Opinion
21-C-693
12-08-2021
IN RE: MEDICAL REVIEW PANEL PROCEEDING ON BEHALF OF STEVEN YOUNG (D) IN RE KIERNAN SMITH, M.D.
APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE MICHAEL P. MENTZ, DIVISION "F", NUMBER 819-090
Panel composed of Judges Fredericka Homberg Wicker, Hans J. Liljeberg, and John J. Molaison, Jr.
WRIT DENIED
In this medical malpractice proceeding, defendant, Dr. Kiernan Smith, seeks review of the trial court's October 18, 2021 judgment denying his Peremptory Exception of Prescription. After review, we find no basis upon which to disturb the trial court's ruling.
The judgment states that the exception of prescription was denied for the reasons stated in open court. However, the writ application does not include a transcript of the hearing in this matter and thus, the trial court's reasons have not been provided.
The prescriptive period for medical malpractice actions is set forth in La. R.S. 9:5628(A), which provides:
No action for damages for injury or death against any Physician …. arising out of patient care shall be 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 alleged act, omission, or neglect.
La. R.S. 40:1231.8(A)(2)(a) provides that the filing of a request for review of a medical malpractice claim suspends the time within which suit must be instituted until ninety days after the claimant or his attorney is notified, by certified mail, of the issuance of the opinion by the medical review panel. La. R.S. 40:1231.8(A)(2)(a) further provides that the filing of a request for review of a medical malpractice claim suspends the running of prescription against all joint and solidary obligors, and all joint tortfeasors, to the same extent that prescription is suspended against the party or parties that are the subject of the request for review.
Suspension of prescription is "a temporary halt to its running." LeBreton v. Rabito, 97-2221 (La. 7/8/98), 714 So.2d 1226, 1229. In Guitreau v. Kucharchuk, 99-2570 (La. 5/16/00), 763 So.2d 575, 579, the Louisiana Supreme Court stated:
…we hold that, when the ninety-day period of suspension after the decision of the medical review panel is completed, plaintiffs in medical malpractice actions are entitled to the period of time, under La. R.S. 9:5628, that remains unused at the time the request for a medical review panel is filed. Once a medical malpractice claim is submitted to the medical review panel, the prescriptive period is temporarily discontinued. Prescription commences to run again ninety days after the plaintiff has received notice of the panel's decision. That is, when the ninety day period expires, the period of suspension terminates and prescription commences to run again.
See also Cook v. Rigby, 19-637 (La.App. 1 Cir. 12/2/20), 316 So.3d 545, writ denied, 20-1504 (La. 3/9/21), 312 So.3d 559.
In the present case, the date of the alleged malpractice was June 22, 2018, and Steven Young died on July 2, 2018. Plaintiffs, Delores Schaefer and George Young, who are Steven Young's parents, filed a medical malpractice complaint against Dr. Bennett Hailey and Dr. Srinivas Kata on May 2, 2019, which suspended prescription against "all joint and solidary obligors, and all joint tortfeasors." The medical review panel's August 31, 2020 opinion was sent to counsel via certified mail on September 8, 2020, and plaintiffs' counsel contends he received notification of the opinion on September 15, 2020. Thereafter, plaintiffs filed a medical malpractice complaint against Dr. Kiernan Smith on January 21, 2021.
In determining whether or not the medical malpractice claim against Dr. Smith was timely filed within the one-year prescriptive period set forth in La. R.S. 9:5628(A), we exclude both the suspended time during which the medical malpractice complaint against Dr. Hailey and Dr. Kata was pending before the medical review panel and the ninety days after plaintiffs received notice of the panel's decision. Based on this suspension of time, plaintiffs' medical malpractice complaint against Dr. Kiernan Smith was timely filed on January 21, 2021.
Accordingly, we find no error in the trial court's denial of Dr. Smith's Peremptory Exception of Prescription, and we deny this writ application.
HJL
FHW
JJM
SUSAN M. CHEHARDY CHIEF JUDGE FREDERICKA H. WICKER JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON STEPHEN J. WINDHORST HANS J. LILJEBERG JOHN J. MOLAISON, JR. JUDGES
NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY