Opinion
NO. 2017 CA 1764
02-22-2019
ROBERT L. ROYER v. OUR LADY OF THE LAKE HOSPITAL, INC., OUR LADY OF THE LAKE PHYSICIAN GROUP, LLC, KEITH BRIAN HODGE, M.D., LURA LABORDE WIGHT, M.D., AND LOUISIANA CARDIOVASCULAR SPECIALISTS, LLC D/B/A LOUISIANA CARDIOLOGY ASSOCIATES
Robert Layne Royer Baton Rouge, Louisiana Counsel Pro Se for Plaintiff/ Appellant, Robert L. Royer Douglas K. Williams Druit G. Gremillion, Jr. Baton Rouge, Louisiana Counsel for Defendant/Appellee Our Lady of the Lake Hospital, Inc. Ann M. Halphen Amy C. Lambert L. Adam Thames Ne'Shira Millender Baton Rouge, Louisiana Counsel for Defendants/Appellees Dr. Keith Brian Hodge, Dr. Lura LaBorde Wight, and Professional Emergency Physicians, LLC
NOT DESIGNATED FOR PUBLICATION Appealed from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana
Case No. C610287 The Honorable Todd Hernandez, Judge Presiding Robert Layne Royer
Baton Rouge, Louisiana Counsel Pro Se for Plaintiff/
Appellant, Robert L. Royer Douglas K. Williams
Druit G. Gremillion, Jr.
Baton Rouge, Louisiana Counsel for Defendant/Appellee
Our Lady of the Lake Hospital, Inc. Ann M. Halphen
Amy C. Lambert
L. Adam Thames
Ne'Shira Millender
Baton Rouge, Louisiana Counsel for Defendants/Appellees
Dr. Keith Brian Hodge, Dr. Lura
LaBorde Wight, and Professional
Emergency Physicians, LLC BEFORE: GUIDRY, THERIOT, AND PENZATO, JJ. THERIOT, J.
Robert L. Royer appeals the Nineteenth Judicial Court's dismissal of his claims due to his failure to comply with a court order requiring him to post bond. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
These facts are taken in part from a prior appeal - Royer v. Our Lady of the Lake Hosp., Inc., 2015-0009 (La. App. 1 Cir. 12/11/15); 2015 WL 8910533 (unpublished), writ denied, 2016-0298 (La. 4/8/16); 191 So.3d 587.
The instant dispute derives from Robert L. Royer's decision to seek heart care treatment at Our Lady of the Lake Hospital, Inc. ("OLOL"). On March 16, 2011, Royer began experiencing symptoms of an apparent heart attack, including chest pain, shortness of breath, and weakness. Royer first presented with these symptoms to the office of his primary care physician. Upon his primary care physician's advice and encouragement, Royer drove to OLOL's emergency room ("ER") for further treatment. Royer arrived at OLOL between 1:30 and 1:45 p.m.
On March 16, 2012, Royer filed a "Petition for Fraud, Rescission of Contract, Reimbursement of Medical Expenses, Damages and Attorney Fees for Fraudulent Advertisements and Other Conduct," against OLOL, Our Lady of the Lake Physician Group, LLC ("OLOLPG"), Keith Brian Hodge, M.D. ("Dr. Hodge"), Lura LaBorde Wight, M.D. ("Dr. Wight"), and Louisiana Cardiovascular Specialists, LLC ("LCS"). Through amended petitions filed on January 29, 2013, and November 19, 2013, Royer added Professional Emergency Physician Associates, LLC ("PEPA") and Shammi R. Kataria, M.D. ("Dr. Kataria") as named defendants. Royer subsequently voluntarily dismissed LCS and OLOLPG from the suit.
The record does not appear to contain a motion to dismiss OLOLPG, but OLOLPG was not named as a defendant in either his first or second amended petition for damages.
Through his original and amended petitions, Royer presented fraud claims against OLOL, OLOLPG, Dr. Hodge, Dr. Wight, LCS, PEPA, and Dr. Kataria (collectively "defendants"). Royer alleged the defendants falsely advertised and misrepresented the nature of OLOL's medical services. Essentially, Royer argued that the defendants had misrepresented OLOL's staff to be "completely committed to medical excellence" and that OLOL's Heart Center had been advertised as the highest rated in south Louisiana for the treatment of chest pain.
On May 1, 2012, Dr. Hodge and Dr. Wight jointly filed a dilatory exception of prematurity; both alleged that Royer's claims against them fell within the legal definition of medical malpractice set forth in La. R.S. 40:1231.1(A)(13). Dr. Hodge and Dr. Wight averred that both were qualified health care providers, which meant that Royer's medical malpractice claims had to proceed in accordance with the provisions of the Louisiana Medical Malpractice Act ("LMMA"), La. R.S. 40:1232.1, et seq. Prior to a hearing on this issue, Royer, Dr. Hodge, and Dr. Wight collectively reached an agreement regarding the dilatory exception of prematurity. Subsequently, on September 26, 2012, the trial court signed a consent judgment on the exception of prematurity, thereby dismissing Royer's medical malpractice claims against Dr. Hodge and Dr. Wight as premature, but maintaining Royer's fraud claims against Dr. Hodge and Dr. Wight in the trial court for further proceedings. Additionally, prior to OLOLPG's dismissal from the suit, OLOL and OLOLPG jointly filed their own dilatory exception of prematurity. Royer reached an agreement, which was similar to his agreement with Dr. Hodge and Dr. White, with OLOL and OLOLPG. Thus, on June 11, 2013, the trial court signed a consent judgment which dismissed as premature Royer's medical malpractice claims against OLOL and OLOLPG, but maintained Royer's fraud claims against OLOL and OLOLPG for further proceedings.
