Jamal Wright v. Touro Infirmary

JAMAL WRIGHT ET AL * NO. 2021-C-0324

VERSUS *
COURT OF APPEAL
TOURO INFIRMARY ET AL *
FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

APPLICATION FOR WRITS DIRECTED TO
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2018-01903, DIVISION “E”
Honorable Omar Mason, Judge
******
Judge Rosemary Ledet
******
(Court composed of Judge Terri F. Love, Judge Edwin A. Lombard, Judge
Rosemary Ledet)

Benjamin Biller
1100 Poydras Street, Suite 2700
New Orleans, Louisiana 70163

COUNSEL FOR RELATORS

Danatus King
2475 Canal Street, Suite 308
New Orleans, Louisiana 70119

COUNSEL FOR RESPONDENT

WRIT GRANTED IN PART AND DENIED IN
PART; JUDGMENT RENDERED

JULY 7, 2021

This is a medical malpractice case. The Relators—Touro Infirmary and
RML
Kimberly Guidry, R.N.—seek review of the trial court’s April 9, 2021 judgment
TFL
denying their re-urged peremptory exception of prescription.1 The narrow issue
EAL
presented here is whether the wrongful death and survival action claims asserted

by the Respondent—Jamal Wright (“Mr. Wright”) on behalf of his minor child,

Janaya Wright (“Janaya”)—are prescribed. For the reasons that follow, we grant

the writ as to the wrongful death action claim, but deny the writ as to the survival

action claim.

Factual and Procedural Background

The medical malpractice claims asserted here arise from medical treatment

provided to Nicole Phillips (“Ms. Phillips”) following the birth of her child,

1
Both Relators and the other named defendants—the state health care providers (the “State
Defendants”)—filed a prior prescription exception. From the trial court’s November 2017 ruling
denying the prior exception, only State Defendants filed a writ application, which this court
denied. Wright v. State on Behalf of Alleyn, 18-0215 (La. App. 4 Cir. 5/2/18) (unpub.).
Thereafter, State Defendants were dismissed due to the failure to serve them timely. See Wright
v. State on Behalf of Alleyn, 19-0499, p. 12 (La. App. 4 Cir. 8/5/20), ___ So.3d ___, ___, 2020
WL 4499654, *7 (observing that “[d]ue to the Plaintiff's failure to request service on a State
agency within ninety days of commencement of the action, we grant the Relators’ writ, reverse
the trial court's judgment, and dismiss the Respondent’s claims with prejudice”).

1

Janaya.2 Janaya was born on October 31, 2014. On the following day, Ms. Phillips

became unresponsive, went into a coma, and sustained a brain injury. On June 4,

2016, Ms. Phillips died.

The relevant procedural time line in this case is as follows:

 January 22, 2015: Ms. Phillips was interdicted and her parents—Donald
Phillips, Sr., and Aubranell Phillips (“Grandparents”)—were appointed as
her curator and undercurator, respectively;

 June 2, 2015: An interim consent judgment was rendered, granting joint
custody of Janaya to Grandparents and Mr. Wright, but designating Mr.
Wright as the domiciliary parent;

 October 7, 2015: An initial request for a medical review panel was filed,
naming Ms. Phillips as the claimant;

 October 15, 2015: An amended request for medical review panel was filed,
substituting Grandparents, in their respective capacities as curator and
undercurator, as the claimants;

 February 7, 2017: A second amended request for medical review panel was
filed, clarifying that Ms. Phillips had died on June 4, 2016; that she was
survived by her parents (Grandparents) and a minor child, Janaya; and that
the Grandparents had legal custody of Janaya;

 June 21, 2017: Grandparents’ attorney sent a letter to the Division of
Administration, advising that upon Ms. Phillips’ death, her right of action
passed to Janaya and that Grandparents “no longer possess a right of action
to pursue these claims. That right is now vested in Jamal Wright, the father
of the minor child, on his daughter’s behalf”;

 July 20, 2017: Mr. Wright’s attorney sent a letter of representation to the
Division of Administration, advising that “[Mr] Wright has hired our firm to
represent him on behalf of his minor daughter, Janaya Wright, in the above
reference matter”; and

 December 11, 2017: Mr. Wright, acting on behalf of Janaya, filed a request
with the Division of Administration to have Janaya, as Ms. Phillips’s sole
heir, substituted for Ms. Phillips as claimant in this matter; included with
this request was a copy of Janaya’s birth certificate.

Relators’ initial exception of prescription, which was filed while the medical

review panel proceeding was pending, was denied in January 2018. Thereafter, the
2
Ms. Phillips and Mr. Wright were never married; Mr. Wright is Janaya’s biological father.

