Boone v. State, ex rel. Department of Health & Hospitals

Mar 6, 1998
No. 97-321
Versions:709 So. 2d 300
1998 La. App. LEXIS 404
1998 WL 100454

Lead Opinion

JiDECUIR, Judge.

Writ granted. The judgment of the trial court denying applicant’s motion for jury trial is reversed.

Clyde Boone filed a medical malpractice suit against the State of Louisiana, through the Dеpartment of Health and Hospitals (DHH) on July 13, 1995. La. R.S. 13:5105(A) was amended effective January 1, 1994, to allow for jury trials against the state or state agencies. Section 2 of Acts 1993, No. 993 provides: “This Act shall become effective January 1, 1994 and shall not apply to any suit filed before that date.” Pursuant to this provision, the DHH filed a motion for jury trial. Plaintiff filed a motion to quash defendаnt’s jury demand. The trial court granted plaintiffs motion to quash the jury demand, denying DHH’s request for a jury trial. DHH now seeks supervisory relief.

Although plaintiffs suit was filed after the effective date of the amendment at issue, he argues that his request for a medical review panel filed prior to the effective |2date of the amendment constitutes a suit and, thus, DHH is not entitled to a jury trial since the amendment does not apply to suits filed before January 1, 1994. We reject plaintiffs argument for the following reasons.

The jurisprudence is well-established that a civil actiоn or suit is commenced with the filing of a pleading in a court of competent jurisdiction. Saxon v. Fireman’s Ins. Co. Of Newark, N.J., 224 So.2d 560 (La.App. 3 Cir.1969); Sims v. Sims, 247 So.2d 602 (La.App. 3 Cir.1971); and Hayes v. Woodworth Trucking Co., 353 So.2d 478 (La.App. 3 Cir.1977).

A request for a medical review panel is a prerequisite to and not the equivalent of a suit for medical malpractice. This is clear from a reаding of La.R.S. 40:1299.39.1(A)(2)(a) which provides in pertinent part:

*301The filing of the request for a review of a claim shall suspend the time within which suit must be instituted ... (Emphasis added.)

Furthermore, La.R.S. 40:1299.39.1(B)(l)(a)(i) provides:

No action against the state, its agencies, or a person covered by this Part, or his insurer, may be commenced in any court before the claimant’s complaint has been presented to a state medical ‍​‌​‌​​‌‌​‌​​​​‌​‌​‌‌​‌​‌‌​‌​‌​​‌​​‌‌​​​‌​​​‌​‌​‌‍review panel established pursuant to this Section. (Emphasis added.)

Additionally, La.R.S. 40:1299.39.1(H) provides in pertinent part:

Any report оf the expert opinion reached by the state medical review panel shall be admissible as evidence in any action subsequently brought by the claimant in a court of law ... (Emphasis added.)

If a request for a medical review panel must be filed prior to the filing of a suit, such a request cannot be said to be equivalent to a suit. The only instance in which a request for a medical review panel is to be considered equivalent to a suit is specifically provided for in La.R.S. 40:1299.39.1(K) which states that “For the purpose of the determination of interest, the medical malpractice panel procedure shall be considered equivalent to court procedures.” Thus, La.R.S. 40:1299.39.1(K) |3provides clearly and unambiguously that the only instance in which the review panel request and a suit shall be considered equivalent is in the calculation of interest.

Finally, a ruling that a request for a medical review panel is equivalent to a suit would lead to absurd results. Under such a ruling, a party could arguably be required to request a jury trial prior to the institution of a suit. When a law is clear and unambiguous and its application does nоt lead to absurd consequences, the law is to be applied as written and no further interpretation may be made in search of the intent of the legislature. La.Civ.Code art. 9. A suit has long been defined by law, and a suit, which is commenced by filing in a court of competent jurisdiction, is not equivalent to a request for a medical review panel filed with the Commissioner of Administration.

