Arnold Wayne Lee and Paula White Lee v. Green Clinic

Judgment rendered February 26, 2025.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 56,099-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

ARNOLD WAYNE LEE AND Plaintiffs-Appellants
PAULA WHITE LEE

versus

GREEN CLINIC, ET AL Defendants-Appellees

*****

Appealed from the
Third Judicial District Court for the
Parish of Lincoln, Louisiana
Trial Court No. 63,123

Honorable Thomas W. Rogers, Judge

*****

LAW OFFICE OF SUSAN E. HAMM Counsel for Appellants
By: Susan E. Hamm

HUDSON, POTTS & BERNSTEIN, LLP Counsel for Appellees,
By: Gordon L. James Kenneth Metoyer, M.D.,
Sara G. White Edward Mariano, M.D.
and the Green Clinic

*****

Before PITMAN, COX, and MARCOTTE, JJ.

PITMAN, C. J.

Plaintiffs Arnold Wayne Lee and Paula White Lee appeal the

dismissal on the basis of prescription of their medical malpractice suit

against Defendants Kenneth Metoyer, M.D., Edward Mariano, M.D., and the

Green Clinic. For the following reasons, we reverse and remand for further

proceedings.

FACTS

Plaintiffs filed a suit for medical malpractice against Defendants

alleging that they treated Arnold for certain neurological deficiencies

beginning April 12, 2017, and for a stroke which occurred in August 2019.

Plaintiff was hospitalized for a period of four weeks for treatment after the

stroke and, on September 30, 2019, presented to one of the Defendants with

weakness on his left side. The petition alleges that Plaintiff still has

weakness on his left side and cannot return to work. It also mentions several

dates, but does not state the date of discovery of the alleged act of

malpractice.

On April 13, 2020, Plaintiffs sent a complaint to the Division of

Administration (“DA”) requesting the formation of a medical review panel.

The complaint states that the date of discovery of the alleged malpractice

was August 24, 2019. It also states that it was sent by certified mail, but the

envelope arrived without postage of any kind and without a green card for

delivery information attached to the envelope. Because it arrived without

postage or proof of certified mail, the DA considered it sent by regular mail

and acknowledged receipt on April 20, 2020. Courtesy copies sent to the

other parties were in envelopes that had postage.

The process to review the claim began; and, on October 11, 2022, the

medical review panel’s written opinion was sent by certified mail to all

parties. Plaintiffs presented evidence that they did not receive the opinion

until October 18, 2022. Plaintiffs filed suit against Defendants in Lincoln

Parish on May 30, 2023.

Defendants filed a peremptory exception of prescription and claimed

that Plaintiffs’ time for filing suit had lapsed by the time the petition was

filed in the district court. They claimed that to be timely filed, the claim of

malpractice must be filed with the DA 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 of malpractice. The filing of the claim with the

DA suspends prescription during the pendency of the claim until 90 days

after the opinion of the medical review panel is sent to the parties by

certified mail. After receipt of an opinion by certified mail, the remaining

days of the year begin tolling prescription on plaintiff’s cause of action.

Defendants contend that as per the letter to the DA, the original

prescriptive period began to run on August 24, 2019, the stated date of

discovery of the alleged act of malpractice; and the complaint was received

by it on April 20, 2020. Defendants calculated that Plaintiffs had 90 days

plus the remaining 125 days to file, or until May 21, 2023, a Sunday, to file

suit. Because it was a Sunday, Plaintiffs had one extra day, until May 22,

2023, to file suit. Their petition was filed in the district court on May 30,

2023, beyond the time limit calculated by Defendants for prescription to

have run.

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The matter was set for a hearing on March 21, 2024.1 Plaintiffs’

counsel was not present for the hearing. The hearing was held, Defendants

supported their exception and no defense to the exception was presented.

On April 10, 2024, the trial court rendered judgment sustaining the

exception of prescription and dismissing Plaintiffs’ suit with prejudice.

Plaintiffs have filed this appeal seeking review of the granting of the

exception of prescription and the dismissal of their action.

DISCUSSION

Plaintiffs argue that the prescriptive period for filing their lawsuit was

improperly calculated because they sent their claim to the DA by certified

mail on April 13, 2020, and that is the day that should have marked the

beginning of the suspension of prescription instead of April 20, 2020.

Plaintiffs contend that the green card associated with certified mail was

contained in the envelope received by the DA with the complaint dated

April 13, 2020, and that the DA acknowledged it had received the complaint.

They argue that they had 90 days plus 133 days to file the petition for

damages and that May 29, 2023, the last day the petition could be filed, was

Monday, Memorial Day, so the petition was timely filed on May 30, 2023.

For these reasons, they contend that the granting of the exception of

prescription should be reversed and their lawsuit reinstated.

Defendants argue that the trial court correctly sustained the exception

of prescription and dismissed the Plaintiffs’ case with prejudice.

1
Plaintiffs’ attorney asserts that a memorandum in opposition to the exception of
prescription was filed but does not appear in the appellate record. She stated that she
attached a copy of certain exhibits to the memorandum and that the trial court noted in its
judgment that she had filed an opposition; however, neither the memorandum nor the
exhibits appear in the appellate record.
3

Any action against health care providers concerning medical

malpractice is subject to the Medical Malpractice Act (“MMA”). La.

