In re Wiley12/23/2003
PUBLISHED
REVERSED AND REMANDED.
The Plaintiff, Cynthia Wiley, appeals the dismissal of her medical malpractice claim. The trial court granted Dr. Paul Miller's motion to dismiss with prejudice when Ms. Wiley failed to respond timely to its order, compelling her to answer his interrogatories and requests for production. We reverse and remand.
Lillie M. Wiley, a sixty-seven-year-old diabetic and double amputee, was a patient of Dr. Miller, a Nephrologist, who supervised her dialysis treatment. Over time, her condition progressively deteriorated until she passed away.
Cynthia Wiley, Lillie's daughter, alleges that Dr. Miller gave her mother too much dialysis fluid, causing a dangerously low drop in her blood pressure. Immediately afterwards, she was admitted into Opelousas General Hospital (OGH). When she was admitted, Ms. Wiley asserts that her mother had no bedsores, but sometime during her stay, they formed "on her buttocks and her back and on both of the stumps of her legs." OGH's staff treated the sores and, eventually, released her from OGH's care. Not long after her release, Lillie was admitted into Doctor's Hospital of Opelousas (DHO). Sometime later, after her discharge from DHO, she died, but the length of time between her discharge and her eventual death is unclear from the record.
In May of 2002, Ms. Wiley, individually and on behalf of her mother, filed a claim, with the Louisiana Patients' Compensation Fund, naming Dr. Miller and others as Defendants.
On June 20, 2002, Dr. Miller's counsel, Marc Judice, sent interrogatories and requests for production to George Flournoy, who was Ms. Wiley's counsel at the time.
On June 24, 2002, Mr. Flournoy received Dr. Miller's discovery requests, but he did not respond.
On July 9, 2002, Mr. Judice sent a follow-up letter, asking him to respond.
On July 19, 2002, Mr. Judice propounded a second set of interrogatories and requests for production on him.
On July 22, 2002, Mr. Flournoy received the discovery requests. That same day, Mr. Judice forwarded correspondence to him, requesting answers to all outstanding discovery.
On August 1, 2002, Mr. Judice sent another letter, asking him to contact the Defense. It stated:
Please contact on or before Monday, 12 August 2002 to advise when we can expect full and complete discovery and signed medical authorizations. If we do not hear from you, we will be forced to file a Motion to Compel. Thank you for your attention to this matter.
(Italics added.)
On September 16, 2002, due to Plaintiff's failure to respond to any of his requests, Mr. Judice filed a "Motion to Compel Full and Complete Discovery, In the Alternative, Motion to Dismiss" which was set for hearing on October 21, 2002.
On October 18, 2002, Mr. Judice filed a motion to continue the hearing when he learned of Mr. Flournoy's intent to withdraw as enrolled counsel for Ms. Wiley. Afterwards, with the understanding that he would later file a motion to withdraw, the trial court re-fixed the hearing date for December 6, 2002. However, the record does not contain a motion to withdraw.
On November 9, 2002, Ms. Wiley received correspondence from Mr. Judice, who personally served her with a courtesy copy of the discovery requests and motion to compel. In his correspondence, he informed her that: "Mr. George Flournoy has advised he no longer represents you. . . . If you intend to proceed with this matter, we request (1) full and complete answers to the discovery and (2) your cooperation in selecting an attorney to serve as attorney chairma
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