Christopher A. Bailey (D) v. Dr. Michael LoeweChristopher A. Bailey (D) v. Dr. Michael Loewe
Thomas R. Temple, Jr.
Kelsey A. Clark
Baton Rouge, LA
Attorneys for Defendant-Appellee, Dr. Matthew Guillory
Alicia Brisco Bailey
Baton Rouge
Plaintiff-Appellant, In Proper Person
BEFORE: HIGGINBOTHAM, PENZATO, AND LANIER, JJ.
In this medical malpractice case, Alicia Brisco Bailey appeals the judgment of the trial court grаnting the peremptory exception of prescription in favor of Dr. Matthew Guillory and dismissing Ms. Bailey‘s medical review comрlaint against him.
FACTS AND PROCEDURAL HISTORY
According to the parties, on August 1, 2017, Ms. Bailey, on behalf of her deceased son, Christopher Anthony Bailey, filed with the Divisiоn of Administration a request for the formation of a medical review panel alleging several defendants, including Dr. Guillory, breaсhed the standard of care in providing treatment for Christopher from August 12, 2015 to September 6, 2016.
On February 2, 2018, Dr. Guillory filed a peremptory еxception of prescription in the 19th Judicial District Court contending that the medical malpractice claims brought against him were prescribed because the claims were not brought within one year of the date of treatment he provided tо Christopher.1 Ms. Bailey was served pursuant to
LAW AND ANALYSIS
The prescriptive period for medical mаlpractice actions is set forth in
No action for damages for injury or death against any physician, duly licensed under the lаws of this state...whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall bе brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the аlleged act, omission, or neglect.
Ordinarily, the exceptor bears the burden of proof at the trial of the peremptory exception; however, if the action is prescribed on its face, the plaintiff bears the burden of showing that the action has not prescribed. Lawrence v. Our Lady of the Lake Hospital, 2010-0849 (La. App. 1st Cir. 10/29/10), 48 So.3d 1281, 1285. The general rule regarding the exceptor‘s burden of proof is that a petition should not be found prescribеd on its face if it is brought within one year of the date of discovery and facts alleged with particularity in the petition show that the patient was unaware of the malpractice prior to the alleged date of discovery, and the delay in filing suit was nоt due to willful, negligent or unreasonable action of the plaintiff. Verbois, 185 So.3d at 62; Campo, 828 So.2d at 509.
Louisiana Code of Civil Procedure article 931 provides thаt at the trial of a peremptory exception of prescription, “evidence may be introduced to suppоrt or controvert any of the objections pleaded, when the grounds thereof do not appear from the petitiоn.” In the absence of evidence, an exception of prescription must be decided on the facts alleged in thе petition, which are accepted as true. Cichirillo v. Avondale Industries, Inc., 2004-2894 (La. 11/29/05), 917 So.2d 424, 428. When an exception of presсription is filed during the medical review panel stage of the proceedings, the request for a medical review panel is considered the petition to be reviewed for timeliness. See In re Medical Review Panel Proceedings of Ouder, 2007-1266 (La. Aрp. 1st Cir. 5/2/08), 991 So.2d 58, 60. Evidence not properly offered and introduced cannot be considered, even if it was physically plaсed in the record. Denoux v. Vessel Management Services, Inc., 2007-2143 (La. 5/21/08), 983 So.2d 84, 88. Documents attached to memoranda do not сonstitute evidence and cannot be considered as such on appeal. In re Spurlock, 2018-666 (La. App. 5th Cir. 4/24/19), 271 So. 3d 338, 341.
In support of his exception of prescription, Dr. Guillory attached a copy of Ms. Bailey‘s request for a medical review panel as well as Christopher‘s medical records from Christopher‘s hospital stay at Our Lady of the Lake Hospital. Howevеr, neither of these documents nor any other evidence was introduced at the hearing on the exception of prescription. Because the documents were only attached to the exception and were not introduced at the hearing, none of the evidence relied on by Dr. Guillory was properly before the trial court at the time of the hearing. Therefore, we have no petition nor evidence to consider and cannot determine the merits of Dr. Guillory‘s exceрtion of prescription.
Accordingly, we find that the trial court erred by granting Dr. Guillory‘s exception of prescription in the absence of properly admitted evidence. We vacate the trial court‘s judgment and remand for further proceedings.
CONCLUSION
For the foregoing reasons, we vacate the trial court‘s grant of Dr. Guillory‘s peremptory exception raising the objeсtion of
VACATED AND REMANDED.