Medical Review Panel For The Claim Of Richard Bush

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #023
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 13th day of May, 2022 are as follows:
BY Genovese, J.:
2021-C-00954 MEDICAL REVIEW PANEL FOR THE CLAIM OF RICHARD BUSH,
DECEASED, ET AL. PCF NO. 2018-01209 (Parish of St. Bernard)
REVERSED IN PART. AFFIRMED IN PART. REMANDED TO THE
TRIAL COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH
THIS OPINION. SEE OPINION.

SUPREME COURT OF LOUISIANA
No
. 2021-C-00954
ME
DICAL REVIEW PANEL FOR THE CLAIM OF RICHARD BUSH,
DECEASED, ET AL. PCF NO. 2018-01209
O
n Writ of Certiorari to the Court of Appeal, Fourth Circuit, Parish of St. Bernard
G
enovese, J.
This Court granted this writ application in order to determine (1) whether
contra non valentem interrupted prescription in this medical malpractice wrongful
death case; and, (2) whether the court of appeal erred in relying on documents that
were not entered as evidence and were not part of the record. For the reasons that
follow, we find that, while contra non valentem may interrupt prescription in a
wrongful death claim in certain instances, it did not interrupt prescription in this case
due to the fact that the court of appeal incorrectly considered documents that were
not in evidence. For these reasons, we reverse the court of appeal’s ruling in part,
affirm in part, and remand.
FACTS AND PROCEDURAL HISTORY
On November 21, 2017, Richard Bush presented to Saint Bernard Parish
Hospital for depression and suicidal ideations. At the hospital, Dr. Miguel Aguilera
treated and discharged him. Mr. Bush attempted re -admittance with the same
complaints, but was refused re-admittance. Thereafter, Mr. Bush attempted suicide
in the hospital bathroom. He was found alive and transported to University Hospital
in New Orleans for treatment; however, he succumbed to his injuries from the
suicide attempt and died on November 30, 2017. On November 19, 2018, his wife,
Patricia Bush, on behalf of herself, her daughters, Madalyn Bush and Ashley Bush,
and on behalf of the decedent, Richard Bush (plaintiffs herein), filed a formal pro se
complaint with the Patient Compensation Fund (“PCF”) to convene a medical

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review panel (“MRP”) .1 The complaint named Saint Bernard Parish Hospital
Foundation Inc. d/b/a Ochsner Health System, Ochsner Medical Center and Dr.
Aguilera (collectively, “SBPHF” or “defendants”) as defendants with the dates of
the alleged malpractice occurring between November 21, 2017, and November 30,
2017.
With her complaint, Mrs. Bush included a filing fee of $100. On December 4,
2018, the PCF notified her that she would need to submit another $100 for the
additional named defendant, and that failure to do so within 45 days would invalidate
the complaint per La.R.S. 40:1231.8(A)(1). In the interim, SBPHF filed a petition to
institute discovery in the Thirty-Fourth Judicial District Court. On January 22, 2019,
Mrs. Bush received a second notification from the PCF advising her of the deficiency
in her filing. However, she failed to timely remit the additional $100; and on March
13, 2019, the PCF notified Mrs. Bush her complaint was without effect and that it
would refund the $100 that she submitted with the complaint.
On May 28, 2019, Mrs. Bush filed a second complaint with the PCF through
counsel (collectively, the first and second PCF complaints are referred to as
“plaintiffs’ initial PCF complaints”) . The PCF acknowledged receipt of this
complaint along with the requisite $200 filing fees. On August 30, 2019, SBPHF
filed an exception of prescription asserting that, as the alleged dates of malpractice
were still between November 21, 2017, and November 30, 2017, the second
complaint was prescribed on its face .
2 Notably, the two PCF complaints filed by

1In pertinent part, La.R.S. 9:5628(A) provides that no medical malpractice action shall be brought
unless filed within one year from the date of the alleged malpractice or within one year from the
date of discovery of the alleged malpractice.

