Donna M. Gilly, Wife of/and Kurt Kleindienst Versus James E. Ricciardi, M.D., Lsu Healthcare Network and Board of Supervisors of Louisiana State University and Agriculture and Mechanical College

DONNA M. GILLY, WIFE OF/AND KURT NO. 21-CA-381
KLEINDIENST
FIFTH CIRCUIT
VERSUS
COURT OF APPEAL
JAMES E. RICCIARDI, M.D., LSU
HEALTHCARE NETWORK AND BOARD OF STATE OF LOUISIANA
SUPERVISORS OF LOUISIANA STATE
UNIVERSITY AND AGRICULTURE AND
MECHANICAL COLLEGE

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 767-497, DIVISION "M"
HONORABLE SHAYNA BEEVERS MORVANT, JUDGE PRESIDING

April 13, 2022

STEPHEN J. WINDHORST
JUDGE

Panel composed of Judges Jude G. Gravois,
Robert A. Chaisson, and Stephen J. Windhorst

AFFIRMED
SJW
JGG
RAC

COUNSEL FOR PLAINTIFF/APPELLANT,
DONNA M. GILLY, WIFE OF/AND KURT KLEINDIENST
Anthony L. Glorioso

COUNSEL FOR DEFENDANT/APPELLEE,
PAMELA ANN KNOX RICCIARDI, AS THE SUBSTITUTED DEFENDANT
FOR JAMES E. RICCIARDI, M.D. AND THE BOARD OF SUPERVISORS OF
LOUISIANA STATE UNIVERSITY AND AGRICULTURAL AND
MECHANICAL COLLEGE
Jeffrey M. Landry
Bryan J. Knight
Mark E. Kaufman

WINDHORST, J.

In this medical malpractice action, plaintiffs/appellants, Donna Gilly and Kurt

Kleindienst, appeal the trial court’s December 23, 2020 judgment granting the

exception of prescription filed by defendants/appellees, Pamela Ann Knox Ricciardi

as the substituted defendant for James Ricciardi, M.D., the LSU Healthcare

Network, and the Board of Supervisors of Louisiana State University and

Agricultural and Mechanical College (hereinafter collectively referred to as “LSU

Healthcare Network”), thereby dismissing these defendants from this matter with

prejudice. For the following reasons, we affirm.

FACTS and PROCEDURAL HISTORY

This is a medical malpractice action against state healthcare providers under

La. R.S. 40:1237.1 et seq. for alleged medical malpractice related to medical care

Dr. James Ricciardi provided to Donna Gilly, while he was employed by LSU

Healthcare Network. Dr. Ricciardi provided the medical care at issue to Ms. Gilly

in August 2006.

On August 2, 2007, plaintiffs initiated the Medical Review Panel (“MRP”)

process against Dr. Ricciardi only. On September 5, 2007, plaintiffs filed an

amended complaint in the MRP to assert claims against the LSU Healthcare

Network. The MRP convened on August 15, 2016, and ruled in favor of the named

health care providers, and opined that the evidence did not support the conclusion

that they failed to meet the applicable standard of care.

On December 16, 2016, plaintiffs filed suit against Dr. Ricciardi and the LSU

Healthcare Network. Dr. Ricciardi died during the pendency of this litigation. After

his death, pursuant to this Court’s order, Pamela Ann Knox Ricciardi, the

Independent Executor of Dr. Ricciardi’s Estate, substituted herself as a defendant in

his place.

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In the petition, plaintiffs seek damages for injuries Ms. Gilly allegedly

suffered from the surgery Dr. Ricciardi performed on her. Dr. Ricciardi performed

a revision lumbar fusion on Ms. Gilly. Plaintiffs alleged that Dr. Ricciardi deviated

from the standard of care in performing the operation because, after the surgery, a

surgical screw inserted by Dr. Ricciardi was impinging on a nerve. This

complication was identified soon after the surgery and was repaired within a few

days of the initial operation.

On December 16, 2016, plaintiffs requested service of process on Dr.

Ricciardi through Michelle Bourque, the attorney who represented defendants

during the MRP proceedings. Plaintiffs did not request service of their petition on

the LSU Healthcare Network until years later on August 29, 2019.

