Opinion
NO. 2019-C-0447
04-24-2020
Donna BROWN v. Ralph CHESSON, M.D.
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
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
(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 )
Judge Regina Bartholomew-Woods recused.
Judge Rosemary Ledet This is a medical malpractice case against a qualified state health care provider, under the provisions of La. R.S. 40:1237.1, Ralph R. Chesson, M.D. Seeking review of the trial court's July 2, 2019 judgment denying his declinatory exceptions of insufficiency of citation and service of process and his peremptory exception of prescription, Dr. Chesson filed this writ application. For the reasons that follow, we grant the writ, reverse the trial court's ruling denying the declinatory exceptions of insufficiency of citation and service of process, grant those exceptions, and render judgment dismissing the suit without prejudice.
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 qualified 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. Chesson's favor in June 2015. Ms. Brown received a copy of that opinion in July 2015.
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."
According to Dr. Chesson, Ms. Brown subsequently requested service "at a different address" in October 2018.
In November 2018, Dr. Chesson filed declinatory exceptions of insufficiency of citation and service of process. In support, he cited his status as a qualified 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 La. R.S. 13:5107 and La. R.S. 39:1538 and that those statutes require that she serve the following three entities: (i) the head of the department for the Board of Supervisors of Louisiana State University Agriculture and Mechanical College; (ii) the Office of Risk Management; and (iii) the Attorney General of Louisiana. Subsequently, Dr. Chesson filed a peremptory exception of prescription. Following a hearing, the trial court denied all of the exceptions. This writ followed.
DISCUSSION
Following the "logical sequence" for addressing declinatory and peremptory exceptions when as here filed together, we first address Dr. Chesson's declinatory exceptions—insufficiency of citation and service—before reaching his peremptory exception—prescription. See Favorite v. Alton Ochsner Med. Found. , 537 So.2d 722, 723 (La. App. 4th Cir. 1988) (observing that the "logical sequence" of addressing exceptions is to first address the declinatory exception—there, venue—and then the peremptory exception—there, no cause of action); see also Schexnayder v. Gish , 06-579, p. 3 (La. App. 5 Cir. 12/27/06), 948 So.2d 313, 314. Because we find the declinatory exceptions have merit and grant them, we find it premature to reach the issue of whether the prescription exception was correctly denied. We thus pretermit that issue.
Standard of Review
Appellate 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 service 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 plaintiff-patient underwent the surgical procedure at issue. The plaintiff-patient sued and served only the defendant-doctor. The defendant-doctor filed an exception of insufficiency of service of process based upon his status as a qualified state health care provider and the plaintiff-patient's failure to comply with La. R.S. 13:5107 and La. R.S. 39:1538. The plaintiff-patient, in opposition, argued that compliance with those statutes was not required because suit was filed against the defendant-doctor in his individual capacity only. Following a hearing, the trial court sustained the defendant-doctor's exception and dismissed the plaintiff-patient's petition without prejudice. Velasquez , 13-1260, p. 2, 151 So.3d at 813. 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 ‘Department 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 La. R.S. 13:5107 ; La. R.S. 39:1538 ; Whitley v. State ex rel. Bd. of Sup'rs of Louisiana State Univ. Agr. Mech. Coll ., 11-0040, p. 18 (La. 7/1/11), 66 So.3d 470, 481 ).
Before filing suit, the plaintiff-patient requested a medical review panel from the Louisiana Division of Administration regarding allegations against the defendant-doctor, Ralph R. Chesson, M.D. (the same physician in the current proceedings). The plaintiff-patient alleged that after childbirth, the defendant-doctor performed a tubal ligation at University Hospital; but a year after the operation, she became pregnant. The Division of Administration notified the plaintiff-patient that the defendant-doctor was a qualified state health care provider and subsequently issued a certificate of qualification. After the medical review panel issued an opinion in the defendant-doctor's favor, the plaintiff-patient filed suit.
