Brian McCann v. Christus St. Frances Cabrini Hospital

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

16-21

BRIAN MCCANN, ET AL.

VERSUS

CHRISTUS ST. FRANCES CABRINI HOSPITAL, ET AL.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 247,132
HONORABLE MONIQUE FREEMAN RAULS, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billy Howard Ezell,
and John E. Conery, Judges.

REVERSED AND REMANDED.

Matthew John Ungarino
Ungarino & Eckert, LLC
3850 N. Causeway Boulevard - #1280
Metairie, LA 70002
Telephone: (504) 836-7565
COUNSEL FOR:
Defendant/Appellee - St. Frances Cabrini Hospital

Thomas Taylor Townsend
T. Taylor Townsend, LLC
P. O. Box 784
Natchitoches, LA 71458-0784
Telephone: (318) 238-3612
COUNSEL FOR:
Plaintiffs/Appellants - Brian McCann and Rhonda McCann

David R. Sobel
Faircloth, Melton & Sobel
105 Yorktown Drive
Alexandria, LA 71303
Telephone: (318) 619-7755
COUNSEL FOR:
Defendant/Appellant - Juliet Castro Vondrak, Duly Appointed
Succession Representative for the Succession of Dr. Perla Castor

THIBODEAUX, Chief Judge.

Brian and Rhonda McCann appeal a judgment granting an exception

of prescription and dismissing their medical malpractice claims against Juliet

Castro Vondrak in her capacity as the succession representative for the estate of

Dr. Perla Castor.

The McCanns’ infant son, Mason, was in the care of Dr. Castor when

he died in January 2010. The McCanns contend that their son’s death was the

result of medical malpractice on the part of Dr. Castor, among others, and filed a

request for a medical review panel (“MRP”) to examine their claims. While

proceedings before the MRP were pending, Dr. Castor died. Her succession was

opened and initially represented by Maria Monica Villagarcia Hora. After the

MRP rendered its opinion, the McCanns timely filed their first petition, which

named “PERLA C. CASTOR, MD” and “the ESTATE OF PERLA C.

CASTOR, represented by Maria Monica Villagarcia Hova [sic]” as a defendant.

More than four years after Mason’s death, and more than a year after the McCanns

were notified of the MRP’s decision, the McCanns amended their petition to name

“Maria Monica Villagarcia Hova [sic], the duly appointed succession

representative of the ESTATE OF PERLA C. CASTOR” as a defendant.

Ms. Hora filed a peremptory exception of prescription in response to

the amended petition, arguing that the amended petition was the first to properly

name Ms. Hora as a defendant, but was facially prescribed. The trial court agreed

and granted the exception, dismissing the McCanns’ suit.

On appeal, the McCanns argue that Ms. Hora, as the estate’s

succession representative, was named as a defendant in the original, timely-filed

petition, and that petition interrupted prescription on the claims against Ms. Hora.

Ms. Vondrak, who has replaced Ms. Hora as the succession representative for Dr.

Castor’s estate, claims that the McCanns have judicially confessed that Ms. Hora

was not named in the original petition. Ms. Vondrak also asserts that, in any case,

the trial court’s grant of the exception of prescription was not clearly wrong. For

the following reasons, we reverse the judgment of the trial court.

I.

ISSUES

1. Whether the McCanns judicially confessed that Ms. Hora, the
succession representative for the estate of Dr. Castor, was not
named in their original petition.

2. Whether the McCanns’ original petition, which named “the
ESTATE OF PERLA C. CASTOR, represented by Maria
Monica Villagarcia Hova [sic], as per judgment signed July 11,
2012 under Docket No. 241,075, 9th JDC, Rapides Parish,
Louisiana” as a defendant, interrupted prescription of claims
against the representative of Dr. Castor’s estate.

II.

FACTS AND PROCEDURAL HISTORY

Rhonda McCann gave birth to twins Elle and Mason at Christus St.

