Opinion
CIVIL ACTION NO. 03-2039, SECTION "A" (5)
December 15, 2003
ORDER AND REASONS
Before the Court is a Motion to Dismiss on Grounds of Prescription (Rec. Doc. 4) filed by defendants K.E. Vogel and Vogel Leclercq, a Professional Medical Corporation. Plaintiff's, Betty Joyce Miller and Johnny D. Miller, oppose the motion. The motion, set for hearing on November 6, 2003, is before the Court on the briefs without oral argument. For the reasons that follow, the motion is GRANTED.
Background
Defendant K.E. Vogel, M.D. is a physician licensed to practice medicine in New Orleans, Louisiana. Betty Joyce Miller alleges that Vogel treated her and ultimately performed surgery on her back in October 1998. She contends that Vogel committed medical malpractice which she discovered on September 14, 1999. Miller's complaint is silent as to her specific injuries and as to the specific acts of malpractice Vogel allegedly committed.
Betty Miller and Johnny D. Miller filed suit against Vogel and his medical corporation on September 12, 2000, in the Southern District of Houston. The district court granted Defendants' motion to transfer the case to this district due to improper venue. On February 20, 2001, Judge Berrigan dismissed the suit as premature because Plaintiff's had not presented the case to a medical review panel prior to filing suit. Plaintiff's filed their request for a medical review panel on March 1, 2001. The panel rendered its decision on or about April 16, 2003, denying Plaintiff's relief. Plaintiff's filed the instant suit on July 2, 2003.
Civil Action 01-0098 (Section C).
Defendants now move to dismiss the complaint arguing that Plaintiffs' claims are prescribed because Plaintiff's failed to request a medical review panel within the time delay provided by Louisiana law
In response, Plaintiff's argue the Defendants waived the prescription defense by not raising it before the medical review panel. They also argue that principles of equitable tolling should apply to render their suit timely.
Discussion
Louisiana law contains a specific prescriptive period for medical malpractice actions. Louisiana Revised Statute 9:5628 provides in pertinent part:
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. . . .
La.Rev.Stat. Ann. § 9:5628(A) (West Supp. 2003). Moreover, Louisiana's Medical Malpractice Act, La.R.S. 40:1299.41, et seq., provides additional protections for physicians who "qualify" under the Act. See Sewell v. Doctors Hosp., 600 So.2d 577, 278 (La. 1992). One such protection lies in section 1299.47 which provides that:
It is undisputed that Defendants are "qualified health care providers" under the Act.
No action against a health care provider covered by this Part, or his insurer, may be commenced in any court before the claimant's proposed complaint has been presented to a medical review panel established pursuant to this Section.
La.Rev.Stat. Ann. § 40:1299.47(B)(1)(a)(i) (West Supp. 2003).
The filing of a claim with the medical review panel does not interrupt prescription. LeBreton v. Rabito, 714 So.2d 1226, 1230 (La. 1998). Rather, prescription is merely suspended while a claim is pending with the medical review panel and for 90 days thereafter. Id. at 1231; § 40:1299.47(6)(1)(a)(i). The Louisiana Supreme Court has unequivocally held that litigants cannot gain an advantage by failing to follow the proper procedural sequence in medical malpractice litigation. LeBreton, 714 So.2d at 1231; Geiger v. State of Louisiana, 815 So.2d 80 (La. 2002); Washington v. Fustok, 797 So.2d 56 (La. 2001). Accordingly, a civil action filed prior to seeking review by a medical review panel does not interrupt prescription. Geiger, 815 So.2d at 85. Finally, prescription cannot be suspended once it has already run. Id. (citingRizer v. American Sur. Fid. Ins. Co., 669 So.2d 387 (La. 1995)).
When prescription is interrupted, a new prescriptive period begins to commence after the period of interruption. Geiger, 815 So.2d at 84-85. When prescription is suspended, the time which preceded the suspension is added to the time which follows it. Id.
Miller discovered her injury on September 14, 1999, which means that prescription began to run on September 15, 1999. La. CIV. Code art. 3454 ("In computing a prescriptive period, the day that marks the commencement of prescription is not counted."). Because Defendants were qualified health care providers, Plaintiff's had one year, or until September 15, 2000, to seek review with the medical review panel. La. CIV. Code art. 3456 ("If a prescriptive period consists of one or more years, prescription accrues upon the expiration of the day of the last year that corresponds with the date of the commencement of prescription."). Rather than seek panel review, Plaintiff's filed suit on September 12, 2000, just three days before the claim was to prescribe. However, that suit was premature and therefore the district court dismissed the complaint without prejudice on February 21, 2001. Premature medical malpractice suits do not interrupt prescription which means that Plaintiff's had only three days remaining of the one year prescriptive period in which to seek review with the medical review panel. Plaintiffs' request for panel review was filed on March 1, 2001 — seven days later. Thus, Plaintiff's' claims prescribed before Miller filed a request for panel review. Given that Miller's claim was already prescribed, her request for panel review did nothing to affect prescription.
Plaintiff's argue that equitable tolling should apply to their case. Plaintiff's argue that the time that their premature suit was pending should not be counted against them. Assuming arguendo that principles of equitable tolling apply, Plaintiff's fail to note that Defendants' have not attempted to avail themselves of the time that the premature suit was pending in Texas and Louisiana. Had they attempted to do so, they would have argued that the claims had prescribed on September 15, 2000, i.e., that the pendency of the premature suit did not suspend prescription. Louisiana law is clear and consistent, however, that the time that had elapsed prior to the first: suit was forever lost and not subject to interruption. When the pre-lawsuit time is added to the time that elapsed between the district court's dismissal of the premature suit and Plaintiff's' filing of the request for panel review, the claim is clearly untimely.
Finally, Plaintiff's cite no authority for the proposition that Defendants' failure to raise the prescription issue before the medical review panel constituted some type of waiver of the defense. Nor has the Court's own research revealed any such authority.
Accordingly;
IT IS ORDERED that the Motion to Dismiss on Grounds of Prescription (Rec. Doc. 4) filed by defendants K.E. Vogel and Vogel Leclercq, a Professional Medical Corporation should be and is hereby GRANTED. Plaintiff's' complaint is DISMISSED WITH PREJUDICE.