Walsh v. Morris

970 So. 2d 94, 7 La.App. 3 Cir. 579, 2007 La. App. LEXIS 1997, 2007 WL 3171215
CourtLouisiana Court of Appeal
DecidedOctober 31, 2007
DocketNo. 07-579
StatusPublished
Cited by2 cases

This text of 970 So. 2d 94 (Walsh v. Morris) 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
Walsh v. Morris, 970 So. 2d 94, 7 La.App. 3 Cir. 579, 2007 La. App. LEXIS 1997, 2007 WL 3171215 (La. Ct. App. 2007).

Opinion

SULLIVAN, Judge.

11 Jean Walsh appeals the dismissal of the medical malpractice lawsuit filed by [95]*95her and her husband. For the following reasons, we reverse.

Facts and Procedural Background

Harry Walsh was a patient of the LSUHSC Family Practice Medical Center (Medical Center) in Alexandria, Louisiana, for a period of time beginning in 2001. Pertinent to this matter are visits he made to the Medical Center on April 30 and May 5 and 6, 2003. On April 30, Mr. Walsh presented to the Medical Center with complaints of dizziness and stated that he had been doing yard work without drinking enough liquids. Mr. Walsh was being treated by the Medical Center for high blood pressure, and he related recent blood pressure readings he had obtained when visiting Wal-Mart. The staff physician, Dr. Brian Morris, recommended that Mr. Walsh remain adequately hydrated and to return if his symptoms persisted.

Mr. Walsh returned to the clinic on May 6, complaining of dizziness and some chest discomfort, which Dr. Morris believed were related to his heart beating rapidly. Mr. Walsh told Dr. Morris that he had been working in his yard despite his chest discomfort. Dr. Morris ordered an EKG, which revealed that Mr. Walsh was in atrial fibrillation. According to Mr. Walsh’s chart, Dr. Morris wanted to admit Mr. Walsh into the hospital and/or wanted him to consult with a cardiologist, but Mr. Walsh refused.

Mr. Walsh returned the next day as recommended by Dr. Morris. Another EKG was performed, which revealed that he was still in atrial fibrillation. Mr. Walsh told Dr. Morris that he felt better, explaining that his heart still was beating fast but Knot as fast as the previous day. Dr. Morris made changes in Mr. Walsh’s medication and scheduled him to return in one month.

On May 11, 2003, Mr. Walsh suffered a massive stroke which caused partial paralysis and brain damage. He was hospitalized for some time at Christas St. Francis Cabrini Hospital and was then transferred to a rehabilitation facility. In June 2003, he returned home where his wife cared for him until his death on November 19, 2006.

Believing Dr. Morris committed malpractice in his medical treatment of Mr. Walsh, the Walshes filed a complaint against him and LSUHSC Family Practice Center with the Patient’s Compensation Fund. The medical review panel rendered a unanimous opinion that Dr. Morris’s treatment of Mr. Walsh did not fall below the standard of care.

On May 9, 2006, Mrs. Walsh filed this medical malpractice suit pro se. Defendants sought and were granted a thirty-day extension of time within which to file an answer. On August 7, Defendants filed a Dilatory Exception of Vagueness, Motion to Strike and Exception of No Cause of Action and Request for Attorneys Fees and a Motion to Dismiss. The Motion to Dismiss was based on La.R.S. 40:1299.47(I) (2) (c), which requires the plaintiff in a medical malpractice suit to post cash or a bond if the medical review panel renders a unanimous opinion in favor of the health care provider. Mrs. Walsh deposited the sum of $2,981.30 as specified in Defendants’ Motion to Dismiss with the Clerk of Court by check dated August 11.

A hearing was set on Defendants’ Exceptions and Motion for September 11. The parties appeared for the hearing as scheduled; however, the hearing was rescheduled for October 2. Mrs. Walsh did not attend the October 2 hearing, and the | atrial court granted the relief sought by Defendants in their Dilatory Exception of Vagueness, Motion to Strike and Exception of No Cause of Action, and Request for Attorneys Fees, ordering Mrs. Walsh to amend her Petition within thirty days or [96]*96face dismissal of her claráis, to strike the request for a specific damage award from the Petition, and to pay attorney fees in the amount of $500.00 to defense counsel. On October 9, Mrs. Walsh filed a Revised Petition as ordered by the trial court.

