In Re: Medical Review Panel of Cynthia Berryhill v. Denardo D. Dunham, D.P.M.

IN RE: MEDICAL REVIEW * NO. 2021-C-0099
PANEL OF CYNTHIA
BERRYHILL *
COURT OF APPEAL
VERSUS *
FOURTH CIRCUIT
DENARDO D. DUNHAM, *
D.P.M. STATE OF LOUISIANA
*******

APPLICATION FOR WRITS DIRECTED TO
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2020-07395, DIVISION “C”
Honorable Sidney H. Cates, Judge
******
Judge Joy Cossich Lobrano
******
(Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge
Regina Bartholomew-Woods)

Byron J. Casey, III
ATTORNEY AT LAW
7301 General Haig St.
New Orleans, LA 70124

COUNSEL FOR PLAINTIFF/RELATOR

David K. Persons
Gerald F. Arceneaux
HAILEY, MCNAMARA, HALL LARMANN
& PAPALE, LLP
1 Galleria Blvd. Suite 1400
Metairie, LA 70001

COUNSEL FOR DEFENDANT/RESPONDENT

WRIT GRANTED; JUDGMENT REVERSED

April 28, 2021

JCL This is an evidentiary dispute in a medical malpractice case under the
TFL
RBW Louisiana Medical Malpractice Act. This case is in the pre-suit, medical review

panel stage. Relator, Cynthia Berryhill, seeks review of the district court’s

February 9, 2021 judgment granting a motion to exclude evidence from the

medical review panel submission filed by Respondent, Denardo D. Dunham, DPM,

in this pre-suit discovery proceeding.

On June 24, 2019, Relator filed a complaint with the Louisiana Division of

Administration. Therein, Relator argued that Respondent breached the standard of

care in relation to surgery performed on July 27, 2018. Specifically, Relator

averred that Respondent performed unnecessary surgery. Relator sought the

appointment of a Medical Review Panel to determine whether Respondent

breached the applicable standard of care. Relator filed a second supplemental and

amending complaint in which Relator claimed a lack of informed consent. Relator

averred that Respondent had her sign a blank consent form. Relator contended that

after she signed the blank form, Respondent wrote in medical conditions that she

did not have, and listed surgical procedures and alternative treatments that

Respondent did not discuss with her.

On August 24, 2020, counsel for Respondent sent an email to the attorney

appointed as the chair of the Medial Review Panel objecting to the admissibility of

certain affidavits attached to Relator’s documents submitted for consideration by

the Medical Review Panel. The affidavits in dispute were from two former patients

of Respondent (other than Relator) and the husband of one former patient. Each of

these affiants attested to their experience with Respondent’s use of consent forms

in the context of their care. On October 2, 2020, the chair of the Medical Review

Panel issued a letter to Relator and Respondent overruling the objection to the

affidavits. The chair indicated that the Medical Review Panel would consider the

affidavits.

On November 9, 2020, Respondent filed in the district court a motion to

exclude evidence to the Medical Review Panel. Therein, Respondent claimed that

the evidence submitted to the Medical Review Panel must be limited to that

involving the claimant’s care. On January 4, 2021, Relator filed an opposition to

the motion to exclude evidence. Relator submitted the affidavits of Respondent’s

other patients to establish that Respondent had a habit of filling in consent forms

after the patient signed the form and including diagnoses and treatment not

discussed with the patient. On February 9, 2021, the district court rendered a

judgment granting the motion to exclude evidence to the Medical Review Panel.

This writ application followed.

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The issue presented herein turns on the statutory construction of La. R.S.

40:1231.8(D)(2). Thus, as the issue presents a question of law, the standard of

review is de novo. In re Med. Review Panel for Brock, 19-0480, p. 3 (La. App. 4

Cir. 6/19/19), 274 So.3d 1275, 1277.

La. R.S. 40:1231.8(D)(1) and (2) states:

(1) The evidence to be considered by the medical review
panel shall be promptly submitted by the respective
parties in written form only.
(2) The evidence may consist of medical charts, x-rays,
lab tests, excerpts of treatises, depositions of witnesses
including parties, interrogatories, affidavits and reports of
medical experts, and any other form of evidence
allowable by the medical review panel.

Relator contends that the catchall phrase, “and any other form of evidence

allowable by the medical review panel,” gives the Medical Review Panel the

discretion to determine what evidence it will consider. Relator avers the district

court should not determine what evidence the Medical Review Panel considers.

This Court recently addressed, as a matter of first impression, the propriety

of a district court’s determination of what evidence a Medical Review Panel may

consider in Brock, 19-0480, 274 So.3d 1275. In Brock, a claimant in a medical

malpractice proceeding issued two notices of record depositions. Id., 19-0480, p. 1,

274 So.3d at 1276. The defendants filed a motion to quash. The district court

granted the motion to quash and precluded the claimant from presenting the

evidence obtained from the record depositions to the Medical Review Panel. Id.,

19-0480, pp. 1-2, 274 So.3d at 1276. The claimant filed an application for

supervisory writs. Id., 19-0480, p. 2, 274 So.3d at 1276. This Court determined

there was no authority for a district court to act as a gatekeeper of the evidence

presented to a Medical Review Panel. Id., 19-0480, p. 6, 274 So.3d at 1278-79.

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This Court specified “[t]he pertinent statutory provision, La. R.S. 40:1231.8(D)(2),

places no restrictions on the type of evidence that may be produced to the medical

review panel.” This Court granted the application for supervisory writs and

reversed the ruling of the trial court. Id., 19-0480, p. 6, 274 So.3d at 1279. We

reach the same conclusion here.

A de novo review of the record reveals the district court erred in granting the

motion to exclude evidence to the Medical Review Panel. The Medical

Malpractice Act grants authority to the Medical Review Panel to determine what

evidence it will consider. The district court’s limited role in facilitating the

production of evidence does not permit the district court to act as a gatekeeper and

determine what evidence the Medical Review Panel considers. Thus, the district

court erred in excluding the affidavits in dispute.

Accordingly, for these reasons, we grant the writ and reverse the judgment

of the district court.

WRIT GRANTED; JUDGMENT REVERSED

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