Additionally, La.R.S. 40:1231.8(A)(1)(a) requires that all medical malpractice claims be submitted
to a medical review panel before a civil action may be instituted. The one-year prescriptive period
for medical malpractice action is suspended during the pendency of medical review panel
proceedings until 90 days after the claimant receives formal notice of the medical review panel’s
opinion.

2 Dr. Aguilera also filed a peremptory exception of prescription on September 23, 2019, adopting
the arguments of SBPHF.

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Mrs. Bush did not suggest any circumstances that delayed the discovery of any
alleged malpractice.
On October 10, 2019, Mrs. Bush filed an opposition, arguing for the first time
that contra non valentem barred t he exception of prescription in this case.
Specifically, she argued that until October 2018, she was unaware of an SBPHF
internal policy requiring the hospital to admit suicidal patients. In conjunction with
her opposition, on October 17, 2019, Mrs. Bush filed a supplemental PCF complaint
(the “plaintiffs’ supplemental PCF complaint”) alleging that discovery of this
internal policy was her first indication that SBPHF had committed malpractice. Prior
to this discovery, she was not aware of any breach of the standard of care by SBPHF
that might have contributed to her husband’s death. Mrs. Bush concluded that
because of the delayed discovery of the potential malpractice, prescription did not
begin to run until October 2018. Therefore, her second complaint filed on May 28,
2019 was timely. In support of this argument, Mrs. Bush relied on her copy of the
October 17, 2019 supplemental PCF complaint and her own affidavit (executed on
October 17, 2019) attesting to the delayed discovery.
A hearing on the exception of prescription was held on October 18, 2019.
Defendants offered, filed, and introduced plaintiffs’ initial PCF complaints during
the hearing. Plaintiffs presented Mrs. Bush’s affidavit and the supplemental and
amended request for an MRP. However, these documents were not offered, filed,
or introduced into evidence at the hearing, and no testimony was presented by
plaintiffs. The trial court granted SBPHF’s exception of prescription as to the
wrongful death claim.
3

3 The trial court ruling also permitted additional discovery on the issue of whether contra non
valentem applied to the survival action, and the court of appeal affirmed the trial court’s ruling .
While this issue is nominally mentioned in defendants’ briefs to this Court, defendants present no
argument on this issue. Accordingly, it is deemed abandoned. State v. Jones , 340 So.2d 563
(La.1976); State v. Blanton, 325 So.2d 586 (La.1976).

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Mrs. Bush filed a motion for new trial, a sserting that the trial court erred in
dismissing the wrongful death claim, which the trial court denied. The trial court
also designated its judgment granting SBPHF’s exception of prescription as to the
wrongful death action as final. Mrs. Bush devolutively appealed from the denial of
her motion for new trial. The court of appeal converted the devolutive appeal from
the motion for new trial to an appeal on the merits. See Clotworthy v. Scaglione, 11-
1733, p. 3 (La.App. 4 Cir. 5/23/12), 95 So.3d 518, 520 (citing Smith v. Hartford Acc.
& Indem. Co. , 254 La. 341, 223 So.2d 826, 828 -29 (La.1969) (“ We consider an
appeal of the denial of a motion for new trial as an appeal of the judgment on the
merits as well when, as here, it is clear from the appellant’s brief that he intended to
appeal the merits of the case. ”) The court of appeal ultimately r eversed the trial
court’s judgment regarding the exception of prescription for plaintiffs’ wrongful
death claims.
4 Med. Rev. Panel for Bush, 20-0468 (La. App. 4 Cir. 6/2/21), 2021
WL 2217464.5 The court of appeal found, in pertinent part, that plaintiffs met their
burden in asserting contra non valentem:
Unlike Hotard [v. Banuchi, 00-1364 (La. App. 5 Cir. 1/30/01), 784
So.2d 654], and In re Guidry[, 17-0105, (La. App. 5 Cir. 8/30/17), 225
So.3d 1169], where the fact -intensive reasonableness inquiry showed
the plaintiffs’ delay in discovering the alleged malpractice was
unreasonable, in this case [,] Defendants failed to rebut Ms. Bush’ s
attestation as to the date of discovery of the alleged malpractice. Similar
to Brooks [ v. Meaux, 18-0980 (La. App. 3 Cir. 6/12/19), 275 So.3d 41,
writ denied, 19-01135 (La. 10/8/19), 280 So.3d 590], we conclude that
the record before this court supports that it was reasonable for the Bush
Family to not recognize that Defendants possibly committed
malpractice until they discovered, by receiving the complete medical
records, including the hospital’s policy and procedures, that Defendants
did not follow their own policies a nd proce dures. Thus, the district
court’s finding[] that the alleged delay was reasonable as to the survival
action[,] but “the reasonableness of delaying inquiry as to the [wrongful

