87 So. 3d 209
La. Ct. App.2012Background
- Turner filed a medical malpractice claim Aug 20, 2009 requesting a medical review panel against Willis Knighton and doctors.
- PCF determined doctors were non-qualified for malpractice; Nine Month Letter advised appointment within one year and warned of dismissal.
- Turner obtained new counsel July 2010; PCF dismissed Aug 25, 2010 for failure to appoint an attorney chairman; dismissal notice sent to all parties.
- Filing the PCF complaint suspended prescription; Turner filed suit Nov 23, 2010, within 90-day post-dismissal window in the MMA scheme.
- Dispute centers on whether Nine Month Letter or Dismissal Letter governs the restart of prescription under La. R.S. 40:1299.47; court compares Thibodeaux framework.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When does prescription resume after dismissal? | Turner argues dismissal ends suspension and triggers 90-day period from August 20, 2010. | Defendants contend Nine Month Letter set the 90-day restart from August 20, 2010. | Dismissal notice governs restart; 90-day period begins after dismissal. |
| Does the Nine Month Letter adequately warn to appoint chairman? | Nine Month Letter suffices to suspend and warn of potential dismissal. | Letter does not determine restart; dismissal notice controls. | Nine Month Letter provides pre-dismissal warning but not the restart trigger. |
| Which event controls the recommencement of prescription—the dissolution/dismissal or panel dissolution under Thibodeaux? | Dissolution/notice under Thibodeaux should govern the restart. | Dismissal notice is the crucial event for prescription restart under MMA. | Dismissal notice governs; restoration of prescription restarts upon dismissal. |
| Is the claim premature based on MMA waiver provisions? | Waiver argument allows timely filing within revised MMA framework. | Waiver and prematurity resolved by restart upon dismissal; claim timely. | Not premature; statutory waiver and restart preserve timeliness. |
Key Cases Cited
- Thibodeaux v. Donnell, 9 So.3d 120 (La. 2009) (notice of panel dissolution governs prescription restart)
- Yokem v. Sisters of Charity of the Incarnate Word, 742 So.2d 906 (La.App.2d Cir. 1999) (burden of appointment formerly on claimant; MMA amendment changed burden)
- Bustamento v. Tucker, 607 So.2d 582 (La. 1992) (preserving action preferred when prescriptive statutes admit multiple readings)
- Holmes v. Lee, 795 So.2d 1232 (La. App. 2d Cir. 2001) (interpretation of prescriptive statutes where two readings exist)
- Langlois v. East Baton Rouge Parish School Bd., 761 So.2d 504 (La. 2000) (avoid rendering any provision superfluous; harmonize statute parts)