299 So.3d 741
La. Ct. App.2020Background
- Plaintiff Donna Brown filed a medical review panel complaint in Oct. 2012; the panel issued an opinion favorable to Dr. Ralph Chesson in June 2015 and Brown received it in July 2015.
- Brown sued Dr. Chesson individually in Oct. 2015 alleging malpractice from a Nov. 2011 surgery and post-op care, requesting service at his office address.
- Dr. Chesson is a qualified state health care provider; in Nov. 2018 he filed declinatory exceptions of insufficiency of citation and service of process (and later a peremptory exception of prescription), arguing service had to be requested on statutorily designated state agents per La. R.S. 13:5107 and La. R.S. 39:1538.
- The trial court denied the exceptions on July 2, 2019; Dr. Chesson sought supervisory review (writ) to the Fourth Circuit, which heard the case en banc.
- The Fourth Circuit granted the writ, held Velasquez and Wright controlled, reversed the trial court, granted the insufficiency of citation/service exceptions, and dismissed the suit without prejudice; the court declined to address prescription as premature.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether service on Dr. Chesson at his office sufficed where he is a qualified state health care provider | Brown argued she sued the physician in his individual capacity and serving him at his office was sufficient | Chesson argued that as a qualified state health care provider, service must be requested on one of the three statutorily designated state agents (Department Head, ORM, or Attorney General) | Court held service on the physician only was insufficient; reversed trial court and granted exception, dismissing suit without prejudice |
| Whether George v. ABC Ins. created a circuit conflict that would excuse service on state agents | Brown relied on George to argue that service requirements differ when the State was not originally named as a defendant | Chesson contended Velasquez and Wright control and George is distinguishable because those cases involved state employees as named defendants | Court held George is distinguishable (it involved a non-profit corporation) and Velasquez/Wright control; no circuit conflict |
| Whether prescription exception should be considered now | Brown implicitly urged denial of prescription | Chesson raised prescription but argued service deficiency was dispositive | Court pretermitted prescription as evaluation of prescription was premature once declinatory exceptions were granted |
Key Cases Cited
- Velasquez v. Chesson, 151 So.3d 812 (La. App. 4th Cir. 2014) (service on qualified state health care provider requires requesting service on designated state agents)
- Wright v. State, 258 So.3d 846 (La. App. 4th Cir. 2018) (reversing denial of insufficiency of citation and service where plaintiff requested service only on state-employed physicians)
- George v. ABC Ins. Co., 271 So.3d 1289 (La. App. 4th Cir. 2019) (distinguishable holding that 90-day service period under La. R.S. 13:5107 was not triggered where the State was not originally named)
- Whitley v. State ex rel. Bd. of Supervisors of Louisiana State Univ. Agr. & Mech. Coll., 66 So.3d 470 (La. 2011) (discussing service requirements against state-employed health care providers)
- Barnett v. Louisiana State Univ. Med. Ctr.-Shreveport, 841 So.2d 725 (La. 2003) (holding plaintiffs strictly held to serve correct agent for state defendants)