In Re: Medical Review Panel Proceeding of Ronald Laporte (D)

IN RE: MEDICAL REVIEW PANEL NO. 25-CA-19
PROCEEDING OF RONALD LAPORTE (D)
FIFTH CIRCUIT

COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 852-136, DIVISION "C"
HONORABLE JUNE B. DARENSBURG, JUDGE PRESIDING

September 24, 2025

MARC E. JOHNSON
JUDGE

Panel composed of Judges Marc E. Johnson,
Stephen J. Windhorst, and John J. Molaison, Jr.

AFFIRMED IN PART;
REVERSED IN PART;
REMANDED WITH INSTRUCTIONS
MEJ
SJW
JJM

COUNSEL FOR PLAINTIFF/APPELLANT,
RONALD LAPORTE
Alexandre E. Bonin
R. Christian Bonin
Jean-Marc Bonin

COUNSEL FOR DEFENDANT/APPELLEE,
WEST JEFFERSON HOLDINGS, LLC D/B/A WEST JEFFERSON MEDICAL
CENTER
Michael F. Nolan, Jr.
Sarah L. Johnson

COUNSEL FOR DEFENDANT/APPELLEE,
RYAN TANENBAUM, M.D.
Tara S. Bourgeois
Jonathan E. Thomas
Valerie A. Judice

JOHNSON, J.

Plaintiffs/Appellants, Peggy LaPorte and Ronell LaPorte, appeal the trial

court’s judgment that sustained peremptory exceptions of prescription filed by

Defendants/Appellees, West Jefferson Holdings, LLC d/b/a West Jefferson

Medical Center and Rian Tanenbaum, M.D., and dismissed their claims with

prejudice arising from alleged medical malpractice in the 24th Judicial District

Court, Division “C”. For the following reasons, we affirm in part, reverse in part,

and remand to the trial court with instructions.

FACTS AND PROCEDURAL HISTORY

According to the pleadings, Ronald LaPorte arrived at the emergency room

of West Jefferson Medical Center (hereinafter referred to as “WJMC”) on

November 18, 2022, after his primary care doctor instructed him to report to the

emergency room due to an abnormal hemoglobin level. He was admitted to

WJMC for a possible gastrointestinal (“GI”) bleed and given a transfusion of red

blood cells. Mr. LaPorte was then referred for a GI evaluation.

On November 22, 2022, Dr. Rian Tanenbaum, a gastroenterologist,

performed a colonoscopy with a polypectomy on Mr. LaPorte due to iron

deficiency anemia secondary to chronic blood loss. A 20 mm polyp and a 10 mm

polyp were found and removed from Mr. LaPorte’s cecum. Mr. LaPorte was

discharged from WJMC on the same date.

Four days later, Mr. LaPorte was readmitted to WJMC on November 26,

2022 with complaints of rectal bleeding following his November 22, 2022

procedure. He was diagnosed in the emergency room with acute GI bleeding and

was infused with two units of blood and one unit of platelets. However, after being

subsequently diagnosed with acute leukemia, Mr. LaPorte was transferred to

Tulane University Hospital for oncology treatment on November 28, 2022.

Mr. LaPorte was admitted to WJMC for a third time on December 12, 2022

25-CA-19 1

for acute GI bleeding. Palliative Care Medicine consulted with Mr. LaPorte and

his family regarding his leukemia diagnosis and grave condition. On December

20, 2022, Mr. LaPorte was discharged to home hospice care. He later died on

January 17, 2023.

On January 17, 2024, Peggy LaPorte (Mr. LaPorte’s surviving widow) and

Ronell LaPorte (Mr. LaPorte’s surviving daughter)—(hereinafter collectively

referred to as “Appellants”)—instituted a request for a medical malpractice review

panel1 with the Louisiana Division of Administration against WJMC and Dr.

Tanenbaum. In their request, Appellants alleged that the polyp removal performed

on Mr. LaPorte during the November 22nd colonoscopy was unnecessary, without

informed consent, and against the standard of care for a patient suffering from

chronic blood loss and anemia. They asserted that the procedure caused various

damages, including wrongful death and survival damages. Appellants

subsequently filed a petition to institute discovery in the trial court on March 7,

2024, requesting compulsory process and discovery proceedings, pursuant to La.

