Neville Kirt v. Rebecca C. Metzinger, M.D.

NEVILLE KIRT ET AL. * NO. 2022-C-0487

VERSUS *
COURT OF APPEAL
REBECCA C. METZINGER, *
M.D. ET AL. FOURTH CIRCUIT
*
STATE OF LOUISIANA
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APPLICATION FOR WRITS DIRECTED TO
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2013-07873, DIVISION “L”
Honorable Kern A. Reese, Judge
******
Judge Pro Tempore James F. McKay III
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(Court composed of Judge Rosemary Ledet, Judge Tiffany Gautier Chase, Judge
Pro Tempore James F. McKay III)

JEFFREY A. MITCHELL
JAMES CARTER
HUGO L. CHANEZ
THE COCHRAN FIRM - NEW ORLEANS
3850 N. Causeway Blvd., Ste. 1500
Metairie, Louisiana 70002
COUNSEL FOR PLAINTIFFS/RESPONDENTS

C. WM. BRADLEY, JR.
BENJAMIN J. BILLER
BRADLEY MURCHISON KELLY & SHEA LLC
1100 Poydras, Suite 2700
New Orleans, Louisiana 70163
COUNSEL FOR DEFENDANTS/RELATORS

WRIT GRANTED; REMANDED WITH INSTRUCTIONS

AUGUST 18, 2022

JFM
In this medical malpractice action, Relators-Defendants, Pauline Taquino
RML
TGC
and Parish Anesthesia of Tulane LLC, seek review of the trial court’s amended

judgment, dated June 20, 2022, which denied their exception of prescription.

On November 15, 2017, the trial court granted an exception of prescription

based on the failure of Plaintiffs-Respondents, Alvin Kirt, Lamont Kirt, and

Neville Kirt, to comply with statutorily required filing fees under the Louisiana

Medical Malpractice Act. This Court affirmed the trial court’s ruling in Kirt v.

Metzinger, 2019-0180, p. 7 (La. App. 4 Cir. 6/19/19), 274 So.3d 1271, 1274-75.

The Louisiana Supreme Court granted a writ of certiorari, affirmed the

exception of prescription as to one defendant, but in all other respects reversed this

Court’s decision affirming the trial court’s judgment. Kirt v. Metzinger, 2019-

1162, p. 15, --- So.3d. ---- 2020 WL 1671571 at *8 (La. 4/3/20), reh'g denied,

2019-01162 (La. 7/9/20), 298 So.3d 168. Further, the Louisiana Supreme Court

vacated the trial court’s judgment in part and remanded to the matter to the trial

court “for consideration and disposition of the alternative basis urged in support of

the exception of prescription” i.e., that the dismissed defendants were not joint and

solidary obligors and did not suspend the prescription against Relators-Defendants.

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Kirt, 2019-1162, p. 15, 2020 WL 1671571 at *8. The Louisiana Supreme Court

stated, in relevant part:

The exceptors argue in the alternative that the claims against Taquino
and Parish Anesthesia are prescribed because they were filed more
than one year after Elaine Kirt's death. The exceptors point out that
while the claims against Dr. Metzinger, Dr. Strickland, and Tulane
were timely filed, those defendants were found free from fault and
dismissed by summary judgment. Therefore, the dismissed defendants
were not “joint and solidary obligors” with Taquino and Parish
Anesthesia, which, according to the exceptors, means the timely
claims filed against the dismissed defendants did not suspend
prescription against Taquino and Parish Anesthesia under Louisiana
Revised Statutes 40:1231.8A(2)(a). The Kirts argue the claims against
Taquino and Parish Anesthesia were filed within three years of their
mother's death and are subject to the one year “discovery rule”
embodied in Louisiana Revised Statutes 9:5628A. The Kirts maintain
they could not have reasonably known about the claims against
Taquino and Parish Anesthesia until Taquino was deposed and
disclosed treatment information not reasonably ascertainable from the
medical records.

Because the lower courts did not consider or decide the merits of this
basis for the exception of prescription, which may turn on factual
findings, we pretermit consideration of these arguments and remand
the matter to the trial court for further disposition of the exception.

CONCLUSION

The dismissal of the claims against Gayle Martin is affirmed. In all
other respects, the court of appeal's decision affirming the trial court's
judgment is reversed. The trial court's judgment is vacated, in part, to
the extent it sustained the exception of prescription and dismissed the
claims against Pauline A. Taquino and Parish Anesthesia of Tulane,
LLC. The matter is remanded to the trial court for consideration and
disposition of the alternative basis urged in support of the exception of
prescription.

Kirt, 2019-1162, pp. 14-15, 2020 WL 1671571 at *8.

On remand, the trial court did not conduct another hearing, but allowed the

parties to file supplemental briefs. On June 20, 2022, the trial court rendered an

amended judgment, which it stated, in pertinent part:

Considering the judgment of the Supreme Court, this court is vacating its
judgment of November 15, 2017 and reasons for judgment in part on the

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exception of prescription relative to Pauline A. Taquino and Parish
Anesthesia of Tulane, LLC. The medical malpractice claim against these
named defendants are maintained and should go forward as ordered by the
Louisiana Supreme Court order and reasons adopted herein. In all other
respects, this court’s judgment of November 15, 2017 and reasons for
judgment are maintained. (See: Supreme Court Judgment-adopted herein).

IT IS ORDERED, ADJUDGED, AND DECREED that Defendant’s Pauline
A. Taquino and Parish Anesthesia of Tulane, LLC. Exception of Prescription
is hereby DENIED.

Upon review of the record, the panel finds that the trial court failed to

comply with the Louisiana Supreme Court’s instructions set forth in Kirt v.

Metzinger, 2019-1162, p. 15, 2020 WL 1671571 at *8. The matter is remanded to

the trial court to conduct an evidentiary hearing on Relators-Defendants’

alternative argument on the exception of the prescription.

WRIT GRANTED; REMANDED WITH INTRUCTIONS

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