R.S. 40:1231.1, et seq.; Perritt v. Dona, 02-2601 (La. 7/2/03), 849 So. 2d

56. La. R.S. 9:5628(A) delineates time limitations for filing a medical

malpractice action and states that it shall be brought 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. Further, La.

R.S. 40:1231.8(A)(2)(a) pertains to the suspension of prescription during the

pendency of the medical review panel process and provides that the request

for review shall suspend the time within which suit must be brought until 90

days following notification, by certified mail, to the claimant or his attorney

of the issuance of an opinion by the medical review panel.

La. R.S. 40:1231.8(A)(2)(b) provides that the period of suspension

begins when the request for review is deemed filed by the DA as follows:

(i) The request for review of a malpractice claim under this
Section shall be deemed filed on the date the request is:
***
(bb) Mailed, if the request is delivered by certified or registered
mail to the division of administration.

(cc) Received, if the request is delivered to the division of
administration by any means other than as provided by Subitem
(aa) or (bb) of this Item.

(ii) Upon receipt, the request shall be stamped with the filing
date and certified by the division of administration. Filing of the
request shall be complete only upon timely compliance with the
provisions of Subparagraph (1)(c) or (d) of this Subsection.
Upon receipt of any request, the division of administration shall
forward a copy of the request to the board within five days of
receipt.

4

Typically, when prescription is raised by peremptory exception, the

trial court’s findings of fact on the issue of prescription are subject to the

manifest error-clearly wrong standard of review. Specialized Loan

Servicing, LLC v. January, 12-2668 (La. 6/28/13), 119 So. 3d 582; Med.

Rev. Panel for Lane v. Nexion Health at Minden, Inc., 53,901 (La. App.

2 Cir. 8/11/21), 326 So. 3d 340, writ denied sub nom. Med. Rev. Panel Proc.

for Lane v. Nexion Health at Minden, Inc., 21-01410 (La. 11/23/21),

328 So. 3d 82. However, when the sole issue before the court of appeal is

the proper interpretation of the statutes pertaining to prescription under the

MMA, the case presents a question of law, which is reviewed by this court

under a de novo standard of review. Specialized Loan Servicing, LLC v.

January, supra. A de novo review means the court will render judgment

after its consideration of the legislative provision at issue, the law and the

record, without deference to the legal conclusions of the tribunals below. Id.

Statutes providing for prescriptive periods are to be strictly construed

in favor of maintaining a cause of action. Correro v. Caldwell, 49,778 (La.

App. 2 Cir. 6/3/15), 166 So. 3d 442, writ denied, 15-1536 (La. 10/23/15),

179 So. 3d 607. Thus, if there are two possible constructions, the one that

favors maintaining an action, as opposed to barring it, should be adopted.

Id.

When 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. La. C.C.P. art. 934. If the grounds of the objection

raised through the exception cannot be so removed, or if the plaintiff fails to

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comply with the order to amend, the action, claim, demand, issue or theory

shall be dismissed. Id.

Where the plaintiff has raised allegations in argument which might be

sufficient to overcome a peremptory exception of prescription, he should be

allowed time to amend his petition to assert such allegations, even though

the claim asserted in the original petition is prescribed on its face. Breland

v. Willis Knighton Med. Ctr., 51,150 (La. App. 2 Cir. 2/15/17), 212 So. 3d

724, writ denied sub nom. In re Breland, 17-0685 (La. 6/16/17), 220 So. 3d

758, citing Whitnell v. Menville, 540 So. 2d 304 (La. 1989). A court may

allow time to amend if the new allegations raise the possibility that the claim

is not prescribed, even if the ultimate outcome of the prescription issue, once

the petition is amended, is uncertain. Whitnell v. Menville, supra. An

opportunity to amend should be allowed unless it can be determined, in

advance of the amendment, that the new allegations could have no effect on

the prescription issue. Id.

In this case, we find that Defendants have supported their exception of

prescription and that the burden of proof has shifted to Plaintiffs to counter

the trial court’s finding that prescription has run. Based on arguments by

Plaintiffs’ attorney that she filed an opposition to the exception of

prescription with exhibits that were not included in the record, and the fact

that there is a possibility the petition can be amended and proof of certified

mailing of the complaint to the DA can be provided, we reverse and remand

for further action consistent with this opinion. If the petition cannot be so

amended, or the proof of certified mailing cannot be proven to have taken

place on April 13, 2020, the exception of prescription can be sustained once

again.
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CONCLUSION

The judgment of the trial court sustaining the peremptory exception of

prescription filed by Defendants Kenneth Metoyer, M.D., Edward Mariano,

M.D., and the Green Clinic, and dismissing the medical malpractice action

filed by Plaintiffs Arnold Wayne Lee and Paula White Lee, is hereby

reversed, and the matter is remanded for amendment of the petition to allege

facts and provide proof that the complaint to the Division of Administration

was mailed by certified mail on that date. Costs of this appeal are assessed

equally to Plaintiffs-Appellants and Defendants-Appellees.

REVERSED AND REMANDED.

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