Brianne Waters v. Dr. Jonathan Lam And Louisiana State University Health Sciences Center

Supreme Court of Louisiana
March 22, 2022
Chief Deputy Clerk of Court
For the Court
The Supreme Court of the State of Louisiana
BRIANNE WATERS
VS.
DR.
JONATHAN LAM AND LOUISIANA
STATE UNIVERSITY HEALTH SCIENCES
CENTER
No. 2022-CC-00098
_ _ _ _ _ _
IN RE: D
r. Jonathan Lam - Applicant Defendant; Louisiana State University Health
Sciences Center - Applicant Defendant; Applying For Supervisory Writ, Parish of
Orleans Civil, Orleans Civil District Court Number(s) 2021-00061, Court of Appeal,
Fourth Circuit, Number(s) 2021-C-0656;
_ _ _ _ _ _
March 22, 2022
Writ application granted. See per curiam.
Hughes, J., would deny.
Genovese, J., would deny.
PDG
JLW
SJC
WJC
JBM
03/22/2022 "See News Release 012 for any Concurrences and/or Dissents."

SUPREME COURT OF LOUISIANA
No
. 2022-CC-00098
B
RIANNE WATERS
VS.
DR. JONATHAN LAM AND LOUISIANA STATE UNIVERSITY HEALTH
SCIENCES CENTER
O
n Supervisory Writ to the Orleans Civil District Court, Parish of Orleans
P
ER CURIAM
O
n September 28, 2020, plaintiff filed a request for review with the Division
of Administration (“DOA”) based on medical malpractice which allegedly occurred
on September 29, 2019. On October 9, 2020, the DOA sent a letter to plaintiff
advising that based on the allegations in her complaint, the defendants were state
health care providers. The letter further advised plaintiff that she had forty-five days
from receipt of this letter to pay a filing fee to DOA in the amount of $100 per named
defendant.
Plaintiff did not submit the filing fee to DOA within the forty-five day period.
However, on November 6, 2020, she sent the filing fee to the Patients’ Compensation
Fund (“PCF”). On February 2, 2021, DOA sent a letter to plaintiff advising its office
had not received the filing fee and would be closing the matter.
In the meanwhile, plaintiff filed suit in the district court against defendants on
January 5, 2021. Defendants responded by filing a peremptory exception raising the
objection of prescription . In support of their exception, defendants argued that
because plaintiff failed to pay the required filing fee, her request for review filed
with the DOA was without effect and did not serve to suspend prescription.
03/22/22

2

The district court denied the exception, and the court of appeal denied
defendants’ application for supervisory writs. Defendants’ application to this court
followed.
The question in this case turns on whether plaintiff’s request for review was
valid under La. R.S. 40:1237.2(A)(1), which provides:
(c) A claimant shall have forty-five days from the date of
receipt by the claimant of the confirmation of receipt of
the request for review in accordance with Subparagraph
(3)(a) of this Subsection to pay to the commissioner [of
the DOA] a filing fee in the amount of one hundred dollars
per named defendant state health care provider.

* * *

(e) Failure to comply with the provisions of Subparagraph
(c) or (d) of this Paragraph within the specified time frame
in Subparagraph (c) of this Paragraph shall render the
request for review of a malpractice claim invalid and
without effect. Such an inva lid request for review of a
malpractice claim shall not suspend the time within
which suit must be instituted in Subparagraph (2)(a) of
this Subsection. [emphasis added].

Plaintiff concedes she did not submit her fee to the DOA within the forty-five
day limit. However, she argues she did submit her fee to the PCF on November 6,
2020, within forty -five days of the DOA’s receipt of her complaint on October 9,
2020.
Plaintiff relies on La. R.S. 40:1237.2(C)(1) for the proposition that the fee
may be paid to either the DOA or the PCF. However, a careful examination of that
statute indicates it is inapplicable under these facts. La. R.S. 40:1237.2(C)(1)
addresses the composition of the medical review panel, including the appointment
of the attorney member, providing:
C. (1) The state medical review panel shall consist of one
attorney and three health care providers who hold
unlimited licenses to practice their profession in
Louisiana. The parties may agree on the attorney member
of the state medical review pa nel. If no attorney for or a
representative of any health care provider named in the
complaint has made an appearance in the proceeding or

3

made written contact with the attorney for the plaintiff
within forty -five days of the date of receipt of the
notification to the health care provider and the insurer that
the required filing fee has been received by the
commissioner or the patients compensation board as
required by Subparagraph (A)(1)(c) of this Section, the
attorney for the plaintiff may appoint the attorney member
of the state medical review panel for the purpose of
convening the panel. Such notice to the health care
provider and the insurer shall be sent by registered or
certified mail, return receipt requested. If no agreement
can be reached, then th e attorney member of the state
medical review panel shall be selected in the following
manner. . . . [emphasis added].

Clearly, this language is not intended to govern the requirements for
submitting the filing fee, but simply lists the receipt of the filing fee as a prerequisite
for allowing the attorney for the plaintiff to appoint the attorney member of the panel
for purposes of convening the panel.
Moreover, any suggestion that a party could file a request for review in either
agency is dispelled by La. R.S. 40:1237.1(A)(2)(a), which provides, in pertinent
part:
Filing a request for review of a malpractice claim required
by this Section with any agency or entity other than the
division of administration shall not suspend or interrupt
the running of prescription. [emphasis added].

In summary, we find plaintiff failed to perfect her request for review because
she failed to pay the required filing fee to DOA within the specified time period. By
operation of La. R.S. 40:1237.2(A)(1)(e), her filing was invalid and without effect
and did not serve to suspend the prescriptive period. Plaintiff’s suit is therefore
prescribed on its face.

DECREE
For the reasons assigned, the writ is granted. The judgment of the district
court is reversed. The peremptory exception raising the objection of
prescription is sustained, and the suit is dismissed with prejudice.