DONNA BROWN VERSUS RALPH CHESSON, M.D.
NO. 2019-C-0447
COURT OF APPEAL FOURTH CIRCUIT STATE OF LOUISIANA
April 24, 2020
APPLICATION FOR WRITS DIRECTED TO CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2015-09740, DIVISION “B-1” Honorable Rachael Johnson
Judge Rosemary Ledet
(Court composed of Chief Judge James F. McKay, III, Judge Terri F. Love, Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge Joy Cossich Lobrano, Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins, Judge Paula A. Brown, Judge Tiffany G. Chase, Judge Dale N. Atkins)1
MCKAY, C.J., CONCURS IN THE RESULT
DYSART, J. CONCURS IN THE RESULT.
JENKINS, J., CONCURS IN THE RESULT
LOVE, J., DISSENTS AND ASSIGNS REASONS
LOMBARD, J., DISSENTED FOR THE REASONS ASSIGNED BY JUDGE LOVE
BELSOME, J., DISSENTS WITH REASONS
LOBRANO, J., DISSENTS FOR THE REASONS ASSIGNED BY JUDGE LOVE.
Jeff Landry, Attorney General
William David Coffey, Lead Appeal Council
LA DEPARTMENT OF JUSTICE
Litigation Division
1450 Poydras Street, Suite 900
New Orleans, LA 70112
COUNSEL FOR RELATOR/DEFENDANT
Richard Thomas Gallagher, Jr.
GALLAGHER WESTHOLZ & POTTER
111 Veterans Memorial Blvd., Suite 1400
Metairie, LA 70005
COUNSEL FOR RESPONDENT/PLAINTIFF
WRIT GRANTED; RULING ON EXCEPTIONS OF INSUFFICIENCY OF CITATION AND SERVICE OF PROCESS REVERSED; EXCEPTIONS OF INSUFFICIENCY OF CITATION AND SERVICE OF PROCESS GRANTED; SUIT DISMISSED WITHOUT PREJUDICE
April 24, 2020
FACTUAL AND PROCEDURAL BACKGROUND
As noted at the outset, Dr. Chesson is a qualified state health care provider. Before filing this suit, the plaintiff-patient, Donna Brown, filed a complaint against Dr. Chesson with the Division of Administration in October 2012. The Division of Administration notified Ms. Brown that Dr. Chesson was a qualifiеd state health care provider and subsequently issued a certificate of qualification. A medical review panel was formed. The medical review panel rendered an opinion in Dr.
After receiving the panel‘s opinion, Ms. Brown filed this suit solely against Dr. Chesson in October 2015. In her petition, she alleged that Dr. Chesson committed medical malpractice during a November 2011 surgery and the post-operative care. The specifics of the petition are not necessary for deciding the issues presented by this writ. In her petition, Ms. Brown requested that Dr. Chesson be served at his office—“4228 Houma Blvd., Suite 600 A, Metairie, LA 70006.”2
In November 2018, Dr. Chesson filed declinatory exceptions of insufficiency of citation and service of process. In support, he cited his status as a quаlified state health care provider. The gist of his argument was that, given his status, coupled with Ms. Brown‘s claim for money damages against him, the governing statutory provisions are
DISCUSSION
Following the “logical sequence” for addressing declinatory and peremptory exceptions when as here filed together, we first address Dr. Chesson‘s declinatory
Standard of Review
Appеllate courts review trial courts’ rulings on declinatory exceptions of insufficiency of citation and service of process under the manifest error standard of review. Wright v. State, 18-0825, p. 1 (La. App. 4 Cir. 10/31/18), 258 So.3d 846, 847, writ denied, 18-1931 (La. 1/28/19), 262 So.3d 902; Velasquez v. Chesson, 13-1260, p. 3 (La. App. 4 Cir. 10/8/14), 151 So.3d 812, 814 (observing that “a judgment dismissing an action for failure to timely request serviсe is subject to the manifest error standard of review“).
Service on a Qualified State Health Care Provider
This court in both Velasquez and Wright addressed the issue of proper service on a qualified state health care provider. To provide a background for analyzing the issue presented here, we briefly summarize those two cases.
The Velasquez Case
In Velasquez, the plaintiff-patient filed a medical malpractice action against the defendant-doctor, who was employed at University Hospital, where the
On appeal, this court observed that “[a] suit against a qualified state health care provider requires service to be effected on: (1) the head of the department for the Board of Supervisors of Louisiana State University Agricultural and Mechanical College [the ‘Departmеnt Head‘]; (2) the Office of Risk of Management [the ‘ORM‘]; or (3) the Attorney General of Louisiana [the ‘Attorney General‘].” Velasquez, 13-1260, p. 4, 151 So.3d at 814 (citing
Rejecting the plaintiff-patient‘s attempt to evade the service requirements by claiming that the defendаnt-doctor was being sued in his individual capacity only, this court observed that the plaintiff-patient “was well aware and amply advised of [the defendant-doctor‘s] status as a qualified health care provider” when the
The Wright Case
In Wright, the plaintiff-patient filed a petition, after a medical review panel issued its opinion, requesting service on each of the defendant-physicians, who were stаte employees. The defendant-physicians filed exceptions of insufficiency of citation and service of process, which the trial court denied. In seeking supervisory review, the defendant-physicians argued that service on them rather than on the three required State entities was insufficient.