By letter dated March 14, 2017, Ms. Bourque informed plaintiffs that their

requested service of Dr. Ricciardi on her did not comply with the law and that they

had not requested service on the LSU Healthcare Network. This letter was mailed,

faxed, and e-mailed a few days before the expiration of plaintiffs’ ninety (90) day

window to request service under La. R.S. 13:5107. According to defendants, Ms.

Bourque did not have authority to accept service on behalf of Dr. Ricciardi because

the State had not yet appointed her to represent defendants in this post-MRP lawsuit.

On August 23, 2018, the LSU Healthcare Network filed an exception of

insufficiency of service of process and motion for involuntary dismissal, asserting

that plaintiffs’ failure to timely request service on LSU Healthcare Network

warranted dismissal. On March 3, 2020, the district court granted this exception and

dismissed the LSU Healthcare Network from this case without prejudice. On July

29, 2020, this Court denied plaintiffs’ writ application challenging the judgment

granting the exception of insufficiency of service of process.

On July 8, 2020, Dr. Ricciardi filed a motion for involuntary dismissal based

on plaintiffs’ failure to properly serve Dr. Ricciardi. On September 1, 2020, the

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district court granted the motion for involuntary dismissal and dismissed Dr.

Ricciardi without prejudice.

On September 2, 2020, plaintiffs filed a second supplemental and amending

petition against the same defendants. In response, on October 13, 2020, defendants

filed an exception of prescription, asserting that plaintiffs’ claims in the second

amended petition were prescribed. The district court granted this exception, thereby

dismissing plaintiffs’ claim against defendants with prejudice. Plaintiffs then filed

a motion for reconsideration, which the district court denied. This appeal followed.

LAW and ANALYSIS

In this appeal, plaintiffs challenge the district court’s granting of defendants’

exception of prescription. Plaintiffs assert that service on Dr. Ricciardi through

defendants’ attorney during the MRP proceedings and this litigation is sufficient and

that prescription was interrupted under the Gettys v. Wong, 13-1138 (La. App. 4 Cir.

5/7/14), 145 So.3d 460 case.

The standard of review of a district court’s ruling on a peremptory exception

of prescription is determined by whether or not evidence is introduced at the hearing

on the exception. When no evidence is introduced, review of judgments sustaining

an exception of prescription by appellate courts is de novo, accepting the facts

alleged in the petition as true. Id.; Lennie v. Exxon Mobil Corporation, 17-204 (La.

App. 5 Cir. 6/27/18), 251 So.3d 637, 642, writ denied, 18-1435 (La. 11/20/18), 256

So.3d 994. However, when evidence is introduced at a hearing on an exception of

prescription, the district court’s findings of fact are reviewed under the manifest

error standard. Id.; Tenorio v. Exxon Mobil Corp., 14-814 (La. App. 5 Cir. 4/15/15),

170 So.3d 269, 273, writ denied, 15-1145 (La. 9/18/15), 178 So.3d 149. When

evidence is introduced but the case involves only the determination of a legal issue,

not a dispute regarding material facts, an appellate court must review the issue de

novo, giving no deference to the trial court’s legal determination. Cawley v.

21-CA-381 3

National Fire & Marine Ins. Co., 10-2095 (La. App. 1 Cir. 5/6/11), 65 So.3d 235,

237.

Issues as to Service of Process

Plaintiffs assert that their service of process on Dr. Ricciardi’s attorney during

the MRP proceedings was sufficient to interrupt prescription as to Dr. Ricciardi and

the LSU Healthcare Network. Defendants argue that plaintiffs were required under

La. R.S. 13:5107 and La. R.S. 39:1538 to timely serve Dr. Ricciardi and LSU

Healthcare Network through the head of the department for the Board of

Supervisors, the Office of Risk Management, and the Attorney General, but failed

to do so. La. R.S. 13:5107 A and D provide, in pertinent part:

A. (1) In all suits filed against the state of Louisiana or a state agency,
citation and service may be obtained by citation and service on the
attorney general of Louisiana, or on any employee in his office
above the age of sixteen years, or any other proper officer or person,
depending upon the identity of the named defendant and in
accordance with the laws of this state, and on the department, board,
commission, or agency head or person, depending upon the identity
of the named defendant and in accordance with the laws of this state,
and on the department, board, commission, or agency head or
person, depending upon the identity of the named defendant and the
identity of the named board, commission, department, agency, or
officer through which or through whom suit is to be filed against.

