In Re: Medical Review Panel Jerome Smith

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-421

IN RE: MEDICAL REVIEW PANEL JEROME SMITH

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 231,461
HONORABLE GEORGE C. METOYER JR, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Jimmie C. Peters, Elizabeth A. Pickett, and J. David Painter,
Judges.

REVERSED AND SET ASIDE; REMANDED; MEDICAL REVIEW PANEL
RE-INSTATED.

George A. Flournoy
Flournoy, Doggett & Losavio
P. O. Box 1270
Alexandria, LA 71309-1270
Counsel for Appellants:
Shirley and Jerome Smith

Monica Ann Frois
Deirdre Claire McGlinchey
McGlinchey Stafford
601 Poydras St., 12th Floor
New Orleans, LA 70130
Counsel for Appellee:
Bayou Healthcare, LLC

PICKETT, Judge.

The plaintiffs, Jerome and Shirley Smith, appeal the trial court’s granting of an

ex parte motion filed by the defendants dismissing the plaintiffs’ proceeding against

the defendants, Bayou Health Care, L.L.C., d/b/a Crossroads Regional Hospital, and

Lexington Insurance Company, pending before a medical review panel. We reverse

the judgment of the trial court, re-instate the medical review panel proceedings, and

remand the case for further action consistent with this opinion.

FACTS

In this case, the plaintiffs, the Smiths, filed a medical review panel claim

against the defendants, Crossroads Regional Hospital and Dr. Jay Piland, in April

2008. The following month, the defendants’ attorneys filed a request with the district

court to open a judicial proceeding entitled “In Re: Medical Review Panel Jerome

Smith,” allegedly for the sole purpose of allowing the defendants to discover evidence

to present to the medical review panel. The district court granted the defendants’

request. Thereafter, the defendants sent the plaintiffs a list of 31 interrogatories and

a motion for production of documents, requesting the plaintiffs to supply the

defendants with 26 different types of documents (doctors’ reports, photographs,

medical records, tax returns, etc.). When the plaintiffs failed to provide the requested

discovery within 15 days, the defendants filed a motion to compel. The trial court set

a hearing on the motion for September 29, 2008. On that day a “consent” judgment

was submitted by the defendants continuing the hearing without date. That judgment,

which was signed October 7, 2008, included a provision to dismiss the plaintiffs’

medical review panel action if the discovery was not completed by October 10, 2008,

just three days hence.

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On October 15, 2008, the defendants filed an ex parte motion to dismiss the

plaintiffs’ medical review panel claim based upon the “consent” judgment previously

signed. Accompanying the motion to dismiss was a judgment to dismiss with

prejudice. The motion and judgment were hand carried by the defense from the

clerk’s office to the court, which signed the judgment just minutes after it was filed.

The plaintiffs had no notice of the events of October 15, 2008, until five days after

the judgment of dismissal was signed. That judgment is the subject of this appeal.

The issue before this court is whether the trial court abused its discretion in

dismissing the plaintiffs’ medical malpractice action, which was still pending before

the medical review panel, without a hearing.

LAW AND DISCUSSION

Louisiana Revised Statutes 40:1299.47, entitled “Medical review panel,”

provides in pertinent part as follows:

A. (1)(a) All malpractice claims against health care providers
covered by this Part, . . . , shall be reviewed by a medical review panel
established as hereinafter provided for in this Section.

....

B. (1)(a)(I) No action against a health care provider covered by
this Part, or his insurer, may be commenced in any court before the
claimant's proposed complaint has been presented to a medical review
panel established pursuant to this Section.

....

D. (1) The evidence to be considered by the medical review panel
shall be promptly submitted by the respective parties in written form
only.

(2) The evidence may consist of medical charts, x-rays, lab tests,
excerpts of treatises, depositions of witnesses including parties,
interrogatories, affidavits and reports of medical experts, and any other
form of evidence allowable by the medical review panel.

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(3) Depositions of the parties and witnesses may be taken prior to
the convening of the panel.

(4) Upon request of any party, or upon request of any two panel
members, the clerk of any district court shall issue subpoenas and
subpoenas duces tecum in aid of the taking of depositions and the
production of documentary evidence for inspection and/or copying.

....

F. The panel shall have the right and duty to request and procure
all necessary information. The panel may consult with medical
authorities, provided the names of such authorities are submitted to the
parties with a synopsis of their opinions and provided further that the
parties may then obtain their testimony by deposition. The panel may
examine reports of such other health care providers necessary to fully
inform itself regarding the issue to be decided. Both parties shall have
full access to any material submitted to the panel.

....

G. The panel shall have the sole duty to express its expert opinion
as to whether or not the evidence supports the conclusion that the
defendant or defendants acted or failed to act within the appropriate
standards of care.

