Scott Harrison v. Lake Charles Mental Health

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

06- 434
SCOTT HARRISON

VERSUS

LAKE CHARLES MENTAL HEALTH, ET AL.

**************
APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2002-4084
HONORABLE DAVID A. RITCHIE, DISTRICT JUDGE

**************
MARC T. AMY
JUDGE
*************

Court composed of Sylvia R. Cooks, John D. Saunders, Marc T. Amy, Elizabeth A.
Pickett, and Billy H. Ezell, Judges.

EXCEPTION OF PRESCRIPTION GRANTED. CLAIM DISMISSED WITH
PREJUDICE.

Cooks, J., dissents and assigns written reasons.
Saunders, J., dissents.

Colleen McDaniel
Assistant Attorney General
Louisiana Department of Justice, Division of Risk Litigation
556 Jefferson Street, 4th Floor
Lafayette, LA 70501
(337) 262-1700
COUNSEL FOR DEFENDANTS/APPELLEES:
Lake Charles Mental Health, et al.

Scott Harrison
General Delivery
Central Station
Kerrville, TX 78028
COUNSEL FOR PLAINTIFF/APPELLANT:
In Proper Person

AMY, Judge.

The plaintiff filed a petition asserting entitlement to damages related to

termination of services by the Lake Charles Mental Health Care Center. The

defendants construed the claim as one for medical malpractice and filed an exception

of prematurity due to the failure to request review by a state medical review panel.

The trial court granted the exception. The plaintiff appeals this determination. In this

court, the defendants have filed an exception of prescription. For the following

reasons, we grant the exception of prescription and dismiss the plaintiff’s claim with

prejudice.

Factual and Procedural Background

The record indicates that the plaintiff, Scott Harrison, filed the petition

instituting this matter on August 20, 2002. In that petition, Mr. Harrison asserts that

he had been treated as an outpatient at the Lake Charles Mental Health Care Center

for an alleged mental health condition, but that the treatment was terminated on

August 21, 2001. Thereafter, he was unable to receive the medication he asserts is

necessary for his condition. This initial petition indicates that Mr. Harrison received

notice of the termination of treatment on September 10, 2001. The Lake Charles

Mental Health Care Center, the State of Louisiana, the Department of Health and

Hospitals, and various personnel were named as defendants.

The defendants filed an initial exception of prematurity in September 2002,

noting that the matter had not been submitted to a state medical review panel as is

required by La.R.S. 40:1299.39.1. The exception of prematurity was granted by the

trial court by judgment entered January 24, 2003.

Thereafter, on June 16, 2005, the defendants again filed an exception of

prematurity, stating that, in May 2005, the plaintiff filed a Request for Expert Medical

Review Panel.1 According to the defendants, the filing was again a complaint

regarding denial of psychiatric medication and, as the claim had not yet been

presented to a state medical review panel as is required La.R.S. 40:1299.39.1, it

remained premature. Following a hearing, the trial court granted the exception of

prematurity and dismissed the plaintiff’s claim without prejudice.

The plaintiff appeals the dismissal and appears to generally argue that his

allegations raise claims of intentional tort and, therefore, are beyond the scope of the

medical malpractice act.

For the first time on appeal, the defendants have filed an exception of

prescription, and seek dismissal of the plaintiff’s claim with prejudice.

Discussion

We begin by stating that review of the plaintiff’s petition reveals no error in the

trial court’s treatment of this case as one for medical malpractice. While the

plaintiff’s assertions are wide ranging, they stem from his claims of termination of his

treatment and his inability to obtain psychiatric medication.2 Thus, we turn to the

exception of prescription. Louisiana Code of Civil Procedure Article 2163, permits

the pleading of prescription in an appellate court in the following circumstances:

The appellate court may consider the peremptory exception filed
for the first time in that court, if pleaded prior to a submission of the
case for a decision, and if proof of the ground of the exception appears
of record.

If the ground for the peremptory exception pleaded in the

1
We note that the appellate record does not contain the May 2005 filing referenced in the
exception. It is, however, affixed to the defendants’ exception of prescription and reference has been
made to the document for discussion purposes only. There appears to be no dispute that the request
was filed in the district court.
2
Furthermore, the transcript contains discussion between the trial court and the Assistant
Attorney General representing the defendants indicating that the trial court has ruled on those claims
falling outside of the Medical Malpractice Act.

2

appellate court is prescription, the plaintiff may demand that the case be
remanded to the trial court for trial of the exception.

As the defendants’ exception of prescription was timely filed prior to submission of

this case for a decision, we turn to consideration of whether the proof of the exception

appears in the record.

A one-year prescriptive period is applicable in medical malpractice cases. See

La.R.S. 9:5628(A).3 As this case is one involving state entities, this one-year period

of La.R.S. 9:5628(A) is considered in light of La.R.S. 40:1299.39.1. Entitled “State

Medical Review Panel,” La.R.S. 40:1299.39.1 provided as follows at the time in

which suit would have been timely:

A. (1) All malpractice claims against the state, its agencies, or
other persons covered by this Part … shall be reviewed by a state
medical review panel established as provided in this Section, to be
administered by the commissioner of administration, hereinafter referred
to as commissioner.