(2) Service shall be requested upon the attorney general within
ninety days of filing suit. This shall be sufficient to comply with the
requirements of Subsection D of this Section and also Code of Civil
Procedure Article 1201(C)....

* * *
D. (1) In all suits in which the state, a state agency, or political
subdivision, or any officer or employee thereof is named as a party,
service of citation shall be requested within ninety days of the
commencement of the action or the filing of a supplemental or
amended petition which initially names the state, a state agency, or
political subdivision or any officer or employee thereof as a party.
This requirement may be expressly waived by the defendant in such
action by any written waiver. If not waived, a request for service of
citation upon the defendant shall be considered timely if requested
on the defendant within the time period provided by this Section,
notwithstanding insufficient or erroneous service.
[Emphasis added.]

21-CA-381 4

(2) If service is not requested by the party filing the action within
the period required in Paragraph (1) of this Subsection, the action
shall be dismissed without prejudice, after contradictory motion as
provided in Code of Civil Procedure Article 1672(C), as to the state,
state agency, or political subdivision, or any officer or employee
thereof, upon whom service was not requested within the period
required by Paragraph (1) of this Subsection.

Louisiana courts have held that service shall be requested within ninety days

of filing suit where the State or a state agency, officer, or employee is a named party.

La. R.S. 13:5107 D and La. C.C.P. art. 1201 C. Davis v. Caraway, 14-264 (La. App.

5 Cir. 10/29/14), 164 So.3d 223, Velasquez v. Chesson, 13-1260 (La. App. 4 Cir.

10/8/14), 151 So.3d 812, 813-14, writ denied, 14-2361 (La. 2/27/15), 159 So.3d

1067. The purpose behind the ninety-day notice requirement is to make sure that

the defendant receives notice of the suit within a reasonable time after it has been

commenced. Llopis v. Louisiana State Bd. of Dentistry, 13-0659 (La. App. 4 Cir.

6/11/14), 143 So.3d 1211, 1214, writ denied, 14-1483 (La. 10/31/14), 152 So.3d

152. Plaintiffs are strictly held to the obligation of serving the correct agent for

service of process, as well as to the obligation of serving the named state defendants

within the time period specified by La. R.S. 13:5107 D(1). Velasquez, 151 So.3d at

814. Consequently, unless service is made on an authorized recipient, it will be

deemed insufficient and improper. Tranchant v. State, 08-978 (La. 1/21/09), 5 So.3d

832, 837.

This Court previously addressed and found no error in the trial court’s March

5, 2020 judgment granting of defendant’s exception of insufficiency of service of

process and motion for involuntary dismissal given that plaintiffs did not timely

request service on the LSU Health Network within the ninety-day window. Donna

Gilly v. James Ricciardi, M.D., et al., 20-200 (La. App. 5 Cir. 7/29/20) (unpublished

writ disposition). This appeal contains nothing to support a contrary result. Thus,

according to the record, the LSU Health Network was properly dismissed pursuant

21-CA-381 5

to the granting of its exception of insufficiency of service of process and motion for

involuntary dismissal.

Although plaintiffs attempted to serve Dr. Ricciardi through Ms. Bourque,

this service did not comply with the statutory requirements of La. R.S. 13:5107, La.

C.C.P. arts. 1201 and 1672 C, and La. R.S. 39:1538. In actions brought against the

state or any of its agencies to recover damages in tort for personal injury caused by

the negligent act or omission of any employee while acting within the scope of his

employment in which the state or such agency would be liable to the claimant,

process shall be served upon the head of the department concerned, the office of risk

management, and the attorney general. La. R.S. 39:1538; Whitley v. State ex rel.

Bd. of Sup’rs of Louisiana State Univ. Agr. Mech. Coll., 11-40 (La. 7/1/11), 66

So.3d 470, 481.

