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Williams v. Notami Hospitals of Louisiana11/4/2005
pplicable law or contract has provided a procedure for a claimant to seek administrative relief before resorting to judicial action. Hidalgo v. Wilson Certified Express, Inc., 94-1322 (La. App. 1st Cir. 5/14/96), 676 So.2d 114, 116. Generally, the person aggrieved in such a case must exhaust all administrative remedies before being entitled to judicial review. Id.
In raising the dilatory exception raising the objection of prematurity, the exceptor bears the initial burden of showing that an administrative remedy or procedure applies, by reason of which the judicial action is premature. Ginn v. Woman's Hospital Foundation, Inc., 99-1691 (La. App. 1st Cir. 9/22/00), 770 So.2d 428, 431, writ denied. 2000-3397 (La. 2/2/01), 784 So.2d 647; Lewis v. Grossman, 582 So.2d 991, 994 (La. App. 1st Cir. 1991). Once the existence of an administrative remedy is established, the burden then shifts to the plaintiff to show that the specified administrative remedies or procedures have been exhausted. Ginn,770 So.2d at 431.
The MMA provides such a mechanism in that it requires all medical malpractice claims against covered health care providers to be submitted to a medical review panel prior to filing suit in any court. La. R.S. 40:1299.47(B)(l)(a)(l); Dunn, 701 So.2d at 699. This administrative procedure affords the medical review panel an opportunity to render its expert opinion on the merits of a complaint. Dunn, 701 So.2d at 699 (citing Hutchinson v. Patel, 93-2156 (La. 5/23/94), 637 So.2d 415, 419). If an action against a health care provider covered by the MMA has been commenced in a court and the complaint has not been first presented to a medical review panel, then the dilatory exception raising the objection of prematurity is the proper procedural vehicle to be invoked by the covered health care provider. Dunn, 701 So.2d at 699; see also McKnight v. D & W Health Services, Inc., 2002-2552 (La. App. 1st Cir. 11/7/03), 873 So.2d 18, 20 (citing Spradlin v. Acadia-St. Landry Medical Foundation, 98-1977 (La. 2/29/00), 758 So2d 116, 119).
MEDICAL REVIEW PANEL
The MMA must be strictly construed because it provides limitations on the liability of a health care provider and provides advantages to health care providers in derogation of the rights of tort victims. Sewell v. Doctors Hospital, 600 So.2d 577, 578 (La. 1992); Kelty v. Brumfield, 93-1142 (La. 2/25/94), 633 So.2d 1210, 1216. One such advantage is that all malpractice claims against health care providers covered under the MMA shall be reviewed by a medical review panel. La. R.S. 40:1299.47(A)(l). Additionally, no action against a health care provider covered by the MMA may be commenced in any court before the claimant's proposed complaint has been presented to a medical review panel. La. R.S. 40:1299.47(B)(l)(a)(i). The medical review panel "shall have the sole duty" to express its expert opinion as to whether or not the evidence supports the conclusion that the defendant or defendants acted or failed to act within the appropriate standards of care as charged in the complaint. La. R.S. 40:1299.47(G).
With regard to malpractice complaints, in Perritt, 849 So.2d at 65, the Louisiana Supreme Court, determined:
that the statute says nothing further about the required format for the "proposed complaint;" therefore, defendants can not require the plaintiffs to specify the health care providers' standards of care. Furthermore, the language of La. R.S. 40:1299.47(G) suggests that it is the duty of the medical review panel to determine the appropriate standard of care based on the evidence presented and whether defendant breached that standard. ... etting out the appropriate standard of care is the role of
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