2

medical review panel issued its decision, and Respondent filed this suit. In May

2019, the Louisiana Supreme Court issued its decision in Guffey v. Lexington

House, LLC, 18-1568 (La. 5/8/19), 283 So.3d 1001.3 Based on the Guffey case,

Relators re-urged their prescription exception.

Relators’ argument has four parts: (i) Janaya, as Ms. Phillips’ only

surviving heir, had the right of action to bring survival and wrongful death action

claims; (ii) Janaya is a minor who lacks procedural capacity and, thus, her father,

Mr. Wright, had to assert her claims within one year of Ms. Phillips’ death;4

(iii) Grandparents did not have the right of action or procedural capacity to assert a

claim, thus, their February 7, 2017 medical review panel request did not suspend

prescription, as held in Guffey; and (iv) because prescription was never suspended

after Ms. Phillips’ death, Janaya’s claims, asserted by Mr. Wright, are prescribed.

The trial court denied Relators’ re-urged exception. In so doing, the trial

court reasoned that because Grandparents had legal custody of Janaya, albeit as

non-domiciliary parents, their February 7, 2017 request for a medical review panel

“meets the requirements of the wrongful death and survival actions interruption of

prescription.” This writ followed.

Standard of Review and Governing Law

3
In Guffey, the Supreme Court addressed the issue of whether a “claimant” under La. R.S.
40:1231.1(A)(4) was confined to those persons who have a right of action to assert a survival
action or wrongful death action claim when the panel proceeding is completed. Answering that
question in the affirmative, the Supreme Court observed “the language of R.S. 40:1231.1(A)(4)
when read in light of our Civil Code, presumes that only those persons with a right of action to
seek damages or the representative specified in La. R.S. 40:1231.1(A)(16) may qualify to be a
‘claimant’ within the meaning of the Act.” Guffey, 18-1568, p. 14, 283 So.3d at 1010. Applying
that definition, the Supreme Court found that because the decedent’s granddaughter was not a
proper party “claimant,” her request for a medical review panel did not interrupt prescription.
4
Mr. Wright was the domiciliary parent and had the sole authority to assert Janaya's right of
action on her behalf. See La. 9:335 B(3) (providing that “[t]he domiciliary parent shall have
authority to make all decisions affecting the child unless an implementation order provides
otherwise”).

3

This court has summarized the standard of review of a trial court's judgment

granting or denying an exception of prescription as follows:

When no evidence is introduced, the judgment is reviewed
simply to determine whether the trial court's decision was legally
correct. A de novo standard of review applies. In this context, the
exception of prescription must be decided on the facts alleged in the
petition, which are accepted as true.

When evidence is introduced, the trial court's factual findings
on the issue of prescription generally are reviewed under the
manifestly erroneous-clearly wrong standard of review. When
evidence is introduced but the case involves no dispute regarding
material facts, only the determination of a legal issue, an appellate
court must review the issue de novo, giving no deference to the trial
court's legal determination. ...

Ordinarily, the defendant—the party asserting a peremptory
exception of prescription—bears the burden of proof. When the
plaintiff's claim is prescribed on the face of the petition, however, the
burden shifts to the plaintiff to establish that his or her claim has not
prescribed.
Wells Fargo Fin. Louisiana, Inc. v. Galloway, 17-0413, pp. 8-9 (La. App. 4 Cir.

11/15/17), 231 So. 3d 793, 800 (citations, quotation marks, and alterations

omitted).

Medical malpractice claims are subject to a special prescriptive period

codified in La. R.S. 9:5628(A), which provides:

No action for damages for injury or death against any physician
. . . whether based upon tort, or breach of contract, or otherwise,
arising out of patient care shall be brought unless filed within one year
from the date of the alleged act, omission, or neglect, or within one
year from the date of discovery of the alleged act, omission, or
neglect; however, even as to claims filed within one year from the
date of such discovery, in all events such claims shall be filed at the
latest within a period of three years from the date of the alleged act,
omission, or neglect.

The reference in La. R.S. 9:5628 to actions for death “applies solely to

survival actions as they are derivative of the malpractice victim’s action.” Taylor v.

Giddens, 618 So.2d 834, 841 (La. 1993). In contrast, wrongful death actions are

4

not derivative because they are “not dependent upon the victim having a viable

malpractice action.” Id. As a result, wrongful death actions are governed by the

one-year tort prescription period set forth in La. C.C. art. 3492. Id. Wrongful death

claims, nonetheless, “continue to be governed and procedurally controlled by the

provisions of the [Medical Malpractice] Act.” Taylor, 618 So.2d at 841. Because

wrongful death and survival action claims are separate and distinct, “the filing of

the survival action does not interrupt prescription for the wrongful death action.”

