text:
    Brandi BILLEAUDEAU, et al. v. OPELOUSAS GENERAL HOSPITAL AUTHORITY, et al.
    17-893
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 2018
   Kara Hadican Samuels, Tiffany A. Morales, Kara Hadican Samuels & Associates, LLC, 4004 Canal Street, New Orleans, LA 70119, (504) 558-9478, COUNSEL FOR PLAINTIFFS/APPELLANTS: Veronica Billeaudeau, individually and as curatrix of Brandi Billeaudeau, Joseph Billeaudeau

Jennifer L. Thornton, Christian S. Chaney, Stanley, Reuter, Ross, Thornton & Alford, LLC, 909 Poydras, Suite 2500, New Orleans, LA 70112, (504) 523-1580, COUNSEL FOR PLAINTIFFS/APPELLANTS: Veronica Billeaudeau, individually and as curatrix of Brandi Billeaudeau, Joseph Billeaudeau

J. Gregory Vidrine, Mahtook & LaFleur, P.O. Box 617, Ville Platte, LA 70586, (337) 363-6211, COUNSEL FOR DEFENDANT/APPELLANT: Opelousas General Hospital Authority

Joseph L. McReynolds, J. Jerry Glas, Karen P. Holland, Deutsch, Kerrigan, L.L.P., 755 Magazine Street, New Orleans, LA 70130, (504) 581-5141, COUNSEL FOR DEFENDANT/APPELLEE: Opelousas General Hospital Authority

Nicholas Gachassin, III, Gary J. Delahoussaye, Brandon M. Rhodes, Gachassin Law Firm, P.O. Box 80369, Lafayette, LA 70598-0369, (337) 235-4576, COUNSEL FOR DEFEND ANT/APPELLEE: Opelousas General Hospital Authority

George P. Hebbler, Jr., Frances Irene McGinnis, Hebbler & Giordano, LLC, 3501 N. Causeway Boulevard, Suite 400, Metairie, LA 70002, (504) 833-8007, COUNSEL FOR DEFENDANT/APPELLEE: Nautilus Insurance Company

George D. Fagan, Anton L. Hasenkampf, Leake & Anderson LLP, 1100 Poydras Street, Suite 1700, New Orleans, LA 70163, (504) 585-7500, COUNSEL FOR DEFENDANT/APPELLEE: National Union Fire Insurance Company of Pittsburgh, PA

William H. Parker, III, Jacob E. Favaron, Allen & Gooch, 2000 Kaliste Saloom Road, Suite 400, Lafayette, LA 70508, (337) 291-1000, COUNSEL FOR DEFENDANT/APPELLEE: Louisiana Patients' Compensation Fund (Opelousas General Hospital), Louisiana Patients' Compensation Fund (Dr. K. Skirlis-Zavala)

Alexander T. Reinboth, Louisiana Department of Justice, Civil, P.O. Box 94005, Baton Rouge, LA 70804, (225) 326-6000, COUNSEL FOR DEFENDANT/APPELLEE: State of Louisiana

Court composed of Phyllis M. Keaty, John E. Conery, and Van H. Kyzar, Judges.

KYZAR, Judge.

The plaintiffs, Veronica Billeaudeau, individually and as curatrix of Brandi Billeaudeau, and Joseph Billeaudeau, along with the defendant, Opelousas General Hospital Authority, appeal from the trial court's grant of a partial motion for summary judgment, dismissing Nautilus Insurance Company as a party to the Billeaudeau's negligent credentialing claim against Opelousas General Hospital. For the reasons assigned, we affirm.

DISCUSSION OF THE RECORD

The Billeaudeaus initially filed a claim under the Louisiana Medical Malpractice Act (MMA), La.R.S. 40:1231.1, et seq., and later brought suit alleging medical malpractice and general negligence against Opelousas General Hospital (OGH), among other defendants, for serious injuries allegedly sustained by their daughter, Brandi, while she was being treated in the emergency department at OGH. Also named as a defendant was Nautilus Insurance Company (Nautilus), the general liability insurer of OGH. The facts of this matter were set forth in detail by this court in Billeaudeau v. Opelousas General Hospital Authority , 15-1034 (La.App. 3 Cir. 4/6/16), 189 So.3d 561, writ granted , 16-846 (La. 6/28/16), 192 So.3d 781, wherein we held that the Billeaudeaus' negligent credentialing claim sounded in general negligence, as opposed to a claim for medical malpractice, which would have to be pursued under the MMA. The supreme court reviewed the case and affirmed. Billeaudeau v. Opelousas Gen. Hosp. Auth. , 16-846 (La. 10/19/16), 218 So.3d 513.

Thereafter, Nautilus filed a motion for partial summary judgment, claiming that its policy of general liability insurance issued to OGH did not provide coverage for losses sustained as a result of negligent credentialing, as claimed by the Billeaudeaus. Following a hearing on the motion, the trial court granted Nautilus' motion, dismissing it from the suit. The written judgment, which was rendered on July 26, 2017, certified that the judgment was a partial final judgment. It is from this judgment that both the Billeaudeaus and OGH appeal.

On appeal, the Billeaudeaus set forth one assignment of error, as follows:

The trial court ignored unrebutted evidence submitted by the Plaintiffs demonstrating that OGH's negligence in the improper credentialing of Dr. Zavala was not limited to the conduct of its formal credentialing committee in evaluating her application for privileges, but included acts, omissions, and multiple careless oversights by hospital employees and staff that do not constitute "healthcare professional services" as defined by Nautilus in the GL policy.

OGH also raises one assignment of error on appeal, arguing that "[t]he District Court erred in granting Nautilus Insurance Company's Motion for Partial Summary Judgment on its General Liability Policy."

Louisiana Code of Civil Procedure Article 966(A)(2) provides that summary judgment procedure is favored and that it "is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969." It further provides that summary judgment "shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." La.Code Civ.P. art. 966(A)(3). Although the burden of proof rests with the mover, if the mover will not bear the burden of proof at trial then he need only point out to the trial court "the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense." La.Code Civ.P. art. 966(D)(1). Once this occurs, the burden shifts to "the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law." Id.

In Smitko v. Gulf South Shrimp, Inc. , 11-2566, pp. 7-8 (La. 7/2/12), 94 So.3d 750, 755, the supreme court set forth the governing law relative to summary judgment and our appellate standard of review thereof, as follows:

Appellate review of the granting of a motion for summary judgment is de novo, using the identical criteria that govern the trial court's consideration of whether summary judgment is appropriate. Bonin v. Westport Ins. Corp., 05-0886, p. 4 (La. 5/17/06), 930 So.2d 906, 910 ; Schroeder v. Bd. of Supervisors of La. State Univ., 591 So.2d 342, 345 (La. 1991). A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue of material fact, and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 ; Duncan v. USAA Ins. Co. , 06-0363, p. 4 (La. 11/29/06), 950 So.2d 544, 546-547. A fact is material if it potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. Hines v. Garrett, 04-0806, p. 1 (La. 6/25/04), 876 So.2d 764, 765 (per curiam )(citing Smith v. Our Lady of the Lake Hosp., Inc. , 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751 ). A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Hines , 876 So.2d at 765-66.

Summary judgment is a particularly appropriate procedure when considering and determining certain insurance coverage issues. Sensebe v. Canal Indem. Co. , 10-703 (La. 1/28/11), 58 So.3d 441. This court reiterated the principles of insurance contract interpretation in Burns v. Couvillion , 10-763, pp. 8-9 (La.App. 3 Cir. 12/8/10), 53 So.3d 540, 546 (alteration in original), stating:

"An insurance policy is an agreement between the parties and should be interpreted by using ordinary contract principles." Orazio v. Henderson , 01-28, p. 2 (La.App. 3 Cir. 7/11/01), 790 So.2d 754, 755 (quoting Ledbetter v. Concord Gen. Corp. , 95-809, p. 3 (La. 1/6/96), 665 So.2d 1166, 1169, amended on other grounds , 95-809 (La. 4/18/96), 671 So.2d 915 ). Additionally, "[t]he contract has the effect of law for the parties. La.Civ.Code art. 1983." Id. When the language in an insurance contract is clear and explicit, no further interpretation may be made in search of the party's intent. Hill v. Shelter Mut. Ins. Co., 05-1783, 05-1818 (La. 7/10/06), 935 So.2d 691. A court should not strain to find ambiguity where none exists. Hebert v. Webre , 08-60 (La. 5/21/08), 982 So.2d 770.

The principles of insurance interpretation pertaining to exclusions was set out by the supreme court in Ledbetter v. Concord General Corp. , 95-809, p. 4 (La. 1/6/96), 665 So.2d 1166, 1169, amended , 95-809 (La. 4/18/96), 671 So.2d 915 :

Exclusionary provisions in insurance contracts are strictly construed against the insurer, and any ambiguity is construed in favor of the insured. Garcia v. St. Bernard Parish School Board, 576 So.2d 975, 976 (La. 1991). However, the rule of strict construction does not "authorize a perversion of language, or the exercise of inventive powers for the purpose of creating an ambiguity where none exists." Muse v. Metropolitan Life Ins. Co. , 193 La. 605, 192 So. 72, 75 (1939). Insurance companies have the right to limit coverage in any manner they desire, so long as the limitations do not conflict with statutory provisions or public policy. Reynolds v. Select Properties, Ltd. , 93-1480 (La. 4/11/94), 634 So.2d 1180, 1183.

"Any exclusion from coverage in an insurance policy must be clear and unmistakable." Duncan v. U.S.A.A. Ins. Co. , 06-363, pp. 4-5 (La. 11/29/06), 950 So.2d 544, 547. The burden of proof that a loss falls within a policy exclusion lies with the insurer. Rodgers v. State Farm Mut. Auto. Ins. , 15-868 (La. 6/30/15), 168 So.3d 375.

Within this framework, we turn to a review of the liability insurance policy in question and the pertinent provisions of the policy issued by Nautilus to OGH. The policy in question is labeled as a "Healthcare General Liability Insurance Policy." Nautilus's claim that its policy did not provide coverage for the Billeaudeaus' negligent credentialing claim arose from policy exclusion "w.," which stated that OGH's policy did not apply to

Healthcare Professional Services
"Bodily Injury" or "property damage" that result from the performance of or failure to perform "healthcare professional services".

