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Gele` v. Binder5/31/2005
Panel composed of Judges Thomas F. Daley, Marion F. Edwards, and Clarence E. McManus
REVERSED
Defendant/Appellant, Lakeside Hospital, appeals from a trial court judgment that denied its Exception of Prematurity in a medical malpractice action. For the following reasons, the judgment of the trial court is reversed.
FACTS AND PROCEDURAL HISTORY
On June 28, 2001, plaintiff, Lucille Gele` ("Gele`"), underwent a medical procedure on her right elbow which was performed by Dr. A. Jay Binder III at Lakeside Hospital in Jefferson Parish. On May 21, 2002, Gele` filed a formal complaint with the State of Louisiana Patient's Compensation Fund requesting that a Medical Review Panel convene in order to review her allegations that Dr. Binder severed her radial nerve because of improper placement of an arthroscopic portal. No specific allegations of malpractice were raised against Lakeside in the PCF letter, although Lakeside was identified as a health care provider. The Medical Review Panel ultimately concluded that neither Dr. Binder nor Lakeside failed to meet the applicable standard of care as charged in the complaint.
On September 16, 2003, Gele` filed a Petition For Damages in the Twenty-Fourth Judicial District Court for the Parish of Jefferson against Dr. Binder and Lakeside Hospital. Lakeside then filed a Peremptory Exception of No Cause Of Action, which the trial court granted following a hearing on August 20, 2004. The trial court allowed Gele` fourteen days to amend her petition to state a cause of action against Lakeside. After Gele` filed a Supplemental and Amending Petition For Damages, Lakeside filed an Exception of Prematurity on the basis that the claims raised against it had never been reviewed by a Medical Review Panel as required by LSA-R.S. 40:1299.47 (A)(1)(a). The trial court denied Lakeside's exception following a hearing on November 5, 2004. This timely appeal follows.
LAW AND ANALYSIS
On appeal, Lakeside's lone assignment of error is that the trial court erred in denying its Exception of Prematurity since the additional claims brought by Gele` in her supplemental petition had never been presented to a medical review panel.
Louisiana Code of Civil Procedure Article 926 provides for the dilatory exception of prematurity. The exception of prematurity is the proper procedural mechanism for a qualified health care provider to invoke when a medical malpractice plaintiff has failed to submit the claim for decision by a medical review panel before filing suit against the provider. If an action against a health care provider covered by the Act has been commenced in a court of law and the complaint was not first presented to a medical review panel, an exception of prematurity must be maintained, and the plaintiff's suit must be dismissed.
In Gele`'s original Petition For Damages, no specific allegations of malpractice were made against Lakeside. In Gele`'s Supplemental and Amending Petition For Damages, however, she added the following allegations against the appellant:
a. Selecting an improper location for an arthroscopic portal;
b. Failing to undertake surgical intervention to inspect the radial nerve after petitioner's complaints of radial nerve palsy;
c. Failing to repair the severed radial nerve;
d. Other acts of negligence which shall be proven at the trial of this matter.
There is no dispute that Lakeside had, in fact, been named in Gele`'s complaint to the Medical Review Panel dated May 21, 2002. But while Gele`'s complaint details several alleged acts of malpractice against Dr. Binder, no specific acts of malpr
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