Thus, based upon the jurisprudence and the clеar and unambiguous wording of La. R.S. 40:1299.39, et seq., a request for a medical review panel is not the equivalent to a suit. The DHH is therefore, pursuant to La.R.S. 13:5105(A), entitled to a trial by jury.

The judgment of the trial court is hereby reversed, and this case is remanded for further proceedings in accordance with this opinion.

WRIT GRANTED.

THIBODEAUX, J., dissents and assigns written reasons.





Dissenting Opinion

| iTHIBODEAUX, Judge,

dissenting.

The plaintiff contends that a lawsuit was initiated once he filed his claim with the medical ‍​‌​‌​​‌‌​‌​​​​‌​‌​‌‌​‌​‌‌​‌​‌​​‌​​‌‌​​​‌​​​‌​‌​‌‍review рanel on October 15, 1992. Plaintiff suggests that “suit,” as stated in La.R.S. 13:5105(A), actually refers to a “claim” or “cause of action.” Plaintiff further alleges he timely filed suit under the pre-amended version of La.R.S. 13:5105(A). Thеrefore, plaintiff argues that DHH should not be permitted to request a trial by jury. I agree.

Prior to a 1993 amendment, La.R.S. 13:5105(A) read: “No suit against a political subdivision of the state shall be tried by jury.” As amended by 1993 La. Acts 993, § 1, La.R.S. 13:5105(A) provides:

|2No suit against a political subdivision of the state shall be tried by jury. Except upon a demand for jury trial timely filed in accordance with law by the state or a state agency or the plaintiff in а lawsuit against the state or state agency, no suit against the state or a state agency shall be tried by jury.

This provision became effective January 1, 1994, and it was not to apply retroactively to any suit filed before that date. 1993 La. Acts 993, § 2.

Louisiana Civil Code Article 10 states, “[wjhen the language of the law is susceptible of different meanings, it must be interpreted аs having the meaning that best conforms to the purpose of the law.” Also, “where a statute is ambiguous and suscepti*302ble of two constructions, the courts will give that construction which bеst comports with the principles of reason, justice, and convenience, for it is to be presumed that the Legislature intended such exceptions to its language as would avoid its leading to injustice, oppression, or absurd consequences.” Thomas v. Highlands Insurance Company, 617 So.2d 877, 878 (La.1993), citing State v. Standard Oil Co. of La., 188 La. 978, 178 So. 601, 626 (1937).

To determine whether a “claim” can be interpreted as a “lawsuit” for purposes of La.R.S. 13:5105(A), it is instructive to examine the requisite mеdical review procedure set forth in La.R.S. 40:1299.39.1.

As a jurisdictional prerequisite, La.R.S. 40:1299.39.1(A)(1) provides that all medical malpractice claims against the state or its agencies must be reviewed by a state medical review ‍​‌​‌​​‌‌​‌​​​​‌​‌​‌‌​‌​‌‌​‌​‌​​‌​​‌‌​​​‌​​​‌​‌​‌‍panel. The claim must be presented to a state medical review panel before a lawsuit can be instituted in any court. La. R.S. 40:1299.39.1(B)(l)(a)(i). Once a request for a review of clаim is filed, prescription for instituting a suit is thereby suspended until an opinion is rendered by the medical review panel. La.R.S. 40:1299.39.1(A)(1).

13Any interested party may introduce evidence or conduct depositions in support of his claim. La.R.S. 40:1299.39.1(D). To assist in the taking of depositions, a party may request the clerk of any district court to issue subpoenas and subpoenas duces tecum. Id. Also, any opinion rendered by the medical review panel is admissible as evidence in a subsequent lawsuit. La.R.S. 40:1299.39.1(H).

Finally, in the computation of legal interest, the medical review procеdure is included with any subsequent suit brought as pursuant to the same medical malpractice claim. In fact, La.R.S. 40:1299.39.1(K) states, “[f]or the purpose of the determination of interest, the medical malpractice panel procedure shall be considered equivalent to court procedures.”