Redesignated from La. R.S. 40:1299.41(A)(13) by H.C.R. No. 84 of the 2015 Regular Session, effective June 2, 2015.
On November 27, 2012, Dr. Hodge and Dr. Wight jointly submitted a motion for summary judgment, seeking dismissal of Royer's remaining fraud claims against them. Dr. Hodge and Dr. Wight argued they were entitled to judgment as a matter of law because they were not employees, agents, or representatives of OLOL during the events in question.
During the course of discovery and pendency of pre-trial motions, prior to judgment on Dr. Hodge's and Dr. Wight's motion for summary judgment, Royer, Dr. Hodge, Dr. Wight, PEPA, and OLOL submitted a joint motion for a stipulated protective order to the trial court. The parties stated the protective order was necessary to protect the confidentiality of certain documents and information produced during discovery. On March 11, 2013, the trial court signed the protective order and ordered it to remain in effect beyond the final conclusion of litigation between the parties to the agreement. In pertinent part, the protective order provided:
IT IS ORDERED THAT all written policies, protocols, procedures, charts, contracts, agreements, records, and documents of any kind produced by Dr. Wight, Dr. Hodge, [PEPA], and/or [OLOL], as well as all policies of insurance and/or declaration pages providing insurance coverage to [PEPA] and [OLOL] shall be subject to a [p]rotective [o]rder and shall be disclosed only to the following:
1. Parties to this action, counsel of record for such parties, including their associates, clerks, secretarial, and stenographic personnel;
* * *
6. The [trial court], in camera, for the consideration, trial, or hearing of any motion, whether in support or opposition thereof, and the [trial court] shall at that time determine whether
the documents or records shall continue to be governed by this protective order.
Following entry of the protective order, Royer filed motions to compel discovery of contracts and documents regarding the relationship between OLOL, Dr. Hodge, Dr. Wight, and PEPA. Specifically, Royer sought to compel discovery of documents and contracts entered into by these parties on August 1, 2005; July 14, 2006; August 1, 2007; and October 12, 2009. Royer argued the requested documents would prove Dr. Hodge and Dr. Wight were not independent contractors, had knowledge about OLOL's advertisements and representations, and were therefore not entitled to summary judgment. Additionally, on April 18, 2013, Royer filed a motion to vacate the protective order in its entirety, reasoning it was improperly being used to circumvent discovery.
On April 29, 2013, the trial court heard arguments on Dr. Hodge's and Dr. Wight's motion for summary judgment, and, on June 17, 2013, the trial court heard arguments on Royer's motions to compel discovery and vacate the protective order. At the hearing on Royer's motions to compel discovery and vacate the protective order, the trial court denied Royer's motion to vacate the protective order in open court. Thereafter, on September 12, 2013, the trial court issued and signed summary judgment in favor of Dr. Hodge and Dr. Wight and dismissed Royer's claims against them, with prejudice. The trial court's September 12, 2013 judgment also denied Royer's outstanding motion to compel discovery as moot. The trial court reasoned the uncontroverted evidence on record demonstrated that Dr. Hodge and Dr. Wight were independent contractors who could not be found liable for OLOL's advertisements and representations. Royer responsively filed motions for new trial on the granting of Dr. Hodge's and Dr. Wight's motion for summary judgment and on the denial of his motions to compel discovery and vacate the protective order.
On January 17, 2014, OLOL individually filed a motion for summary judgment. OLOL argued that there was no genuine issue of material fact as to Royer's fraud claims and that OLOL was entitled to judgment as a matter of law. OLOL asserted Royer could not present evidence sufficient to bear his burden of proving he relied upon its representations and advertisements in deciding to seek treatment at OLOL. Additionally, OLOL averred that, even if Royer could demonstrate he relied upon its representations and advertisements, he could not prove OLOL's representations and advertisements misrepresented, suppressed, or omitted truthful information.
On August 5, 2014, the trial court issued and signed summary judgment in favor of OLOL. The trial court found there were no genuine issues of material fact with regard to Royer's fraud claims against OLOL and dismissed Royer's remaining claims against OLOL, with prejudice. The trial court's August 5, 2014 judgment also denied Royer's September 24, 2014 motion for new trial on Dr. Hodge's and Dr. Wight's motion for summary judgment, as well as Royer's motion for new trial on the motion to vacate the stipulated protective order. On October 1, 2014, Royer appealed the trial court's September 12, 2013 and August 5, 2014 judgments. On December 11, 2015, this court affirmed the September 12, 2013 and August 5, 2014 judgments. See Royer v. Our Lady of the Lake Hosp., Inc., 2015-0009 (La. App. 1 Cir. 12/11/15); 2015 WL 8910533 (unpublished), writ denied, 2016-0298 (La. 4/8/16); 191 So.3d 587.