The policy further defines "Healthcare professional services," as pertaining to negligent credentialing, as:

d. The work of your formal accreditation, standards review or equivalent professional board or committee done for any insured while:
(1.) Evaluating the professional qualifications or clinical performance of any provider of health care professional services; or
(2.) Promoting and maintain the quality of health care professional services being provided.
e. The execution, or failure to execute, a decision or directive of your formal accreditation, standards review or equivalent professional board or committee.

The Billeaudeaus' Appeal

The language of OGH's policy clearly excludes from coverage any actions of its formal accreditation, credentialing, and standards review board or committee for negligently credentialing a physician for privileges at the hospital. However, the Billeaudeaus argue that other hospital employees, not actual members of OGH's Credentials Committee, were negligent in gathering or failing to gather pertinent information for consideration by the board or committee concerning Dr. Zavala. Particularly, the Billeaudeaus assert that various individuals, who were OGH employees and not members of its Credentials Committee, were negligent in the information gathering, background, and discovery process; thus, the policy provides coverage for their negligence leading to the improper or negligent credentialing by the committee.

Specifically, the Billeaudeaus asserted in their brief in opposition to Nautilus' motion that the following material facts are in dispute and preclude summary judgment.

a. Nicole Savoy committed negligent acts and omissions in her role as medical staff coordinator during the preliminary credentialing process with respect to Dr. Zavala that contributed to the hospital's negligent credentialing of Dr. Zavala and the Plaintiffs' damages.
b. Nicole Savoy is an individual employee of OGH, and her work on Dr. Zavala's application and credentialing file was not "work of [OGH's] formal accreditation, standards review or equivalent professional board or committee."
c. Kim Richards committed negligent acts and omissions in her role as a "credentialing specialist" at OGH during the preliminary credentialing process with respect to Dr. Zavala, which acts and omissions contributed to the hospital's negligent credentialing of Dr. Zavala and the Plaintiffs' damages.
d. Kim Richards was an individual employee of OGH, and her work on Dr. Zavala's application and credentialing file was not "work of [OGH's] formal accreditation, standards review or equivalent professional board or committee."
e. Dr. Ronald Padgett was negligent in signing off on Dr. Zavala's application without indicating whether Dr. Zavala was qualified to obtain privileges, which act contributed to and was a cause of the hospital's negligent credentialing of Dr. Zavala and the Plaintiffs' damages.
f. Dr. Padgett's negligence cannot be considered "work of [OGH's] formal accreditation, standards review or equivalent professional board or committee."

The "Medical Staff By-Laws" of OGH set forth the organizational and procedural process for the granting of medical staff privileges for the hospital. They provided, in part:

ARTICLE VII-PART D:
Section 2. Clinical Committee Chairperson Procedure:
(a) The Office of Medical Staff Services shall transmit the complete application and all supporting materials to the appropriate clinical committee chairperson who shall provide the Credentials Committee with a written report concerning the applicant's qualifications for the requested clinical privileges. As part of the process of making this report, the clinical committee chairperson may meet with the applicant to discuss any aspect of the application, qualifications and requested clinical privileges.
(b) Within thirty (30) days after receipt of all necessary documentation, the clinical committee chairperson, or the individual within the committee to whom the chairperson has assigned this responsibility, shall evaluate the applicant's education, training, experience and conduct and make inquiries with respect to the same to the applicant's past or current department/service chief(s), residency training director, and others who may have knowledge about the applicant's education, training, experience, and ability to work with others.
(c) The clinical committee chairperson shall be available to the Credentials Committee to answer any questions that may be raised with respect to that chairperson's report and findings.

In brief and before the trial court, the Billeaudeaus acknowledged that Ms. Savoy was an "ex officio member" of the credentialing committee of OGH. An "ex officio" member is one who is a member "by virtue or because of an office; by virtue of the authority implied by office." BLACK'S LAW DICTIONARY (10th ed. 2014). Ms. Savoy participated in the committee meetings and the work of the committee. Further, Ms. Richards was specifically employed as a "credentialing specialist" for OGH. Her work in that capacity, at least in part, was for the purpose of providing information to and on behalf of the credentialing committee. Finally, Dr. Padgett served for and on behalf of the credentialing committee. He was the "Clinical Committee Chairperson" tasked with taking the application and supporting documentation from the hospital's "Office of Medical Staff Services," which included Ms. Savoy and Ms. Richards, and preparing a report for the Credentials Committee's consideration.

In granting the motion for partial summary judgment in favor of Nautilus, the trial court stated in its written reasons that judgment was proper in favor of Nautilus for the reasons it set forth in its motion and memorandum in support thereof. In its supporting memorandum, Nautilus argued that the general liability policy it issued to OGH "does not apply to 'bodily injury' that results from the performance of or failure to perform 'healthcare professional services,' " which it defined, in part, as "the work of OGHA's formal accreditation, standards review or equivalent professional board or committee while evaluating the professional qualifications or clinical performance of any provider of health care professional services." Thus, Nautilus urged that the claim for negligent credentialing, which is now outside the scope of the MMA, was clearly excluded under the plain language of its policy.

After reviewing the evidence, we find no error in the trial court's judgment in favor of Nautilus. The exclusion and definitions in Nautilus' policy are clear and unambiguous. The Billeaudeaus concede that it was the Credentials Committee's obligation to independently verify the applicant's experience and threshold qualifications, and it was the obligation and duty of the appropriate clinical committee chairperson, Dr. Padgett in this case, after receipt of the completed application and all supporting materials from the Office of Medical Staff Services, to provide the Credentials Committee with a written report concerning the applicant's qualifications. The Medical Staff By-Laws further provided that the Credentials Committee should review and consider the report prepared by the clinical committee chairperson, Dr. Padgett, and then make a recommendation, which was then forwarded to the Executive Committee.

While employees of OGH, such as Ms. Savoy and Ms. Richards, may gather the materials, it is clearly the responsibility of the Credentials Committee and the Executive Committee to review the application, reports, and all materials and to make a recommendation to the Board as to whether to grant privileges to the applicant. As noted by Ms. Savoy in her deposition, her job was only to gather information, not to verify it. While the Billeaudeaus point to the word "formal" in the definition of "Healthcare professional services" to attempt to create an ambiguity in the policy, the word "formal" cannot be read in isolation. Plainly read, the policy excludes from coverage the work of a formal accreditation, standards review or equivalent professional boards or committees while evaluating the credentials of a physician who seeks to provide healthcare professional services at the hospital. Were such privileges granted via another method, i.e., through individual decision makers, such an exclusion may not be applicable.

Accordingly, we find that the "work of" the Credentials Committee cannot be viewed in a vacuum. It encompasses all the work that went into the process, and if indeed there was misinformation or a lack of information that went into the effort, that falls on the back of the committee process itself and the decision to credential the physician. Thus, we conclude that the "work of" the Credentials Committee included the work of those tasked with processing the applications for privileges at the hospital. Without this, there would have been no credentialing process in this particular case.

Further, the proposed reading of the language of the policy espoused by the Billeaudeaus would require only an actual "formal" member of the Credentials Committee, a member of the Executive Committee, or an actual member of the Board of OGH to personally gather all information pertaining to its credentialing decisions. Such a reading clearly leads to absurd consequences. The Billeaudeaus do not, and cannot, contend that Ms. Savoy or Ms. Richards "evaluated the professional qualifications or clinical performance" of Dr. Zavala. As for Dr. Padgett, the Medical Staff By-Laws provide that the complete application and all supporting materials shall be provided to the clinical committee chairperson, "who shall provide the Credentials Committee with a written report concerning the applicant's qualifications for the requested clinical privileges." The clinical committee chairperson "shall evaluate the applicant's education, training, experience and conduct and make inquiries with respect to the same[.]" A reasonable and unstrained reading of the Medical Staff By-Laws is that Dr. Padgett, the Hospital Based Clinical Service Committee Chairman, was an integral person performing the work of OGH's standards review or equivalent professional committees while evaluating the applicant's professional qualifications or credentials.

The Billeaudeaus place a strained view on the claim for "negligent credentialing" to forge the argument that the policy of insurance issued by Nautilus does not cover the acts of the OGH employees tasked with gathering information, reporting on, and presenting that information to the Credentials Committee. The only question presented by the claim for negligent credentialing is whether OGH, through its credentialing process and decision, should have granted privileges to Dr. Zavala in the first place. Accordingly, we find no merit in this assignment of error.

OGH's Appeal

In its appeal, OGH argues that the trial court's grant of partial summary judgment in favor of Nautilus violates public policy because it "would not only deprive the insured of the coverage it believed was procured, but it would also deprive the allegedly injured party of a means by which to recover on any negligent acts or omissions." However, we disagree.

As stated by Justice Dennis in Daigle v. Clemco Industries , 613 So.2d 619, 624 (La. 1993) :

The courts of this state are not authorized to review otherwise valid contracts to determine whether they conform to judicial notions of "morals, moral conduct and public order." Schiffman [v. Serv. Truck Lines, Inc. ], 308 So.2d [824,] 827 [ (La.App. 4 Cir. 1974) ]. Civil Code article 7 provides: "Persons may not by their juridical acts derogate from laws enacted for the protection of the public interest. Any act in derogation of such laws is an absolute nullity." Civil Code article 1968 provides: "The cause of an obligation is unlawful when the enforcement of the obligation would produce a result prohibited by law or against public policy." Civil Code article 2030 provides, in pertinent part: "A contract is absolutely null when it violates a rule of public order, as when the object of a contract is illicit or immoral." None of these provisions grants judges the prerogative to disregard public policy decisions underlying legislation or to reweigh balances of interests and policy considerations already struck by the legislature.

We are not unmindful of the dilemma created by the change in the law that occurred with the holding that "negligent credentialing" is no longer covered under the MMA as a claim for "medical malpractice" or "medical negligence." However, that does not alter the analysis that controls our determination of whether Nautilus' insurance policy provides coverage for the claim "negligent credentialing." Because we find nothing in Nautilus' policy exclusion, which produces a result prohibited by law or against public policy, the trial court's judgment in favor of Nautilus is affirmed. Accordingly, we find no merit in this assignment of error.

