95 So. 3d 1100
La. Ct. App.2012Background
- Alexander appeals after the trial court sustained a dilatory exception of prematurity and dismissed his suit against Dr. Shaw-Halder and Creative Smiles.
- In 2007 Alexander received cosmetic dental treatment (veneers and implants) from Creative Smiles/Dr. Shaw-Halder.
- In 2009 Alexander sought a medical review panel (PCF) alleging malpractice; PCF found Creative Smiles not a qualified provider and sought corrective information within 30 days.
- PCF later notified that panel was dismissed and that the claim was waived if no attorney chairman was appointed; time tolling and panel status were emphasized.
- Alexander filed suit on April 7, 2011; defendants raised prescription and prematurity; trial court dismissed prematurity but not prescription, and the case was dismissed without prejudice on that basis.
- Court reverses prematurity ruling for Creative Smiles (not a qualified provider) and remands as to Dr. Shaw-Halder; PCF is not treated as an appellee due to lack of pending action at dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred in dismissing against a non-qualified provider | Alexander (plaintiff) contends Creative Smiles was never a MMA-qualified provider | Shaw-Halder/Creative Smiles argue MMA applicability requires a qualified-provider status | Prematurity reversed; Creative Smiles not a qualified provider; case remanded |
| Whether the PCF must form a medical review panel before suit | Alexander argues PCF should have formed a panel or recognized the May request as triggering the tolling | Defendants contend no valid panel was triggered since the October request was insufficient | Panel formation not required; remand to proceed without panel; prematurity reversed |
Key Cases Cited
- Floyd v. East Bank Consol. Fire Protection Dist. For Parish of Jefferson, 40 So.3d 160 (La.App. 5 Cir. 2010) (prematurity determined by existing facts; privity of conditions not met)
- W.P. v. Universal Health Services Foundation, 91 So.3d 1097 (La.App. 5 Cir. 2012) (MMA panel requirements apply to qualified providers)
- Turner v. Willis Knighton Medical Center, 87 So.3d 209 (La.App. 2 Cir. 2012) (parties waive medical review panel if no appointment of attorney chairman)
- Stroud v. Liberty Mut. Ins. Co., 429 So.2d 492 (La.App. 3 Cir. 1983) (intervention timing; no pending action after dismissal)