R.S. 40:1231.8, et seq.

In opposition, WJMC filed a peremptory exception of prescription on April,

25, 2024, prior to any determination in the administrative proceeding with the

Louisiana Division of Administration. In its exception, it argued that Appellants’

medical review panel request is prescribed on its face. It contended that the

alleged malpractice occurred on November 22, 2022, the date of the colonoscopy

procedure; yet, Appellants’ complaint was not filed until January 17, 2024, which

was well over one year after the date of Mr. LaPorte’s colonoscopy and

polypectomy. WJMC maintained that, based upon Mr. LaPorte’s medical records,

Appellants had actual or constructive knowledge that Mr. LaPorte’s injuries,

1
The request will interchangeably be referred to as “complaint” or “petition” throughout the
opinion.

25-CA-19 2

including his imminent death, may have been caused by medical malpractice

resulting from the colonoscopy as soon as November 22, 2022 but no later than

December 20, 2022—more than one year prior to the date of filing their complaints

for survival and wrongful death damages.

Dr. Tanenbaum also filed an exception of prescription, alleging that

Appellants’ complaint is prescribed on its face. He contended that Appellants were

required to allege the facts with particularity that showed they were unaware of the

November 22, 2022 malpractice before their January 17, 2024 filing, and they

failed to do so in their complaint. He maintained that Appellants had actual or

constructive knowledge sufficient to excite their attention of their wrongful death

and survival action claims no later than December 20, 2023.

Appellants did not file a brief in opposition to either of the exceptions of

prescription.

A hearing on the exceptions was held on June 17, 2024. Counsel for

Defendants argued and introduced evidence at the hearing. Although counsel for

Appellants was present at the hearing, the trial court did not allow him to present

any argument because no opposition brief had been filed, thereby forfeiting oral

argument. At the conclusion of the hearing, the trial court sustained Defendants’

exceptions of prescription. A written judgment to that effect was rendered on the

same date, dismissing Appellants’ complaint with prejudice. The instant appeal

followed.

ASSIGNMENTS OF ERROR2

On appeal, Appellants allege that the trial court erred as a matter of law in

finding that their wrongful death claims were prescribed; and, the trial court was

2
We note that Defendants assigned their own errors for review in their appellee briefs to this
Court. However, Defendants did not file an answer or a motion to dismiss with this Court for
consideration of their assignments of error. Therefore, those issues were not properly raised for
consideration, and this opinion will not address Defendants’ assignments of error.

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clearly wrong and unreasonable in finding, on the limited documentary record, that

their survival action claims were prescribed.

LAW AND ANALYSIS

General Exception of Prescription Law

An exception of prescription is a type of peremptory exception. The

function of the peremptory exception is to have the plaintiff’s action declared

legally nonexistent or barred by the effect of law, and hence this exception tends to

dismiss or defeat the action. Ruffins v. HAZA Foods of Louisiana, LLC, 21-619

(La. App. 5 Cir. 5/25/22), 341 So.3d 1259, 1262, citing Farber v. Bobear, 10-985

(La. App. 4 Cir. 1/19/11), 56 So.3d 1061, 1069. Prescriptive statutes are strictly

construed against prescription and in favor of the claim. Henry v. Southwest

Airlines, 23-522 (La. App. 5 Cir. 7/31/24), 392 So.3d 1176, 1179, writ denied, 24-

1081 (La. 11/20/24), 396 So.3d 68. Of the possible constructions of a prescriptive

statute, the one that maintains enforcement of the claim, instead of the one that

bars enforcement, should be adopted. Id.

The burden of proof in an exception of prescription lies with the party

asserting it; however, where the petition shows on its face that it has prescribed,

the burden shifts to the plaintiff to prove the prescriptive period has been

interrupted or suspended. McClellan v. Premier Nissan, L.L.C., 14-726 (La. App.