DISPOSITION

For the reasons subscribed, we affirm the decision of the trial court granting the motion for partial summary judgment in favor of Nautilus Insurance Company. Costs of this appeal are assessed equally to Veronica and Joseph Billeaudeau and Opelousas General Hospital Authority.

AFFIRMED.


source: Caselaw Access Project

author: Judge Paula A. Brown

license: Public Domain

text:
    IN RE Medical Review Panel of Mariah BENOIT
    NO. 2017-CA-0802
    Court of Appeal of Louisiana, Fourth Circuit.
    APRIL 11, 2018
    Christopher Washington, DANIELS & WASHINGTON, 830 Main Street, Baton Rouge, LA 70802, COUNSEL FOR PLAINTIFF/APPELLANT
    Richard S. Crisler, Benjamin J. Biller, BRADLEY MURCHISON KELLY & SHEA, LLC, 1100 Poydras Street, Suite 2700, New Orleans, LA 70163-2700, COUNSEL FOR DEFENDANTS/APPELLEES, LESLIE K. GRECO, M.D. AND NIKKI CLARLY, PA
    (Court composed of Judge Terri F. Love, Judge Edwin A. Lombard, Judge Paula A. Brown, Judge Tiffany G. Chase, Judge Dennis R. Bagneris, Sr., Pro Tempore )
   Judge Paula A. Brown

This matter involves a medical malpractice action. Plaintiff/Appellant, Mariah Benoit ("Ms. Benoit"), appeals the district court's judgment which granted the exception of prescription filed on behalf of Defendants/Appellees, Leslie K. Greco, M.D. ("Dr. Greco") and Nikki Clary, PA ("PA Clary). For the reasons that follow, we reverse the judgment.

FACTUAL AND PROCEDURAL HISTORY

On November 13, 2014, Ms. Benoit filed a formal complaint, pursuant to La. R.S. 40:1231.8 to convene a Medical Review Panel ("MRP"). Ms. Benoit named Iberia Medical Center, Pediatric Group of Acadiana, Women's & Children's Hospital in Lafayette and Children's Hospital in New Orleans as defendants (the "Original Defendants"). Ms. Benoit alleged she sustained a "compression injury that developed into an open sore" when the Original Defendants placed splints/cast over her broken foot too tightly. The alleged malpractice occurred from November 27, 2013 through December 10, 2013.

On January 21, 2015, Children's Hospital filed a petition to institute discovery in Civil District Court for the Parish of Orleans. Almost a year later, on January 15, 2016, Children's Hospital filed an unopposed motion to extend the life of the MRP. The parties noted in the motion that the MRP was set to expire on February 25, 2016, panel members had not met, and discovery was still on-going. The district court granted the motion, extending the life of the MRP until February 25, 2017.

Before the life of the MRP expired, on February 9, 2017, Ms. Benoit amended her MRP complaint to add Dr. Greco and PA Clary (collectively, "Defendants"), amongst others, as additional defendants to the pending complaint. The amended complaint asserted that on November 27, 2013, Dr. Greco was the treating physician and PA Clary placed the cast on Plaintiff's leg too tightly, causing the injuries complained of.

On April 4, 2017, Defendants filed an exception of prescription, arguing that on the face of the amended complaint, Ms. Benoit failed to timely convene a MRP against them within the three year prescriptive period pursuant to La. R.S. 9:5628(A). Defendants maintained that Ms. Benoit's amended complaint, which was filed against Defendants more than three years after the date of the alleged malpractice, had prescribed and should be dismissed with prejudice.

Ms. Benoit, relying on Borel v. Young , countered that the three-year time period for filing a medical malpractice action was prescriptive, rather than preemptive. Ms. Benoit maintained that her amended complaint against Defendants had not prescribed because Defendants were jointly and solidarily liable with Original Defendants who were named in the original, timely filed MRP complaint. Ms. Benoit further argued that, pursuant to La. R.S. 40:1231.8 (A)(2)(a), because the MRP had not rendered a decision on the merits at the time the amended MRP was filed, the prescriptive period had tolled.

After the argument of counsel, on August 4, 2017, the district court sustained Defendants' exception of prescription, reasoning that: "I think the law is clear. You've got to file [a request for a MRP], at the absolute latest, in three years." The written judgment of the district court dismissed Ms. Benoit's claims against Defendants with prejudice, and ordered the Louisiana Patient's Compensation Fund to dismiss Defendants from the pending medical review panel proceeding captioned Mariah Benoit, et al. v. Iberia Medical Center, et al ., bearing file number 2014-01224.

Thereafter, Ms. Benoit filed a timely motion for a suspensive appeal.

SUBJECT MATTER JURISDICTION

Before we review the merits of Ms. Benoit's appeal, we must first address whether this case is properly before this Court. Appellate courts have a duty to determine, sua sponte , whether subject matter jurisdiction exists, even when the parties do not raise the issue. Moon v. City of New Orleans , 2015-1092, 2015-1093, p. 5 (La. App. 4 Cir. 3/16/16), 190 So.3d 422, 425. Appellate courts cannot consider the merits of an appeal unless our jurisdiction is properly invoked by a valid final judgment. Bd. of Supervisors of Louisiana State Univ. v. Mid City Holdings, L.L.C. , 2014-0506, p. 2 (La. App. 4 Cir. 10/15/14), 151 So.3d 908, 910. The prerequisites of a final judgment are discussed in Tsegaye v. City of New Orleans , 2015-0676, p. 3 (La. App. 4 Cir. 12/18/15), 183 So.3d 705, 710, as follows:

For a judgment to be "a valid final judgment," it must contain "decretal language." Mid City Holdings, L.L.C. , 2014-0506, p. 2, 151 So.3d at 910. The absence of necessary decretal language means that the judgment is not final and appealable. Id. , 2014-0506, p. 3, 151 So.3d at 910. Importantly, for the language of a judgment to be considered "decretal," it "must name 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.

La. C.C.P. art. 1918 provides that "[a] final judgment shall be identified as such by appropriate language." Established jurisprudence requires that a valid judgment be precise, definite and certain. Input/Output Marine v. Greatbatch Techs., Inc. , 2010-0477, p. 12 (La. App. 5 Cir. 10/29/10), 52 So.3d 909, 915. "The decree alone indicates the decision. The result decreed must be spelled out in lucid, unmistakable language. The quality of definiteness is essential to a proper judgment." Input/Output Marine , 2010-0477, p. 13, 52 So.3d at 916 (footnote and internal citations omitted).

In the present matter, the judgment lacks the requisite decretal language because it does not specifically name the party against whom the ruling is ordered. The judgment merely states that "plaintiffs' claim of malpractice against defendants is dismissed.... " The plaintiffs are not readily identifiable from the judgment or from the case caption of the litigation filed in the district court. The judgment also creates ambiguity in identifying the defendants in whose favor the judgment was rendered as the underlying MRP complaint involves other defendants who were not parties to this exception. In the absence of said decretal language, the August 4, 2017 judgment cannot be considered a final, appealable judgment over which this Court can exercise its appellate jurisdiction. Tsegaye , 2015-0676, p. 3, 183 So.2d at 710.

Although we find Ms. Benoit is not entitled to appellate review as a matter of right, nonetheless, this Court has the authority to invoke our discretionary supervisory jurisdiction. See Bd. of Supervisors , 2014-506, pp. 2-3, 151 So.3d at 910. See also La. C.C.P. art. 2201. Here, Ms. Benoit's motion for appeal was filed within thirty days of rendition of the judgment; thus, it was filed within the time period for the filing of an application for supervisory writs. Accordingly, this Court elects to exercise its discretionary jurisdiction and convert Ms. Benoit's appeal to a writ application, which we grant.

We now turn to address the merits of Ms. Benoit's claim.

STANDARD OF REVIEW

A judgment granting the peremptory exception of prescription is generally reviewed under the de novo standard of review because the exception raises a legal question. Scott v. Zaheri , 2014-0726, p. 8 (La. App. 4 Cir. 12/3/14), 157 So.3d 779, 785. In a case involving no dispute over material facts, but only the determination of a legal issue, such as the present matter, the de novo review standard is applied, under which the district court's legal conclusions are not entitled to deference. Felix v. Safeway Ins. Co. , 2015-0701, p. 6 (La. App. 4 Cir. 12/16/15), 183 So.3d 627, 632.

ASSIGNMENT OF ERROR

Ms. Benoit's sole assignment of error is whether the district court erred in sustaining Defendants' exception of prescription.

DISCUSSION

Ms. Benoit raises the same arguments here as she did in the district court: (1) that the three-year time period for filing a medical malpractice action as contemplated in La. R.S. 9:5628(A) is prescriptive, rather than preemptive; (2) that pursuant to La. R.S. 40:1231.8 (A)(2)(a), the prescriptive period was tolled because the MRP had not rendered a decision at the time the amended complaint was filed; (3) that the original MRP complaint, timely filed on November 13, 2014, interrupted prescription as to the joint and solidary Defendants added to the complaint by amendment on February 6, 2017.

In opposition, Defendants contend that the applicable statute in determining prescription in a medical malpractice action is governed by La. R.S. 9:5628(A), which imposes a strict deadline of three years in which to bring a medical malpractice claim, and no statutory or jurisprudential authority exists to suspend or interrupt prescription beyond the three-year period.

La. R.S. 9:5628(A) provides in pertinent part as follows:

No action for damages for injury or death against any physician ... whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be 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, however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission or neglect.

Pertinent provisions of the Louisiana Medical Malpractice Act ("LMMA") applicable to consideration of claims before the MRP include the following:

La. R.S. 40:1231.8 Medical review panel.