If the panel finds that the defendant failed to comply with the appropriate

standard of care, then it must decide if the conduct complained of was a factor

resulting in the damages alleged, and “[i]f such conduct was a factor, whether the

plaintiff suffered: (a) any disability and the extent and duration of the disability, and

(b) any permanent impairment and the percentage of the impairment.” La.R.S.

40:1299.47(G)(4).

As our colleagues of the second circuit stated in Maxwell v. Soileau, 561 So.2d

1378, 1386 (La.App. 2 Cir.), writs denied, 567 So.2d 1123, 1124 (1990):

The sole duty of the medical review panel is to express its expert
opinion. No findings are made by the panel as to damages and the
findings of the panel are not binding on the litigants. The panel simply
renders an expert opinion and does not have the power to adjudicate the
rights of any party. Derouen v. Kolb, 397 So.2d 791 (La.1981).

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Thus, according to the foregoing statute and jurisprudence, the defendant in a

medical malpractice claim pending before a medical review panel is entitled to

discover any evidence which will be considered by the panel in making its

determinations, i.e. if the defendant breached the standard of care due the plaintiff and

the resultant damages, if any, if the standard of care was breached.

In Trahan v. State ex rel. Dept. of Health and Hosp., 04-743, pp. 2-4 (La.App.

3 Cir. 11/10/04), 886 So.2d 1245, 1248-50, a panel of this court reviewed the law

applicable to the case sub judice:

Trial courts have broad discretion in ruling on discovery matters
that are presented during the course of litigation, including the scope of
discovery. Moak v. Ill. Cent. R.R. Co., 93-783 (La. 1/14/94), 631 So.2d
401; Ward v. Tenneco Oil Co., 564 So.2d 814 (La.App. 3 Cir.1990).
Such discretion will not be disturbed on appeal absent a clear showing
of abuse. Moak, 631 So.2d 401.

....

In Horton v. McCary, 93-2315 (La. 4/11/94), 635 So.2d 199, the
supreme court addressed the propriety of the dismissal of a plaintiff’s
claims for failure to comply with discovery, observing that “[t]here is a
distinction between the sanctions available for failure to comply with
discovery and the sanctions available for disobedience of court ordered
discovery” and that “[t]rial judges must have severe sanctions available
to deter litigants from flouting discovery orders.” Id. at 203. The court
further noted that dismissal is a “draconian” penalty which should only
be applied in “extreme circumstances.” Id.

Comparing the Louisiana rule for sanctioning a party who fails to
comply with discovery with the Federal rule, the Horton court identified
four factors appellate courts should consider when determining whether
a trial court’s dismissal of a plaintiff’s claims is an abuse of discretion:

(1) whether the violation was willful or resulted from
inability to comply;

(2) whether less drastic sanctions would be effective;

(3) whether the violations prejudiced the opposing party’s
trial preparation; and

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(4) whether the client participated in the violation or
simply misunderstood a court order or innocently hired a
derelict attorney.

Id. The court further observed that “[t]he record must support ‘a
finding that the failure was due to ... wilfulness, bad faith, or fault’ ”
before dismissal of a plaintiff’s claims is appropriate. Id. quoting Allen
v. Smith, 390 So.2d 1300, 1302 (La.1980).

In In re Wiley, 03-793 (La.App. 3 Cir. 12/23/03), 862 So.2d 1243,
this court determined that without sworn testimony no assessment of
these factors could be made. . . . Without evidence concerning these
factors, we cannot determine whether the trial court’s dismissal of the
Trahans’ claims was error.

The record before us reveals that the only time either party appeared before a

judge (and then only through counsel) was when the defendants, ex parte, sought to

have their motion to dismiss signed. Neither party ever appeared in open court, and

there was never any hearing of any kind. Furthermore, the record reveals that the

defendants’ interrogatories and request for production of documents sought

information in excess of the facts needed by the panel to make its determinations.

Additionally, there is nothing in the record which would indicate that the medical

review panel was hindered in its proceedings because of plaintiffs’ failure to promptly

respond to the defendants’ requests. Finally, we note that it was the defendants who

requested the continuance of the motion to compel set for September 29, 2008.

In sum, we find the trial court’s dismissal of the plaintiffs’ pending medical

review panel proceeding an abuse of the trial court’s discretion. It appears that this

was a situation where there was a possible mis-communication between counsel.

There was no bad faith on the part of the plaintiffs. Plaintiffs’ counsel had only three

days from service of the notice to respond to a lengthy interrogatory. We find that a

less drastic sanction would be appropriate and that the defendants were not prejudiced

in the preparation of their defense.

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Accordingly, for the reasons stated, the judgment of trial court is reversed and

set aside. The medical review panel is re-instated, and this proceeding is remanded

for further proceeding, consistent with this opinion. All costs of this appeal are

assessed against the defendants/appellees, Bayou Health Care, L.L.C., d/b/a

Crossroads Regional Hospital, and Lexington Insurance Company.

REVERSED AND SET ASIDE; REMANDED; MEDICAL
REVIEW PANEL RE-INSTATED.

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