Donna Brown v. Ralph Chesson, M.D.

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #013
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 24th day of March, 2021 are as follows:
BY Griffin, J.:
2020-CC-00730 DONNA BROWN VS. RALPH CHESSON, M.D. (Parish of Orleans
Civil)
REVERSED AND REMANDED. SEE OPINION.

03/24/21
S
UPREME COURT OF LOUISIANA
No
. 2020-CC-00730
DO
NNA BROWN
VS.
RALPH CHESSON, M.D.
O
n Writ of Certiorari to the Court of Appeal, Fourth Circuit, Parish of Orleans
Civil
G
RIFFIN, J.
W
e granted this writ application to determine whether it is sufficient to request
service solely on a qualified state health care provider when that individual is the
only named defendant in a medical malpractice suit. Specifically, whether the
plaintiff’s request for service and citation within ninety days from the
commencement of this suit on only the defendant physician satisfied the statutory
requirements for service on a state employee . For the reasons that follow, we find
that the service was sufficient and the court of appeal erred in sustaining the
exceptions of insufficiency of citation and service of process.
FACTS AND PROCEDURAL HISTORY
In October 2012, plaintiff Donna Brown filed a complaint with the Division
of Administration against Dr. Ralph Chesson. Subsequently, she was notified of Dr.
Chesson’s status as a qualified state health care provider and a medical review panel
was convened. After the medical review panel rendered its opinion in favor of Dr.
Chesson, M s. Brown filed a petition for damages solely against Dr. Chesson on
October 9, 2015 . In the petition she alleged medical malpractice during a 2011
surgical procedure and requested service on Dr. Chesson at his office.
Dr. Chesson filed declinatory exception s of insufficiency of citation and
service of process arguing that in a claim against a qualified state health care

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provider, service is proper pursuant to La. R.S. 13:5107 and La. R.S. 39:1538. The
statutes require service on three entities: 1) the head of the department for the Board
of Supervisors of the Louisiana State University Agricultural and Mechanical
College (“Department Head”); 2) the Office of Risk Management ; and 3) the
Attorney General. Dr. Chesson also filed an exception of prescription. Following a
hearing, the trial court denied all of the exceptions.
Dr. Chesson sought supervisory review. Sitting en banc, the court of appeal
found that service was insufficient, reversed the trial court’s decision, and dismissed
the suit without prejudice. Brown v. Chesson , 19-0447 (La.App. 4. Cir. 4/24/20),
299 So.3d 741. Relying on Velasquez v. Chesson, 13-1260 (La.App. 4 Cir. 10/8/14),
151 So.3d 812 and Wright v. State, 18 -0825 (La.App. 4 Cir. 10/31/18), 258 So.3d
846, the court of appeal held that in order to effect service on Dr. Chesson, at least
one of the requisite entities (the Department Head, the Office of Risk Management,
or the Attorney General) must be served. Brown, 19-0447, p. 10, 299 So.3d at 746.
Thus, “failure to timely effectuate service on the proper parties warranted dismissal
of the suit.” Id., 19-0447, p. 6, 299 So.3d at 744 (quoting Velasquez, 13-1260, p. 5,
151 So.3d at 815).
Ms. Brown’s writ application to this court followed, which we granted.
Brown v. Chesson, 20-0730 (La. 10/14/20), 302 So.3d 1108.
DISCUSSION
The sole issue before this Court is the sufficiency of Ms. Brown’s service on
Dr. Chesson. Where, as here, the facts are not disputed, the ruling on exceptions of
insufficiency of citation and service of process is subject to a de novo standard of
review. See Wilson v. Dep’t of Public Safety and Corrections, 53,433, p. 3 (La.App.
2 Cir. 4/22/20), 295 So.3d 1274, 1276, writ denied, 20-0717 (La. 9/29/20), 301 So.3d
1176 (citing Lathan Co., Inc. v. Division of Admin, 17 -0396, p. 4 (La.App. 1 Cir.
1/24/19), 272 So.3d 1, 4, writ denied, 19 -0331 (La. 4/29/19), 268 So.3d 1036).

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Similarly, our interpretation of the application of La. R.S. 13:5107 and La. R.S.
39:1538 to the facts at hand present a question of law subject to de novo review. See
Pierce Foundations, Inc. v. Jaroy Construction, Inc., 15-0785, p. 7 (La. 5/3/16), 190
So.3d 298, 303.
As mandated by La. R.S. 13:5107(D) (1),1 “service of citation shall be
requested within ninety days of the commencement of the action or the filing of a
supplemental or amended petition which initially names the state, a state agency, or
political subdivision or any officer or employee thereof as a party.” Failure to timely
request service, absent a showing of good cause, shall result in dismissal without
prejudice. See La. R.S. 13:5107(D)(2); La. C.C.P. art. 1672(C). For claims against
the State or any of its agencies to recover damages in tort for injuries including
negligence by any state employee acting within the scope of his employment,
“process shall be served upon the head of the department concerned, the office of

1 In relevant part, La. R.S. 13:5017 provides:

(A)(1) In all suits filed against the state of Louisiana or a state agency, citation and
service may be obtained by citation and service on the attorney general of
Louisiana, or on any employee in his office above the age of sixteen years, or any
other proper officer or person, depending upon the identity of the named defendant
and in accordance with the laws of this state, and on the department, board,
commission, or agency head or person, depending upon the identity of the named
defendant and in accordance with the laws of this state, and on the department,
board, commission, or agency head or person, de pending upon the identity of the
named defendant and the identity of the named board, commission, department,
agency, or officer through which or through whom suit is to be filed against.