With regard to service on a state agency or state employee, courts have also

required that “service shall be requested within ninety days of filing suit where the

State or a state agency, officer, or employee is a named party.”. Wright v. State on

Behalf of Alleyn, 19-0499 (La. App. 4 Cir. 8/5/20), — So.3d —, 2020 WL 4499654,

at p. 9 (emphasis in original); Velasquez, 151 So.3d at 814. Unless good cause is

shown, the action shall be dismissed as to the party for whom service has not been

timely requested upon sustaining said party’s declinatory exception. Id. Good cause

is not established based on mere confusion over a party’s proper service information.

Id.

The LSU Health Network is a state-owned facility under the Board of

Supervisors. Thus, Dr. Ricciardi was a state-employed physician, and plaintiffs

were required to serve the head of the department for the Board of Supervisors, the

Office of Risk Management, or the Attorney General of Louisiana. Ms. Bourque,

counsel for the LSU Health Network and Dr. Ricciardi in the MRP proceedings did

not satisfy this service requirement. As a result, plaintiffs did not properly serve Dr.

21-CA-381 6

Ricciardi, and he was properly dismissed pursuant to his motion for involuntary

dismissal.

Given that plaintiffs did not request service on one of the mandated agents for

service of process in a timely manner, the trial court properly dismissed the LSU

Health Network and Dr. Ricciardi from this lawsuit.

Issues as to Prescription

Plaintiffs assert that prescription was interrupted pursuant to service on Dr.

Ricciardi, and that because the LSU Healthcare Network was named solely as Dr.

Ricciardi’s employer, it was timely added to the suit. Plaintiffs further argue that

the claim against the LSU Healthcare Network is solely derivative of the timely-

filed claim against Dr. Ricciardi and that the claims are one and the same.

The Louisiana Supreme Court has held that actions for medical malpractice

are governed by special laws which delineate the applicable liberative prescription.

Borel v. Young, 07-0419 (La. 11/27/07), 989 So.2d 42, 66, on reh’g (July 1, 2008).

Thus, the prescription provisions in the medical malpractice statute apply to this

case. La. R.S. 9:5628 A provides as follows:

A. No action for damages for injury or death against any physician ...
duly licensed under the laws of this state, whether based upon tort,
or breach of contract, or otherwise, arising out of patient care shall
be brought unless filed within one year for the date of the alleged
act, omission, or neglect, or within one year of 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 Medical Malpractice Act (“MMA”) specifies that the filing of a request

for review before a panel suspends prescription because it prohibits the filing of a

medical malpractice claim against a qualified health care provider prior to panel

review. La. R.S. 40:1299.47 A(2)(a). The statute also prevents prescription from

lapsing while the medical review panel process is pending by suspending

prescription from the time of filing until ninety days following notification to the

21-CA-381 7

claimant or his attorney of the panel opinion. Id. Taking these rules into

consideration, the Supreme Court stated that “it is evident that there is no need for

the general rules of interruption of prescription to combine with suspension to

synergistically benefit the plaintiff.” Borel, 989 So.2d at 67; Matranga v. Parish of

Anesthesia of Jefferson, LLC, 17-73 (La. App. 5 Cir. 8/29/18), 254 So.3d 1238,

1245. In reaching this conclusion, the Louisiana Supreme Court relied on the

language of the statute, legislative intent, and public policy concerns.

In interpreting the plain language of La. R.S. 9:5628, the Supreme Court

pointed out the use of the word “shall” in the statement that: “No action ... shall be

brought unless filed within one year ...; however, even as to claims filed within one

year ... of such discovery, in all events such claims shall be filed at the latest within

... three years....” Borel v. Young, 07-0419 (La. 11/27/07), 989 So. 2d 42, 50, on

reh’g (July 1, 2008). The Court stated that use of “shall” meant it must be interpreted

as a mandatory provision thereby indicating that the prescriptive period was

peremptive.

In considering the Legislature’s intent and the purpose, the Supreme Court

found that the Legislature intended La. R.S. 9:5628 to extinguish medical

malpractice actions after the lapse of three years from the date of the alleged act,

omission, or neglect to limit the duration of the right to bring a medical malpractice

claim. Borel, 989 So.2d at 50.