Defendants then filed an Answer and, on October 19, filed a Motion for Summary Judgment, seeking dismissal of all claims against them. By order dated October 28, a hearing on the Motion for Summary Judgment was scheduled for November 13.

On October 20, Mrs. Walsh wrote a letter to the Clerk of Court, indicating that she had filed a request for a continuance of the matter on September 18. The September 18 letter is not in the record, but Mrs. Walsh attached a copy of her September 18 letter to her October 20 letter. In her September 18 letter, Mrs. Walsh requested a one-year continuance to allow her time to find legal representation. On October 26, the trial court issued an order continuing the matter from October 9 until January 8, 2007. The record does not contain an order setting a hearing for October 9.

On November 4, Mrs. Walsh wrote another letter, asking for a continuance of the November 13, 2006 and January 8, 2007 hearings until sometime in June 2007, stating her “husband’s health had taken a turn for the worse.” The trial court denied the request. On November 13, Defendants filed a Motion to Continue and Reset Hearing Date of its motion for summary judgment because service had not been effected on the Walshes, as prescribed in La.Code Civ.P. art. 966(B). Defense |4counsel appeared in court for the scheduled hearing, and the trial court reset the hearing for January 8, 2007. Mrs. Walsh did not attend the hearing.

By letter written November 29, Mrs. Walsh notified the trial court that Mr. Walsh died on November 19. She did not specifically request a continuance of the hearing scheduled for January 8, 2007, but asked for “time in which to go through the grieving process so that my mind will be able to focus on what I need to do.” A handwritten notation on the letter reads: “File into record.” The initials “G.M.” and the date “12-5-06” appear under the notation.

Defendants’ Motion for Summary Judgment was heard January 8 as scheduled. Mrs. Walsh did not attend, and the trial court granted judgment, dismissing all claims against Defendants. On February 22, 2007, Mrs. Walsh filed a letter appealing the judgment.

Assignments of Error

Mrs. Walsh directed a letter to this court concerning her appeal in which she asserts that she was unable to attend the hearing on Defendants’ Motion for Summary Judgment due to her husband’s illness. She further states: “I requested an extension and that request was denied.” We read Mrs. Walsh’s letter as assigning error with the trial court’s denial of her request for a continuance of the hearing on Defendant’s Motion for Summary Judgment and its grant of summary judgment in favor of Defendants.

Motion to Continue

“[A] continuance may be granted in any case if there is good ground therefor.” La.Code Civ.P. art. 1601. The trial court has great discretion in granting or denying a motion for a continuance, and denial of a continuance will not be disturbed on appeal, unless the trial court is shown to have abused its discretion. Jackson v. Royal Ins. Co., 97-723 (La.App. 3 Cir. 12/17/97), 704 So.2d 424. Whether a trial court should grant or deny a continuance depends on the particular facts of each case.

[97]*97Some factors to consider in denying or granting a continuance are diligence, good faith, and reasonable grounds. Demopulos v. Jackson, 33,560 (La.App. 2 Cir. 6/21/00), 765 So.2d 480. Fairness to both parties and the need for orderly administration of justice are additional considerations in deciding whether to grant or deny a continuance.

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Related

State in the Interest of M. D. L.
Louisiana Court of Appeal, 2023
State ex rel. H.R.
165 So. 3d 1221 (Louisiana Court of Appeal, 2015)
Walsh v. Morris
999 So. 2d 1261 (Louisiana Court of Appeal, 2009)
Harry John Walsh, Jr. v. Dr. Jason Morris
Louisiana Court of Appeal, 2009

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Bluebook (online)
970 So. 2d 94, 7 La.App. 3 Cir. 579, 2007 La. App. LEXIS 1997, 2007 WL 3171215, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walsh-v-morris-lactapp-2007.