Truxillo v. Thomas

200 So. 3d 972, 2016 La.App. 4 Cir. 0168, 2016 La. App. LEXIS 1605, 2016 WL 4557666
CourtLouisiana Court of Appeal
DecidedAugust 31, 2016
DocketNo. 2016-CA-0168
StatusPublished
Cited by7 cases

This text of 200 So. 3d 972 (Truxillo v. Thomas) 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
Truxillo v. Thomas, 200 So. 3d 972, 2016 La.App. 4 Cir. 0168, 2016 La. App. LEXIS 1605, 2016 WL 4557666 (La. Ct. App. 2016).

Opinion

DANIEL L. DYSART, Judge.

Ijn this medical malpractice action, Dennis Truxillo appeals the trial court’s judgment granting an exception of prescription and dismissing his claims. For the reasons that follow, we reverse. FACTUAL AND PROCEDURAL BACKGROUND

Terri Ann Truxillo, the mother of Jill Truxillo and Dennis Truxillo, underwent laparoscopic gastric bypass surgery on July 17, 2012, at Fairway Medical Center. She remained a patient at that facility until her death on August 2, 2012, following post-surgical complications.

Jill Truxillo filed a Medical Review Panel Request on May 9, 2013. On July 7, 2015, the medical review panel issued its opinion in which it found fault on the part of Fairway Medical Center. Ms. Truxillo then instituted this lawsuit on July 15, 2015.1 Six days later, on July 21, 2015, a [974]*974First Supplemental and Amending Petition was filed, adding Dennis Truxillo as a plaintiff.

Dr. Roy Kite moved to have the claims of Mr. Truxillo dismissed on a peremptory exception of prescription, on the basis that Mr. Truxillo had not been named as a claimant in the request for a medical review panel. After a hearing , on IgDecember 4, 2015, the trial court granted the exception and dismissed all claims of Mr. Truxillo by judgment dated December 21, 2015.

This devolutive appeal followed.2

DISCUSSION

The precise issue in this case is res novo: whethér the suspension of prescription provided for in La. R.S. 40:1231.8 A(2)(a) applies only to those claimants who file a request for a medical review panel. Dr. Kite maintains that, because Mr. Trux-illo did not file á request for a medical review panel or join in his sister’s request, the amending petition by which he was added as a plaintiff, filed almost three years after the alleged malpractice, is untimely. We disagree.

There are no cases which address the specific issue with which we are presented; however, we find nothing in the Louisiana Medical Malpractice Act (“MMA”] that requires that all parties who may potentially have a claim against a health care provider invoke a medical review panel proceeding. To the contrary, the purpose of the MMA, together with the MMA’s express provisions and our jurisprudence interpreting it, leave no doubt that a medical review panel request need not be invoked by each and every person who may ultimately have a claim in medical malpractice. To hold otherwise would allow for the filing of multiple medical review panels by separate claimants for the same claims. This could result in numerous and varied medical review panel decisions, which, in turn, could result in more than one applicable prescriptive period for initiating suit, ah untenable result. As discussed more fully herein, we find that the suspension of the time period for filing suit, triggered by the filing of a medical review panel |3request, accrues to the benefit of all persons who have claims arising out of the alleged medical malpractice, including those who did not participate in requesting the medical review panel.

Claims for medical malpractice are governed by the MMA and the prescriptive period set forth in La. R.S. 9:5628, which provides, in pertinent part, that a medical malpractice claim must be 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....” La. R.S. 9:5628 A. Prior to filing suit, however, a medical malpractice claim “shall be reviewed by a medical review panel.” La. R.S. 40:1231.8 A(1)(a); Milbert v. Answering Bureau, Inc., 13-0022 (La.6/28/13), 120 So.3d 678, 684.

The time period for filing a lawsuit is suspended during the full time that a claim is pending before a medical review panel and for ninety days following notification to the claimant (or his/her attorney) of the panel’s opinion. La. R.S. 40:1231.8 A(2)(a).3 Added to this period of time is [975]*975any time that remained between the alleged malpractice and the filing of the request for a medical review panel. As the Supreme Court noted in Guitreau v. Kucharchuk, 99-2570, p. 6 (La.5/16/00), 763 So.2d 575, 579, “plaintiffs in medical malpractice actions are entitled |4to the period of time, under LSA-R.S. 9:5628, that remains unused at the time the request for a medical review panel is filed.”

In the instant matter, the medical review panel issued its findings on July 7, 2013. There is no question that the original petition, filed' on July 15, 2013,: was timely. There is equally no question that the amending petition, filed on July 21, 2013, fell within the 90-day time périod as well. The only question, therefore, is whether Dennis Truxillo’s claim was suspended during the pendency of the medical review panel proceeding pursuant to La. R.S. 40:1231.8 A(2)(a).

We recognize that the MMA states that “[a] request for review of a malpractice claim ... shall contain, at a minimum, ... [t]he names of the claimants.” La. R.S. 40:1231.8 A(l)(b)(iii). Notably, however, there is nothing in the MMA which bars a person who was not named as a “claimant” in the request for a review panel from filing a lawsuit after the rendition of the panel’s decision.

Moreover, under the “[d]efinitions and general applications” provisions of the MMA, a “Claimant” is defined as “a patient or representative or any person, including a decedent’s estate, seeking or who has sought recovery of damages or future medical care and related benefits under this Part. All persons claiming to have sustained, damages as a result of injuries to or death of any one patient are considered a single . claimant.” La. R.S. 40:1231.1 A(4)(emphasis added). Under this definition, “any person” is considered a “Claimant”; the term “Claimant” is not limited to those persons for whom our laws afford a right of action. The explicit statement that all persons damaged by the alleged malpractice are considered a “single claimant” clearly contemplates the filing of a single request for a medical review panel, with the intent that the rights of all potential plaintiffs are protected.

| ^Furthermore, the statute provides that, subject to the requirement that all medical malpractice claims be submitted to a medical review panel first, “a claimant having a claim under this Part for bodily injuries to or death of a patient on account of malpractice may file a complaint in any court of law having requisite competent-jurisdiction and proper venue.” La. R.S. 40:1231.1 E(l)(emphasis added). The statute does not specify that only those claimants who had joined in the request for a medical review panel may file suit.

Our finding is consistent with the “intended purposes [of the MMA,] of reducing or stabilizing medical malpractice insurance rates and ensuring the availability of affordable medical services to the general public.” McGlothlin v. Christus St. Patrick Hosp., 10-2775, p. 7 (La.7/1/11), 65 So.3d 1218, 1225. The re[976]*976view panel process, therefore, is “designed to weed out spurious medical malpractice claims.” Spradlin v. Acadia-St. Landry Med. Foundation, 98-1977, p. 12 (La.2/29/00), 758 So.2d 116, 123. The requirement' that all claims be submitted to a medical review panel prior to the filing of a lawsuit is clearly designed to evaluate the facts allegedly giving rise to the malpractice claims from the perspective of the health care providers.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
200 So. 3d 972, 2016 La.App. 4 Cir. 0168, 2016 La. App. LEXIS 1605, 2016 WL 4557666, Counsel Stack Legal Research, https://law.counselstack.com/opinion/truxillo-v-thomas-lactapp-2016.