4 The court of appeal also affirmed the trial court’s ruling on the denial of the exception s of
prescription related to plaintiffs’ survival action and remanded the matter back to the trial court.

5 Judge Belsome concurred in the result and assigned reasons, emphasizing that no statutory or
jurisprudential rule precludes the full application of the doctrine of contra non valentem exception
under qualifying circumstances in a wrongful death case.

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death] was not proven to the Court's satisfaction,” is not supported by
the record.

Bush, 20-0468, at pp. 20–21. The court of appeal noted that it rendered judgment
in favor of plaintiffs without reviewing the transcript from the original October
18, 2019 hearing on the exceptions of prescription .6 In its opinion, the court of
appeal further stated that Mrs. Bush’s affidavit and the amended medical malpractice
complaint were offered, filed, and introduced into evidence. However, a review of
the trial transcript reveals that this did not occur. Following the issuance of the
court of appeal ruling, defendants filed writ applications in this Court.
SBPHF argues that contra non valentem should only apply in exceptional
circumstances. Specialized Loan Servicing, L.L.C. v. January , 12-2668 (La.
6/28/13), 119 So.3d 582, 585. In Campo v. Correa, 01-2707 (La. 6/21/02) 828 So.2d
502, this Court determined that in order for contra non valentem to apply to a
medical malpractice case, the plaintiff must present facts alleged with particularity
to show the plaintiff was unaware of the malpractice prior to the alleged date of the
discovery, and delay in filing suit was not due to willful, negligent, or unreasonable
action/inaction. 01-2707, 828 So.2d at 509. Defend ants note that plaintiffs alleged
that a let ter was submitted to the PCF supplementing the request for an MRP.
However, defendants aver that this letter, never stamped “received” by the Division
of Administration and never entered into evidence , is insufficient proof that the
doctrine of contra non valentem would preserve plaintiffs’ claims and defeat the
exceptions of prescription.
Plaintiffs argue that contra non valentem applies to wrongful death actions,
and, specifically, that it applies here because the discovery of the malpractice did not
occur until Mrs. Bush learned of the hospital’s required-admittance policy in

6Bush, 20-0468, p. 7, n.5 (La. App. 4 Cir. 6/2/21) (“A copy of the transcript of the district court's
October 18, 2019 hearing is not contained in the appellate record.”)