Rejecting the plaintiff-patient's attempt to evade the service requirements by claiming that the defendant-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 Division of Administration notified her by letter of his status and issued a certificate of qualification. Velasquez , 13-1260, p. 4, 151 So.3d at 815. Because University Hospital was a state-owned facility under the supervision and management of the Board of Supervisors, this court concluded that "[the defendant-doctor] is a state-employed physician and at least one of the above entities/persons [the Department Head, the ORM, or the Attorney General] should have been served." Id. , 13-1260, p. 4, 151 So.3d at 815. Accordingly, this court held that the plaintiff-patient's "failure to timely effectuate service on the proper parties warranted dismissal of the suit as [the plaintiff-patient] advanced no compelling reason for her failure to ascertain proper service." Id. , 13-1260, p. 5, 151 So.3d at 815.
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 state 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 mandated 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 La. R.S. 39:1538 ’s requirement that service on a state employee must be requested on one of the three designated parties for service of process." Id. , 18-0825,p. 5, 258 So.3d at 849. Accordingly, this court found that the trial court was manifestly erroneous in denying the defendant-physicians’ exceptions of insufficiency of citation and service of process. We, thus, reversed the trial court's ruling and granted the exceptions without prejudice. Id. , 18-0825,p. 6, 258 So.3d at 849.
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 supplemental petition for damages, seeking to add as defendants the Board of Supervisors of Southern University and Agricultural and Mechanical College, the State of Louisiana, and Southern University System. The Board of Supervisors filed an exception of insufficiency of service of process, which the trial court granted, dismissing the plaintiffs’ suit without prejudice.
Also on that date, the plaintiffs requested service of the original and first amended and supplemental petitions on multiple entities—the Board of Supervisors, Southern University and Agricultural and Mechanical College, through the Office of the Attorney General; Southern University System Office of the Chancellor, through the Office of the Attorney General; the Office of the Chancellor, Southern University New Orleans; the ORM; and the Attorney General. George , 19-0124, p. 2, 271 So.3d at 1290-91.
On appeal, this court observed that "[t]he applicability of the 90-days service request period [under La. R.S. 13:5107 ] is contingent upon whether the State of Louisiana is properly named as a defendant in the original petition for damages." George , 19-0124, p. 4, 271 So.3d at 1291-92. We framed this as the threshold issue to be decided before determining if dismissal of the action, based on insufficiency of service of process, was proper. Id. Addressing this threshold issue, this court observed:
[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 of 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 original petition for damages, plaintiffs had no obligation to request service upon the State of Louisiana within the statutory period of La. 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’ action pursuant to La. R.S. 13:5107, where the State of Louisiana was not initially a named defendant in the original petition for damages." Id. , 19-0124, p. 6, 271 So.3d at 1293. We further observed that "[s]ince the State of Louisiana was not a named defendant, the 90-days service request period was not activated when plaintiffs filed the original petition for damages." Id. For these reasons, we reversed the trial court's ruling granting the exception of insufficiency of service of process.
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 panel 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 La. R.S. 13:5107(D) and La. C.C.P. art. 1201(C) since none of the defendants was the "State, a state agency, or political subdivision, or any officer or employee." In contrast, because Dr. Chesson—the defendant-doctor in Velasquez —was an employee of the state, albeit named individually, La. R.S. 13:5107(D) and La. C.C.P. 1201(C) were triggered. Likewise, the same was true of the defendant-physicians in Wright . In both those cases, the defendant (or defendants) were qualified state health care providers, which must be served through the following entities: (i) the Department Head; (ii) the ORM; or (iii) the Attorney General. For these reasons, we find George did not create a conflict within this circuit.
The Instant Case
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 process 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 prejudice.
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
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.
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 I respectfully dissent from the majority, as I find this case requires a remand based on procedural and legal error.
When ruling upon the exceptions, the trial court stated:
I reviewed both the Velasquez case and the Gettys versus Wong case. Both of these are Fourth Circuit cases. Both of them are 2014 and they both say something different.
The Velasquez case as counsel pointed out talks about the plaintiffs -- it says: Plaintiff's attempt to evade the service requirements by claiming Dr. Chesson is being sued individually is without merit. However, even assuming Plaintiff's argument has merit, service would still not be proper." So I understand the state's position.
However, the Fourth Circuit also talked about in Wong and it's noted that the Civil District Court denied the exception. The hospital took this one up for supervisory writ. The Court of Appeal denied it but the Supreme Court -- and then the hospital applied for a Writ of Cert. The Supreme Court granted the writ and remanded it back to the Court of Appeal. So on the second consideration of this same issue, the Court of Appeal affirmed the denial saying that, number one, the hospital is the employer and is an indispensable party, but also that the service against the physician interrupted the prescriptive period for an action against the physician's employer. So you're both right. And I understand the Second Circuit, that's not binding on me.
