Walter R. Cox, Sr. v. Bruce P. Bordlee, M.D.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

06-1638

WALTER R. COX, SR.

VERSUS

BRUCE P. BORDLEE, M.D., ET AL.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2006-1036
HONORABLE R. RICHARD BRYANT, JR., DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and
Michael G. Sullivan, Judges.

AFFIRMED.

John E. Bergstedt
The Bergstedt Law Firm
P. O. Box 1884
Lake Charles, LA 70602
Telephone: (337) 436-4600
COUNSEL FOR:
Defendants/Appellees - Walter P. Ledet, M.D. and Bruce P. Bordlee,
M.D.

Patrick Scott Jolly
Watson, Blanche, Wilson & Posner, LLP
P. O. Drawer 2995
Baton Rouge, LA 70821-2995
Telephone: (225) 387-5511
COUNSEL FOR:
Defendant/Appellee - West Calcasieu Cameron Hospital

Walter R. Cox, Sr.
Elayn Hunt Correctional Center
6925 Hwy 74
St. Gabriel, LA 70776

THIBODEAUX, Chief Judge.

Plaintiff, Walter Cox, Sr. (Mr. Cox), filed this appeal pro se from the trial

court judgment dismissing his medical malpractice claim as premature against

Defendants, Dr. Bruce Bordlee; Dr. Walter Ledet (the Doctors); and, West Calcasieu

Cameron Hospital (WCCH). The Doctors and WCCH filed dilatory exceptions of

prematurity because Mr. Cox had not first submitted his claim to a Medical Review

Panel before filing it in district court, pursuant to the process prescribed by the

Louisiana Medical Malpractice Act, La.R.S. 40:1299.41 et seq. For the following

reasons, we affirm the judgment of the trial court.

I.

ISSUE

Does the Louisiana Medical Malpractice Act apply to the facts of this

case, requiring Mr. Cox to bring his complaint of medical malpractice against the

Doctors and WCCH before a Medical Review Panel before seeking redress in court?

II.

FACTS

In March of 2005, Mr. Cox was involved in a car accident in which he

was injured. He was brought by ambulance to WCCH for emergency treatment. He

was treated by the Doctors for a head wound and a broken left foot. He was released

to the custody of the Calcasieu Parish Sheriff’s Department.

Mr. Cox maintains that he suffered from undiagnosed injuries and

ailments for which he had to receive emergency treatment and several surgeries at

another hospital. In March of 2006, he filed a suit in district court entitled, “Suit for

Medical Malpractice.” In that petition, he alleged that the Doctors were negligent

because they did not diagnose and treat his neck, which he asserts was broken, and

because they did not diagnose and treat him for kidney damage. He asserts the claim

that their negligence led to brain damage he says he suffered.

The Doctors and WCCH each filed an Exception of Prematurity in

response to Mr. Cox’s petition. They both claimed that Mr. Cox’s complaint was not

yet ripe for adjudication in court because it was first subject to review by a Medical

Review Panel, as per the process outlined in the Louisiana Medical Malpractice Act,

La.R.S. 40:1299.41 et seq.

A hearing was held on the exceptions. Mr. Cox was sent notice of the

hearing on the exceptions, but was not in attendance at the hearing. Based on the

evidence produced by both defendants, the trial court sustained the exceptions and

dismissed Mr. Cox’s suit without prejudice. The trial court also assessed attorney

fees and a penalty against Mr. Cox in the amount of $1,000.00.

III.

LAW AND DISCUSSION

Standard of Review

A trial court’s ruling on an exception of prematurity is a question of law,

and an appellate court reviews questions of law to determine whether the trial court’s

decision was legally correct or incorrect. O’Brien v. Rizvi, 04-86 (La.App. 3 Cir.

6/9/04), 877 So.2d 150, writs granted, 04-2252, 04-2257 (La. 12/10/04), 888 So.2d

820, rev’d on other grounds, 04-2252 (La. 4/12/05), 898 So.2d 360.

“[The exception of prematurity] is the proper procedural
mechanism for a qualified health care provider to invoke
when a medical malpractice plaintiff has failed to submit
the claim for decision by a decision by a medical review
panel before filing suit against the provider.” Spradlin v.
Acadia-St. Landry Med. Found., 98-1977, p. 4 (La.
2/29/00), 758 So.2d 116, 119. “If an action against a
health care provider covered by the Act has been
commenced in a court of law and the complaint was not
first presented to a medical review panel, an exception of

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prematurity must be maintained, and the plaintiff’s suit
must be dismissed.” Bennett v. Krupkin, 00-23, p. 6
(La.App. 1 Cir. 3/28/02), 814 So.2d 681, 685, writ denied,
02-1208 (La. 6/21/02), 819 So.2d 338.

Id. at 153.

We must determine whether Mr. Cox filed a medical malpractice claim

and whether the Doctors and WCCH were qualified healthcare providers, thereby

invoking the procedures required under the Louisiana Medical Malpractice Act

(LMMA).

