 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Ginn v. Woman's Hospital Foundation9/22/2000
In this case, defendant, Woman's Hospital Foundation, Inc. (Woman's Hospital), appeals the district court's denial of its dilatory exception pleading the objection of prematurity, contending that plaintiff's case must be submitted for consideration by a medical review panel pursuant to the Medical Malpractice Act prior to the institution of a suit for damages in district court. For the following reasons, we reject defendant's arguments and affirm the judgment of the district court.
FACTS AND PROCEDURAL HISTORY
Plaintiff alleges the facts, as follows, in her petition: In February of 1976, plaintiff was admitted for medical treatment as a patient at Woman's Hospital of Baton Rouge. During the course of this treatment, plaintiff received transfusions of a number of units of whole blood. On March 26, 1997, plaintiff was advised by her treating physician that she had contracted hepatitis C when receiving the blood transfusions from Woman's Hospital in 1976. Prior to this diagnosis, plaintiff was unaware that she had been infected with the hepatitis C virus.
On March 18, 1998, plaintiff filed a petition for damages in the Nineteenth Judicial District Court, Parish of East Baton Rouge, against Woman's Hospital for selling and treating plaintiff with blood contaminated with hepatitis C virus. Defendants filed a "Peremptory Exception of Prescription and Alternative Exception of Prematurity." A judgment was signed by the district court on April 21, 1999, denying both exceptions.
Defendant appeals, contending :
The trial court erred in dismissing Woman's Hospital Foundation Inc.'s Dilatory Exception of Prematurity and erred in finding that this case should not be considered by a medical review panel before suit is filed even though Shirley Ann Ginn was treated at and received transfusions of blood at Woman's Hospital in February of 1976 and again in 1983.
DISCUSSION
The issue raised before this court is whether or not plaintiff's suit was filed prematurely absent initial consideration by a medical review panel pursuant to the Medical Malpractice Act. Stated differently, must a claim:
(1) asserted after the adoption of the initial Act, (2) for conduct occurring prior to the Act, (3) which conduct was not covered by the Act when the conduct occurred, (4) but which is later included in the Act, and (5) is covered at the time the claim is asserted, be submitted to a review panel?
DILATORY EXCEPTION PLEADING THE OBJECTION OF PREMATURITY
An exception pleading the objection of prematurity filed pursuant to LSA-C.C.P. art. 926(A)(1) raises the issue of whether the judicial cause of action has not yet come into existence because some prerequisite condition has not been fulfilled. Girouard v. State Through Dept. of Education, 96- 1076, p. 4 (La. App. 1st Cir. 5/9/97), 694 So. 2d 1153, 1155. The exception contemplates that the action taken by the petitioner has occurred prior to some procedure or assigned time, and it is usually utilized in cases wherein the applicable law or contract has provided a procedure for one aggrieved of a decision to seek relief before resorting to judicial action. Hidalgo v. Wilson Certified Express, Inc., 94-1322, p. 4 (La. App. 1st Cir. 5/14/96), 676 So. 2d 114, 116; Jones v. Crow, 633 So. 2d 247, 249 (La. App. 1st Cir. 1993). Generally, the person aggrieved by an action must exhaust all such administrative remedies or specified procedures before being entitled to judicial review. Hidalgo, 94-1322 at p. 4, 676 So. 2d at 116; Jones, 633 So. 2d at 249.
When a defendant files an exception raising the objection of prematurity, the defendant has the initial bu
Page 1 2 3 4 Louisiana Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|