A. (1)(a) All malpractice claims against health care providers covered by this Part, other than claims validly agreed for submission to a lawfully binding arbitration procedure, shall be reviewed by a medical review panel established as hereinafter provided for in this Section.
* * *
(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, or in the case of a health care provider against whom a claim has been filed under the provisions of this Part, but who has not qualified under this Part, until ninety days following notification by certified mail to the claimant or his attorney by the board that the health care provider is not 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)

The Supreme Court conclusively established in LeBreton v. Rabito , 1997-2221, p. 9 (La. 7/8/98), 714 So.2d 1226, 1230, that the LMMA applies to the exclusion of the general codal provisions found in our Louisiana Civil Code in determining the suspension or interruption of prescription in medical malpractice actions. In LeBreton , the decedent's daughter simultaneously filed a wrongful death claim against his physicians in Civil District Court and a complaint before the MRP. The physicians filed an exception of prematurity, alleging that the only viable action was before the MRP. The district court denied the physicians' prematurity exception and the appellate court denied writs, allowing the daughter's district court action to continue. In granting the physicians' writ application, the Supreme Court noted that the filing of a medical malpractice claim with a medical review panel triggers the suspension of prescription as provided by the LMMA, rather than the interruption of the liberative prescriptive period provided in the Civil Code. LeBreton , 1997-2221 at p. 9, 714 So.2d at 1230. The Court reasoned as follows:

[I]t is evident that the Louisiana Medical Malpractice Act took cognizance of the need to suspend prescription and fully protects plaintiffs who would otherwise suffer the detrimental effect of liberative prescription. Because the Medical Malpractice Act prohibits the filing of a medical malpractice claim against a qualified health care provider prior to panel review, the act specifies that the filing of a request for review before a panel suspends prescription. La. R.S. 40:[1231.8](A)(2)(a). Moreover, as provided by statute, the filing of the complaint prevents prescription from lapsing during the pendency of the review process and further suspends prescription from the time of filing until ninety-days following notification to the claimant or his attorney of the panel opinion. Id. After reviewing these special provisions, it is clear that the legislature has equitably provided for suspension to aid the plaintiff in the medical malpractice arena who is prevented by law from the outset from filing suit against the qualified health care provider.... Thus, considering the doctrinal underpinnings for the existence of the rules of suspension, it is evident that there is no need for the general rules of interruption of prescription to combine with suspension to synergistically benefit the plaintiff.

LeBreton , 1997-2221, p. 10, 714 So.2d at 1230-31.

In Borel , supra , the Supreme Court was faced with a similar issue when it considered whether a timely filed malpractice complaint against a hospital interrupted the three-year prescriptive period against an alleged joint tortfeasor/physician, where the plaintiffs filed suit more than three years after the acts of medical malpractice. The Borel plaintiffs filed a MRP complaint on August 14, 2000, against the hospital and the physician in connection with their decedent's death on May 23, 2000. They were notified of the MRP's decision on January 22, 2002. Within ninety days, on March 28, 2002, the Borel plaintiffs filed suit against the hospital; however, they did not file suit against the physician. They waited until May 15, 2005 to file a separate lawsuit against the physician, contending that he was jointly, severally, and in solido liable with the hospital for the negligent care that resulted in the decedent's death. The physician and his insurer filed an exception of prescription, which was sustained by the district court.

In applying the provisions of La. R.S. 40:1231.8(A)(2)(a) to the facts of Borel , the Court acknowledged that medical malpractice actions are governed by special legislation as codified in the LMMA; as such, the specific provisions of the LMMA regarding suspension of prescription apply to the exclusion of the general code articles on interruption of prescription. 2007-0419, p. 25, 989 So.2d at 67. Moreover, the Court recognized that the time period for filing a medical malpractice action is prescriptive, rather than preemptive. Id. , 2007-0419, pp. 28-29, 989 So.2d at 69. The Borel Court explained that during the pendency of the panel proceedings, prescription was suspended as to all joint and solidary obligors. Thus, the Borel plaintiffs had until ninety days after notice of the panel decision, plus the remainder of the one-year prescriptive period that was unused at the time the request for the MRP was filed, in which to timely file suit. Because the Borel plaintiffs failed to file suit against the physician until after the expiration of these time periods, the Court found that the district court properly sustained the peremptory exception of prescription. Id. , 2007-0419, p. 28, 989 So.2d at 69.

However, the facts of the present matter are distinguishable from Borel . Here, the medical review panel has not rendered a decision. Therefore, prescription is suspended, at a minimum, for a ninety-day period following notice, via certified mail, of the MRP decision pursuant to La. R.S. 40:1231.8(A)(2)(a), provided the newly added defendants-Dr. Greco and PA Clary-are considered joint and solidary obligors.

Defendants contend if this Court interprets La. R.S. 40:1231.8(A)(2)(a) to mean prescription is interrupted while a MRP decision is pending, allowing for an amendment of joint tortfeasors, which we do, Ms. Benoit failed to present any evidence at the hearing on the exception to prove that they were joint and solidary obligors with Original Defendants named in the original MRP complaint.

In Younger v. Marshall Industries, Inc. , 618 So.2d 866, 871 (La. 1993), the Supreme Court opined:

When no evidence is presented at the hearing on the exception, the objection of prescription must be decided upon the facts alleged in the petition and the second supplemental petition, and all the allegations therein are accepted as true. Tranum v. Hebert , 581 So.2d 1023, 1026 (La. App. 1st Cir.), writ denied , 584 So.2d 1169 (1991). Where the allegations in the petition have not been controverted in the hearing on the exception, a court must look to see whether the alleged facts, if accepted as true, are sufficient on their face to establish that the timely sued defendant and the untimely sued defendants are solidarily liable. If so, then plaintiff has met his burden of proving an interruption of prescription based on solidary liability. Pearson v. Hartford Accident & Indemnity Co. , 281 So.2d 724 (La. 1973).

Upon examination of the original MRP complaint, Ms. Benoit requested that a MRP be convened for the follow reasons:

[T]to render an expert opinion on the treatment and/or lack of treatment rendered by Iberia Medical Center, Pediatric Group of Acadiana, Women's Children's Hospital, Children's Hospital and/or its employees and/or others for whom it is responsible as of November 27, 2013. Of particular concern is the fact that Maria Benoit had splints/cast placed over a broken foot to [sic] tight to where it caused a compression injury that developed into an open sore.

In the amended MRP complaint, Ms. Benoit alleges that on November 27, 2013, during a visit in the emergency room at Iberia Medical Center, Dr. Greco, the treating physician, and PA Clary improperly treated her when PA Clary placed a cast too tightly on Ms. Benoit's leg, resulting in the formation of a sore.

On the face of the original complaint and the amended complaint, the alleged facts, if accepted as true, are sufficient to establish that the timely sued Original Defendants and the "untimely" sued Defendants are jointly and solidarily liable. Accordingly, based on our de novo review, Ms. Benoit met her burden of proving that prescription was suspended as to Defendants based on joint and solidary liability.

CONCLUSION

When we apply the provisions of La. R.S. 1231.8(A)(2)(a) to the facts of this case, we find that Ms. Benoit's amended complaint adding Defendants as joint and solidary obligors was timely filed. Accordingly, we reverse the judgment and remand this matter to the district court for further proceedings consistent with this opinion.

APPEAL CONVERTED TO WRIT APPLICATION; WRIT GRANTED; JUDGMENT REVERSED AND REMANDED

LOVE, J., CONCURS IN PART; DISSENTS IN PART; AND ASSIGNS REASONS

LOVE, J., CONCURS IN PART; DISSENTS IN PART; AND ASSIGNS REASONS

I concur with the majority's decision to convert the present appeal to an application for supervisory review. However, I respectfully dissent from the majority's finding that prescription was suspended as to Ms. Benoit's amended MRP complaint.

The case sub judice centers around the interpretation of La. R.S. 40:1231.8(A)(2)(a) in conjunction with La. R.S. 9:5628(A). "The function of statutory interpretation and the construction given to legislative acts rests with the judicial branch of the government." M.J. Farms, Ltd. v. Exxon Mobil Corp. , 07-2371, p. 12 (La. 7/1/08), 998 So.2d 16, 26, amended on reh'g (09/19/08). "[T]he paramount consideration in statutory interpretation is ascertainment of the legislative intent and the reason or reasons which prompted the Legislature to enact the law." Id. , 07-2371, p. 13, 998 So.2d at 27.

"When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature." La. C.C. art. 9. "When the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law." La. C.C. art. 10. "The words of a law must be given their generally prevailing meaning," whereas "[w]ords of art and technical terms must be given their technical meaning when the law involves a technical matter." La. C.C. art. 11. "When the words of a law are ambiguous, their meaning must be sought by examining the context in which they occur and the text of the law as a whole." La. C.C. art. 12. "Laws on the same subject matter must be interpreted in reference to each other."

"The starting point in the interpretation of any statute is the language of the statute itself." Id. , 07-2371, p. 13, 998 So.2d at 27. La. C.C. art. 13. § 5628 provides that:

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 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; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect . (Emphasis added).

§ 1231.8(A)(2)(a) states:

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, or in the case of a health care provider against whom a claim has been filed under the provisions of this Part, but who has not qualified under this Part, until ninety days following notification by certified mail to the claimant or his attorney by the board that the health care provider is not 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. Filing a request for review of a malpractice claim as required by this Section with any agency or entity other than the division of administration shall not suspend or interrupt the running of prescription. All requests for review of a malpractice claim identifying additional health care providers shall also be filed with the division of administration. (Emphasis added).

La. R.S. 40:1231.8(A)(2)(a) provides that prescription is suspended as to joint and solidary obligors for a minimum of 90 days following notice of the MRP decision. The majority interprets this to mean that prescription is suspended as to joint and solidary obligors, as to the MRP claims and lawsuits, until at least 90 days after notice of the MRP decision. Thus, because there is not yet an MRP decision in the present matter, unlike Borel , the majority finds that the prescriptive period has not tolled.

However, I interpret La. R.S. 40:1231.8(A)(2)(a) as the suspension of prescription regarding the filing of an actual lawsuit once the MRP renders a decision. See Ferrara v. Starmed Staffing, LP , 10-0589, p. 3 (La. App. 4 Cir. 10/6/10), 50 So.3d 861, 864 ("The filing of a request for review of a claim suspends the running of prescription against all joint and solidary obligors ... to the same extent that prescription is suspended against the party or parties that are the subject of the request for review."). See also Correro v. Caldwell , 49,778 (La. App. 2 Cir. 6/3/15), 166 So.3d 442 ("Thus, the filing of a claim with the MRP suspends prescription with regard to unnamed joint tortfeasors to the same extent as to those named in the request for review.").

