STEPHEN J. WINDHORST, Judge.
Appellants, Kathy Maestri and Kurt C. Burgenthal, individually, and on behalf of the estate of their deceased mother, Dorothy Lucille Reynolds, appeal the trial court's September 4, 2014 judgment sustaining the exception of prescription filed by Cherie Pazos, N.P., appellee. For the reasons which follow, we affirm.
On August 3, 2012, Dorothy Reynolds was admitted to Oceans Behavioral Hospital of Greater New Orleans ("Oceans"), a geriatric psychiatric hospital. Mrs. Reynolds' admission history and physical were performed by appellee under the supervision of Dr. Parimal Parikh.
Appellants' petition alleged that on August 9, 2012, appellee noted Mrs. Reynolds had "sacral redness" and ordered Boudreaux's butt paste to be applied. Appellants also alleged that appellee noted Mrs. Reynolds' skin problems were worsening and altered the topical regimen; however, she did not notify Mrs. Reynolds' treating physician or family. The petition further alleged that appellee failed to order pressure reduction measures and chose not to order that Mrs. Reynolds be turned at least every two hours.
Mrs. Reynolds' decubitus ulcer continued to deteriorate, and she was transferred to East Jefferson General Hospital for treatment on August 15, 2012. The petition further alleged that Mrs. Reynolds' decubitus ulcer worsened, and was a substantial factor in her death on October 24, 2012.
On October 16, 2013, appellants filed a complaint with the Louisiana Patients Compensation Fund (PCF) which claimed that Mrs. Reynolds' injuries and death were caused by the joint negligence of Oceans, Dr. Parikh, and appellee. On October 30, 2013, the PCF sent a letter to appellants' counsel notifying appellants that Oceans and Dr. Parikh were qualified health care providers, but appellee was not a qualified health care provider, thus she was not covered under the Louisiana Medical Malpractice Act (LMMA). Appellants received the notice on October 31, 2013.
On February 20, 2014, appellants filed a wrongful death and survival action against appellee in the Twenty-Fourth Judicial District Court, Jefferson Parish. Appellants contended that Mrs. Reynolds' decubitus ulcer was preventable and should not have occurred while she was a patient at Oceans. Appellants also claimed that appellee deviated from the applicable medical standards and her breach was a substantial factor in Mrs. Reynolds' prolonged infection, pain and suffering, sepsis, and death. Appellants further claimed that their claim was timely filed with the PCF on "October 15, 2013," and they were notified on "December 23, 2013," that appellee was not a qualified health care provider.
On July 28, 2014, appellee filed an exception of prescription contending that appellants' petition was untimely because it was filed more than 90 days after the notification letter from the PCF stating that appellee was not a qualified health care provider.
Appellants filed an opposition to appellee's exception of prescription arguing that the filing of the claim with the PCF suspended the accrual of the prescriptive period against all joint tortfeasors. La. R.S. 40:1299.47A(2)(a).
On September 4, 2014, the trial court granted appellee's exception of prescription. This appeal followed.
Appellants contend that the trial court erred, as a matter of law, in granting appellee's exception of prescription and dismissing appellants' claims with prejudice. Alternatively, appellants contend that they should be allowed to amend their petition for damages to allege facts demonstrating their claims against appellee are not prescribed.
The burden of proving prescription ordinarily lies with the party raising the exception, but when prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show that the action has not prescribed. In re Noe, 05-2275 (La. 5/22/07), 958 So.2d 617, 621-622. Evidence may be introduced to support or controvert an exception of prescription Id. at 622; La. C.C.P. art. 931.
Prescription in this medical malpractice case is governed by La. R.S. 9:5628 A and provides, in part:
Further, La. R.S. 40:1299.47 A(2)(a) provides, in pertinent part:
Mrs. Reynolds passed away on October 24, 2012, and the PCF complaint was filed on October 16, 2013. The filing of the complaint suspended the accrual of the original prescriptive period which had, at the time of filing, eight days remaining. La. R.S. 40:1299.47 A(2)(a).
On October 30, 2013, the PCF sent notification to appellants through their counsel that Dr. Parikh and Oceans were qualified health care providers under the MMA, but appellee was not a qualified health care provider. Appellants received this notification on October 31, 2013.
Appellants had 90 days after they received notification that appellee was not covered (January 29, 2014), plus the remaining eight (8) days, or until February 6, 2014, to file their petition against appellee. The appellants' petition, filed on February 20, 2014, was filed beyond the 90 day period of suspension provided for by La. R.S. 40:1299.47 A(2)(a), and is therefore untimely.
The appellants do not dispute that their petition was filed beyond the 90 day period of suspension. Appellants, however, contend that appellee is a joint tortfeasor with Dr. Parikh and Oceans as alleged in the PCF complaint. Therefore, prescription continues to remain suspended by the timely filing of the PCF complaint against Dr. Parikh and Oceans and all joint tortfeasors, including appellee, pursuant to the second sentence of La. R.S. 40:1299.47 A(2)(a).