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October 2018. Mrs. Bush counters that any argument as to insufficient evidence
and/or evidence not properly submitted was not raised by SBPHF in either the trial
court or court of appeal; therefore, it has been waived. See Johnson v. State , 02-
2382, p. 4 (La. 5/20/03), 851 So.2d 918, 921 (“[w]e cannot consider contentions
raised for the first time in this court which were not pleaded in the court below and
which the district court has not addressed”).
DISCUSSION
When evidence is introduced at the hearing on an exception of prescription,
the trial court’s findings of fact are subject to the manifest error standard of review.
In re Medical Review Panel of Hurst , 16-0934, p. 4 (La. App. 4 Cir. 5/3/17), 220
So.3d 121, 125 -126. Under the manifest error standard of review, jurisprudence
provides that if the fact finder’s ruling is reasonable, in light of a review of the record
in its entirety, the court of appeal may not reverse. Stobart v. State, Dep’t of Trans.
And Dev., 617 So.2d 880, 882-883 (La. 1993). When no evidence is introduced at a
hearing on an exception of prescription, it is analyzed on the facts pled in the petition,
which are accepted as true, and review of the judgment is limited to whether the trial
court’s decision was correct legally. Julia Street v. City of New Orleans, 17-0940, p.
4 (La. App. 4 Cir. 5/2/18), 246 So.3d 847, 849.
The prescriptive period governing a wrongful dea th claim is one y ear from
the date of death. La.C.C. art. 2315.2. This Court discussed the relevant prescriptive
periods for wrongful death claims asserted in a medical malpractice action in Taylor
v. Giddens, 618 So.2d 834, 836 (La. 1993), stating that La.R.S. 9:5628 provides the
prescriptive period for survival actions, but does not provide the prescriptive period
for wrongful death actions. However, the Court found that the commencement and
running of the prescriptive period for the wrongful death action is controlled by the
one-year liberative period applicable to delictual actions . Id. When a party has
sufficient information to excite attention and put the injured party on guard and call

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for inquiry, that person has the constructive knowledge necessary to start the running
of prescription. Campo, 828 So.2d at 510-11. The death of Mr. Bush on November
30, 2017, following his suicide attempt in the hospital bathroom, was certainly
sufficient to excite attention to begin the running of prescription in the wrongful
death claim filed by plaintiffs.
In Campo, this Court described the determinative factors to be considered in
analyzing whether the doctrine of contra non valentem should interrupt prescription
in a medical malpractice action; namely:
(1) [A] petition should not be found prescribed on its face if it is brought
within one year of the date of discovery and facts alleged with
particularity in the petition show that the patient was unaware of
malpractice prior to the alleged date of discovery, and the delay in
filing suit was not due to willful, negligent, or unreasonable action of
the patient. Campo, 01-2707 (La. 6/21/02), 828 So.2d at 509; and,

(2) The ultimate issue is the reasonableness of the patient’ s action or
inaction, in light of his education, intelligence, the severity of the
symptoms, and the nature of the defendant’ s conduct. Id. at 511
(emphasis in original).

Plaintiffs discussed the amended PCF complaint and the October 2019
affidavit during the hearing on the exceptions of prescription. However, these were
never entered into evidence at the trial on the exception s of prescription. It is
reversible legal error for an appellate court to assume all exhibits were introduced
into evidence. See Denoux v. Vessel Mgmt. Servs., Inc., 07-2143 (La. 5/21/08), 983
So.2d 84, 88 (evidence not properly offered cannot be considered even if it were
physically placed in the record). “Appellate courts are courts of record and may not
review evidence that is not in the appellate record, or receive new evidence.” Id.
(citing La. C.C.P. art. 2164). In Denoux, this Court reviewed the record and
determined plaintiffs therein failed to formally introduce evidence in support of their
opposition to an exception of prescription. Id. Accordingly, this Court found the
lower courts erred in relying on this evidence and, instead, considered the exception
of prescription in light of facts alleged in the petition. Id. Plaintiffs make much of