5 Cir. 2/11/15), 167 So.3d 934, 935. At the trial of the exception of prescription,

evidence may be introduced to support or controvert any of the objections pleaded,

when the grounds thereof do not appear from the petition. Bailey v. Pinnacle

Polymers, LLC, 24-490 (La. App. 5 Cir. 4/2/25), 412 So.3d 1063, 1076, citing La.

C.C.P. art. 931. If evidence is introduced at the hearing on the peremptory

exception of prescription, the trial court’s findings of fact are reviewed under the

manifest error/clearly wrong standard of review. Id. If the findings are reasonable

in light of the record reviewed in its entirety, an appellate court may not reverse,

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even though convinced that had it been sitting as the trier of fact, it would have

weighed the evidence differently. Id. In the absence of evidence, the exception of

prescription must be decided on the well-pleaded allegations of material facts set

forth in the petition, which are accepted as true. Ruffins, supra.

In this matter, Defendants introduced evidence at the hearing on the

exception of prescription, which was admitted by the trial court. Because evidence

was introduced and accepted, we must decide this matter under the manifest

error/clearly wrong standard of review.

Wrongful Death Claim

Appellants allege that the trial court erred in finding that their wrongful

death claim was prescribed under La. R.S. 9:5628. They argue that Mr. LaPorte

died on January 17, 2023, and they filed their wrongful death claim on January 17,

2024, within one year of Mr. Laporte’s death. They contend that wrongful death

actions prescribe within one-year of the decedent’s death, pursuant to La. C.C. art.

2315.2. As a result, Appellants maintain that their wrongful death claim is not

prescribed on the face of their complaint.

Defendants aver that the trial court properly sustained their exceptions of

prescription. Dr. Tanenbaum argues that Appellants’ complaint failed to assert any

fault against him for performing the colonoscopy with polypectomy on November

22, 2022 that caused or contributed to Mr. LaPorte’s death on January 17, 2023, or

identify any medical records to support such an allegation. He contends that,

because Appellants’ complaint does not contain the essential element of causation

as to their wrongful death claim, the claim is invalid; and it was reasonable for the

trial court to infer that Mr. LaPorte’s cause of death was leukemia.

WJMC argues that, based upon Mr. LaPorte’s medical records, Appellants

had actual or constructive knowledge of alleged medical malpractice as early as

November 22, 2022 but no later than December 20, 2022. It maintains that the

25-CA-19 5

family and Mr. LaPorte were advised of the severity of his illness prior to his

death. Thus, WJMC contends the alert excited Appellants’ attention that Mr.

LaPorte continued to suffer from a GI bleed since November 22, 2022 and gave

them constructive knowledge that the alleged malpractice was potentially a cause

of his death.

La. C.C. art. 2315.2 provides, in pertinent part,

A. If a person dies due to the fault of another, suit may be brought by the
following persons to recover damages which they sustained as a result
of the death:
(1) The surviving spouse and child or children of the deceased, or either
the spouse or the child or children.
***
B. The right of action granted by this Article prescribes one year from the
death of the deceased.

Although wrongful death claims arising from medical malpractice are procedurally

governed by the Louisiana Medical Malpractice Act, the prescriptive periods set

forth in La. R.S. 9:5628 do not apply to wrongful death claims. Med. Review

Panel for Bush, 21-954 (La. 5/13/22), 339 So.3d 1118, 1123; Jimenez v. Cattie, 25-

61 (La. App. 5 Cir. 7/30/25), 2025 WL 2159981. The commencement and running

of the prescriptive period for the wrongful death action is controlled by the one-

year liberative period applicable to delictual actions. Id, citing Taylor v. Giddens,

618 So.2d 834, 836 (La. 1993).

In the case at bar, Appellants filed their complaint on January 17, 2024.

They alleged that Mr. LaPorte died on January 17, 2023, and they sustained

damages from his wrongful death. The complaint was filed within one year of Mr.

LaPorte’s death. Thus, according to La. C.C. art. 2315.2(B), we find that

Appellants timely filed their wrongful death claim with the Louisiana Division of

Administration. Therefore, we find that the trial court erred in sustaining

Defendants’ exceptions of prescription as to Appellants’ wrongful death claim.