(2)(a) The filing of the request for a review of a claim shall
suspend the time within which suit must be instituted, in accordance
with this Part, until ninety days following notification, by certified mail,
as provided in Subsection J of this Section, to the claimant or his
attorney of the issuance of the opinion by the state medical review
panel, in the case of the state or persons covered by this Part, or, in the
case of a health care provider against whom a claim has been filed under
the provisions of this part who has not qualified under this Part, until
sixty days following notification by certified mail to the claimant or his
attorney by the commissioner that after requesting evidence of such
qualifications under this part and waiting the passage of at least ninety
days, the commissioner has not received a certificate or other evidence
sufficient to establish that the person is covered by this Part. The filing

3
The statute provides:

(A) No action for damages for injury or death against any physician . . .
, nurse. . . , psychologist . . . , hospital . . . duly licensed under the laws of this state
. . . , whether based on tort, or breach or 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.

3

of a request for review of a claim shall suspend the running of
prescription against all joint or solidary obligors, including but not
limited to health care providers, both qualified and not qualified, to the
same extent that prescription is suspended against the party or parties
that are subject of the request for review. 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.

(b) The request for review of the claim under this Section shall
be deemed filed on the date of receipt of the complaint stamped and
certified by the commissioner, or on the date of mailing of the complaint
if mailed to the commissioner by certified or registered mail.

....

B. (1)(a)(i) No action against the state, its agencies, or a
person covered by this Part, or his insurer, may be commenced in any
court before the claimant’s complaint has been presented to a state
medical review panel established pursuant to this Section.

(Emphasis added.)

The above provision indicates that no action may be commenced in court

before a plaintiff’s complaint is presented to a state medical review panel. See

La.R.S. 40:1299.39.1(B)(1)(a)(i). The details for requesting review are specifically

addressed by La.R.S. 40:1299.39.1(A)(2). There is no indication in the record that

the plaintiff complied with the above filing requirements in a timely fashion. Other

than a brief reference at a 2002 hearing that the initial petition was served on “Mark

Drennan”, this general information fails to indicate that the specific requirements of

La.R.S. 40:1299.39.1(A)(2) were either satisfied or satisfied in a timely fashion. Any

filings outside the division of administration, including those in the trial court, did not

suspend or interrupt the running of prescription.

Given the lack of indication that the necessary filing was timely made with the

Division of Administration, the plaintiff’s claim has prescribed. Nor has the plaintiff

demonstrated that he can sustain his burden of coming forward with evidence to

4

indicate that it has not prescribed. See In re Medical Review Panel for Claim of

Moses, 00-2643 (La. 5/25/01), 788 So.2d 1173.

We note that La.Code Civ.P. art. 2163 provides that, when an exception of

prescription is filed for the first time on appeal, “the plaintiff may demand that the

case be remanded to the trial court for trial of the exception[.]” Here, the plaintiff’s

brief inadequately requests this procedure, only briefly referencing the possibility of

remand in this situation. In light of this failure and the lack of indication that the

plaintiff would be able to satisfy his burden on remand, we grant the exception of

prescription and dismiss the plaintiff’s claim.

DECREE

For the foregoing reasons, the exception of prescription filed by the defendants

is granted. The plaintiff’s claim is dismissed with prejudice. All costs of this

proceeding are assessed to the plaintiff, Scott Harrison.

EXCEPTION OF PRESCRIPTION GRANTED. CLAIM DISMISSED WITH
PREJUDICE.

5

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

06- 434

SCOTT HARRISON

VERSUS

LAKE CHARLES MENTAL HEALTH, ET AL.

COOKS, J., dissents.

I respectfully dissent from the majority opinion finding Mr. Harrison’s claim

has prescribed because he did not file a request for a medical review panel before

September 10, 2002, which the majority acknowledges is the applicable prescriptive

date. The State admitted the Division of Administration received Mr. Harrison’s

petition timely and the petition would be treated as a request for a medical review

panel. A brief review of the procedural history of this case is in order.

Scott Harrison was a patient at the Lake Charles Mental Health Center

beginning in 1986. In June 2001, he received notice that the Center was going to

conduct an independent assessment as to whether his continued treatment was

warranted. On September 10, 2001, he received the official notice that he was being

discharged from the Center and would no longer received treatment. On August 20,

2002, he filed a petition in district court against the Center, several physician

employees and the State alleging he was improperly discharged and refused

psychiatric medication. The State filed an Exception of Prematurity alleging the

claim must first be submitted to a medical review panel. At the hearing, Mr. Harrison

asserted he did file a request for a medical review panel by sending a copy of his

petition to the Clerk of Court to be served on the Division of Administration. In fact,

at the hearing the State admitted: (1) Mr. Harrison’s petition was served on the

Division of Administration through its Commissioner, Mark Drennan; and, (2) the

petition could be treated as a request for a medical review panel. The following

exchange occurred in open court between the trial court, Mr. Harrison and counsel

for the State:

MR. HARRISON: At this time I have not tried to actually enforce the lawsuit
without having a copy of the lawsuit served on Mark Drennan, the
Medical Review Panel, in Baton Rouge. I filed a document right
here which is in the court record to have the Clerk’s Office serve
a copy of the lawsuit upon these people in Baton Rouge, and I’m
waiting for them to get back with me.

