In re Medical Review Panel for the Claim of Dede
STATEMENT OF THE CASE
Relators, Tulane University Medical Center, Michael Kiernan, M.D., Ralph Corsetti, M.D., and Rodney Steiner, M.D., seеk review of the trial court’s judgment deferring to trial a ruling on their exception of prescriptiоn.
Respondents filed the present medical malpractice claim with the Louisiana Patiеnts’ Compensation Fund on 20 October 1995, asserting survival and wrongful death actions against the relators аnd alleging that relators committed medical malpractice in the placement of а central line in their infant, Desta-ny. The child was admitted to Tulane University Medical Center on 20 April 1994. On 6 May 1994, relators inserted a left femoral central line to provide intravenous access. On 15 May 1994, it wаs discovered that the central line had eroded through the wall of a blood vessel causing fluids to infuse in .an area around the child’s spinal cord. .This infusion caused a chemical spinal shoсk and rendered the child a quadriplegic. On 10 August 1994, the child was discharged from Tulane Medical Center аnd transferred to Southdown Care Center in Houma, Louisiana. On 23 September 1994, the child was admitted to Childrеn’s Hospital for cardiopulmonary problems. The child died at Ter-rebonne General Hospital on 18 October 1994.
Relators filed an exception of prescription arguing that the claims were filed more than seventeen months after treatment at Tulane and over a year after the child’s death and, therefore, were prescribed pursuant to La. R.S. 9:5628. Respondents cоunter that they did not discover Tulane’s malpractice until their attorney had reviewed the child’s mеdical records from Children’s Hospital. The trial court conducted a hearing on the excеption and referred it to the trial on the merits, finding that “the evidence on prescription is so intеrtwined with evidence of merits.”
| ^¿ANALYSIS
Relators argue that the trial court erred when it deferred ruling on the exception of prescription because the case is still with the medical review panel, and there is no pending trial on the merits to which the exception can be deferred. Relators further suggest that this Court should vacate the trial court’s judgment and rule on the merits of this exceрtion.
La.C.C.P. article 929 provides that an exception of prescription may be considеred prior to trial when the exception has been filed prior to answering the suit. The trial cоurt relied on Short v. Griffin, 95-0680 (La.6/16/95),
The Supreme Court found no abuse of the trial court’s discretion in the latter’s conclusion that the facts of the prescription claim were so intertwined with the underlying accounting malpractiсe, breach of fiduciary duty and Blue Sky violations claims that separate trial of the excеption and the merits would be a waste of judicial resources. However, in the instant case thе claim is pending before the medical review panel and there is no pending trial on the mеrits. The procedure provided by the Medical Malpractice Act distinguishes this case from Short and makes the judicial economy argument on which the trial court relied herein inapplicаble.
Relators filed their exception of prescription pursuant to La. R.S. 40:1299.47(B)(2)(a),(b) which provides that “[a] health care provider, against whom a claim has been filed under the provisions of this Part, may raise any exception or defenses available pursuant to R.S. 9:5628 in a court of сompetent jurisdiction and proper venue at any time without the need for completion of the review process by the medical review panel.... If the court finds that the claim has рrescribed or otherwise was preempted prior to being filed, the panel, if established, shаll be dissolved.” The statute appears to suggest that a ruling on an excep
The ruling on the prescription issue turns on the credibility of the parties as to when the respondents knew or should have known that the child’s quadriplegia was caused by the relators’ malpractice. See La.R.S. 9:5628; Corsey v. State, Through Dept. of Corrections,
CONCLUSION AND DECREE
We grant relators’ writ application, vacate the trial court’s ruling and remand the case to the trial court for a determination of the merits of the relators’ exception of prescription.
WRIT GRANTED, TRIAL COURT RULING VACATED, CASE REMANDED.