386 So. 2d 191 | La. Ct. App. | 1980
Sued for medical malpractice, defendant physician excepted on the grounds of prematurity, because (unlike the nurse and hospital in Chivleatto v. Divinity, La. App. 4 Cir. 1979, 379 So.2d 784), he showed he had qualified and is “covered” by the Medical Malpractice Act, La.R.S. 40:1299.-41-48. The trial court sustained the exception but merely stayed the suit instead of dismissing it.
We grant writs and dismiss as expressly required both by La.C.C.P. 933’s general rule “If the dilatory exception pleading prematurity is sustained, the suit shall be dismissed” and by R.S. 40:1299.47B’s special rule “No action against a health care provider covered by this Part, . . . may be commenced in any court of this state before . . . presented to a medical review panel. . . . ”
Plaintiffs’ fear that their claim will be prescribed is answered by R.S. 40:1299.-47A: “The filing of the request for review of a claim shall suspend the time within which suit must be instituted, until ninety days following the issuance of the opinion by the medical review panel.” Plaintiffs did file a request the same day they filed their suit and are thereby protected against the running of prescription.
It is therefore ordered that the Honorable Joseph V. DiRosa, Judge, Civil District Court for the Parish of Orleans, Division “F” (L), recall his ruling staying these proceedings as to defendant Brumfield and in lieu thereof enter a dismissal of that defendant at plaintiffs’ cost.