Firstly, § 1231.8(A)(2)(a) provides that the filing of a claim suspends the prescriptive period for filing a suit . The Louisiana Legislature utilized the different terms for a reason. The "claim" refers to the complaint that goes before a MRP. A "suit" refers to the petition filed in the trial court after the MRP renders a decision. A medical malpractice plaintiff is required to file the MRP claim prior to filing a lawsuit in a trial court. If prescription was not suspended by the filing of the claim, then prescription would likely be tolled once the MRP issues a decision, precluding the plaintiff from filing a lawsuit. The Legislature included this phrase to protect the rights of the medical malpractice plaintiffs who are prevented from exercising their rights to file a lawsuit in the trial court. If the Legislature wanted to allow for the extended filing of claims, especially past the three-year limit contained in § 5628(A), then § 1231.8(A)(2)(a), the statute could provide that prescription was suspended for filing a suit or other claims. This interpretation does not detract from protecting the plaintiff because the plaintiff could file a MRP complaint against all interested parties within the confines of the three-year requirement contained in § 5628(A).

Secondly, § 1231.8(A)(2)(a) provides that prescription is suspended as to joint and solidary obligors "to the same extent that prescription is suspended against the party or parties that are the subject to the request for review." The Legislature carefully worded this phrase to protect the plaintiff's rights against joint and solidary obligors, but limited the protection to the same as the parties already included in the MRP claims. "To the same extent" connotes that prescription is suspended as to joint and solidary obligors as to the period "within which suit must be instituted." Meaning, prescription is suspended as to joint and solidary obligors in regards to the filing of a lawsuit following the MRP decision. To find otherwise nullifies the need for the phrase "within which suit must be instituted."

Thirdly, interpreting § 1231.8(A)(2)(a) for the premise that a MRP claim can be indefinitely amended pending the final MRP decision invalidates the three-year time period for the filing of medical malpractice claims contained in § 5628(A). The alleged medical malpractice in this matter occurred from the end of November 2013, through the first part of December 2013. The formal MRP complaint was filed on November 13, 2014. The amended MRP complaint was filed on February 9, 2017, which was over three years past the dates of the alleged malpractice. Interpreting § 1231.8(A)(2)(a) as the majority does eviscerates § 5628(A).

Also, the Louisiana Supreme Court previously held that La. C.C.P. art. 1153 could not be applied to Louisiana medical malpractice actions because the "relation back" theory would permit adding parties "subsequent to the expiration of the three-year period provided for in La. R.S. 9:5628, and would read out of the statute the prescription and suspension period provisions by La. R.S. 9:5628 and La. R.S. 40:1299.47." Warren v. Louisiana Med. Mut. Ins. Co. , 07-0492, p. 4 (La. 12/2/08), 21 So.3d 186, 207-08, on reh'g (06/26/09). The Court also stated that permitting La. C.C.P. art. 1153 to apply could " 'potentially subject a health care provider to an indefinite period of prescription, ... a result clearly at odds with the purpose of the [Act].' " Id., 07-0492, p. 4, 21 So.3d at 207, quoting Borel , 07-0419, p. 27, 989 So.2d at 68, n. 12. The same occurs here with the majority's interpretation of § 1231.8(A)(2)(a).

Further, this Court has already addressed an attempt to circumvent the three-year prescriptive period contained in § 5628(A). In Santiago v. Tulane Univ. Hosp. & Clinic , 12-1095, p. 6 (La. App. 4 Cir. 4/24/13), 115 So.3d 675, 680, this Court examined a matter wherein the medical malpractice plaintiff filed a supplemental PCF complaint after the initial MRP decision was rendered. The plaintiff raised claims that she attempted to raise in a second supplemental and amending petition at the trial court level. Id. The plaintiff's supplemental PCF complaint and second amended petition were filed more than three years after the alleged acts of medical malpractice. Id. , 12-1095, p. 9, 115 So.3d at 681. As a result, this Court found that "[b]ecause no PCF complaint was filed against these doctors within three years, prescription has now tolled." Id. , 12-1095, p. 20, 115 So.3d at 688.

Given the above, my interpretation gives meaning to the specific words chosen by the Legislature and does not interfere with the medical malpractice prescriptive periods as contained in § 5628(A). La. R.S. 40:1231.8(A)(2)(a) suspends prescription as to joint and solidary obligors as it relates to the filing of the lawsuit after the MRP renders a decision. It does not serve to extend the three-year limitations of § 5628.

Lastly, the majority also distinguishes Borel v. Young , 07-0419 (La. 11/27/07), 989 So.2d 42, on reh'g (07/01/08), and finds that Ms. Benoit's amended claim is not prescribed. I find that the facts and principles elucidated in Borel are indistinguishable. In Borel , the plaintiffs attempted to amend their petition to include additional doctors and their insurer, but the trial court denied the request. 07-0419, p. 3, 989 So.2d at 55. The plaintiffs then filed a separate suit against those defendants, which was consolidated with the pending suit. Id. One of the newly added doctors filed an exception of prescription, as the lawsuit was filed more than three years from the date of the alleged malpractice and three years from the filing of the initial suit. Id. Plaintiffs contended that the second suit was timely because the initial suit interrupted prescription because the defendants were joint tortfeasors. Id. , 07-0419, p. 23, 989 So.2d at 65. The Louisiana Supreme Court found that the claims against the defendants in the second suit were prescribed even though the defendants were joint and solidary obligors. Id. , 07-0419, p. 28, 989 So.2d at 69. The Court held that "the more specific provisions of the Medical Malpractice Act regarding suspension of prescription against joint tortfeasors apply to the exclusion of the general code article on interruption of prescription against joint tortfeasors." 07-0419, p. 29, 989 So.2d at 69.

Although Borel dealt with an amended petition and a second lawsuit, the legal principles remain applicable here. The initial malpractice complaint here is likened to the initial Borel suit, whereas the amended malpractice complaint here is likened to the second suit in Borel .

Accordingly, I would convert the appeal to an application for supervisory review and deny the writ.

      La. R.S. 40:1231.8 was formerly cited as La. R.S. 40:1299.47.

      The original MRP complaint named Keisha Benoit and Murray Benoit-the parents of the minor, Mariah Benoit-as claimants. However, this opinion references only Ms. Benoit as plaintiff herein, as Appellant's brief names only Ms. Benoit as the plaintiff/appellant.

      The matter was captioned "In Re Medical Panel of Mariah Benoit."

      The amended complaint also named Paragon Contracting Services, Inc., Latricia Johnson, LPN, and Cymone Broussard, R.N. as additional defendants.

      Ms. Benoit's amended MRP complaint reads as follows:
      On November 27, 2013, Mariah Benoit attended the ER at Iberia Medical Center. Based on information and belief, Dr. Leslie K. Greco was the treating physician. Based on information and belief, she had a cast placed on her left leg by Nikki Clary, PA with the assistance of Latricia Johnson, LPN, and [sic] Cymone Broussard, R.N.
      Based on information and belief, Dr. Leslie K. Greco and Nikki Clary, PA were employed by Paragon Contracting Services, Inc. at the time of the incident. Latricia Johnson, LPN and Cymone Broussard, RN were employed by Iberia Medical Center.
      Based on information and belief, the application of the splint/cast was too tight on the left leg resulting in formation of a pressure ulcer over the left heel. There was also a failure to educated [sic] the parents about the signs to look out for in a non-verbal child such as (1) excessive crying which may be due to the cast being too tight, (2) burning or stinging caused by too much pressure on the skin, or (3) painful pressure areas or rubbing beneath the cast or (4) pressure sores caused by an incorrectly fitting cast.

      2007-0419 (La. 11/27/07), 989 So.2d 42, on reh'g , (7/1/08), 989 So.2d 53-82. A more in depth analysis of Borel is discussed infra.

      La. C.C.P. art. 2201 states: "Supervisory writs may be applied for and granted in accordance with the constitution and rules of the supreme court and other courts exercising appellate jurisdiction."

      The lawsuits were ultimately consolidated by motion of the district court.

      In its initial review, the Borel Court found that La. R.S. 9:5628 established a preemptive time period. 2007-0419, p. 13, 989 So.2d at 51.

      The Borel plaintiffs had 282 days or until January 29, 2003 to bring the physician into the lawsuit. 2007-0419, p. 28, 989 So.2d at 69.

      § 5628(A) is also subject to the application of contra non valentum .


author: GREMILLION, Judge.

text:
    Sarah BARBER, et al. v. LOUISIANA MUNICIPAL RISK MANAGEMENT AGENCY GROUP SELF-INSURED FUND, et al.
    17-1005
    Court of Appeal of Louisiana, Third Circuit.
    April 18, 2018
    Jeff Landry, Attorney General, Robert L. Bussey, Lewis O. Lauve, Jr., Special Assistant Attorneys General, P. O. Drawer 8778, Alexandria, LA 71306, (318) 449-1937, COUNSEL FOR DEFENDANT/APPELLANT: State of Louisiana
    Lance B. Williams, Joshua Dierker, McCranie, Sistrunk, Anzelmo, Hardy, McDaniel & Welch, LLC, 195 Greenbriar Blvd., Suite 200, Covington, LA 70433, (504) 831-0946, COUNSEL FOR DEFENDANT/APPELLANT: Estate of Larry Jeane, Sr.
    Derrick G. Earles, David C. Laborde, Jeff D. Easley, Laborde Earles Law Firm, LLC, 603 N. Washington St., Marksville, LA 71351, (318) 261-2617, COUNSEL FOR PLAINTIFFS/APPELLEES: Sarah Barber, Jamie Turner, Racheal Spivey, Jamie Turner, o/b/o Abbigail Turner, Elizabeth Spivey, Dana Spivey, Wallace Spivey, Racheal Spivey
    Court composed of Shannon J. Gremillion, Phyllis M. Keaty, and D. Kent Savoie, Judges.
   GREMILLION, Judge.

In this tort case, Appellants, The Estate of Larry Jeane, Sr., Republic Fire & Casualty Insurance Company, and the State of Louisiana, appeal a partial summary judgment on the issue of liability in favor of Appellees. For the reasons that follow, we reverse in part and affirm in part.