The Supreme Court also pointed out that there were strong and definitive

public policy concerns underlying the enactment of La. R.S. 9: 5628. The legislative

limitation on the amount of time within which an injured patient may bring a

malpractice action directly responded to sharp increases in medical malpractice

insurance rates that created a crisis, whether real or imagined, which threatened

health care to patients. Borel, 989 So.2d at 50. Because doctors were unwilling to

practice without reasonably priced liability insurance, the Legislature responded by

21-CA-381 8

adopting measures designed to rectify the situation. Borel, 989 So.2d at 50-51. The

public interest in controlling insurance costs to ensure the availability of health care

for citizens mitigates against suspension, interruption, or renunciation of the three-

year time limitation in favor of certainty in the termination of causes of action and

directly reducing the number of malpractice claims and ostensibly liability rates.

The Louisiana Fourth Circuit Court of Appeal recently addressed a

substantially similar situation in Wright v. State on Behalf of Alleyn, 19-499 (La.

App. 4 Cir. 8/5/20), — So.3d —, 2020 WL 4499654. The Fourth Circuit recognized

under the applicable statutes, La. R.S. 13:5107 and La. R.S. 39:1538, service on a

state employee must be requested on one of three designated parties for service of

process: (1) the head of the department for the Board of Supervisors; (2) the Office

of Risk Management; or (3) the Attorney General of Louisiana. Because plaintiff

failed to comply with the service requirements within the mandated time period, the

Fourth Circuit held that the trial court erred in denying the exception of prescription,

reversed that ruling, and dismissed plaintiff’s claims with prejudice. Wright, supra.

Plaintiffs rely on Gettys v. Wong, a 2014 Fourth Circuit opinion, which

involved a medical malpractice claim initially filed only against a state-employed

physician. After the one-year prescriptive period and the ninety-day suspension

period provided by the MMA had passed, plaintiff named the physician’s employer,

LSU Health Science Center. The Fourth Circuit considered whether plaintiff’s

lawsuit against the physician interrupted prescription against LSU. In finding that

the claim was not prescribed, the Fourth Circuit concluded that the claim against

LSU was solely derivative of the claim against the physician, and that the claims

were one and the same. We note, however, that the Gettys case did not address the

service issues presented in the instant matter and was rendered well before the

Wright case, which directly addresses the same issues as the present situation. Thus,

we find plaintiffs’ reliance on Gettys misplaced.

21-CA-381 9

In light of the foregoing, the general rules of prescription and interruption do

not apply in this case. The only suspension of prescription in this case is from the

initiation of the medical review panel phase until ninety days after plaintiffs’ counsel

received notification of the medical review panel opinion by certified mail. The

alleged medical malpractice at issue in this case occurred between June 2006 and

August 4, 2006. Plaintiffs filed a MRP complaint on August 2, 2007, two days

before the expiration of the one-year prescriptive period. Plaintiffs’ counsel received

the MRP opinion regarding their complaint on September 19, 2016. Thus, plaintiffs

had ninety days from September 19, 2016 plus the two remaining days left in the

one-year prescriptive period when they filed the MRP panel complaint. As a result,

they had to file their lawsuit by December 20, 2016. Plaintiffs timely filed the

original complaint on December 16, 2016. As discussed above, however, plaintiffs’

timely-filed lawsuit was properly dismissed pursuant to the LSU Health Network

and Dr. Ricciardi’s motion for involuntary dismissal.

On September 2, 2020, plaintiffs filed a second supplemental and amending

petition. Prescription was not interrupted during the pendency of plaintiffs’ lawsuit

that was filed on December 16, 2016. The time for filing suit passed on December

20, 2016. As a result, plaintiffs’ claim had prescribed at the time they filed the

second amended petition.

DECREE

For the reasons stated above, and considering the foregoing authorities, we

find no error in the trial court’s judgment granting defendants’ exception of

prescription. Accordingly, we affirm the trial court’s judgment granting the

exception of prescription and dismissing plaintiffs’ claims against defendants.

AFFIRMED

21-CA-381 10

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

NANCY F. VEGA
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN S. BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
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APRIL 13, 2022 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
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21-CA-381
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE SHAYNA BEEVERS MORVANT (DISTRICT JUDGE)
BRYAN J. KNIGHT (APPELLEE) MARK E. KAUFMAN (APPELLEE) MICHELLE A. BOURQUE (APPELLEE)

MAILED
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