66 So. 3d 470
La.2011Background
- Whitley, five months pregnant, was treated at LSU Health Sciences Center–Medical Center of LA at New Orleans in May 2003 after a car accident; she delivered a stillborn infant on July 7, 2003.
- Whitley filed a medical malpractice suit against the University on October 26, 2007, seeking damages for alleged negligent care.
- Initial service of process was directed only to Rod West (Chairman of the LSU Board of Supervisors) in 2007; AG and ORM received a copy of the citation and petition by fax in 2010.
- University filed a declinatory exception asserting insufficiency of service under LSAs 13:5107 and 39:1538, arguing that service on the department head alone was insufficient.
- Trial court overruled the exception, holding service on the department head was sufficient; Whitley later supplemented record showing service on the AG and ORM.
- Appellate court denied supervisory writs challenging that service on the head alone sufficed, leading to this Supreme Court decision to resolve the service requirements under 13:5107 and 39:1538.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether service on the department head alone satisfies 13:5107(A) | Whitley—permissive 'may' allows service on AG or head; single service on head suffices | University—requires service on AG and ORM as well as the head | Yes; service on the head suffices under 13:5107(A) within the overall scheme |
| Whether service on AG and ORM after filing cures insufficiency | Subsequent service cures any initial insufficiency | If initial service violates 39:1538(4), dismissal should follow absent timely cure | Yes; cure by subsequent service on AG and ORM to address 39:1538(4) insufficiency |
| Relation between 13:5107(D) 90-day requirement and 39:1538(4) service | 90-day window applies to requests for service, not 39:1538(4) notice | No automatic dismissal if 39:1538(4) requires service; timeliness governs only 13:5107(D) | Whitley’s initial request within 90 days satisfied 13:5107(D); 39:1538(4) does not require 90-day service window to trigger dismissal |
| Whether 39:1538(4) mandates dismissal for failure to serve AG/ORM within 90 days | 39:1538(4) requires service on three entities; no 90-day sanction is stated | Failure to serve could justify dismissal | No automatic dismissal; service on AG/ORM eventually cures |
Key Cases Cited
- Lima v. Schmidt, 595 So.2d 624 (La. 1992) (statutory interpretation favoring maintaining claims when ambiguity exists)
- Thorning v. State, Dep't of Transp. and Dev., 934 So.2d 895 (La. App. 5 Cir. 2006) (construes service on state agencies under 13:5107(A) and related provisions)
- Barnett v. Louisiana State University Medical Center-Shreveport, 841 So.2d 725 (La. 2003) (addressed agency service requirements under 13:5107; agency head vs. AG issues in related context)
- Burnett v. James Construction Group, 56 So.3d 991 (La. 2011) (unpublished writ action addressing service on AG and agency head under 13:5107)