***

D. (1) In all suits in which the state, a state agency, or political subdivision, or any
officer or employee thereof is named as a party, service of citation shall be
requested within ninety days of the commencement of the action or the filing of a
supplemental or amended petition which initially names the state, a s tate agency,
or political subdivision or any officer or employee thereof as a party.

(2) If service is not requested by the party filing the action within the period
required in Paragraph (1) of this Subsection, the action shall be dismissed without
prejudice, after contradictory motion as provided in Code of Civil Procedure
Article 1672(C), as to the state, state agency, or political subdivision, or any officer
or employee thereof, upon whom service was not requested within the period
required by Paragraph (1) of this Subsection.

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risk management, and the attorney general, as well as any others re quired by R.S.
13:5107.” La. R.S. 39:1538(D).
Ms. Brown argues that La. R.S. 13:5017 (A) – requiring service on the
Department Head and Attorney General – is not applicable to her suit against Dr.
Chesson because that section of the statute makes no reference to state employees.
In contrast, La. R.S. 13:5107(D) is the only section of the statute to reference state
employees and the only provision which regulates the time period in which service
is to be requested. Ms. Brown further argues that b ecause La. R.S. 13:5107(D) is
silent as to the method of service on a state employee, her request for personal
service on Dr. Chesson was proper pursuant to La. C.C.P. arts. 1231 and 1232.
Dr. Chesson counters that because he is a qualified state health care provider,
any damages in a medical malpractice suit will be paid by the State. See La. R.S.
40:1237.1(G) (“the state shall pay any damages … in connection with any claim
lodged against any state health care provider … for an alleged act of medical
malpractice”); Detillier v. Kenner Regional Medical Center, 03-3259, pp. 15-16 (La.
7/6/04), 877 So.2d 100, 110-11. Accordingly, the requirements of La. R.S. 13:5107
and La. R.S. 39:1538 are triggered; thus the service requested by Ms. Brown was
not timely because it did not include the Department Head, the Office of Risk
Management, and the Attorney General.
In Whitley v. State ex rel. Bd. of Sup’rs of Louisiana State University Agr.
Mechanical College, this Court observed that while La. R.S. 13:5107(D) mandates
service be requested within ninety days of the commencement of the action under
penalty of dismissal without prejudice, such penalty is limited to instances where a
named defendant is not timely served. 2 11-0040, pp. 16- 17 (La. 7/1/11), 66 So.3d

2 Similarly, in Lathan, the First Circuit noted the lack of consequence for the failure of a plaintiff
to request service on the Attorney General pursuant to La. R.S. 13:5107(A)(2) observing that “the
consequence for the failure to timely request service is in subsection (D)(2) and provides the result
of the failure to serve a party only under subsection (D).” 17-0396, p. 13, 272 So.3d at 9 (emphasis
in original).

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470, 480-81 (citing La. C.C.P. arts. 932(A), 1201(C), and 1672(C)); Wilson, 54,433,
pp. 7-8, 295 So.3d at 1278. Accordingly, this Court interpreted the statute as written
and declined to judicially impose requirements not mandated by the legislature.
Whitley, 11-0040, p. 18, 66 So.3d at 481.
Two dispositive facts are undisputed: 1) Dr. Chesson is the sole named
defendant; and 2) Ms. Brown requested personal service on Dr. Chesson pursuant to
La. C.C.P. art . 1232. Ms. Brown thus contends that her request for service was
sufficient pursuant to La. R.S. 13:5107(D) because that section does not specify the
method of service required. We agree. “Although La. R.S. 13:5107(D)(1) clearly
requires that service of citation be requested within ninety days of the
commencement of the action, it does not specify the manner of making such request
or when request is deemed to be made. ” Tranchant v. State , 08-0978, p. 5 (La.
1/21/09), 5 So.3d 832, 835.
If a medical malpractice plaintiff may nam e an individual physician state
health care provider as a defendant, it is axiomatic that service may be requested on
this individual pursuant to La. C.C.P. art. 1232. 3 Cf. Detillier, 03-3259, pp. 13-14,
877 So.2d at 109. P ursuant to La. R.S. 13:5107(D), Ms. Brown timely requested
personal service on the sole named defendant, Dr. Chesson. See Whitley, supra;
Wilson, 54,333, pp. 7, 295 So.3d at 1278 (observing that “[plaintiff] complied with
[La. R.S. 13:5017(D)(1) ] when she requested service on the named defendants”).
Further, as reasoned by Judge Belsome in his dissenting opinion below, because Ms.
Brown’s petition does not assert any “[c]laims against the state or any of its

3 To the extent there is a gap in La. R.S. 13:5107(D) as to the methodology of service on a
defendant physician, we construe it in favor of maintaining Ms. Brown’s claim. See Lathan, 17-
0396, p. 14, 272 So.3d at 10 (citing Whitley, 11-0040, pp. 12-13, 66 So.3d at 478).

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agencies,” the service requirements of La. R.S. 39: 1538 are not applicable.4 We
therefore find that the court of appeal erred in sustaining the exceptions of
insufficiency of citation and service of process.
DECREE
For the foregoing reasons, the court of appeal’s decision to sustain the
exceptions of insufficiency of citation and service of process is reversed, the
judgment of the trial court is reinstated, and the matter is remanded for further
proceedings consistent with this opinion.

REVERSED AND REMANDED.

4 The court of appeal pretermitted discussion of Dr. Chesson’s exception of prescription. Dr.
Chesson re-urges this argument in his brief to this Court. However, as the State is not a named
party to this suit, any issue concerning prescription is premature.