However, we raise a peremptory exception of no cause of action on our own

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motion.

A cause of action, for purposes of the peremptory exception, is defined as

the operative facts that give rise to the plaintiff’s right to judicially assert an action

against the defendant. Labruzzo v. State, 23-194 (La. App. 5 Cir. 5/22/24), 388

So.3d 1208, 1214. The function of the peremptory exception of no cause of action

is to question whether the law extends a remedy to anyone under the factual

allegations of the petition. Id. The failure to disclose a cause of action may be

noticed by either the trial or appellate court on its own motion. La. C.C.P. art. 927.

A petition should not be dismissed for failure to state a cause of action, unless it

appears beyond a doubt that the plaintiff can prove no set of facts in support of any

claim that would entitle him to relief. Labruzzo, supra.

In reference to their wrongful death claim, Appellants’ request for a medical

malpractice review panel simply stated, “Claimants have damages for wrongful

death… .” Consequently, we find that there are no operative facts stated in the

complaint that give rise to Appellants’ right to judicially assert a wrongful death

claim against Defendants and sustain the exception of no cause of action. We

further find that amendment of Appellants’ request can cure the lack of operative

facts needed to assert a wrongful death claim against Defendants. Therefore, we

remand the matter to the trial court and order it to allow Appellants an opportunity

to amend their wrongful death claim within their request within the time delay set

by the court. (See, La. C.C.P. art. 934 that states, “[w]hen the grounds of the

objection pleaded by the peremptory exception may be removed by amendment of

the petition, the judgment sustaining the exception shall order such amendment

within the delay allowed by the court.”)

Survival Action Claim

Appellants allege that the trial court erred in sustaining the exceptions of

prescription as to their survival action claim. They assert that the trial court

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erroneously relied upon representations made in partial medical records from Mr.

LaPorte’s hospitalization to conclude that they had constructive notice Mr. LaPorte

was a victim of medical malpractice. They contend the partial medical records do

not demonstrate that Mr. LaPorte’s family had any reasonable suspicion that Mr.

LaPorte was the victim of a tort prior to his death. Appellants also argue that mere

apprehension something may have been wrong is insufficient to commence the

running of prescription, unless the plaintiff knew or should have known through

the exercise of reasonable diligence that his problem may have been caused by acts

of malpractice. They claim that the medical records indicate that Mr. LaPorte’s GI

bleed was a secondary concern to his acute leukemia, and the family was unaware

of the unexpected outcome from the procedure.

Defendants again aver that the trial court properly sustained their exceptions

of prescription. Dr. Tanenbaum asserts that Appellants’ complaint failed to allege

with particularity that they were unaware of the alleged malpractice prior to any

supposed date of discovery. He contends that Appellants specifically state in their

complaint that the alleged malpractice occurred on November 22, 2022; yet, they

make no claim that the alleged malpractice was discovered at a later date. He

maintains that, since Appellants failed to allege that they were unaware of the

alleged malpractice until a later date of discovery and the delay in discovering the

alleged malpractice was reasonable, their complaint is prescribed on its face.

WJMC argues that Appellants wrongful death claim is prescribed on its face

because it was filed more than a year after the alleged malpractice date. It

contends that Appellants had actual or constructive knowledge by November 22,

2022 that Mr. LaPorte’s injuries may have been caused by medical malpractice

because the injuries were immediately apparent within days of the surgery, and Mr.

LaPorte sought follow-up treatment on later visits to the emergency room. WJMC

maintains that, because Appellants failed to present any evidence that their survival

25-CA-19 8

claim was not prescribed, Appellants failed to carry their burden of proving that

their claim was timely filed.

La. R.S. 9:5628 sets forth the applicable prescriptive period for survival

actions as follows:

A. No action for damages for injury or death against any physician,
chiropractor, nurse, licensed midwife practitioner, dentist,
psychologist, optometrist, hospital or nursing home duly licensed
under the laws of the state, or community blood center or tissue bank
as defined in R.S. 40:1231(A), 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.