Agreeing with the defendant-physicians, this court granted their writ. In so doing, this court, in a writ opinion, quoted extensively from Velasquez, observing:
Like the instant matter, the plaintiff in Velasquez requested service on a state-employed physician, the only named defendant in the action, at his work address, rather than through one of the mаndated agents for service of process. The Court noted that “[a] suit against a qualified state health care provider requires service to be effected on: (1) the head of the department for the Board of Supervisors of Louisiana State University Agricultural and Mechanical College; (2) the Office of Risk of Management; [and] (3) the Attorney General of Louisiana.” Id., p. 4, 151 So.3d at 814. The
Court likewise cited Barnett v. Louisiana State Univ. Med. Ctr.-Shreveport, 02-2576, p. 1 (La. 2/7/03), 841 So.2d 725, 726 for the principle that “[P]laintiffs are strictly held to the obligation of serving the correct agent for service of process, [ ] as well as to the obligation of serving the named state defendants within the time period specified by
La. R.S. 13:5107(D)(1) .” Id. pp. 4-5, 151 So.3d at 814.
Wright, 18-0825, pp. 4-5, 258 So.3d at 848-49. This court gave “effect to
The George Case: Conflict Within This Circuit
The parties to the instant writ application raised the issue of whether this court‘s decision in George v. ABC Ins. Co., 19-0124 (La. App. 4 Cir. 5/8/19), 271 So.3d 1289, writ denied, 19-944 (La. 9/24/19), 279 So.3d 886, created a conflict with this court‘s prior decisions in Velasquez and Wright. To address this issue, this court submitted this writ to an en banc panel for review and held oral arguments. In order to place this issue in context, a brief review of the George case is necessary.
In George, the plaintiffs filed suit against Southern University New Orleans (“SUNO“)—a non-profit corporation—and ABC Insurance Company in May 2017. The plaintiffs alleged that Ms. George sustained personal injuries after fainting inside a campus facility. The plaintiffs requested service on SUNO at its principal place of business through the Chancellor‘s Office. In January 2018, the plaintiffs filed a request for leave to file a first amended and supplеmental petition
On appeal, this court observed that “[t]he applicability of the 90-days service request period [under
[T]he original petition for damages names the following defendant: “Southern University New Orleans (“SUNO“) made a party defendant herein, is a non-profit corporation authorized to do and doing business in the State of Louisiana. . . .” Plaintiffs did not name the State of Louisiana, or a state agency, as a party in the original petition for damages.
La. R.S. 13:5107(D)(1) requires that service оf process be requested within 90-days of the commencement of the action or filing of the supplemental or amended petition for damages when the state is initially named as a party. However, because the State of Louisiana was not a named party in the оriginal petition for damages, plaintiffs had no obligation to request service upon the State of Louisiana within the statutory period ofLa. R.S. 13:5107 .
George, 19-0124, p. 5, 271 So.3d at 1292. We, thus, concluded that “[t]he initial service request on Southern University New Orleans’ Chancellor‘s Office was insufficient to warrant dismissal of plaintiffs’ aсtion pursuant to
As noted elsewhere in this opinion, the argument that the George case created an inconsistency within our circuit prompted this court to submit this case to an en banc рanel for consideration. Upon analysis, we conclude the George case is distinguishable from the Velasquez and Wright cases. Although all three cases pertain to an exception of insufficiency of service of process, the basis for the applicability of the statutes differ. The named defendants in Velasquez and Wright were either the “State, a state agency, or political subdivision, or any officer or employee.” In contrast, the named defendant in George was a non-profit corporation—SUNO. The plaintiffs’ error in George in naming the wrong entity did not trigger the application of
Turning to the instant case, we find Dr. Chesson‘s contention that the trial court erred in denying his declinatory exceptions of insufficiency of citation and service of prоcess has merit. This court‘s holdings in Velasquez and Wright are dispositive and dictate those exceptions be granted.
CONCLUSION
Accordingly, we grant the Relator‘s writ application. We reverse the trial court‘s ruling on the declinatory exceptions of insufficiency of citation and service of process. We grant those exceptions, and we dismiss Ms. Brown‘s suit without prejudicе.
WRIT GRANTED; RULING ON EXCEPTIONS OF INSUFFICIENCY OF CITATION AND SERVICE OF PROCESS REVERSED; EXCEPTIONS OF INSUFFICIENCY OF CITATION AND SERVICE OF PROCESS GRANTED; SUIT DISMISSED WITHOUT PREJUDICE