FACTS

This matter was initiated by the filing of a petition for damages concerning a motor vehicle accident that occurred on July 18, 2014, when the vehicle driven by then-Pineville City Marshal, Larry Jeane, Sr., crossed the center line of Louisiana Highway 107 and struck the vehicle occupied by Appellees, Sarah Barber; Jamie Turner; Racheal Spivey; the minor, Abbigail Turner; Elizabeth Spivey; Dana Spivey; and Wallace Spivey. As a result of this collision, the occupants assert that they sustained injuries.

Appellees filed a motion for partial summary judgment on the issue of Mr. Jeane's liability and asserting that they were free from fault. In support of their motion, Appellees submitted the affidavit of Ms. Sandra Shannon, who was operating the vehicle immediately in front of the Appellees' vehicle and witnessed the collision. In her affidavit, Ms. Shannon also attested to the fact that she gave a recorded statement to Pineville police officers and to the fact that a true and correct transcript of the statement was attached to her affidavit. Appellee Sarah Barber's affidavit was also attached. Appellees also attached the deposition of current Pineville City Marshal, Sarah A. Smith.

Ms. Shannon's affidavit stated that on July 18, 2014, she was driving northbound on Highway 107 at approximately forty-five miles per hour when she saw a southbound pickup truck enter her lane. Ms. Shannon avoided being hit, but saw, in her rearview mirror, the vehicle behind her collide with the truck. In her recorded statement, Ms. Shannon stated, "I had plenty of time to get over but I looked as he came closer and I could see he was slumped over." The movement of the truck into her lane was described by Ms. Shannon as "veering gently." She stated that there may have been another vehicle between her and the one hit by the truck.

Ms. Barber attested that she was driving north on highway 107 when "suddenly, without any prior warning, she saw the vehicle in front of her swerve onto the shoulder." She then saw a pickup truck traveling south in the northbound lane. She attempted to get as far over as she could but was unable to avoid the collision. The next thing she could recall was being extricated from the vehicle by emergency personnel using the "jaws-of-life."

Marshal Smith testified that she was not present at the scene until she was notified by Mr. Michael Gates of the Marshal's office that Mr. Jeane had been involved in an accident. She went to the scene, where she found Mr. Jeane already loaded into an ambulance. She rode in the ambulance with Mr. Jeane to the hospital. Mr. Jeane told her that he did not know what had happened. After the accident, Marshal Smith checked Mr. Jeane's cell phone records.

After filing their motion, Appellees supplemented the motion through the filing of a supplemental memorandum. The certified records of Rapides Regional Medical Center (RRMC) regarding Mr. Jeane's treatment were introduced. The physician who primarily attended to Mr. Jeane's care at RRMC, Dr. Jeremy Timmer, noted that Mr. Jeane was "on the phone with a friend, possible low blood sugar, the patient was talking funny on the phone, was the driver, and collided with another vehicle." Mr. Jeane had a long history of heart disease and type-II diabetes. He sustained many injuries in the collision. Unfortunately, Mr. Jeane passed away on July 20, 2014, at RRMC.

In opposition, Appellants submitted the affidavit of Dr. Brabson Lutz, M.D., M.P.H., F.A.C.P. Dr. Lutz is an internal medicine and infectious disease physician with a practice in these fields since 1974. Dr. Lutz has been accepted as an expert in many state and federal courts in Louisiana. After he was retained, Dr. Lutz reviewed the accident report, statements of the various witnesses and investigators, and Mr. Jeane's medical records from Cenla Heart Specialists, Louisiana Cardiology Associates, and Christus St. Francis Cabrini Hospital regarding Mr. Jeane's pre-accident treatment.

Appellees, in their reply memorandum, objected to Dr. Lutz's affidavit based on Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Appellees also objected to the attachment of the coroner's report but withdrew that objection at the hearing on the motion for summary judgment.

The medical records indicated to Dr. Lutz that Mr. Jeane did not suffer from a pre-accident hypoglycemic, cardiac, or other condition resulting in loss of consciousness. According to the deposition testimony of Marshal Smith, Mr. Jeane was bragging the day before the accident that his doctor had given him a clean bill of health regarding his heart and his type-II diabetes. No physician had placed limitations on Mr. Jeane's driving. Laboratory results obtained at RRMC indicated that Mr. Jeane's blood sugar in the ambulance and at the emergency room later demonstrated "appropriate levels," indicating that hypoglycemia and diabetes did not play a role in the accident.

Dr. Lutz concluded that Mr. Jeane suffered a cardiac arrhythmia that suddenly deprived his brain of oxygen, causing a loss of consciousness. This event, according to Dr. Lutz, was unforeseeable.

The matter proceeded to hearing. The trial court ruled as follows (footnote omitted):

For the reasons given on this date, July 10, 2017, it is the finding of this court that the motion for summary judgment should be granted based upon the fact that there is no issue of material fact. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action. When the non-movant such as the plaintiffs, does not carry the burden of proof at trial, the mover in a partial summary judgment need only show a lack of factual support for an essential element of the defense. The burden shifts to the defendant to prove that they would be able to carry their burden of proof at trial. Here, the defendants alleged an affirmative defense that [Marshal Jeane] experienced a condition that was sudden, unexpected, and without, warning. It is alleged that this condition prohibited [Marshal Jeane] from pulling off the roadway. The defendant has the burden of proving an affirmative defense by clear and convincing evidence. It is the finding of the court that the defendants have not met its burden of proof and for this reason Partial summary judgment is granted.

Appellants sought supervisory relief from this court in which they maintained that the judgment was final and appealable. Writs were denied on the basis that the judgment was final and appealable, and Appellants had an adequate remedy on appeal. Barber v. Louisiana Mun. Risk Mgmt. Agency Self-Insured Fund , 17-730 (La.App. 3 Cir. 9/8/17) (unpublished opinion). Appellants then perfected this appeal.

ASSIGNMENTS OF ERROR

In three assignments of error, Appellants assert that the trial court applied the wrong standard of evidence in deciding to grant summary judgment, ignored the uncontroverted affidavit of Dr. Lutz, and should not have granted summary judgment.

ANALYSIS

Courts of appeal employ de novo review of summary judgments, applying the same analysis as does a trial court. Samaha v. Rau , 07-1726 (La. 2/26/08), 977 So.2d 880. "A de novo review gives no weight to the judgment of the trial court." Covington v. McNeese State Univ. , 08-505, pp. 2-3 (La.App. 3 Cir. 11/5/08), 996 So.2d 667, 671, writ denied , 09-69 (La. 3/6/09), 3 So.3d 491. Therefore, we need not consider Appellants' first two assignments of error, because whether the trial court applied the correct standard or erred factually are of no moment. The only question before us is whether Appellees are entitled to judgment.

The movers bear the burden of proof in a motion for summary judgment to prove that there is no genuine issue of material fact and that they are entitled to judgment as a matter of law. La.Code Civ.P. arts. 966, 967.

The Louisiana Supreme Court held in Brannon v. Shelter Mutual Insurance Co. , 507 So.2d 194 (La.1987), that a driver who claims that his presence in another's proper lane of travel was due to sudden unconsciousness bears a high burden of proving that by clear and convincing evidence. This high burden is placed on that driver because of the difficulty attendant to dispelling such a contention; proving a negative in such a case is nigh impossible. Quoting from Rizley v. Cutrer , 232 La. 655, 663-64, 95 So.2d 139, 142 (1957), a roadway defect case, the supreme court stated that a motorist claiming unforeseeable circumstances as a defense must:

clearly [exhibit] that his conduct in no wise contributed to the accident. By this, of course, we do not mean that such a motorist is the insurer of the safety of those injured in an accident such as the one in the instant case but only that, in order to be exonerated, he must establish his freedom from all fault by clear and convincing proof.

The burden of proof of an affirmative defense lies with its proponent. Hines v. Garrett , 04-806 (La. 6/25/04), 876 So.2d 764. However, in the instance in which the affirmative defense is used to defeat summary judgment, he is not held to a burden of proof ; rather, he bears a burden of production under which he must merely demonstrate that a genuine issue of material fact precludes judgment.

La.Code Civ.P. art. 966 (D)(1). See also Covington , 996 So.2d 667.

A fact, for summary judgment purposes, is "material" if it potentially ensures or precludes recovery, "affects a litigant's ultimate success, or determines the outcome of a legal dispute." Hines , 876 So.2d at 765. A genuine issue of material fact is an issue over which reasonable minds could disagree. Id.

We have already discussed the supporting and opposing documents presented in this motion. We initially note that Appellants' assignments of error address the judgment in toto , but nothing complains of that portion of the judgment that finds Appellees free from fault. We find nothing in our de novo review of the record to convince us that there exists any genuine issue of material fact regarding victim fault, and we affirm that portion of the trial court's judgment. Several facts, though, stand out which create genuine issues of material fact regarding Mr. Jeane's fault. Of course, Dr. Lutz's affidavit opines that Mr. Jeane suffered a sudden, unforeseeable cardia arrhythmia that deprived his brain of oxygen and rendered him unconscious. Ms. Shannon's statement that she saw Mr. Jeane slumped over as his truck passed her supports Dr. Lutz's opinion. Lastly, Marshal Smith's testimony regarding Mr. Jeane, the day before the accident "bragging to me about how he had gotten a clear call from the facility in Shreveport that was handling his blood sugar and diabetes and he'd gotten a clear report from his heart doctor" indicate that any event like the arrhythmia opined by Dr. Lutz was not foreseeable.

Appellees argue that this court should not consider Dr. Lutz's affidavit because it was subject to a challenge under Daubert, 509 U.S. 579, 113 S.Ct. 2786. Appellees contend that the trial court "must have implicitly sustained" this challenge. The trial court never ruled on this issue. As a general proposition, when a trial court does not rule in favor of relief sought by a party, it is presumed that relief was denied. M.J. Farms, Ltd. v. Exxon Mobil Corp. , 07-2371 (La. 7/1/08), 998 So.2d 16.

Admissibility of an expert's opinion is covered by La.Code Civ.P. art. 967(A), which provides, in pertinent part, "The supporting and opposing affidavits of experts may set forth such experts' opinions on the facts as would be admissible under Louisiana Code of Evidence Article 702, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Nothing in the record hints that Dr. Lutz is incompetent to testify about these matters, and his catalog of the evidence he reviewed in arriving at his opinions satisfies the requirement under La.Code Evid. art. 702(2) that the opinion be based upon sufficient facts or data. Appellees' complaint that the affidavit relies upon hearsay is misplaced; experts can rely upon hearsay.