12 LA. CIV. L. TREATISE, TORT LAW, §5:20 (2d ed.).

Explaining the special prescription rules regarding medical malpractice

actions, this court has observed:

Despite the one-year prescriptive period, “medical malpractice
lawsuits are virtually never actually filed in courts of competent
jurisdiction within one year of the alleged act of malpractice.” In re
Noe, 05-2275, p. 8 (La. 5/22/07), 958 So.2d 617, 622 (Calogero, C.J.,
concurring in part, dissenting in part). This is because “[f]iling a
complaint with the review panel is a mandatory initial step in a
malpractice claim and a requirement before filing suit ‘in any court.’ ”
Nathan v. Touro Infirmary, 512 So.2d 352, 353 (La. 1987).
Acknowledging this initial step, the Louisiana Legislature has
expressly “provided that the filing of the request for a review of a
claim suspend[s] the running of prescription, ... just as the filing of a
suit in a competent jurisdiction suspends the running of prescription.”
Id. at 354.
Med. Review Complaint by Downing, 18-1027, p. 7 (La. App. 4 Cir. 5/8/19); 272

So.3d 55, 59-60.

Although the filing of a request for a medical review panel is equivalent to

the filing of a suit for purposes of interrupting prescription, the party filing the

request must be a proper “claimant” under La. R.S. 40:1231.1(A)(4).5 The

5
La. R.S. 40:1231.1(A)(4) provides that the term “claimant” means “a patient or representative
or any person, including a decedent’s estate, seeking or who has sought recovery of damages or
future medical care and related benefits under this Part. All persons claiming to have sustained
damages as a result of injuries to or death of any one patient are considered a single claimant.”

5

Supreme Court, in Guffey, construed the term “claimant” to mean those with a

right of action under La. C.C. arts. 2315.1 or 2315.2.

Discussion

Here, Relators contend that since Grandparents were not proper party

claimants under La. R.S. 40:1231.1(A)(4), their February 7, 2017 request for a

medical review panel did not serve to interrupt prescription. In support, Relators

cite the Guffey case. We find this argument persuasive as to Respondent’s

wrongful death action claim, which did not arise until Ms. Phillips’ death, but not

as to Respondent’s survival action claim.

In finding Respondent’s claim was timely asserted, the trial court relied on

Grandparents’ February 7, 2017 request for a medical review panel, which was

filed within one year of Ms. Phillips’ death. Mr. Wright, on Janaya’s behalf, failed

to timely assert a claim within one year of Ms. Phillips’ death. Grandparents’

February 7, 2017 request for a medical review panel did not interrupt prescription

because Grandparents lacked a right of action to file a wrongful death action claim.

The Guffey case, as Relators contend, dictates a finding that Janaya’s wrongful

death action claim is prescribed. For these reasons, the trial court erred in denying

Relators’ prescription exception as to the wrongful death action claim.

As to Respondents’ survival action claim, however, a different analysis is

required. Taylor, 618 So.2d at 841 (observing that although survival and wrongful

death action claims arise from the same tortious act, they are separate and distinct).

Before Ms. Phillips died, a timely request for a medical review panel was filed on

her behalf. Ms. Phillips’ request was filed by her parents—Grandparents—in their

respective capacities as curator and undercurator. Because Ms. Phillips timely filed

a request for a medical review panel before she died, the one-year prescriptive

6

period does not apply to Janaya’s right of substitution as to the survival action

claim. See Nathan v. Touro Infirmary, 512 So.2d 352, 355 (La. 1987) (observing

that once an action has been instituted timely, “the one year prescriptive period . . .

no longer applies to the survival action, but rather the nonabatement [La. C.C.P.

art. 426-28] and substitution [La. C.C.P. art. 801] provisions of the Code of Civil

Procedure control”).6

On December 11, 2017, Mr. Wright properly substituted Janaya in Ms.

Phillips’ place as to the survival action claim. As Respondent points out, Ms.

Phillips’ action had not been abandoned before Janaya’s substitution. For these

reasons, the trial court did not err in denying Relators’ prescription exception as to

the survival action claim.

Conclusion

Accordingly, Relators’ writ application is granted in part; and the trial

court’s April 9, 2021 judgment is reversed insofar as it denied Relators’ exception

of prescription as to the wrongful death action claim. Judgment is rendered

granting Relators’ exception of prescription as to the wrongful death action claim

and dismissing that claim. In all other respects, Relators’ writ is denied.

WRIT GRANTED IN PART AND DENIED IN PART; JUDGMENT
RENDERED

6
La. C.C.P. art. 801 provides that “[w]hen a party dies during the pendency of an action which is
not extinguished by his death, his legal successor may have himself substituted for the deceased
party, on ex parte written motion supported by proof of his quality.”

7