Based on the integration of court procedures and jurisdictional requirements with the medical review process, numerous similarities exist between a “claim” and a “lawsuit.” Still, one must further examine the impact of both a “claim” and a “lawsuit” оn preserving a party’s cause of action.

Generally, if a valid cause of action exists, a party may institute a lawsuit to redress the wrong or remedy the injury. A “lawsuit” is commencеd with the filing of a petition in a court of competent jurisdiction. La.Code Civ.P. art. 421. In the context of a medical malpractice suit against the state or one of its agencies, a party must initially avail itself of a medical review panel before initiating a lawsuit in a court of competent jurisdiction.

Pursuant to La.R.S. 40:1299.39.1, a party must file a medical review claim to preserve his right to institute a subsequent lawsuit. Failure to comply with the requisite medical review results in the procedural exclusion of a lawsuit due to prematurity. A medical malpractice suit is not appropriately ‍​‌​‌​​‌‌​‌​​​​‌​‌​‌‌​‌​‌‌​‌​‌​​‌​​‌‌​​​‌​​​‌​‌​‌‍filed in a court of competent jurisdiction until either 1) the medical review panel renders an opinion, 2) Lboth parties agree tо waive the medical review procedure, or 3) the medical review panel does not render an opinion within twelve months after panel selection. La.R.S. 40:1299,39.1(B).

In this case, the filing of a medical review claim is equivalent to the filing of a lawsuit, for purposes of La.R.S. 13:5105(A). Plaintiff timely filed his claim with the medical review panel on October 15, 1992. The filing essentially preserved plaintiffs medical malpractice suit. If plaintiff had failed to comply with La.R.S. 40:1299.39.1, his lawsuit could not have been properly maintained in a court of competent jurisdiction.

The remaining issue centers on which version of La.R.S. 13:5105(A) is applicable to the instant suit. Cole v. Celotex Corp., 599 So.2d 1058 (La.1992) is suggestive. In Cole, the Louisiana Supreme Court held that “[ojnce a party’s cause of action accrues, it becomes a vested property right that may not constitutionally be divested.” Id. at 1063. See also Crier v. Whitecloud, 496 So.2d 305, 308 (La.1986); Fаucheaux v. Alton Ochsner Medical Foundation Hospital and Clinic, 470 So.2d 878, 879 (La.1985).

Specifically, the court stated, “statutes enacted after the acquisition of such a vested property right ... cannot be retroactively *303applied so as to divest the plaintiff of his vested right in his cause of action because such a retroactive application wоuld contravene the due process guaranties.” Cole v. Celotex Corp., 599 So.2d at 1063-64, citing Faucheaux v. Alton Ochsner Medical Foundation Hospital and Clinic, 470 So.2d 878, 879 (La.1985).

In this case, plaintiff’s cause of action arose on October 28,1991. At that point, the cause of action became a vested property right in favor of plaintiff. Plaintiff timely filed his claim prior to the 1993 amendment to La.R.S. 13:5105(A). |sConsequently, plаintiffs claim ‍​‌​‌​​‌‌​‌​​​​‌​‌​‌‌​‌​‌‌​‌​‌​​‌​​‌‌​​​‌​​​‌​‌​‌‍should be governed by pre-amended La.R.S. 13:5105(A). The subsequent amendment to La.R.S. 13:5105(A) does not divest plaintiff of this right.

Furthermore, by enacting 1993 La. Acts 993, § 2, the state legislature intended La. R.S. 13:5105(A) to become effective January 1, 1994. The legislature also mandated that La.R.S. 13:5105(A) not be applied retroactively to suits filed prior to January 1, 1994. Thus, provisions of the pre-amended version of La.R.S. 13:5105(A) were applicable. The majority errs in concluding otherwise.

For the foregoing reasons, I respectfully dissent.