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

La.Code Evid. art. 703. Further, "[i]n a civil case, the expert may testify in terms of opinion or inference and give his reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination." La.Code Evid. art. 705(A).

Lastly, Appellees rely upon two cases in addition to Brannon to support their contention that judgment is appropriate in his case: Cash v. McGregor , 31,537 (La.App. 2 Cir. 2/24/99), 730 So.2d 497, writ denied , 99-1117 (La. 6/4/99), 744 So.2d 628, and Lewis v. City of Shreveport , 43,249 (La.App. 2 Cir. 6/4/08), 985 So.2d 1249, writ denied , 08-1477 (La. 10/3/08), 992 So.2d 1018. Neither of these cases are apposite to this matter. Cash would provide very informative guidance in this matter, but the judgment in Cash was entered upon a jury verdict. Despite the changed status of summary judgment as favored, it still does not substitute for trial on the merits. S.J. v. Lafayette Parish Sch. Bd. , 06-2862 (La. 6/29/07), 959 So.2d 884 (Johnson, J., concurring). Determining that a litigant has carried its burden of proof, as in rendering a judgment after trial, is not at all the same as determining that a litigant could carry that burden, as in denying summary judgment.

Lewis , too, involved a trial on the merits and is unhelpful for that reason. Further, the negligent driver in Lewis was a commercial driver for a common carrier. Common carriers have long been held to a higher standard than drivers of non-commercial vehicles. See Frank L. Maraist & Thomas C. Galligan, Louisiana Tort Law 144-45 (1996). Outside the context of a common carrier, we are aware of no cases-and Appellees have cited none-that would hold a driver negligent for operating a vehicle solely on the basis that the driver suffered from diabetes, heart ailments, or chronic obstructive pulmonary disease without prior indications of impairment. We decline to make such a holding.

In the present matter, there exists a very genuine issue of material fact regarding whether Mr. Jeane was rendered unconscious while operating the truck that struck the Appellees' vehicle. Whether Appellants will carry this burden of proof at trial remains to be seen, but we are not allowed to deprive them of that opportunity on the basis of the record before us. The judgment of the trial court finding Mr. Jeane at fault is reversed; the portion of the judgment finding Appellees free from fault is affirmed. All costs of this appeal are taxed to Appellees.

REVERSED IN PART AND AFFIRMED IN PART.

      The excerpt of Marshal Smith's deposition that was introduced to support Appellees' motion does not disclose the results of her scrutiny of the cell phone records.


author: SAUNDERS, Judge.

text:
    Kay HANAGRIFF, Individually, etc., et al. v. PREFERRED PROFESSIONAL INSURANCE COMPANY, et al.
    17-1039
    Court of Appeal of Louisiana, Third Circuit.
    April 18, 2018 Rehearing Denied June 13, 2018
    Daniel E. Broussard, Jr., Broussard, Halcomb & Vizzier, 429 Murray Street, Suite 3, P.O. Box 1311, Alexandria, LA 71309-1311, (318) 487-4589, COUNSEL FOR PLAINTIFFS/APPELLANTS: Kay Hanagriff, Kay Hanagriff, o/b/o Abigail Frick, Alexa Yanez
    Elizabeth Fontenot Shea, J. Gregory Bergstedt, Fraser, Wheeler, Bergstedt & Courtney, LLP, 4350 Nelson Road, Lake Charles, LA 70605, (337) 478-8595, COUNSEL FOR DEFENDANTS/APPELLEES: Preferred Professional Insurance Company Shondra L. Smith, M.D.
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and Van H. Kyzar, Judges.
   SAUNDERS, Judge.

This is a case involving a medical malpractice action. Plaintiff instituted an action against her physician and the physician's professional liability insurance carrier (collectively "Defendants"), alleging that Defendants breached the applicable standard of care in the care and treatment of Plaintiff on September 22, 2008.

On March 2, 2015, this case came before a jury. After a four-day trial, on March 5, 2015, the jury rendered a verdict adverse to Plaintiff.

On March 26, 2015, Plaintiff filed a Motion for Judgment Notwithstanding the Verdict, Or in the Alternative, Motion for New Trial. The motion was heard on June 2, 2017. Judgment was rendered denying the motion on June 21, 2017.

Plaintiff now appeals that judgment. Her argument is that Defendants failed to furnish Plaintiff with diligent and skillful care; failed to adequately monitor Plaintiff given her expressed symptoms to ensure that she did not fall from the examination table while under Defendants' care; failed to exercise the requisite amount of care and supervision that Plaintiff's condition required; failed to take reasonable steps to promote continuity of appropriate medical care of Plaintiff; and failed to exercise the reasonable degree of skill and competency ordinarily employed by members of the medical profession practicing in the same specialty as Defendants.

FACTS AND PROCEDURAL HISTORY:

On September 22, 2008, Plaintiff, Kay Hanagriff ("Ms. Hanagriff"), underwent two punch biopsies at the office of Shondra L. Smith, M.D. ("Dr. Smith"), a dermatologist. During the procedure, Ms. Hanagriff advised Dr. Smith that she felt queasy, and Dr. Smith instructed Nurse Mindy Walling ("Nurse Walling"), who was assisting her, to place an ice pack on Ms. Hanagriff's neck, which she did. Ms. Hanagriff stated that the ice pack was helping and that she was starting to feel better.

After the procedure, which was completed in approximately five to ten minutes, Nurse Walling remained in the exam room placing bandages on Ms. Hanagriff as she continued to talk to her to ensure that she was feeling better; Ms. Hanagriff confirmed that she was. Prior to momentarily leaving the exam room, Nurse Walling instructed Ms. Hanagriff to remain lying on the exam table until a staff member came back to check on her.

Shortly thereafter, Dr. Smith instructed Diana Perry Beaugh, LPN ("Nurse Beaugh") to check on Ms. Hanagriff, which she did. Nurse Beaugh noted that Ms. Hanagriff was "awake, alert and oriented", and in response to Nurse Beaugh's inquiry as to how she was feeling, Ms. Hanagriff stated "I feel much better." At that time, Nurse Beaugh informed Ms. Hanagriff that she would have her sit up with her feet extended for a short period and adjusted the exam table accordingly to allow Ms. Hanagriff to do so. Prior to leaving the exam room, Nurse Beaugh warned Ms. Hanagriff not to get off the exam table or try to stand until a staff member came in to assist her.

Nurse Walling, who was with another patient in the exam room next to the one Ms. Hanagriff occupied, heard a noise that she described as "metal-on-metal" which she determined to be the sound of the leg extensions on the exam table being pushed in. When Nurse Walling entered Ms. Hanagriff's exam room, she was off the exam table and appeared to be falling to the floor, so she took Ms. Hanagriff by the arm and gently assisted her to the floor, where she remained until Dr. Smith entered the room to evaluate her. When Dr. Smith informed Ms. Hanagriff that she was going to write a prescription for a CT scan of the head and cervical spine, Ms. Hanagriff refused, stating "I just want to go home." Ms. Hanagriff also repeatedly stated that she was embarrassed about the situation.

Approximately fifteen to twenty minutes later, Dr. Smith's office manager and licensed pharmacist, Cindy Reed ("Ms. Reed"), entered the exam room to take Ms. Hanagriff's blood pressure, which was normal. At that time, Ms. Hanagriff complained that her head hurt when she moved her neck.

Approximately ten minutes later, Dr. Smith instructed her billing manager, Kissney Traub ("Ms. Traub"), to take Ms. Hanagriff to Women's & Children's Hospital emergency room for further evaluation. Upon their arrival, Dr. Akanbi, the ER physician, examined Ms. Hanagriff and performed a CT scan of the head and cervical spine. Those tests revealed no significant abnormalities, except muscle spasms. Later that day, Dr. Akanbi informed Dr. Smith that he had prescribed Ms. Hanagriff a muscle relaxer and a soft neck brace, and that she would be fine.

The following day Dr. Smith called Ms. Hanagriff to check on her status, and spoke with her mother, who told her that she was sleeping. Later that day, Dr. Smith placed another call to Ms. Hanagriff's cell phone and left a message.

On September 26, 2008, Dr. Smith spoke with Ms. Hanagriff regarding her biopsy results. Ms. Hanagriff reported that her neck was sore, that she was having trouble sleeping, and that she had been seen by her primary care physician, who told her that she had a muscle strain. When Dr. Smith asked Ms. Hanagriff whether she had any bruising, she replied that she did not.

On September 29, 2008, Dr. Smith saw Ms. Hanagriff for the last time. At that time, Ms. Hanagriff stated that she was still slightly stiff in the neck but had returned to work.

On or about September 22, 2009, Ms. Hanagriff filed a complaint with the Louisiana Patient's Compensation Fund ("PCF"), requesting a review of the medical care provided to her by Dr. Smith and her staff on September 22, 2008.

On February 13, 2012, the Medical Review Panel met and rendered a unanimous opinion in favor of Dr. Smith, finding neither Dr. Smith nor her staff had breached the standard of appropriate care as charged in Ms. Hanagriff's complaint.

On May 31, 2012, Ms. Hanagriff instituted this lawsuit against Defendants. The case, which was tried before a jury on March 2 through March 5, 2015, resulted in a verdict adverse to Ms. Hanagriff.

On or about March 26, 2015, Ms. Hanagriff filed a Motion for Judgment Notwithstanding the Verdict Or, in the Alternative, Motion for New Trial ("JNOV"). The motion was heard on June 2, 2017. Judgment was rendered denying the motion on June 21, 2017.

Ms. Hanagriff timely filed a motion for devolutive appeal. Pursuant to that motion, Ms. Hanagriff is presently before this court alleging five assignments of error.

ASSIGNMENTS OF ERROR:

1. The jury erred in not finding that the actions of Dr. Smith and her staff in truth plaintiff, Kay Hanagriff violated the applicable standard of care.
2. The facts induced at trial do not support the jury's findings that Dr. Smith and her staff did not breach the applicable standard of care.
3. The facts induced at trial is a matter of law shows that the procedures used by Dr. Smith and her staff constituted negligence in that they failed to guard against injury to a patient from a reasonably foreseeable contingency.
4. The trial court erred in denying plaintiff's Motion for Judgment Not Withstanding the verdict Or, In the Alternative, Motion for New Trial.
5. The jury erred in failing to render a verdict in favor of plaintiff, Kay Hanagriff in awarding the damages that she sought.