On October 14, 2015, the opinion of the medical review panel was rendered. The medical review panel found that there was no deviation from the appropriate standard of medical care by Dr. Hodge, Dr. Wight, PEPA, or OLOL.
Dr. Kataria was not named in the medical review panel's opinion.
On February 22, 2016, Royer filed a third amending and supplemental petition which, in pertinent part, re-urged his medical malpractice claims and sought to vacate or exclude the medical review panel opinion. On February 29, 2016, Royer filed a fourth amended and supplemental petition and contradictory motion for leave of court, in which he requested the court's permission to allow him to file both his third and fourth amending and supplemental petitions. Royer urged that he was not, in either petition, attempting to reassert any of the fraud claims that were at issue in the prior judgments and the prior appeal, but was instead seeking to have his medical malpractice and negligence claims against the defendants heard. Royer also sought to have the defendants precluded from admitting the medical review panel opinion from October 14, 2015 as evidence under La. R.S. 40:1231.8 , alleging that the opinion was invalid. The trial court granted Royer's motion for leave of court on July 6, 2016.
Redesignated from La. R.S. 40:1299.47(H) by H.C.R. No. 84 of the 2015 Regular Session, effective June 2, 2015.
On April 6, 2016, Dr. Kataria answered Royer's original, first, and second amended and supplemental petitions. Dr. Kataria also filed a dilatory exception of prematurity, alleging that Royer's malpractice claims were premature until the completion of a medical review panel process. On April 25, 2016, PEPA answered Royer's second amended and supplemental petition. On May 24, 2016, Royer filed a motion for sanctions, motion to modify stipulated protective order, motion to unseal certain exhibits, motion to compel answers and responses to discovery, and motion to compel discovery depositions, all of which were directed at all defendants. On June 14, 2016, the trial court granted Dr. Kataria's dilatory exception of prematurity as to Royer's medical malpractice claims.
On June 22, 2016, OLOL, Dr. Hodge, Dr. Wight, and PEPA filed a motion for order to post bond pursuant to La. R.S. 40:1232.8(I)(2)(c), requesting that the trial court order Royer to post a cash or surety bond in the amount of all costs of the medical review panel, which unanimously ruled against him. On this same date, Dr. Hodge, Dr. Wight, Dr. Kataria, and PEPA filed an answer to Royer's third and fourth amended and supplemental petitions.
On June 24, 2016, PEPA and Dr. Kataria filed a motion for summary judgment. On July 29, 2016, OLOL answered Royer's third and fourth amended and supplemental petitions. On August 11, 2016, OLOL filed a motion to tax costs, seeking to tax the costs incurred in connection with the fraud claims asserted by Royer.
OLOL's motion to tax costs was granted by the trial court on March 2, 2017. This judgment cast Royer with the costs incurred by OLOL in connection with Royer's fraud claims, in the amount of $1,340.80, plus interest until the date paid. This judgment is the subject of the companion appeal - Royer v. Our Lady of the Lake Hosp., Inc., 2017 CA 1763 (La. App. 1 Cir. ___/___/___).
On October 12, 2016, the trial court signed a judgment granting the motion for order to post bond filed by OLOL, Dr. Hodge, Dr. Wight, and PEPA.
On November 9, 2016, the trial court signed a judgment denying Royer's motion for sanctions, motion to modify stipulated protective order, motion to compel discovery, and motion to compel deposition of the medical director. On this same date, the trial court signed a separate judgment granting the motion for summary judgment filed by PEPA and Dr. Kataria. This judgment dismissed all of Royer's claims against Dr. Kataria with prejudice. The judgment also dismissed all of Royer's fraud and non-medical malpractice claims against PEPA with prejudice.
This judgment also noted that Royer's motion to unseal certain exhibits had been withdrawn and found that Royer's motion to compel the deposition of Dr. Kataria was moot.
On November 22, 2016, OLOL, Dr. Hodge, Dr. Wight, and PEPA filed a motion to dismiss for failure to comply with court order requiring plaintiff to post bond. Subsequently, Royer filed an ex-parte motion and order for leave to post cash bond beyond the thirty days as ordered. On January 17, 2017, the trial court granted Royer leave to post the cash bond beyond the thirty days.
Additionally, on January 17, 2017, Royer notified all counsel of record that he was filing a devolutive appeal of the interlocutory judgments rendered on October 12, 2016 and November 10, 2016, as well as the final judgment rendered on November 9, 2016. The devolutive appeal was filed with the trial court on January 17, 2017, but no order of appeal was ever signed. On January 20, 2017, after being notified of the devolutive appeal but prior to the devolutive appeal being filed, OLOL, Dr. Hodge, Dr. Wight, Dr. Kataria, and PEPA submitted a memorandum opposing Royer's petition for devolutive appeal.
On March 2, 2017, the trial court signed a judgment granting the motion to dismiss for failure to comply with court order requiring Royer to post bond filed by OLOL, Dr. Hodge, Dr. Wight, and PEPA. On June 7, 2017, Royer filed a second petition and order for devolutive appeal, in which he appeals the final judgments rendered on March 2, 2017. This appeal pertains to the judgment granting the motion to dismiss for failure to comply with the court order requiring Royer to post bond and to various interlocutory judgments rendered prior to the March 2, 2017 dismissal.
On July 14, 2017, OLOL filed a motion to dismiss Royer's devolutive appeal on the grounds that Royer failed to pay the estimated costs of the appeal. OLOL alleged that Royer had failed to pay estimated costs of the appeal within twenty days of the mailing of notice, as expressed in La. Code Civ. P. art. 2126. Because Royer had allegedly failed to do so, OLOL argued that his appeal should be dismissed as abandoned pursuant to La. Code Civ. P. art. 2126. On July 17, 2017, PEPA, Dr. Hodge, and Dr. Wight filed a motion to dismiss Royer's devolutive appeal on the same grounds. This appeal was subsequently dismissed, but was reinstated by this court on May 29, 2018.
ASSIGNMENTS OF ERROR
Royer assigns the following as error.
1. The trial court erred in finding the medical review panel was valid and ordering the plaintiff to post a bond for the costs of the medical review panel who failed to sign oaths as required by La. R.S. 40:1231.8(C)(5) (amending La. R.S. 40:1299.47(C)(5)).
2. The trial court erred by finding the health care providers/defendants filed competent evidence to authenticate the bills for the medical review panel and ordering the plaintiff to post a bond for the costs voluntarily paid by the defendants without documentation and authentication required by La. R.S. 40:1231.8(I)(1)(a) and (b) (amending La. R.S. 40:1299.47(I)(1)(a)and (b)).
3. The trial court erred by ruling on January 30, 2017, the plaintiff's medical malpractice claims be dismissed with prejudice after the plaintiff had previously posted a cash bond on January 17, 2017, and granting a final judgment to OLOL, PEPA, Dr. Hodge and Dr. Wight on March 2, 2017.
4. The trial court erred by ruling or failing to consider as relevant and material the contracts between OLOL and PEPA to establish the duty or standard of care, whether under the LMMA or other fault, owed to the plaintiff to provide emergency medical services in the emergency room of OLOL.
5. The trial court erred by using the Stipulated Protective Order to seal from the public record the contracts between PEPA and OLOL (OSM #1 and #2) that were introduced in support of the motions and argued on July 25, 2016, and in opposition to the motion for summary judgments filed by PEPA and Dr. Kataria that was argued on August 29, 2016.
6. The trial court erred by failing to compel the deposition of Dr. Kataria.
7. The trial court erred by failing to compel the deposition of the medical director of the OLOL emergency room who is both a part-time employee of OLOL and a member of PEPA.
8. The trial court erred by failing to compel the defendants to produce the master contract dated August 1, 2005, with subsequent amendments, between OLOL and PEPA.
9. The trial court erred by granting a summary judgment to PEPA and Dr. Kataria on the issue of fraud and other non-malpractice fault based upon res judicata or law of the case due to the previous summary judgments granted to Drs. Hodge and Wight and OLOL.
10. The trial court erred by failing to consider the pleadings filed by plaintiff subsequent to the granting of the summary judgment granted to Drs. Hodge and Wight on September 13, 2013 when deciding the motion for summary judgment filed on June 24, 2016 by PEPA and Dr. Kataria on the issues of fraud and other non-medical malpractice fault.
11. The trial court erred by failing to consider the plaintiff's evidence submitted and filed in opposition to the motion for summary judgment filed by PEPA and Dr. Kataria on June 24, 2016.
12. The trial court erred by awarding costs to OLOL if the judgment dismissing the medical malpractice claims is reversed.
13. The trial court erred by failing to compel discovery.
STANDARD OF REVIEW
Appellate review of questions of law is simply to determine whether the district court was legally correct. Shields v. Alvin R. Savoie & Associates, Inc., 2017-0602 (La. App. 1 Cir. 11/1/17); 233 So.3d 694, 697. Questions of law are reviewed by this court under the de novo standard of review. In re E.W., 2009-1589 (La. App. 1 Cir. 5/7/10); 38 So.3d 1033, 1038.
It is well-settled that trial courts in Louisiana have broad discretion when regulating pretrial discovery, and such discretion will not be disturbed on appeal absent a clear showing of abuse. Moak v. Illinois Cent. R. Co., 93-0783 (La. 1/14/94); 631 So.2d 401, 406. Additionally, a trial court's determination regarding the imposition of sanctions is subject to the manifest error or clearly wrong standard of review. Bourgeois v. Bourgeois, 2013-0038 (La. App. 1 Cir. 9/13/13); 135 So.3d 1, 5-6, writ not considered, 2013-2439 (La. 1/27/14); 130 So.3d 954.
DISCUSSION
Assignments of Error # 9 , 10, and 11
In his ninth, tenth, and eleventh assignments of error, Royer alleges that the trial court erred in granting summary judgment to PEPA and Dr. Kataria and in failing to consider certain pleadings and evidence when deciding their motion for summary judgment. This judgment, signed November 9, 2016, dismissed all of Royer's claims against Dr. Kataria with prejudice and dismissed all of Royer's fraud and non-medical malpractice claims against PEPA with prejudice.
Royer filed a petition for devolutive appeal of the November 9, 2016 judgment on January 24, 2017, but there is no signed order granting this devolutive appeal. It is the duty of the court to examine subject matter jurisdiction sua sponte, even when the issue is not raised by the litigants. McGehee v. City/Parish of East Baton Rouge, 2000-1058 (La. App. 1 Cir. 9/12/01); 809 So.2d 258, 260. Royer's ninth, tenth, and eleventh assignments of error all pertain to the November 9, 2016 judgment. Because there is no signed order of appeal regarding that judgment, this court has no jurisdiction over these assignments of error. Assignment of Error #12
PEPA, Dr. Hodge, Dr. Wight, and Dr. Kataria filed a motion to strike certain portions of Royer's appellate brief for nonconformity pursuant to Rules 2-12.13 and 2-13.14 of the Uniform Rules for Louisiana Courts of Appeal. Because we lack jurisdiction over the assignments of error relating to the November 9, 2016 judgment and cannot address these assignments of error, the motion to strike insofar as it relates to the November 9, 2016 judgment is moot.
In his twelfth assignment of error, Royer alleges that the trial court erred by awarding costs to OLOL. This assignment of error is the subject of another appeal, Royer v. Our Lady of the Lake Hosp. Inc., 2017 CA 1763 (La. App. 1 Cir. ___/___/___). As such, we discuss this argument in the companion opinion handed down on the same date as this opinion. Assignment of Error #1
The motion to strike filed by PEPA, Dr. Hodge, Dr. Wight, and Dr. Kataria also seeks to strike the portions of Royer's brief relating to the judgment granting OLOL's motion to tax costs. We address this issue in the companion opinion, Royer v. Our Lady of the Lake Hosp., Inc., 2017 CA 1763 (La. App. 1 Cir. ___/___/___).
In his first assignment of error, Royer asserts that the trial court erred in finding the medical review panel opinion was valid and in ordering him to post bond for the costs of the medical review panel. Royer asserts that the medical review panel failed to sign the oaths required by La. R.S. 40:1231.8, thus rendering their opinion invalid.
Louisiana Revised Statutes 40:1231.8(C)(5) states:
(a) Before entering upon their duties, each voting panelist shall subscribe before a notary public the following oath:
"I, (name) do solemnly swear/affirm that I will faithfully perform the duties of medical review panel member to the best of my ability and without partiality or favoritism of any kind. I acknowledge that I represent neither side and that it is my lawful duty to serve with complete impartiality and to render a decision in accordance with law and the evidence."
(b) The attorney panel member shall subscribe to the same oath except that in lieu of the last sentence thereof the attorney's oath shall state:
"I acknowledge that I represent neither side and that it is my lawful duty to advise the panel members concerning matters of law and procedure and to serve as chairman."
(c) The original of each oath shall be attached to the opinion rendered by the panel. (Emphasis added.)
Royer states that although the attorney chairman executed his oath on October 14, 2015 (the same day the panel hearing opinion was issued), the doctors on the medical review panel did not execute their oaths until after the panel hearing opinion was issued. According to Royer, this delay invalidates the opinion of the medical review panel.
Two doctors signed their oaths on February 22, 2016, while the third doctor signed his oath on March 29, 2016.
In Elledge v. Williamson, 48,644 (La. App. 2 Cir. 1/15/14); 132 So.3d 432, 438, one of the doctors on a medical review panel failed to sign his oath of impartiality prior to the panel meeting, but signed his oath after reviewing the malpractice complaint. The second circuit found the panel opinion to still be admissible, finding that the "oversight and technical error does not render the panel opinion inadmissible." Elledge, 132 So.3d at 438, citing Hunter v. Bossier Medical Center, 31-026 (La. App. 2 Cir. 9/25/08); 718 So.2d 636, 644. We find the delayed signatures in the present case to be technical errors, which do not negate the admissibility of the medical review panel's decision. Thus, we find the medical review panel opinion to be admissible. This assignment of error lacks merit. Assignment of Error #2
In his second assignment of error, Royer alleges that the trial court erred in finding the defendants filed competent evidence to authenticate the bills for the medical review panel and in ordering him to post a bond for the costs voluntarily paid by the defendants without documentation and authentication required by La. R.S. 40:1231.8(I)(1)(a) and (b).
Louisiana Revised Statutes 40:1231.8 states in pertinent part:
I. (1)(a) Each physician member of the medical review panel shall be paid at the rate of twenty-five dollars per diem, not to exceed a total of three hundred dollars for all work performed as a member of the panel exclusive of time involved if called as a witness to testify in a court of law regarding the communications, findings, and conclusions made in the course and scope of duties as a member of the medical review panel, and in addition thereto, reasonable travel expenses.
(b) The attorney chairman of the medical review panel shall be paid at the rate of one hundred dollars per diem, not to exceed a
total of two thousand dollars for all work performed as a member of the panel exclusive of time involved if called as a witness to testify in a court of law regarding the communications, findings, and conclusions made in the course and scope of duties as a member of the medical review panel, and in addition thereto, reasonable travel expenses. Additionally, the attorney chairman shall be reimbursed for all reasonable out-of-pocket expenses incurred in performing his duties for each medical review panel. The attorney chairman shall submit the amount due him for all work performed as a member of the panel by affidavit, which shall attest that he has performed in the capacity of chairman of the medical review panel and that he was personally present at all the panel's meetings or deliberations. (Emphasis added.)
Royer argues that the defendants in this case voluntarily paid the attorney chairman $2,000, plus expenses in the amount of $268.03. According to Royer, the defendants did not require the attorney chairman to file an affidavit for what he should be paid as required by La. R.S. 49:1231.8(I)(1)(b). However, the defendants point out that, following an order by the trial court, the attorney chairman of the medical review panel submitted a sworn affidavit in which he attested that, among other things, he had been paid $100 per diem and worked more than twenty days on the panel in his capacity as attorney chairman. The attorney chairman also attached a copy of the itemized work performed in the matter. In sum, the attorney chairman filed an affidavit detailing his incurred costs as attorney chairman of the medical review panel. This affidavit satisfies the requirements of La. R.S. 49.1231.8(I)(1)(b). This assignment of error is baseless. Assignment of Error #3
In his third assignment of error, Royer argues that the trial court erred by dismissing his medical malpractice claims with prejudice, and in granting a final judgment to OLOL, PEPA, Dr. Hodge, and Dr. Wight on March 2, 2017.
On June 22, 2016, the defendants filed a motion for order to post bond. The trial court signed a judgment granting their motion on October 12, 2016 and gave Royer thirty days from the signing of the judgment to post bond. On November 28, 2016, after Royer had failed to comply with the trial court's order, the defendants filed a motion to dismiss Royer's claims.
On January 4, 2017, Royer filed an ex-parte motion and order for leave to post cash bond, seeking leave to post the cash bond beyond the thirty days ordered because Royer "decided not to apply for a supervisory writ concerning this order." Royer also submitted a check in the amount of $3,168.03. This ex-parte motion and order was signed by the trial court on January 17, 2017. The defendants objected to Royer's ex-parte motion on January 20, 2017, and the ex-parte motion was assigned for hearing on January 30, 2017. On March 2, 2017, the trial court signed a judgment vacating and denying Royer's ex-parte motion and order for leave to post cash bond. In that same judgment, the trial court granted the defendants' motion to dismiss Royer's claims for failure to comply with the court order requiring Royer to post bond.
Royer alleges that the trial court's dismissal of his claims was improper. La. R.S. 40:1231.8 governs medical review panels in Louisiana. La. R.S. 40:1231.8(I)(2)(c), states in relevant part:
In a medical malpractice suit filed by the claimant in which a unanimous opinion was rendered in favor of the defendant health care provider . . . the claimant who proceeds to file such a suit shall be required to post a cash or surety bond, approved by the court, in the amount of all costs of the medical review panel. (Emphasis added.)This circuit has held that a plaintiff's failure to file a bond in accordance with La. R.S. 40:1231.8(I)(2)(c) subjected the plaintiff's suit to dismissal. Hebert v. Drewitz, 2009-0798 (La. App. 1 Cir. 10/27/09); 29 So.3d 607, 608-09. The third circuit has held the same, finding that in a case where the plaintiff failed to post bond by the trial court's deadline (and did not seek permission to proceed in forma pauperis by the deadline required for that action), dismissal of the plaintiff's claims were proper. Harrison v. Minardi, 2007-514 (La. App. 3 Cir. 10/31/07); 968 So.2d 1221, 1225.
In Hebert v. Drewitz and Harrison v. Minardi, both courts refer to the statute at issue as La. R.S. 40:1299.47. La. R.S. 40:1299.47 was redesignated to La. R.S. 40:1231.8. by H.C.R. No. 84 of the 2015 Regular Session, effective June 2, 2015. --------
Considering the jurisprudence, we cannot say that the trial court erred in dismissing Royer's claims. The judgment ordering bond gave Royer thirty days after October 12, 2016 to post bond. Royer did not file his ex-parte motion seeking leave of the court to untimely post bond until January 4, 2017, eighty-four days after the October 12, 2016 judgment. Although Royer stated in his ex-parte motion that the delay was caused by his decision not to apply for a supervisory writ concerning the trial court's order, we note that the filing of, or the granting of, a writ application does not stay further proceedings unless the trial court or appellate court expressly orders otherwise. Rule 4-4(A), Uniform Rules of Louisiana Courts of Appeal. See also Everett v. Baton Rouge Student Housing, L.L.C., 2010-0856 (La. App. 1 Cir. 5/6/11); 64 So.3d 883, 885, writ denied, 2011-1169 (La. 9/16/11); 69 So.3d 1149; Jackson v. M.R. Pittman, LLC, 2008-0966 (La. App. 4 Cir. 2/11/09); 5 So.3d 906, 911 n.7.
This assignment of error lacks merit. Assignments of Error #4 , 5, 6, 7, 8, and 13
In the remaining assignments of error, Royer challenges certain rulings contained within the November 9, 2016 judgment. These interlocutory rulings include the denial of a motion for sanctions and the denial of several motions to compel. The denial of a motion for sanctions is an interlocutory judgment; it does not determine the merits of the case. Brown v. Sanders, 2006-1171 (La. App. 1 Cir. 3/23/07); 960 So.2d 931, 933. Similarly, a judgment on a motion to compel discovery is interlocutory in nature. Woodlands Homeowner's Ass'n, Inc. of Hammond v. Arvello, 96-0517 (La. App. 1 Cir. 12/20/96); 694 So.2d 386, 387. In sum, each of the rulings challenged in Assignments of Error 4, 5, 6, 7, 8, and 13 determine only preliminary matters, not the merits. Thus, each of these rulings are interlocutory. La. Code Civ. P. art. 1841. Although an interlocutory judgment may itself not be appealable, it is nevertheless subject to review on appeal when a final, appealable judgment has been rendered in the case. Hayward v. Hayward, 2012-0720 (La. App. 1 Cir. 3/18/13); 182 So.3d 966, 970. We address each of these assignments of error in turn.
Assignment of Error #4
In Royer's fourth assignment of error, he posits that the trial court erred by ruling or failing to consider as relevant certain contracts between OLOL and PEPA to establish the standard of care owed to Royer to provide emergency medical services in the emergency room of OLOL. In the corresponding section of his brief, Royer seems to allege that the trial court's failure to grant his May 24, 2016 motion for sanctions against the defendants is based on the trial court's belief that the August 1, 2005 contracts and subsequent amendments are not relevant or material to the issues before the court.
In his May 24, 2016 motion for sanctions, Royer alleged the existence of an unproduced 2005 contract between OLOL and PEPA. In that motion for sanctions, Royer asserted that the defendants' failure to produce this contract, which Royer claimed "unquestionably exists", warranted sanctions against the defendants. As a sanction, Royer sought to have the court hold the defendants liable for Royer's damages. In the alternative, Royer asked the court to declare that an October 11, 2011 contract (which allegedly specifies that PEPA must provide "state of the art medical care of patients of the Baton Rouge community") governs, or provides the standard of care for, Royer's March 16, 2011 emergency room admission.
The trial court denied the motion for sanctions on November 9, 2016. In written reasons, the trial court noted that in June 2013, it had ordered the defendants to produce the contracts between OLOL and PEPA. The trial court went on to state that the order to produce those contracts related to Royer's fraud claims, which were "no longer pending before this court." The trial court also pointed to the defendants' assertion that they had "produced all applicable contracts to the plaintiff."
A trial court's determination regarding the imposition of sanctions is subject to the manifest error or clearly wrong standard of review. Bourgeois, 135 So.3d at 5-6. The trial court based its denial to impose sanctions in part on the defendants' assertion that they had produced all applicable contracts. Upon reviewing the record, we find the trial court was not manifestly erroneous in denying to impose sanctions.
This assignment of error is without merit.
Assignment of Error #5
In his fifth assignment of error, Royer alleges that the trial court erred by using the stipulated protective order to seal the contracts between PEPA and OLOL from the public record. Royer alleges that he offered these documents in support of certain motions before the court, as allowed by the stipulated protective order. This assignment of error refers to Royer's May 24, 2016 motion to unseal Plaintiff's Exhibits OSM #1 and OSM #2.
In the November 9, 2016 judgment pertaining to several of Royer's motions, including his motion to unseal the exhibits, the trial court decreed that Royer had withdrawn his motion to unseal Plaintiff's Exhibits OSM #1 and OSM #2. Royer has not contested the trial court's finding that he withdrew the motion to unseal these exhibits prior to the November 9, 2016 judgment. Therefore, we find that the records at issue remain sealed. This assignment of error lacks merit.
Assignment of Error #6
In his sixth assignment of error, Royer alleges that the trial court erred in failing to compel the deposition of Dr. Kataria. In the November 9, 2016 judgment, the trial court found that the motion to compel the deposition of Dr. Kataria was moot. Royer now challenges the trial court's finding that the motion to compel Dr. Kataria is moot.
In his motion to compel the deposition of Dr. Kataria, Royer alleged that Dr. Kataria was the managing member of PEPA on March 16, 2011 (the date of the alleged injury). In written reasons, the trial court stated that Royer had not asserted "in his motion or in argument what knowledge or facts, if any, he believes that these witnesses have [of] relevant evidence and/or information that may reasonably lead to the discovery of admissible evidence." The trial court also pointed out that Royer had subsequently filed a motion to continue Dr. Kataria's motion for summary judgment, again arguing that he wanted to depose Dr. Kataria prior to the motion for summary judgment being argued. The trial court further stated that "[a]t the hearing for both the motion to continue and the motion for summary judgment on August 29, 2016, [Royer] withdrew his motion to continue." Accordingly, the trial court found that the requested deposition of Dr. Kataria was moot.
In sum, because Royer based his motion to continue at least in part on his desire to depose Dr. Kataria prior to the hearing on Dr. Kataria's motion for summary judgment, and then withdrew that motion to continue, the trial court found that the motion to compel the deposition of Dr. Kataria was moot. Considering that Royer withdrew his motion to continue and thus consented with the timing of the hearing on the motion for summary judgment, the trial court did not abuse its discretion in finding that the motion to compel the deposition of Dr. Kataria was moot. This assignment of error lacks merit.
Assignment of Error #7
In his seventh assignment of error, Royer alleges that the trial court erred by failing to compel the deposition of the medical director of the OLOL emergency room. In the November 9, 2016 judgment, the trial court denied Royer's motion to compel the deposition of the medical director. In written reasons, the trial court stated that, "[w]ith regard to the deposition of the [emergency room's] medical director, defendant notes that plaintiff has never noticed him for a deposition[,] so he cannot ask the court to compel him to appear for a deposition. Thus, plaintiff's motion is denied."
In his appellate brief, Royer alleges the individual in question is a member of PEPA who works part-time for OLOL as the medical director. Royer claims that PEPA refused to produce the witness in question, and that once PEPA refused such, "there was no reason to request OLOL to produce a member of PEPA." It is not clear what information Royer seeks from the medical director. In his appellate brief, Royer refers back to his motion to compel the deposition of the medical director; however, his motion does not state why he seeks to depose the medical director.
Nothing prohibited Royer from serving notice to the medical director personally. Accordingly, we find that the trial court did not abuse its discretion by failing to compel an individual to appear for a deposition that was never noticed. This assignment of error lacks merit.
Assignment of Error #8
In his eighth assignment of error, Royer alleges that the trial court erred by failing to compel the defendants to produce the master contract dated August 1, 2005, with subsequent amendments, between OLOL and PEPA. However, Royer's brief does not contain any argument pertaining to a motion to compel the alleged August 1, 2005 contract. The brief challenges the trial court's refusal to impose sanctions on the defendants because of the defendants' alleged failure to produce all contracts (which is discussed above in the section of this opinion pertaining to Assignment of Error #4) and challenges the trial court's refusal to compel answers to interrogatories and requests for production of documents, but the brief does not provide any argument relating to the August 1, 2005 contract referenced in Assignment of Error #8.
All assignments of error and issues for review must be briefed. The court may consider as abandoned any assignment of error or issue for review which has not been briefed. Rule 2-12.4(B)(4), Uniform Rules of Louisiana Courts of Appeal. Accordingly, we consider this assignment of error to be abandoned.
Assignment of Error #13
In his thirteenth and final assignment of error, Royer alleges that the trial court erred by failing to compel discovery. In his appellate brief, Royer alleges that "[t]he defendants have provided no answers to interrogatories or produced documents since these same matters were raised before the Court of Appeal in [b]rief." Royer also refers to interrogatories and requests "introduced and filed in Plaintiff's Exhibit P-1 In Globo, A-G, that are "sealed".
Regarding the sealed exhibits, we reiterate our analysis of Assignment of Error #5. In the November 9, 2016 judgment pertaining to Royer's motions, the trial court decreed that Royer had withdrawn his motion to unseal Plaintiff's Exhibits OSM #1 and OSM #2. Royer has not contested the trial court's finding that he withdrew the motion to unseal these exhibits prior to the November 9, 2016 judgment. Therefore, these documents remained sealed.
As for Royer's argument that the defendants have not provided answers to interrogatories or produced documents since those matters were raised before this court in brief, it appears that Royer is reasserting arguments made before this court in the prior appeal - Royer v. Our Lady of the Lake Hosp., Inc., 2015-0009 (La. App. 1 Cir. 12/11/15); 2015 WL 8910533 (unpublished), writ denied, 2016-0298 (La. 4/8/16); 191 So.3d 587. In the previous appeal, Royer asserted that the trial court erred in failing to compel the defendants to produce certain documents and answer certain interrogatories. Royer, at *4-7.
In his appellate brief, it is unclear which interrogatories Royer is seeking answers to. It is also unclear what documents, aside from the sealed documents mentioned above, that Royer is seeking the production of. To the extent that those documents and interrogatories are the same as those in the previous appeal, this court found Royer's motion to compel those documents and interrogatories to have been rendered moot by the trial court's granting of summary judgment in favor of Dr. Hodge and Wight. Royer, at *7. If Royer is seeking the production of different documents or answers to different interrogatories than those involved in the prior appeal, his appellate brief does not provide any argument about what documents or answers to interrogatories he seeks. As mentioned above, assignments of error that are not briefed may be considered abandoned. Rule 2-12.4(B)(4), Uniform Rules of Louisiana Courts of Appeal. This assignment of error lacks merit.
DECREE
For the above and foregoing reasons, the judgment of the Nineteenth Judicial Court, that dismissed Robert L. Royer's claims due to his failure to comply with a court order requiring him to post bond, is affirmed. The motion to strike filed by Professional Emergency Physician Associates, LLC, Keith Brian Hodge, M.D., Lura LaBorde Wight, M.D., and Shammi R. Kataria, M.D. is denied as moot. Costs of this appeal are assessed to Appellant, Robert L. Royer.
AFFIRMED; MOTION TO STRIKE DENIED AS MOOT.