Frances Cabrini Hospital on January 24, 2010. The twins, who were born

prematurely, were treated by several physicians in the following days, including

Dr. Perla Castor. On January 28, 2010, Mason died. The McCanns claimed that

Mason’s death was caused by malpractice committed by the physicians who

treated Mason and by Christus St. Frances Cabrini Hospital. On January 28, 2011,

they filed a timely request for a medical review panel to review their claims,

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pursuant to La.R.S. 40:1231.8. 1 The McCanns’ request named Dr. Castor and

Christus St. Frances Cabrini Hospital as defendants, among others.

On August 10, 2011, while proceedings before the MRP were

pending, Dr. Castor died. When Dr. Castor’s succession was opened, Ms. Hora, a

resident of Florida, was named the estate’s succession representative. The

McCanns were served with pleadings on May 12, 2012, filed by Christus St.

Frances Cabrini Hospital that substituted Ms. Hora for Dr. Castor in proceedings

filed for discovery purposes.

The MRP rendered its opinion on January 9, 2013; that opinion was

mailed to the McCanns on January 28, 2013. The McCanns filed a Petition for

Medical Malpractice on April 2, 2013 (“original petition”). The original petition

named several defendants, including, in Paragraph 1(b):

PERLA C. CASTOR, MD, a citizen of the full age of
majority, who may be served at St. Francis [sic] Cabrini
Hospital, 3330 Masonic Dr., Alexandria, Louisiana
71301, who passed away August 10, 2011 and the
ESTATE OF PERLA C. CASTOR, represented by
Maria Monica Villagarcia Hova [sic], as per judgment
signed July 11, 2012 under Docket No. 241,075, 9th JDC,
Rapides Parish, Louisiana;

Service was attempted on Dr. Castor, but was unsuccessful. Ms. Hora was not

initially served with the petition. Regardless, Ms. Hora was apparently aware of

the lawsuit because she filed declinatory exceptions of lack of personal jurisdiction

and insufficiency of service of process, and a dilatory exception of lack of

procedural capacity, on February 13, 2014. While those exceptions were pending,

the McCanns filed their Second Amending and Supplemental Petition on March

14, 2014 (“amended petition”). With their amended petition, the McCanns sought

1
The relevant statute was La.R.S. 40:1299.47 when the McCanns filed their petition.

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to change Paragraph 1(b) of their original petition to read: “Maria Monica

Villagarcia Hova [sic], the duly appointed succession representative of the

ESTATE OF PERLA C. CASTOR, who is a citizen of the full age of majority.”

Ms. Hora was served with the McCanns’ original and amended petitions on March

28, 2014.

After being served with the McCanns’ petitions, Ms. Hora filed a

peremptory exception of prescription. She pointed out that the McCanns’ amended

petition was not filed for more than four years after the alleged malpractice

occurred when Mason died, and more than a year after the McCanns were mailed

the MRP’s opinion. This, according to Ms. Hora, showed that the McCanns’

amended petition was facially prescribed and ought to be dismissed. The trial

court agreed, finding that the McCanns’ amended petition was prescribed on its

face and that the McCanns had failed to show that prescription had not run on their

claims. The trial court did not address the effect of the McCanns’ original petition

in its written reasons for judgment.

The trial court issued the judgment granting Ms. Hora’s peremptory

exception of prescription on September 5, 2014. The McCanns filed a timely

Motion for Appeal, which was granted on October 17, 2014. However, Ms. Hora

had been replaced as the succession representative for Dr. Castor’s estate by Ms.

Vondrak on July 25, 2014. This court consequently remanded the McCanns’

appeal in order to allow Ms. Vondrak to be substituted as the proper party

defendant and to recast the trial court’s judgment to reflect the substitution. The

substitution and recasting was accomplished, and the McCanns filed another timely

appeal of the trial court’s judgment.

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III.

