Correro v. Ferrer
188 So. 3d 316
La. Ct. App.2016Background
- Plaintiff Carolyn Correro underwent left-hip surgery in April 2011; surgeon Dr. Jose Ferrer made an erroneous right-hip incision before proceeding on the left hip.
- Correro requested a Medical Review Panel (MRP) in April 2012. Various filings and a later amendment sought to add two non-employee participants (Caldwell and Greer).
- The first MRP issued an opinion (mailed Dec. 27, 2013) finding Glenwood breached the standard of care; Dr. Ferrer had been dismissed from that panel earlier by agreement.
- PCF treated the November 2013 amendment naming Caldwell and Greer as a new MRP filing; Caldwell and Greer later filed prescription exceptions that were granted (then reversed as to them on appeal).
- Correro sued Ferrer and Glenwood in Aug. 2014; trial court granted prescription exceptions for Ferrer and Glenwood and dismissed those claims; this appeal affirms that dismissal as to both defendants.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether this court's prior statement that a second MRP suspends prescription for all joint tortfeasors is law of the case and binding | Correro: prior opinion (Correro I) held the second MRP suspended prescription as to Ferrer and Glenwood, so trial court was bound | Ferrer/Glenwood: prior statement was dictum, not essential to that appeal; law of the case does not bind here | Court: Not law of the case — prior statement was dictum and not binding |
| Whether an MRP pending against some joint tortfeasors suspends prescription for others after an earlier MRP issued an opinion (i.e., can a later pending panel revive suspension after the first panel mailed its opinion and triggered the 90‑day runout) | Correro: pending second MRP against Caldwell/Greer continued to suspend prescription as to Ferrer and Glenwood despite mailing of first MRP opinion | Ferrer/Glenwood: mailing of the first MRP opinion triggered the 90‑day post‑notice suspension limit; prescription ran thereafter unless suit filed within that period | Court: Mailing of MRP opinion started the 90‑day period; suspension ended and Correro failed to timely sue Ferrer and Glenwood — claims prescribed |
| Whether the parties' agreement (characterized by Correro as a tolling agreement) between counsel for Correro and Ferrer tolled/interrupted prescription | Correro: the agreement dismissing Ferrer from the panel and allowing suit to be filed but held inactive tolled or interrupted prescription as to Ferrer (and Glenwood via surety) | Ferrer: the agreement anticipated filing and inactivity but did not lawfully toll/interrupt statutory prescription governed by the Medical Malpractice Act; MMA controls suspension, not general interruption rules | Court: Agreement did not toll/interrupt prescription under MMA; Borel prohibits applying general interruption rules to MMA claims |
| Whether equitable estoppel prevents Ferrer from asserting prescription | Correro: Ferrer should be estopped from asserting prescription because of counsel communications/agreements | Ferrer: plaintiff could not justifiably rely to ignore the 90‑day statutory period; agreement expressly left action inactive and did not override statutory limits | Court: Equitable estoppel not available — plaintiff could not justifiably rely to ignore the 90‑day provision; argument rejected |
Key Cases Cited
- Correro v. Caldwell, 166 So.3d 442 (La. App. 2d Cir. 2015) (earlier appellate decision addressing suspension of prescription by MRP filings)
- Maestri v. Pazos, 171 So.3d 369 (La. App. 5th Cir. 2015) (holding mailing/notice that triggers 90‑day rule ends suspension for nonqualified provider despite other pending MRP)
- Borel v. Young, 989 So.2d 42 (La. 2007) (Medical Malpractice Act’s suspension rules govern malpractice prescription; general interruption rules do not apply)
- Ferrara v. Starmed Staffing, LP, 50 So.3d 861 (La. App. 4th Cir. 2010) (discussion of contra non valentem in nursing claims; distinguished by court)
- Bustamento v. Tucker, 607 So.2d 532 (La. 1992) (statutory construction principle favoring interpretations that maintain rather than bar actions)