Correro v. Caldwell
166 So. 3d 442
La. Ct. App.2015Background
- On April 23, 2011, Correro underwent hip surgery at Glenwood; the surgeon (Dr. Ferrer) began operating on the wrong hip and made a large incision on the right hip before the error was discovered; surgery then proceeded on the correct (left) hip.
- Correro filed a medical review panel (MRP) request on April 16, 2012, against Dr. Ferrer and Glenwood (initial panel). Dr. Ferrer later waived the panel and was dismissed at Correro’s request, but the panel proceeded against Glenwood.
- Correro moved on November 19, 2013 to amend the initial MRP to add Bernie Caldwell and Cathy Greer (members of the surgical team) as additional defendants; the MRP issued an opinion against Glenwood on December 27, 2013.
- PCF treated the November 19 amendment as a new MRP request (second panel) because it was filed after the opinion was rendered, initiating separate processing for Caldwell and Greer.
- Caldwell and Greer filed a peremptory exception of prescription asserting Correro’s claims against them prescribed on April 7, 2014 (90 days after the initial panel opinion plus remaining days of the prescriptive period); the trial court granted the exception.
- The appellate court reversed, holding the timely-filed initial MRP (and the amendment adding Caldwell and Greer while the initial panel remained pending) suspended prescription as to joint tortfeasors, including Caldwell and Greer.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the timely-filed MRP against Dr. Ferrer and Glenwood suspended prescription as to unnamed joint tortfeasors (Caldwell and Greer) | Correro: the initial MRP filing suspended prescription as to all joint tortfeasors; her Nov. 19, 2013 amendment adding Caldwell and Greer was made while the initial panel was pending, so suspension continued | Caldwell & Greer: suspension ended when plaintiff did not file suit against Ferrer/Glenwood after the initial panel opinion; claims against them prescribed Apr. 7, 2014 | Held for Correro: suspension applied to joint tortfeasors; exception of prescription was wrongly granted |
| Whether Ferrer’s dismissal/waiver negates suspension for other joint tortfeasors | Correro: Ferrer waived the panel but there was no finding of non-liability; waiver/dismissal does not eliminate suspension for remaining joint tortfeasors | Defendants: Ferrer’s dismissal ended interruption/suspension and prescription ran | Held for Correro: waiver/dismissal did not amount to a determination of non-liability; suspension remained for joint tortfeasors |
| Applicability of LMMA’s special suspension rule vs. general interruption rules | Correro: LMMA statute and jurisprudence specially suspend prescription for joint tortfeasors and control here | Defendants: relied on cases where dismissal of a named LMMA defendant ended special suspension | Held for Correro: LMMA’s suspension of prescription for joint tortfeasors applies and is controlling unless a determination of non-liability is made |
| Whether the trial court’s grant of prescription exception was reviewable de novo on statutory interpretation | Correro: statutory interpretation is a legal question reviewed de novo | Defendants: prescription is usually factual and reviewed for manifest error | Held: statutory interpretation reviewed de novo; court reversed the prescription ruling |
Key Cases Cited
- Carter v. Haygood, 892 So.2d 1261 (La. 2005) (burden shifting when prescription is evident on pleadings)
- Bishop v. Simonton, 615 So.2d 8 (La. App. 2d Cir. 1993) (MRP filing suspends prescription as to unnamed joint tortfeasors)
- Borel v. Young, 989 So.2d 42 (La. 2007) (LMMA’s specific suspension rule applies instead of general code interruption rules)
- Etienne v. National Auto. Ins. Co., 759 So.2d 51 (La. 2000) (peremptory exception of prescription may be premature while liability remains contested)
- Robin v. Hebert, 157 So.3d 63 (La. App. 3d Cir. 2013) (distinguished by court — dismissal/finding of non-liability can end LMMA suspension)