LAW AND DISCUSSION

We note at the outset that there is no dispute that Ms. Hora, in her

capacity as the succession representative for Dr. Castor’s estate, was the proper

party for the McCanns to name as a defendant. See La.Code Civ.P. art. 734.2 The

question before the court is whether the McCanns named Ms. Hora as a defendant

in a timely manner. The McCanns argue on appeal that the trial court erred in

granting Ms. Vondrak’s exception of prescription because the court considered

only the McCann’s amended petition. The McCanns assert that Ms. Hora was

named as a defendant in their original petition, which was timely filed. However,

before we consider whether the McCanns’ claims are in fact prescribed, we must

address whether, as Ms. Vondrak asserts, the McCanns are precluded from arguing

that Ms. Hora was a named defendant in their original petition, having judicially

confessed that she was not.

Judicial Confession

Ms. Vondrak contends that the McCanns cannot now argue that Ms.

Hora was a named defendant in their original petition when they have previously

judicially confessed that she was not a named defendant in order to combat Ms.

Vondrak’s other exceptions. “A judicial confession is a declaration made by a

party in a judicial proceeding. That confession constitutes full proof against the

party who made it.” La.Civ.Code art. 1853. “In order for a party’s statement to

constitute a judicial confession, it must be an express acknowledgement of an

2
Indeed, the McCanns’ original petition in Paragraph 1(b) specifically referenced the
judgment and the district court proceeding which appointed Ms. Hora as the succession
representative. Paragraph 1(b) named the defendants who allegedly committed the malpractice.

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adverse fact.” Leday v. Safeway Ins. Co. of La., 04-610, p. 5 (La.App. 3 Cir.

11/17/04), 888 So.2d 1084, 1088 (citations omitted). This court has previously

explained the effects of a judicial confession:

Once a judicial confession is made by a party, it “has the
effect of waiving evidence as to the subject of the
admission-of withdrawing the subject matter of the
confession from issue.” Cichirillo v. Avondale Indus.,
Inc., 04–2894, p. 6 (La.11/29/05), 917 So.2d 424, 429
(citing Cheatham v. City of New Orleans, 378 So.2d 369
(La.1979); Sutton’s Steel & Supply, Inc. v. Bellsouth
Mobility, Inc., 00–511 (La.App. 3 Cir. 12/13/00), 776
So.2d 589, writ denied, 01–152 (La.3/16/01), 787 So.2d
316). A judicial confession by a party, however, does not
preclude that party from denying the correctness of the
admission, unless the party claiming the benefit from the
admission has relied on the admission to his prejudice.
Crawford v. Deshotels, 359 So.2d 118 (La.1978).
Mitchell v. Artcrete, Inc., 09-492, p. 7 (La.App. 3 Cir. 12/9/09), 24 So.3d 1000,

1005.

Ms. Vondrak points to four excerpts from the McCanns’ Opposition

to Exceptions that purportedly constitute judicial confessions to structural defects

in the McCanns’ original petition. In the Introduction, the McCanns stated:

On or about April 2, 2013, the McCanns filed a
“Petition for Medical Malpractice” against Dr. Castor,
Dr. Nijjar, and St. Francis [sic] Cabrini Hospital. In the
Petition, Dr. Perla C. Castor was inadvertently named as
a defendant instead of Maria Monica Villagarcia Hora as
the succession representative of the Estate of Dr. Perla
Castor. The McCanns have now filed a Second
Amending and Supplemental Petition to cure this defect.
In addressing Ms. Hora’s Exception of Lack of Subject Matter Jurisdiction, the

McCanns stated:

Petitioners have now filed a Second Amending and
Supplemental Petition to name Ms. Hora, as the duly
appointed succession representative of the Estate of Perla
C. Castor and have requested service of process on Ms.
Hora as the succession representative. Petitioners submit