La. R.S. 9:5628 has been referred to as a “tripartite prescriptive provision,”

meaning that the statute has three parts. In re Medical Review Panel Proceedings

of Glover, 17-201 (La. App. 5 Cir. 10/25/17), 229 So.3d 655, 663, citing In re:

Medical Review Panel for Claim of Moses, 00-2643 (La. 5/25/01), 788 So.2d 1173.

First, one-year prescriptive period, which follows the same time frame as a

traditional tort, is the general rule. Id. Second, when an injury is not immediate

and apparent, there is a discovery exception to the general rule, known as contra

non valentum, providing that such actions prescribe one year from the date of

discovery of the alleged act, omission, or neglect. Id. Third, all claims are subject

to a peremptive period of three years, regardless of discovery. Id.

Here, Appellants alleged that the date of Defendants’ malpractice was

November 22, 2022. However, they did not file their complaint of their survival

action with the Louisiana Division of Administration until January 17, 2024. The

complaint is prescribed on its face because it was not filed within one year of the

alleged act. The burden then shifted to Appellants to prove that the prescriptive

period had been interrupted or suspended. See, McClellan, supra. Appellants

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failed to present any evidence of interruption or suspension of prescription to the

trial court for consideration, effectively failing to meet their burden of proving that

their survival action claim was timely filed.3 After considering the evidence

presented by Defendants, which included Appellants’ request for a medical

malpractice review panel and Mr. LaPorte’s medical records, we find that the trial

court properly sustained Defendants’ exceptions of prescription in regards to

Appellants’ survival action claim.

DECREE

For the foregoing reasons, we affirm the trial court’s judgment in part and

reverse in part. The matter is remanded to the trial court for compliance with the

instructions set forth in this opinion.

AFFIRMED IN PART;
REVERSED IN PART;
REMANDED WITH INSTRUCTIONS

3
Appellants’ request described the alleged malpractice and their damages by stating:
Ronald Laporte arrived WJMC emergency room on November 18, 2022 on
instruction from his primary care facility because he had a hemoglobin level of 5.0.
Mr. Laporte and his family advised the emergency room team that he was receiving
treatment for anemia for several months. Mr. Laporte was admitted to WJMC after
receiving a transfusion of PRBC and referred for a GI evaluation.
During the colonoscopy performed by Rian M. Tanenbaum on November 22,
2022, Dr. Tanenbaum removed a 20mm polyp and a 10 mm polyp from Mr. Laporte’s
cecum while investigation reasons for Mr. Laporte’s iron deficiency anemia secondary
to chronic blood loss.
Mr. Laporte was subsequently diagnosed with acute leukemia. He died on
January 17, 2023.
***
Rian M. Tanenbaum, M.D. and/or West Jefferson Medical Center on information
and belief performed an unnecessary surgical procedure, i.e., the polyp removal,
without the informed consent of the patient and his family and against the standard of
care for a patient suffering from chronic blood loss and anemia…Mr. Laporte was
subsequently readmitted to the hospital. He passed away on January 17, 2023.
Claimants have damages for wrongful death, mental anguish, emotional stress,
possible costs, and survival damages for pain and suffering, mental anguish,
emotional stress, and other damages to be discovered.

25-CA-19 10

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST LINDA M. TRAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
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TIMOTHY S. MARCEL FIFTH CIRCUIT
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SEPTEMBER 24, 2025 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL
PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

25-CA-19
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE JUNE B. DARENSBURG (DISTRICT JUDGE)
ALEXANDRE E. BONIN (APPELLANT) JEAN-MARC BONIN (APPELLANT) R. CHRISTIAN BONIN (APPELLANT)
MICHAEL F. NOLAN, JR. (APPELLEE) SARAH L. JOHNSON (APPELLEE) JONATHAN E. THOMAS (APPELLEE)
TARA S. BOURGEOIS (APPELLEE) VALERIE A. JUDICE (APPELLEE)

MAILED
PAUL A. BONIN (APPELLANT)
ATTORNEY AT LAW
4224 CANAL STREET
NEW ORLEANS, LA 70119