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the fact that the parties discussed the relevant documents— plaintiffs’ supplemental
PCF complaint and the affidavit attesting to Mrs. Bush’s delayed discovery of the
required-admittance policy—during the hearing on the exceptions and motion for a
new trial. However, these documents, while discussed, were not admitted into
evidence. Because these documents were not admitted into evidence, they can
neither form nor support the basis of the court of appeal’s ruling.
Plaintiffs’ supplemental PCF complaint contained the allegations regarding
the timing of Mrs. Bush’s knowledge of SBPHF’s policy mandating the admittance
of those who present with suicidal ideations. However, because the original suit in
this case was initiated by SBPHF as a petition to institute discovery, the October 17,
2019 supplemental PCF complaint is not in the record as a pleading in its own right.
A court cannot consider these allegations in the same way it could a standard petition
absent its formal introduction as evidence. See In re Spurlock, 18-0666, p. 4 (La.App.
5 Cir. 4/24/19), 271 So.3d 338, 341 ( it was error to consider request for MRP
attached to petition to institute discovery that was not properly introduced into
evidence); Bailey v. Loewe, 19-0915, p. 4 (La.App. 1 Cir. 8/3/20), 310 So.3d 746,
748 (“no petition nor evidence to consider” where a request for an MRP was
attached, but not properly introduced into evidence).
Because the amended PCF complaint and Mrs. Bush’s affidavit are not part
of the record, all that may be considered by this Court are plaintiffs’ initial PCF
complaints introduced as evidence by defendants at the hearing on their exceptions
of prescription (filed on November 19, 2018 and May 28, 2019, respectively). As
discussed above, an MRP must be convened before a civil action may be instituted.
A request for medical panel review is not valid and effective until the requisite filing
fee is paid . The filing fee for the request is “one hundred dollars per named
defendant” who is a qualified health care provider La.R.S. 40:1231.8(A)(1)(c).
There is no dispute that defendants—Dr. Aguilera and the hospital —were qualified

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healthcare providers. The filing fee must be paid within 45 days from the mailing
date of the “confirmation of rec eipt” of the request for review. La.R.S.
40:1231.8(A)(1)(c).7 If a claimant fails to timely pay $100 per named, qualified
defendant, the request for medical panel review is invalid and without effect. More
importantly, the request filed does not s uspend prescription if the claimant fails to
pay the full filing fee. Furthermore, La.R.S. 40:1231.8(A)(1)(e) provides as follows:
Failure to comply with the provisions of Subparagraph (c) or (d) of this
Paragraph within the specified forty-five day time f rame in
Subparagraph (c) of this Paragraph shall render the request for review
of a malpractice claim invalid and without effect. Such an invalid
request for review of a malpractice claim shall not suspend time within
which suit must be instituted in Subparagraph 2(a) of this subsection.

Thus, although the court of appeal properly set forth the law as to the
application of contra non valentem in medical malpractice wrongful death actions,
it incorrectly considered documents that were not in evidence in determining that
contra non valentem applied in this case. Without these documents, the record lacks
evidence that prescription began running in October 2018 (i.e., after Mrs. Bush
discovered the required-admittance policy) as opposed to November 30, 2017 (the
date of Mr. Bush’s death follow ing his November 21, 2017 suicide attempt in the
hospital bathroom).
CONCLUSION
Mrs. Bush’s affidavit attesting to her delayed discovery of the required-
admittance policy and the amended complaint are simply not part of the record.
Without these documents being properly introduced into evidence, there is nothing
in the record to support a finding of contra non valentem , which would interrupt
prescription. Therefore, the second, valid MRP complaint is prescribed on its face,

7 This “confirmation of receipt” issued by the PCF must: (1) confirm the receipt of the request by
certified mail; (2) advise whether the named defendants are qualified health care providers; (3)
notify the person making the amount of the filing fee and when it is due; and, (4) warn the person
making the claim that an untimely payment of the filing fee does not interrupt prescription, La.R.S.
40:1231.8(A)(3), and renders the entire claim invalid and without effect.

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having been filed more than one year from the date of Mr. Bush’s death on
November 30, 2017.
DECREE
For the foregoing reasons, we reverse the court of appeal’s ruling in part as to
the exceptions of prescription filed by defendants in response to plaintiffs’ wrongful
death claim, and reinstate the trial court’s grant of defendants’ exception of
prescription as to the plaintiffs’ wrongful death claim; we affirm the court of appeal
ruling in all other respects; and, we remand the matter to the trial court for further
proceedings consistent with this opinion.