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that their amendment to name Ms. Hora as a proper party
defendant and their request of service on her will cure the
exception of lack of personal jurisdiction. When service
is made on Ms. Hora, as the representative of the Estate
of Perla C. Castor, as has now been requested by
Petitioners, then the court will have valid personal
jurisdiction over her.
In discussing Ms. Hora’s Exception of Insufficiency of Service of Process, the

McCanns stated:

In the Second Amending and Supplemental
Petition, Petitioners have properly named Ms. Hora, as
the succession representative appointed for the Estate of
Dr. Perla C. Castor, as a defendant and have requested
service of original Petition for Medical Malpractice, the
First Amending and Supplemental Petition, and the
Second Amending and Supplemental Petition on her.
Again, the request that service be made on Dr. Castor and
Dr. Castor’s estate was done inadvertently and has been
cured through the Second Amending and Supplemental
Petition.

Finally, in the Conclusion, the McCanns stated:

Petitioners inadvertently named Perla C. Castor
and the Estate of Perla C. Castor as defendants in their
original Petition for Medical Malpractice. Petitioners
recognize that neither Perla C. Castor or the Estate of
Perla C. Castor have legal capacity inasmuch as Dr.
Castor passed away during the pendency of this matter at
the medical review panel stage. Petitioners have now
filed a Second Amending and Supplemental Petition to
cure the defects named by defendant’s peremptory
exceptions. Therefore, Petitioners request that
defendant’s exceptions be denied.

We find that the McCanns’ statements are not express

acknowledgements of structural deficiencies in their original petition that would

constitute judicial confessions. The McCanns’ Opposition to Exceptions admits

only stylistic errors in their original petition that resulted in Ms. Hora not being

served with the McCanns’ original petition prior to the filing of their amended

petition. Their statements do not expressly admit that Ms. Hora was not named at

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all in the original petition, especially considering that Ms. Hora was in fact

mentioned in the original petition. Since the McCanns did not expressly

acknowledge any adverse facts in their Opposition to Exceptions, their statements

do not constitute a judicial confession.

We further note that even if the McCanns had admitted a structural

deficiency in their original petition such that Ms. Hora was not named at all, their

statements would not qualify as judicial admissions since Ms. Vondrak has failed

to show that she relied on the McCanns’ statements to her detriment. Before a

statement can become a judicial confession, “the adverse party must have believed

the fact was no longer at issue or must have relied on it, to his detriment.” State v.

Lamb, 31,919, p. 4 (La.App. 2 Cir. 5/7/99), 732 So.2d 1270, 1272 (citations

omitted). Ms. Vondrak claims that, based on the McCanns’ Opposition to

Exceptions, her predecessor Ms. Hora accepted service of the McCanns’ original

and amended petitions, waiving future exceptions based on lack of personal

jurisdiction. There is no evidence, however, that Ms. Vondrak specifically relied

on the McCanns’ statements in accepting service of the petitions. Moreover,

regardless of the potential for future exceptions, exceptions regarding a lack of

personal jurisdiction and service first filed by Ms. Hora are apparently still pending

before the trial court. Since Ms. Vondrak has failed to show detrimental reliance

on her part, the McCanns’ statements do not constitute judicial confessions.

Exception of Prescription

Since the McCanns are not precluded from arguing that Ms. Hora was

properly named in their original petition, we must now decide whether Ms. Hora

was in fact named, and whether that petition interrupted prescription of the claims

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against Ms. Hora as the succession representative. The trial court focused on the

McCanns’ amended petition and ruled that, because the amended petition could not

relate back to the original one, the claims against Ms. Hora were prescribed. A

trial court’s grant of an exception of prescription is reviewed under the clearly

wrong-manifest error standard of review. Patin v. State, 11-290 (La.App. 3 Cir.

10/5/11) 74 So.3d 1234, writ denied, 11-2844 (La. 3/2/12) 84 So.3d 533.