THE COURT: All right. This is what we’ll do. The defense’s objection as to the
Exception as to Prematurity is valid, and the Court will stay these
proceedings and transfer this case to the Medical Review Panel.
Is there a procedure or can the Clerk’s office do that, Mrs.
Hollins?

MRS. HOLLINS: He served Mark Drennan, therefore it can become that, and I
would continue to be the attorney to handle this as a malpractice.

THE COURT: All right. So, we will keep your lawsuit viable. We will then
allow the Medical Review Panel to do whatever it has to do with
this matter. And whenever they finish, whatever they say, then
we will return back to your lawsuit.

A judgment was signed on January 14, 2003, in accordance with the facts

presented at the hearing. The judgment granted the State’s Exception of Prematurity

and stayed the proceedings in district court pending review by the panel. The

judgment further ordered that “Mr. Harrison shall receive representation from the

Mental Health Advocacy Center on the issue of whether or not Mr. Harrison can

receive medication and/or treatment at the Lake Charles Mental Health Clinic

pending a final ruling in this case. The court will contact the Mental Health

Advocacy Clinic to arrange the representation prior to a trial on this issue.” The State

did not appeal the judgment of January 14, 2003, finding a valid panel request was

filed by Mr. Harrison, or make any objection to the order which stayed proceedings

in district court pending the outcome of the medical review panel. Further, the State

did not raise the exception of prescription at the trial level or on appeal in response

to the trial judge’s decision to keep the “lawsuit” alive by staying the proceedings in

district court to await review by a medical review panel.

It appears no representation was provided to Mr. Harrison from the Mental

Health Advocacy Center, as ordered by the trial court, nor was a medical review panel

ever convened to review his complaint. When Mr. Harrison received nothing from

the Division of Administration, he returned to district court by filing another pleading

entitled “Request for Expert Medical Review Panel.” This pleading was filed under

the same docket number as the first petition. The trial court treated this pleading as

a second petition. The State again filed an Exception of Prematurity asserting Mr.

Harrison never filed a request for a medical review panel. The trial court granted the

exception of prematurity. Mr. Harrison appealed. The State answered the appeal and

asserted, for the first time on appeal, an Exception of Prescription. The State argued

that August 21, 2001 was the applicable prescriptive date. Alternatively, the State

argued Mr. Harrison failed to submit $100 to the Division of Administration, which

fee is required to convene a medical review panel.

The majority opinion finds September 10, 2001 and not August 21, 2001 is the

applicable prescriptive date. However, the majority treats Mr. Harrison’s pleading

entitled “Request for Expert Medical Review Panel” as a second petition and grants

the State’s Exception of Prescription finding he did not file a request for a medical

review panel prior to September 10, 2002. In so doing, the majority fails to address

the primary issues in this case, namely, (1) the effect of the judgment of January 14,

2003, which stayed the proceedings in district court and ordered that Mr. Harrison

receive representation; and, (2) the State’s admission in open court that Mr.

Harrison’s original petition was received by the Division of Administration and could

be treated as a request for a medical review panel. The majority opinion

acknowledges there was a “brief reference at a 2002 hearing that the initial petition

was served on ‘Mark Drennan.’” However, the majority concludes “this information

fails to indicate that the specific requirements of La.R.S. 40:1299.39.1(A)(2) were

either satisfied or satisfied in a timely fashion.” Contrary to the majority’s

conclusion, I am satisfied the record sufficiently rebuts the State’s position that

prescription has run in this case. The record clearly shows the pleading he filed with

the trial court on August 20, 2002 was received by the Division of Administration.

For the first time, on appeal, the State “argued” without any offer of proof that Mr.

Harrison did not submit the $100 fee with the original filing and, therefore, the panel

was not convened. Louisiana Revised Statutes 40:1299.39.1(A)(3)(b) requires the

Commissioner to “notify the claimant of the amount of the filing fee due and the time

frame within which such fee is due to the commissioner.” The notice must inform the

plaintiff that the failure to comply will render the request for a medical review panel

“invalid and without effect.” The State has provided no proof that such notice was

sent to Mr. Harrison. The filing of the petition with Mr. Drennan was sufficient to

invoke the medical review panel process and Mr. Harrison’s “Request for Expert

Medical Review Panel” should have been treated as a writ of mandamus directing the

Division of Administration to convene a medical review panel in accordance with the

judgment of January 14, 2003. See Munden v. State, Div. of Admin., 01-2326

(La.App. 1 Cir. 5/9/03), 849 So.2d 639, writ denied, 03-1532 (La. 10/3/03), 855

So.2d 310. I respectfully dissent from the majority opinion dismissing Mr. Harrison’s

claim on an exception of prescription.