Milbert v. Answering Bureau, Inc.
120 So. 3d 678
| La. | 2013Background
- On Sept. 2–7, 2008 Daniel Milbert underwent ankle surgery and, after discharge, suffered worsening pain; his wife called the physician answering service (Dexcomm) on Sept. 6–7, 2008 and messages were not properly relayed to the on‑call surgeon.
- Milbert developed compartment syndrome and underwent emergency surgery hours after the calls; he later required extensive debridements and grafting.
- The Milberts timely filed a medical review panel request against the treating health‑care providers on Aug. 28, 2009; the panel issued its opinion Sept. 14, 2011.
- The panel complaint was later amended to add Dexcomm; the Patients’ Compensation Fund informed plaintiffs that Dexcomm was not a qualified health‑care provider under the MMA, and plaintiffs sued Dexcomm in district court on Dec. 23, 2009.
- Dexcomm moved for summary judgment claiming the negligence claim against it was prescribed under the one‑year prescriptive period for general negligence; plaintiffs argued prescription was suspended as to all joint tortfeasors under La. R.S. 40:1299.47(A)(2)(a) while the medical review panel process was pending.
- Trial court granted summary judgment for Dexcomm; the court of appeal affirmed. The Louisiana Supreme Court granted certiorari and reversed, holding non‑health‑care entities can be joint tortfeasors such that the MMA’s suspension provision applies.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does La. R.S. 40:1299.47(A)(2)(a)’s suspension of prescription extend to non‑health‑care joint tortfeasors? | Suspension applies to “all joint tortfeasors,” so a non‑health‑care joint tortfeasor (Dexcomm) benefits while a medical review panel is pending. | The statutory language only applies to joint tortfeasors who are health‑care providers; phrase “both qualified and not qualified” limits the scope. | The statute is unambiguous and expansive: suspension applies to non‑health‑care joint tortfeasors when they are joint tortfeasors with health‑care providers. |
| Was plaintiffs’ suit against Dexcomm prescribed on its face? | The suit was filed while the panel review was pending, so suspension made the filing timely. | On its face the claim arose Sept. 7, 2008 and suit filed Dec. 23, 2009 is after one year for general negligence. | Because suspension applied, the suit was timely; summary judgment on prescription was improper. |
| Can a non‑health‑care answering service be a joint tortfeasor with health‑care providers as a matter of law? | Dexcomm’s alleged failure to relay emergency messages combined with providers’ delay produced an indivisible injury — a factual question for trial. | Dexcomm owed different duties from medical providers; those disparate duties preclude joint tortfeasor status as a matter of law. | Under duty/risk analysis, Dexcomm could owe a duty whose breach foreseeably combined with providers’ breaches; joint tortfeasor status is a question of fact, not barred as a matter of law. |
| Should plaintiffs’ alternative contra non valentem argument be reached? | Even if discovery rule applied, plaintiffs would show they did not know of Dexcomm’s role until discovery in Nov. 2009. | Contra non valentem does not apply because plaintiffs were aware on Sept. 7, 2008. | Court did not decide contra non valentem because suspension under the MMA made it unnecessary. |
Key Cases Cited
- LeBreton v. Rabito, 714 So.2d 1226 (La. 1998) (MMA suspension provisions govern medical malpractice claims and cannot be bypassed by filing suit before panel review)
- Borel v. Young, 989 So.2d 42 (La. 2008) (the MMA’s specific suspension provisions apply to joint tortfeasors and preclude reliance on general codal interruption provisions)
- Smitko v. Gulf South Shrimp, Inc., 94 So.3d 750 (La. 2012) (standard of review for summary judgment is de novo)
- Guitreau v. Kucharchuk, 763 So.2d 575 (La. 2000) (when panel decision is rendered, plaintiffs get 90 days plus any unused portion of the one‑year prescriptive period)
- Wells v. Zadeck, 89 So.3d 1145 (La. 2012) (discussing contra non valentem and circumstances that toll prescription)
- Hebert v. Doctors Memorial Hosp., 486 So.2d 717 (La. 1986) (treatment of prescriptive periods under medical malpractice statutes)