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Schulingkamp v. Ochsner Clinic3/13/2002
CANNELLA, J., DISSENTING WITH REASONS
AFFIRMED
Plaintiffs/ Appellants appeal the trial court's ruling that their claim against defendant, Ochsner Clinic, L.L.C., had prescribed pursuant to the Louisiana Medical Malpractice Act. For the following reasons, the judgment of the trial court is affirmed.
In 1989, plaintiffs filed this action against several defendants for the wrongful death and unauthorized organ harvesting on the body of Donald Schulingkamp, Jr. Defendant, Ochsner Clinic, L.L.C, ("Ochsner"), filed an exception of prematurity and was dismissed in March of 1990, without prejudice, by consent judgment. In the years that followed, other defendants to this action were dismissed, resulting in two separate appeals by plaintiffs to this Court.
On June 30, 1998, nearly 11 years after the alleged act of malpractice forming the basis of this suit, plaintiffs made a request to the Louisiana Patient's Compensation Fund to convene the formation of a Medical Review Panel in regard to their claim against Ochsner. Ochsner filed an exception of prescription, which the trial court granted after a hearing on May 18, 2001. Plaintiffs timely filed this appeal.
LAW AND ANALYSIS
In their first three assignments of error, plaintiffs argue that Ochsner was granted its exception of prescription based upon the trial court's misconception that the plaintiffs had abandoned their suit. In light of the following findings in regard to plaintiffs' fourth assignment, however, we will pretermit discussion on those issues related to abandonment. We also note that plaintiffs' fifth assignment of error is moot, as the record has been supplemented with their opposition memorandum.
In their fourth assignment of error, plaintiffs assert that they are "entitled to the benefit of a strict construction of the language of the original consent judgment of prematurity, preserving their claim until after the medical review panel determination is completed." Plaintiffs further argue that the parties "did not agree to any particular time limit on the completion of these proceedings."
Conversely, Ochsner argues that the consent judgment entered into between the parties is clear, that the case was being dismissed until the medical malpractice provisions were followed, and that plaintiffs never followed those provisions.
In Turnbull v. Thensted, the court, citing the Louisiana Supreme Court's holding in Canter v. Koehring Company, recognized that "the Standard of Review of a trial court's finding of facts supporting prescription is that the appellate court should not disturb the finding of the trial court unless it is clearly wrong." In this case, the trial court specifically found that the basis for prescription was that the plaintiffs had not complied with the provisions of the Medical Malpractice Act.
LSA-R.S. 9:5628 details the time allotment for filing medical malpractice actions in Louisiana, and reads in relevant part:
A. No action for damages for injury or death against any physician... duly licensed under the laws of this state... whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect. [Emphasis added]
LSA-R.S. 40:1299.47 (B)(1)(a)(i) prov
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