribed. They also argue that the trial court incorrectly stated
that it had denied them leave to file the amended petition. In its reasons for
judgment, the trial court included a footnote concerning the amendment and
stated that “[e]ven if the amendment were allowed . . . Dr. Arena carried his
burden of proof herein,” and the trial court would grant the exception of
prescription.
La. C.C.P. art. 931 concerns evidence on the trial of peremptory
exceptions and states, in part, as follows:
On the trial of the peremptory exception pleaded at or prior to the trial of the case, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition.
It does not matter that the trial court gave Plaintiffs leave to amend
their petition and attach an affidavit whereby they state the “facts” as they
know them. The trial court considered the timing of the original complaint,
its amendment to add Dr. Arena and the allegations concerning the
involvement of the unnamed anesthesiologist in the original complaint; and
it decided that the action had prescribed.
For the foregoing reasons, this assignment of error is without merit.
CONCLUSION
The judgment of the trial court sustaining the peremptory exception of
prescription in favor of Dr. Gregg Keith Arena and against Plaintiffs Sarah
Johnson, Juanita Leichman and Tonette Dixon, is affirmed. Costs of this
appeal are assessed to Plaintiffs.
AFFIRMED.
12 STONE, J., dissenting.
I respectfully dissent from the majority opinion.
This court should follow In re Benjamin, 2014-192 (La. App. 5 Cir.
11/25/14), 165 So. 3d 161, writ denied, 2015-0112 (La. 4/10/15), 163 So. 3d
814, which held that a medical review panel complaint that identified a
defendant by first name only suspended prescription as to that defendant.
Pursuant to In re Benjamin, I would hold that the original medical review
panel complaint was sufficient to suspend prescription as to Dr. Arena.
While that original complaint only named NLMC and its “employees” as
defendants, it clearly identified the anesthesiologist involved in the
decedent’s treatment as a negligent actor. This should be sufficient to
suspend prescription against the treating anesthesiologist. The fact that Dr.
Arena was an independent contractor rather than an employee should not be
allowed to override the clear identification of the treating anesthesiologist in
the original complaint.
Accordingly, the exception of prescription should have been
DENIED.
1 HUNTER, J., dissenting.
The record shows the plaintiffs amended their complaint to the
Patient’s Compensation Fund (PCF) to add Dr. Arena as a party defendant
during the time period when prescription was interrupted. Thus, I
respectfully dissent and would reverse the trial court’s judgment.
The timely filing of a request for review of a claim against a qualified
healthcare provider with the PCF shall suspend the running of prescription
against all joint and solidary obligors, and all joint tortfeasors, both qualified
and unqualified under the Medical Malpractice Act, to the same extent as
prescription is suspended against the party subject to the request for review.
La. R.S. 40:1231.8(A)(2)(a).
The rules of prescription are designed to prevent old and stale claims
from being prosecuted. Wells v. Zadeck, 2011-1232 (La. 3/30/12), 89 So. 3d
1145. Prescription should not be used to force a person who believes he
may have been damaged in some way to rush to file suit against every
person who might have caused his injury. Guitreau v. Kucharchuk, 1999-
2570 (La. 5/16/00), 763 So. 2d 575.
The situation in this case is similar to the facts of In re Benjamin,
2014-192 (La. App. 5 Cir. 11/25/14), 165 So. 3d 161, writ denied, 2015-
0142 (La. 4/10/15), 163 So. 3d 814, in which the court found the pending
MRP review suspended prescription as to a nurse who was only partially
identified in Benjamin’s original PCF complaint. Benjamin then amended
his complaint after learning the nurse’s full name through discovery.
Similarly, while the MRP review was pending in this case, plaintiffs filed an
amended PCF complaint to identify the anesthesiologist referred to in their
original complaint. 1 The record evidences the plaintiffs’ malpractice claim against Dr.
Arena arises out of the conduct, transaction or occurrence set forth in
plaintiffs’ original, timely filed PCF complaint. Dr. Arena had the
opportunity to present evidence to the MRP in response to plaintiffs’
complaint and he was named as a defendant in plaintiffs’ timely filed
petition following the issuance of the MRP’s opinion. Thus, this is not a
situation in which a defendant is facing liability for stale claims. Nor has
there been a showing Dr. Arena would be prejudiced by a lack of notice of
plaintiffs’ claims, since their original complaint alleged negligent application
of anesthesia and Dr. Arena provided such services on behalf of the hospital.
The record further conveys the plaintiffs timely filed their original
PCF complaint against the hospital and its employees. Although Dr. Arena
is not an “employee” of the hospital, there was a contractual relationship
between the defendants by which Dr. Arena provided anesthesia services to
patients of the hospital. In such a situation, plaintiffs could have been
confused as to the relationship between the hospital and the anesthesiologist
when they filed their original, timely PCF complaint. Despite any perceived
or actual confusion, the claim is still viable.
Here, as in Benjamin, after obtaining additional information from the
hospital during the MRP process, plaintiffs amended their complaint to name
Dr. Arena individually. Plaintiffs made this correction during the period
when prescription was suspended under La. R.S. 40:1299.47, which
specifically provides that the time in which a suit must be filed is suspended
by the filing of a request for review by the MRP.
In Guitreau, supra, the court stated suspension of prescription
constitutes a temporary halt to its running. Prescription is suspended for as 2 long as the cause of suspension continues. Additionally, La. C.C. art. 3472
makes clear that the time during which prescription is suspended is not
counted toward the accrual of prescription. Guitreau, supra.
Thus, under the applicable law, it is clear during any period of
suspension, plaintiffs should be afforded a reasonable opportunity to correct
the information contained in their original PCF complaint, which initially
alleged negligence by the anesthesiologist and was later corrected to
individually name Dr. Arena when his responsibility for the delivery of
anesthesia became known. As previously noted, defendants were placed on
adequate notice of plaintiffs’ claims by the initial complaint.
Based upon the circumstances of this case, plaintiffs’ amended PCF
complaint should relate back to the filing date of the original complaint.
Thus, plaintiffs’ amended complaint alleging negligence by Dr. Arena has
not prescribed. Consequently, the trial court erred in sustaining the
exception of prescription and I would reverse the judgment.