In re Med. Review Complaint By Daron Downing
272 So. 3d 55
La. Ct. App.2019Background
- Melissa Downing suffered severe injuries in a July 2014 automobile accident, sustained an anoxic brain injury at Interim LSU Hospital on July 13, 2014, and died April 20, 2015; her estate and four children filed a joint medical review panel request naming multiple private and state providers on July 13, 2015.
- The complaint named five private providers (governed by the MMA) and five state providers (governed by the MLSSA); claimants tendered some but not all of the $100-per-defendant filing fees to the Patient Compensation Fund (PCF) and separately paid fees to the Division of Administration (DOA) for state defendants.
- The PCF acknowledged receipt of a $100 check with the complaint, later identified five private qualified providers and advised the total private filing fee due was $500; claimants timely paid $200 and later tendered an additional $200 after the 45-day deadline, which the PCF refunded as untimely for two private defendants.
- Four private defendants moved in district court invoking prescription under La. R.S. 40:1231.8(A)(1)(c)/(e), arguing failure to timely pay the full PCF filing fee rendered the PCF request invalid and thus prescription was not suspended for them; the trial court sustained the exceptions and dissolved the panel.
- On appeal, the court considered both (1) whether the panel request was perfected (Sentence One suspension) and (2) whether timely perfected filing as to state defendants suspends prescription as to private defendants where joint tortfeasor allegations exist (Sentence Two joint-tortfeasor suspension).
- The appellate court reversed and remanded, holding the private providers’ prescription ruling was premature because the joint-tortfeasor suspension issue (whether private and state providers are joint tortfeasors) was unresolved and warranted an evidentiary hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the request for medical review was perfected as to private defendants so Sentence One suspended prescription | Downing: timely payment to DOA plus partial payments to PCF suffice; any payments should be considered together; at least some private fees were paid | Private: failure to pay full $500 to PCF within 45 days rendered the entire PCF request invalid as to private defendants; partial payment does not perfect request | Court: request was not perfected as to private defendants under Sentence One because full PCF fee was not timely paid |
| Whether timely perfected filing against state defendants suspends prescription as to private defendants under Sentence Two when private filing was not perfected | Downing: Smithson controls — timely filing against state defendants suspends prescription against joint tortfeasors (including private) enabling refiling or supplement | Private: Smithson wrongly eviscerates fee requirement; suspension should not apply when private filing fee was not paid | Court: Adopted Smithson’s construction; Sentence Two can suspend prescription as to private defendants if joint tortfeasor allegations exist and the state filing was valid |
| Whether private providers are joint tortfeasors with state providers so Sentence Two applies | Downing: complaint alleges joint and concurrent negligence among all providers | Private: disputed; asserted that joint liability was not established and failure to perfect private filing controls | Court: Fact of joint tortfeasor status was unresolved; absence of evidence in trial court makes granting prescription exception premature — remand for evidentiary hearing |
| Proper remedy when prescription exception is raised during pre-panel proceedings | Downing: (implicit) panel should not be dissolved if suspension applies; allow supplementation if necessary | Private: seek dismissal and dissolution of panel if request invalid and prescription ran | Court: Because Sentence Two issue unresolved, trial court erred in sustaining exceptions and dissolving panel; reversed and remanded for hearing on joint-liability suspension |
Key Cases Cited
- In re Med. Review Panel for Claim of Moses, 788 So.2d 1173 (La. 2001) (places burden on plaintiff to prove suspension of prescription)
- In re Noe, 958 So.2d 617 (La. 2007) (explains Sentence One and Sentence Two suspension framework)
- Smithson v. [unnamed party], 991 So.2d 1075 (La. App. 1 Cir. 2008) (holds timely filing against state provider can suspend prescription as to private joint tortfeasors)
- Milbert v. Answering Bureau, Inc., 120 So.3d 678 (La. 2013) (interprets joint-tortfeasor suspension language and legislative intent)
- Med. Review Panel of Davis v. Louisiana State Univ. Health Sciences Ctr.-Shreveport, 939 So.2d 539 (La. App. 2 Cir. 2006) (payment of filing fee is required to consider a request filed)
- Nathan v. Touro Infirmary, 512 So.2d 352 (La. 1987) (statutory review-panel filing suspends prescription)
- Wimberly v. Gatch, 635 So.2d 206 (La. 1994) (prescription statutes are strictly construed against prescription)