Appellants contend that this case is similar to the facts in Milbert v. Answering Bureau, Inc., 13-0022 (La. 6/28/13), 120 So.3d 678, wherein the Louisiana Supreme Court held that the timely request for a medical review panel against the health care providers suspended prescription under La. R.S. 40:1299.47 A(2)(a) against all joint tortfeasors and solidary obligors, including Dexcomm, a non-qualified health care provider. Milbert, 120 So.3d at 689.
In Milbert, Daniel Milbert, was allegedly injured on September 7, 2008, by the negligence of several health care providers and Dexcomm, a physician telephone answering service. Id. at 680. Plaintiffs filed a timely PCF complaint on August 28, 2009, against the various health care providers. Id. On November 20, 2009, more than one year after the alleged negligence, the plaintiffs filed an amended PCF complaint adding Dexcomm as a defendant. Id. at 681. On December 7, 2009, the PCF notified plaintiffs that Dexcomm was not a qualified health care provider. Id. While the medical review panel request was still pending against the qualified health care
In Milbert, Dexcomm filed a motion for summary judgment alleging that plaintiffs' suit was prescribed because the plaintiff did not file the suit in the district court against Dexcomm until more than 15 months after the alleged act of negligence. Id. Plaintiff argued the timely filing of the medical review panel request against the health care providers continuously suspended prescription against the health care providers and all joint tortfeasors and solidary obligors, like Dexcomm, under the second sentence in La. R.S. 40:1299.47 A(2)(a). Id. The Louisiana Supreme Court explained the difference between the first and second sentences in La. R.S. 40:1299.47 A(2)(a):
The Supreme Court held, under the facts of this case, that a non-health care provider may be a joint tortfeasor with a health care provider against whom a medical malpractice complaint has been filed, such that the suspension of the time limitations for filing suit under La. R.S. 40:1299.47 A(2)(a) may apply to the filing of suit against the non-health care provider. Id. at 689.
Milbert is distinguishable from the facts in this case. First, in Milbert, the plaintiff did not initially file a complaint against the non-qualified health care provider, Dexcomm, within one year of the alleged incident. When the complaint was originally filed, Dexcomm was a non-named defendant who was added more than a year after the alleged incident. Second, in Milbert, the plaintiffs filed suit against Dexcomm in the district court within 90 days of the PCF's decision that Dexcomm was
Based on the foregoing, appellants' claim filed on February 20, 2014, is untimely because it was filed more than 90 days after appellants were notified that appellee was a non-qualified health care provider. The trial court did not err in sustaining appellee's exception of prescription. Furthermore, appellants are not entitled to amend their petition. "If the grounds of the objection raised through the exception cannot be so removed, or if the plaintiff fails to comply with the order to amend, the action, claim, demand, issue, or theory shall be dismissed." La. C.C.P. art. 934. Appellants conceded that their petition was filed beyond the 90 period after notification was provided by the PCF that appellee was a non-qualified health care provider, and thus the objection cannot be removed by amendment. Accordingly, the trial court's judgment is affirmed, and all costs are assessed against the appellants.
AFFIRMED
LILJEBERG, J., dissents with reasons.
LILJEBERG, J., dissents with reasons.
I have considered the opinion of the majority, and based on the applicable statutory language set forth in La. R.S. 40:1299.47(A)(2)(a) and La. R.S. 40:1299.41(G) of the LMMA, I cannot agree. For the following reasons, I believe the trial court improperly granted the Exception of Prescription filed by appellee, Cheri Pazos, N.P., and dismissed appellants' claims.
On October 16, 2013, appellants filed a request for a medical review panel alleging the conduct of Oceans Behavioral Hospital of Greater New Orleans ("Oceans"), Dr. Parimal Parikh, and appellee, all caused injuries to their mother, Dorothy Lucille Reynolds, which resulted in her death. On October 30, 2013, the PCF sent appellants a letter notifying them Dr. Parikh and Oceans were qualified health care providers. The letter also advised appellants Ms. Pazos was not a qualified health care provider covered under the LMMA. Therefore, the medical review panel remained pending against Dr. Parikh and Oceans.
The majority finds pursuant to the first sentence of La. R.S. 40:1299.47(A)(2)(a), prescription began to run again with respect to appellants' claims against Ms. Prazos when they received the PCF's October 30, 2013 letter. However, this matter involves joint tortfeasors, which requires the application of the second sentence of La. R.S. 40:1299.47(A)(2)(a). The relevant language in this sentence states that when a matter involves joint tortfeasors, a pending claim before the medical review panel suspends the running of prescription against nonqualified health care providers.
In addition, La. R.S. 40:1299.41(G) provides: