Opinion
NO. 02-0599, SECTION T, MAGISTRATE 4.
July 9, 2002
CIVIL ACTION
Before the court is a Motion to Dismiss pursuant to statute, La. R.S. 40:1299.41, et seq., filed on behalf of the defendant, Dr. Harold Conrad. The Court took this matter under submission on July 3, 2002. The Court, having considered the arguments of counsel, the evidence submitted, to the current motion, is fully advised and ready to rule.
ORDER AND REASONS
I. BACKGROUND
The original complaint in this matter was filed on March 7, 2002. The complaint was amended to add Dr. Conrad as a defendant on May 20, 2002. The amended complaint was filed prior to a medical panel review, hearing, or decision relative to the matter at issue required by La. R.S. 40:1299.41, et seq., and is therefore premature.
II. LAW AND ANALYSIS
A. The Law on La. R.S. 40:1299.41, et seq.
La. R.S. 40:1299.47(B) provides in pertinent part as follows:
B. No action against a health care provider covered by this Part, or his insurer, may be commenced in any court of this state before the claimant's proposed complaint has been presented to a medical review panel established pursuant to this Section and an opinion is rendered by the panel.
The plaintiff's failure to comply with the provisions of La. R.S. 40:1299.47 requires dismissal of the suit insofar as it bears against Dr. Conrad. See Everett v. Goldman, 359 So.2d 1256 (La. 1978); Vincent v. Voorhies, 359 So.2d 1129 (La.App. 3rd Cir. 1978); Dufrene v. Duncan, 371 So.2d 1215 (La.App. 4th Cir. 1979); and Knepper v. Department of Health and Human Resources Administration, 359 So.2d 1127 (La.App. 3rd Cir. 1978).
In Desselles v. Brumfield, 386 So.2d 191 (La.App. 4th Cir. 1980), the trial court sustained the Exception of Prematurity; however, the court did not dismiss the action but, rather, it stayed the suit. In holding that it was a reversible error to stay rather than dismiss the plaintiff's suit, the court held:
We grant writs and dismiss as expressly required both by La. C.C.P. 933's general rule `if the dilatory exception pleading prematurity is sustained, the suit shall be dismissed' and by R.S. 40:1299.47(B)'s special rule `no action against a health care provider covered by this Part, . . . may be commenced in any court of this State before . . . presented to a medical review panel. . . .'
In the instant matter, The plaintiff asserts against defendant a claim based upon certain allegations of medical malpractice. As seen by the affidavit attached to the Motion to Dismiss, the doctor's only contact with the plaintiff has been professional contact on the part of the doctor, and the doctor at all times was acting solely in his capacity as a psychiatrist. At all pertinent times, defendant was and is a physician and a board-certified psychiatrist.
As seen in the affidavit attached to the Motion to Dismiss, (1) Harold Conrad M.D., is a qualified health care provider within the meaning of the above statute, (2) there has been no opinion rendered by any medical review panel, as required by the above statute, and (3) in fact, no medical review panel has even been convened with respect to the matters at issue. Therefore, this Court shall grant without prejudice the Motion to Dismiss based upon grounds of Prematurity.
III. CONCLUSION
For the foregoing reasons, the Motion to Dismiss pursuant to La. R.S. 40:1299.47(B) filed on behalf of the defendant is GRANTED.
Accordingly,
IT IS ORDERED that the Motion to Dismiss filed on behalf of the defendant, Dr. Harold Conrad, be, and the same is hereby, GRANTED.
IT IS FURTHER ORDERED that the plaintiff's claims against Dr. Harold Conrad be, and the same is hereby, DISMISSED WITHOUT PREJUDICE.