Coe v. State2/1/2000
Application for rehearing may be filed within the delay allowed by Art. 2166, LSA-CCP.
In this medical malpractice case, the plaintiff, William Robert Coe, Jr. ("Coe"), appeals a judgment in favor of the defendant, State of Louisiana, Health Care Authority, d/b/a Louisiana State University Medical Center (hereafter collectively referred to as"LSUMC") whereby the trial court dismissed his medical malpractice claim as abandoned under La. C.C.P. art. 561. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On September 10, 1991, Coe received medical treatment at LSUMC in Shreveport after complaining of abdominal pain with a history of fever. While in the emergency room at LSUMC, Coe alleges that the LSUMC staff failed to obtain a surgical consult. Although Coe was not experiencing constipation, diarrhea, nausea, vomiting, or disuria, LSUMC staff diagnosed his condition as viral "gastroenteritis" and sent him home.
Coe continued experiencing abdominal pain, and on September 16, 1991, he again sought treatment with LSUMC. During this visit, Coe was diagnosed as having a suspected ruptured appendix, and he was admitted into the operating room for performance of an exploratory laparotomy and appendectomy. Coe subsequently returned to LSUMC with respiratory problems and increased abdominal pain and underwent repeated surgical procedures. Coe was finally discharged from LSUMC on November 26, 1991. As a result of his treatment at LSUMC, Coe alleges that he remains in a permanently weakened, debilitated state and suffers from recurrent abdominal pain, respiratory difficulty, including chronic shortness of breath, and abnormal change in bowel habits.
Coe alleges that LSUMC failed to comply with the appropriate standard of care in rendering his treatment and thereby committed medical malpractice. The Medical Review Panel decision dated December 20, 1994, concluded that no malpractice had occurred. On March 28, 1995, LSUMC filed an answer to the complaint and a request for ten days notice of setting.
On October 2, 1995, Coe's attorney, Donald R. Miller, filed a motion and order to withdraw as counsel for Coe. Thereafter, no discovery was conducted by the parties and the case sat dormant until July 1998. According to the minutes of the trial court, no further filings occurred in Coe's case until July 6, 1998 when LSUMC filed an ex parte motion to dismiss the case for lack of prosecution pursuant to La. C.C.P. art. 561, as amended by Act No. 1221 of 1997. The trial court's order dismissing the case was signed on July 2, 1998, the motion having been presented to the trial judge on July 2 just before the holiday weekend, but not filed until July 6. The order dismissing the case was also filed on July 6. On July 24, 1998, the order was served upon Coe by certified mail, return receipt requested. He signed for receipt on July 31. The required affidavit of service was filed.
On August 21, 1998, counsel for Coe filed a motion to set aside the July 6 order of dismissal. For purposes of Coe's motion, the parties agreed that no steps were taken in the prosecution of the case from the filing of LSUMC's answer on March 28, 1995 until the filing of the motion and order of dismissal on July 2, 1998. After briefs were filed and oral argument heard on December 14, 1998, the trial court denied Coe's motion on December 30, 1999. Written reasons in support of the ruling were filed on January 4, 1999. A judgment denying the motion to set aside the July 6, 1998 order of dismissal was filed on January 29, 1999, although signed by the trial judge on February 4, 1999. From this judgment, Coe appeals.
DISCUSSION
B
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