* * *
These two are and so I am going to -- then I'm faced with what do I do, because I have one telling me you're right and one telling me you're right. I believe that since service was effected on the doctor timely, I'm going to agree with the Gettys versus Wong case that the service interrupted prescription as to the employer and that the hospital, the state agency is an indispensable party in this matter. As you point out, counsel, any judgment against the doctor is going to be a judgment against the state. They're an indispensable party. And so I believe that this case, Gettys versus Wong , is going to allow the plaintiffs to amend and bring the -- or serve the state and bring them in, and so I'm going to overrule the exceptions. I understand both points and that's what I believe is the right thing to do in this case. I'm sure if that's not correct, you'll let me know or somebody will let me know.
By relying on Gettys1 to deny both of Dr. Chesson's exceptions, the trial court conflated the issues of service, nonjoinder of a party, and prescription. Therefore, I find the trial court legally erred due to this conflation of issues. Particularly, the issue of prescription was premature while the claims of insufficient service and the trial court's notice of nonjoinder of a party were pending. Cf . Russell v. Jones , 17-585, p. 5 (La. App. 5 Cir. 3/12/18), 239 So. 3d 1083, 1087 ("the trial judge erred in granting the exception of prescription while the plaintiffs’ allegation of solidary liability between the two liability insurers [was] pending."). Accordingly, I would vacate the judgment of the trial court and remand for further proceedings.
LOBRANO, J., DISSENTS FOR THE REASONS ASSIGNED BY JUDGE LOVE.
BELSOME, J., DISSENTS WITH REASONS
I respectfully dissent from the majority opinion, which finds that the trial court erred in denying the defendant's exceptions of insufficiency of service of process and prescription. Given that the trial court correctly denied the exceptions, I would deny the writ application.
In addressing the exception of insufficiency of service of process, the defendant argues that he is a State employee; therefore, the plaintiff was required to serve his department head, the Attorney General and the Office of Risk Management within ninety days of the commencement of the action. He concludes that since these entities were not timely served, the suit must be dismissed.
In the petition for damages, the plaintiff, Donna Brown, named Ralph R. Chesson M.D. as the defendant. Significantly, she did not name the defendant in his capacity as an employee of the State of Louisiana, the State, or any agency of the State in her lawsuit. As a result, she had no obligation to effect service on the State pursuant to La. R.S. 39:1538 or La. R.S. 13:5107. Those statutes provide for service upon the head of the department, the Office of Risk Management, and the Attorney General when there is a claim or suit against the State or a State agency. Since there is no claim against the State or a State agency, the service obligations required under La. R.S. 39:1538 and La. R.S. 13:5107 were not triggered. Accordingly, the trial court was correct in denying the defendant's exception of insufficiency of service of process.
Gettys v. Wong , 13-1138, pp. 6-7 (La. App. 4 Cir. 5/7/14), 145 So. 3d 460, 464 (denial of an exception of prescription filed by LSUHSC because "the claim against LSUHSC is solely derivative of the timely filed claim made against Dr. Wong.").
La R.S. 39:1538 requires service upon the head of the department, the Office of Risk Management, and the Attorney General when there is a claim against the State or its agencies for negligent or wrongful acts or omissions of any employee of the agency while acting within the scope of his office or employment.
La. R.S. 13:5107 provides that service may be perfected upon the Attorney General or the department head when there is a suit against the State or its agencies.
Turning to the exception of prescription, the defendant argues that since the State entities were not named in the lawsuit, prescription has tolled warranting dismissal of the suit. Given that the State is not a named party to this suit, any issue concerning prescription as to a non-party is premature. Significantly, the parties do not dispute that the lawsuit was timely filed and served upon the named Defendant, Dr. Chesson. As such, the trial court correctly denied the exception of prescription.
Given that the trial court correctly denied the defendant's exceptions of insufficiency of service of process and prescription, I would deny the writ application. For these reasons, I respectfully dissent.
LOMBARD, J., DISSENTED FOR THE REASONS ASSIGNED BY JUDGE LOVE