The LMMA creates a process for bringing malpractice claims against

qualified healthcare providers. Malpractice is defined by the LMMA as:

(8) “Malpractice” means any unintentional tort or
any breach of contract based on health care or professional
services rendered, or which should have been rendered, by
a health care provider, to a patient, including failure to
render services timely and the handling of a patient,
including loading and unloading of a patient, and also
includes all legal responsibility of a health care provider
arising from acts or omissions during the procurement of
blood or blood components, in the training or supervision
of health care providers, or from defects in blood, tissue,
transplants, drugs, and medicines, or from defects in or
failures of prosthetic devices implanted in or used on or in
the person of a patient.

La.R.S. 40:1299.41(A)(8).

A healthcare provider is defined in pertinent part, in the LMMA as

follows: “(1) ‘Health care provider’ means a person, partnership, limited liability

partnership, limited liability company, corporation, facility, or institution licensed or

certified by this state to provide health care or professional services as a physician,

hospital, . . . .” La.R.S. 40:1299.41(A)(1).

To become an LMMA qualified healthcare provider, one must follow the

procedures outlined in La.R.S. 40:1299.42. Once the qualification process is

complete, the qualified healthcare provider may then invoke the protections provided

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in the LMMA. One of those protections is that the claim must first be reviewed by

a Medical Review Panel. La.R.S. 40:1299.47.

Both of the Doctors and WCCH filed for and received certification, and

therefore are qualified healthcare providers. Copies of their certificates of enrollment

were introduced as evidence.

A malpractice claim is processed under the LMMA when a patient who

believes that malpractice was committed submits a request for review of that

complaint to the Patient’s Compensation Fund Oversight Board (the Board), created

by La.R.S. 40:1299.44(D). That action begins the process of setting up a Medical

Review Panel to review the patient’s claim. La.R.S. 40:1299.47.

The filing of a request for a Medical Review Panel with the Board

suspends the running of the normal one to three year prescription period allotted for

filing a medical malpractice claim in district court set by La.R.S. 9:5628. LeBreton

v. Rabito, 97-2221 (La. 7/8/98), 714 So.2d 1226. Once the Medical Review Panel has

made a decision, the patient has ninety days from receipt of the decision by the panel

to file a suit in district court. La.R.S. 40:1299.47(A)(2)(a).

The requirement for review by a Medical Review Panel before a claim

may be brought in court has been found to have no constitutional conflicts or

problems. Everett v. Goldman, 359 So.2d 1256 (La.1978). This requirement does not

bar a patient from filing a claim in court. The opinion of the Medical Review Panel

is just that, and it is considered by the trial court to be the opinion of experts in the

medical field. The judge or jury is the ultimate arbiter of the issue when the claim is

filed in court. There is no constitutional conflict created by requiring that civil

malpractice claims first go to a Medical Review Panel before a claimant files suit in

court. Seoane v. Ortho Pharms., 660 F.2d 146 (5th Cir. 1981).

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Even if there were merit to Mr. Cox’s claim that the Medical Review

Panel requirement was unconstitutional, a party asserting a claim of

unconstitutionality must specifically make such an argument in his or her pleadings

with the trial court. “It is well-established that litigants must raise constitutional

challenges in the trial court rather than in the appellate courts, and that the

constitutional challenge must be specially pleaded and the grounds for the claim

particularized.” Arrington v. Galen-Med, Inc., 06-2923, 06-2944, 06-2968, p.3 (La.

2/2/07), 947 So.2d 719, 720.

Mr. Cox calls his claim a malpractice claim, and the conduct he

complains of arises out of his treatment by the Doctors and WCCH. The basis for his

claim falls squarely within the LMMA definition of malpractice.

Since both the Doctors and WCCH are qualified healthcare providers

and Mr. Cox’s claim is a medical malpractice claim, the terms and procedures of the

LMMA apply to his claim. He must first file a request for Medical Review Panel

with the Board and allow that process to unfold completely before filing a claim in

district court. The judgment of the trial court is affirmed.

IV.

CONCLUSION

A claim based on medical malpractice as defined in the LMMA must

first be reviewed by a Medical Review Panel before it can be filed in district court as

long as, among other requirements, the claim is against a qualified healthcare

provider. Mr. Cox complains about the medical care that he received from both the

Doctors and WCCH which constitutes malpractice under the LMMA. The Doctors

and WCCH are certified as qualified healthcare providers under the guidelines set

forth in the LMMA. Therefore, Mr. Cox must first submit his claim to a Medical

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Review Panel before he can file it in district court. The trial court’s granting of the

exceptions of prematurity is affirmed, as is the assessment of costs and fines against

Mr. Cox. All costs of this appeal are assessed against Defendant, Walter Cox, Sr.

AFFIRMED.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. Rule
2-16.3, Uniform Rules—Courts of Appeal.

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