ASSIGNMENTS OF ERROR NUMBERS ONE, TWO, AND THREE:

We will address assignments of error one, two, and three together as they all assert that the jury erred in finding that the actions of Dr. Smith and her staff did not violate the applicable standard of care by failing to guard against injury to a patient from a reasonably foreseeable contingency. We find no merit to these contentions.

In Martin v. East Jefferson General Hosp. , 582 So.2d 1272, 1276-1277 (La. 1991), (citations omitted), the Louisiana Supreme Court outlined the burden of proof and appellate standard of review in medical malpractice actions, as follows:

In a medical malpractice action against a physician [T]he plaintiff must first establish by a preponderance of the evidence that the doctor's treatment fell below the ordinary standard of care expected of physicians in his medical specialty, and must then establish a causal relationship between the alleged negligent treatment and the injury sustained. Resolution of each of these inquiries are determinations of fact which should not be reversed on appeal absent manifest error. [...]
[I]f the trial court or jury's findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.... [W]here there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong.

In Charpentier v. LAMMICO Ins. Co. , 606 So.2d 83, 87 (La.App. 3 Cir. 1992), (citations omitted), this court stated:

The law does not require perfection in medical diagnoses and treatment. On the contrary, a doctor's professional judgment and conduct must be evaluated in terms of reasonableness under the then existing circumstances, not in terms of results or in light of subsequent events. When the alleged negligence of a specialist is at issue, only those qualified in that specialty may offer expert testimony and evidence of the applicable standard of care. When the expert opinions contradict concerning compliance with the applicable standard of care, the trial court's conclusions on this issue will be granted great deference. It is the sole province of the factfinder to evaluate the credibility of such experts and their testimony.

What is crucial is that our review of the record reveals that the contemporaneous medical charting and witness testimonies reveal that when Ms. Hanagriff indicated that she was beginning to feel "queasy or nauseated," Dr. Smith recognized the symptoms as a possible pre-syncopal episode, and reacted appropriately by:

1. Instructing Nurse Walling during the procedure to apply a cold pack to Ms. Hanagriff's neck, which resulted in Ms. Hanagriff's admittance that she was feeling better;
2. Instructing Ms. Hanagriff after the procedure to lay flat on the exam table (with leg extensions out), to which she momentarily complied;
3. Instructing her staff to closely monitor Ms. Hanagriff, which they did; and
4. Advising Ms. Hanagriff not to attempt to get up from the exam table without assistance, which she disregarded.

Equally crucial is that no one witnessed Ms. Hanagriff's fall. Nurse Walling testified that the alleged fall never occurred, but rather, that she assisted Ms. Hanagriff to the floor. In addition, the contemporaneous medical charting and witness testimonies further reveal that after Ms. Hanagriff indicated that she was feeling better, Dr. Smith's staff reacted appropriately by:

1. Allowing Ms. Hanagriff to semi-elevate herself after she admitted that she was feeling better;
2. Continuing to closely monitor Ms. Hanagriff to ensure that she progressively continued to feel better, which she repeatedly confirmed that she was feeling better;
3. Continuing to caution Ms. Hanagriff not to attempt to get up from the exam table without assistance, which she ultimately disregarded;
4. Only momentarily leaving Ms. Hanagriff alone in the exam room and only after Ms. Hanagriff repeatedly confirmed that she was feeling better;
5. Immediately coming to Ms. Hanagriff's assistance when it became apparent that she was attempting to get up from the exam table unassisted.

To sustain her burden in this case, Ms. Hanagriff called medical expert Dr. Pearson G. Lang, Jr., a board certified dermatologist practicing in Charleston, South Carolina, who testified as follows:

Q. All right. Do you have an opinion as to whether or not Dr. Smith and her staff met the standard of care in dermatology?
A. Well, I think the problem was that when they placed Mrs. Hanagriff in a sitting position rather than being there monitoring her. First of all, I would've checked the blood pressure from the beginning, which I don't think was done, at least the records don't indicate that, but that bring [sic ] aside, when she put in a semi-sitting position things can change and so they can go from feeling okay until [sic ] feeling queasy again or light-headed and that being the case somebody ought to be in there to monitor them and not put them in that position and then just walk out the room.

Dr. Lang's sole criticism of Dr. Smith's care of Ms. Hanagriff after the procedure was that the patient was left alone momentarily when she was (allegedly) not feeling better:

Q. So in reviewing this case the only criticism you have is that the patient complained of faintness and was not feeling well and for a patient like that, they should not have be [sic ] left unattended until it can be reasonable [sic ] ascertained that the patient has recovered sufficiently to sit up, stand up, ambulate and leave?
A. That's correct.

To be sure, Dr. Lang's criticism was based only on Ms. Hanagriff's own uncorroborated testimony. Ms. Hanagriff's testimony, stating that after the procedure she continued to "feel bad" and that the moment Nurse Beaugh left her alone in the exam room, she allegedly felt a "wave of nausea," began sweating, and then "everything went black," contradicts her earlier testimony, in which she stated that during the procedure she began to feel better after the ice pack was placed on her neck. Likewise, contrary to her earlier testimony, Ms. Hanagriff then testified that she had no memory of what happened from the time Nurse Beaugh left the room momentarily to the time she "came to" and was lying on the floor of the exam room. In addition, Nurse Walling, who testified that Ms. Hanagriff had not fallen, but rather, that she had assisted her to the floor to prevent her from falling, also contradicts Ms. Hanagriff's testimony that she fell from the exam table.

Contrary to Ms. Hanagriff's argument, we find that the jury had a clear grasp of the evidence, and/or lack thereof. The jury did not believe that Dr. Smith and/or her staff breached the standard of care to guard against injury to Ms. Hanagriff for a reasonably foreseeable contingency, in this case, an alleged unwitnessed fall. Rather, the jury correctly concluded that Ms. Hanagriff failed to carry the three-prong burden of proof: to establish the standard of care ordinarily practiced by physicians within the specialty of dermatology; a violation by Dr. Smith of that standard of care; and a causal connection between Dr. Smith's negligence and Ms. Hanagriff's alleged injuries. As such, we find that the contemporaneous medical charting and the testimony of Dr. Smith and her staff, as well as the testimony of Dr. Smith's expert witnesses, provide a reasonable basis for the jury's findings. Accordingly, we affirm the trial court's ruling on these issues.

ASSIGNMENT OF ERROR NUMBER FOUR:

In her fourth assignment of error, Ms. Hanagriff contends that the trial court erred in denying her Motion for Judgment Notwithstanding the Verdict Or, in the Alternative, Motion for New Trial. We find no merit to this contention.

In Guillory v. Progressive Ins. Co ., 12-1284, pps. 10-11 (La.App. 3 Cir. 7/3/13), 117 So.3d 318, 326 (citations omitted), this court stated:

A motion for JNOV should be denied if there is evidence opposed to the motion of such quality and weight that reasonable persons in the exercise of impartial judgment might reach different conclusions. In making this determination, all reasonable inferences or factual questions should be resolved in favor of the non-moving party. The rigorous standard for granting a motion for JNOV is based on the principle that "[w]hen there is a jury, the jury is the trier of fact." A motion for JNOV should be granted only when the evidence points so strongly in favor of the moving party such that reasonable men could not reach different conclusions.

The jury had the opportunity to hear evidence from Dr. Smith and her witnesses, including her expert witness, as well as from Ms. Hanagriff, her treating physicians, and her expert witnesses. They analyzed the medical records and returned a unanimous verdict finding that the evidence presented at trial did not support the finding that Dr. Smith and her staff breached the applicable standard of care in the care and treatment of Ms. Hanagriff. Great deference must be given to the trier of fact's findings. It cannot be said that the evidence points so strongly in favor of the moving party such that reasonable men could not reach different conclusions. The jury was reasonable in its determination.

The testimony of Dr. Smith and her witnesses, including her expert witness, was corroborated by the medical records in evidence and clearly contradicted the testimony of Ms. Hanagriff. The medical records indicated that Ms. Hanagriff stated on more than one occasion that the ice pack provided to her during the procedure was helping, that she was feeling better, and she was showing objective signs of improvement (her color was coming back, etc.). In contrast, there is nothing documented in the contemporaneous chart by anyone that Ms. Hanagriff continued to feel "queasy" after the procedure, or that she was complaining of "waves of nausea", or that she was sweating. In fact, according to the evidence in the record, Ms. Hanagriff's condition was just the opposite after the procedure. As Dr. Smith and her witnesses testified, Ms. Hanagriff continued to improve as Dr. Smith and her staff continued through the step-by-step protocol pursuant to office policy and the applicable standard of care. As such, we find that the trial court properly denied Ms. Hanagriff's JNOV.

ASSIGNMENT OF ERROR NUMBER FIVE:

In her fifth assignment of error Ms. Hanagriff contends that the jury erred in failing to render a verdict in her favor and in failing to award the damages that she sought. Our findings in assignments of error numbers one through four, that the actions of Dr. Smith and her staff did not violate the applicable standard of care in the care and treatment of Ms. Hanagriff, pretermits this assignment of error.

CONCLUSION:

Kay Hanagriff asserts five assignments of error as to why the trial court and/or jury erred in finding that the actions of Dr. Smith and her staff did not violate the applicable standard of care by failing to guard against injury to Ms. Hanagriff from a reasonably foreseeable contingency; by failing to grant Ms. Hanagriff's Motion for Judgment Notwithstanding the Verdict Or, in the Alternative, Motion for New Trial; by failing to render a verdict favorable to Ms. Hanagriff; and in failing to award the damages that she sought. Finding no merit to Ms. Hanagriff's first four assignments of error, we affirm the trial court and/or jury's rulings on these issues. Our findings in assignments of error numbers one through four pretermits a finding in assignments of error numbers five that the jury erred in failing to render a verdict in favor of Ms. Hanagriff, and in failing to award damages. Accordingly, we affirm the trial court's ruling on this issue.

Costs of these proceedings are assessed to Ms. Kay Hanagriff.

AFFIRMED .