In this case, involving claims of medical malpractice under the

Louisiana Medical Malpractice Act (“MMA”), the prescriptive period is governed

by La.R.S. 9:5628, which provides, in pertinent part:

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
this state, or community blood center or tissue bank as
defined in R.S. 40:1231.1(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.
However, all malpractice claims covered by the MMA must first be submitted to a

medical review panel. La.R.S. 40:1231.8(A)(1)(a). Prescription is, therefore,

suspended on claims from the time a request for review of a claim is submitted

until ninety days after the claimant or his attorney is notified that the panel has

issued an opinion. La.R.S. 40:1231.8(A)(2)(a).

“When a petition reveals on its face that prescription has run, the

plaintiff bears the burden of establishing that the claim has not prescribed.”

LeBreton v. Rabito, 97-2221, p. 6 (La. 7/8/98), 714 So.2d 1226, 1228. The trial

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court here granted the exception of prescription after finding that the McCanns’

amended petition was facially prescribed, and that the McCanns’ failed to show

otherwise. The McCanns assert on appeal that their claims against Dr. Castor’s

succession representative are not prescribed since their original petition was filed

less than ninety days after they were notified that the medical review panel had

rendered an opinion. Ms. Vondrak does not dispute that the original petition was

timely filed, but claims that prescription was not interrupted until Ms. Hora, as the

succession representative, was properly named in the McCanns’ amended petition.

Since that petition was not filed until more than a year after the medical review

panel had issued its opinion, Ms. Vondrak’s argument goes, the McCanns’ claims

are prescribed.

“The fundamental purpose of prescription statutes is to afford a

defendant economic and psychological security if no claim is made timely and to

protect the defendant from stale claims and from the loss or non-preservation of

relevant proof.” Cichirillo v. Avondale Indus., Inc., 04–2894, 04-2918, p. 9 (La.

11/29/05), 917 So.2d 424, 430. In particular, the prescriptive period imposed by

the MMA prevents healthcare providers from being subjected to indefinite periods

of prescription. Warren v. La. Med. Mut. Ins. Co., 07-492 (La. 12/2/08), 21 So.3d

186. However, there are certain limits on the running of a prescriptive period. The

McCanns urge that the filing of their original petition interrupted prescription of

the claims against the succession representative for Dr. Castor’s estate. “[T]he

elemental basis of legal interruption of liberative prescription in tort suits is

informing the defendant of the legal demand.” Nini v. Sanford Brothers, Inc., 276

So.2d 262, 266 (La.1973). “In other words, the basic test is sufficiency of notice to

the defendant.” Jones v. Philco-Ford Corp., 452 So.2d 370, 372 (La.App. 1 Cir.

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1984), writs denied, 457 So.2d 1193, 1198 (La.1984). The filing of a lawsuit in a

court of competent jurisdiction and venue generally provides the requisite notice

and, therefore, interrupts prescription. See Bordelon v. Med. Ctr. Of Baton Rouge,

03-202, p. 11 (La. 10/21/03), 871 So.2d 1075.

Here, the McCanns’ original petition was filed in a court of competent

jurisdiction and venue. Moreover, Ms. Hora did apparently receive notice of the

suit at some point, since she filed the exceptions of lack of personal jurisdiction,

insufficiency of service of process, and lack of procedural capacity. And Ms. Hora

was in fact served with the original petition. The timing of service on Ms. Hora is

irrelevant to the issue of whether the McCanns’ claims are prescribed. See id. The

fact that Ms. Hora had notice of a lawsuit, filed in a court of competent jurisdiction

and venue, that named her as the succession representative for Dr. Castor’s estate

is enough to interrupt prescription on the McCanns’ claims.

Furthermore, the cases cited by Ms. Vondrak in support of

prescription are distinguishable. In LeBreton, 714 So.2d 1226, the plaintiff’s initial

suit had been dismissed as premature; when the plaintiff later filed an entirely new

lawsuit alleging the same medical malpractice claims, the supreme court held that

the first suit had not interrupted prescription on the plaintiff’s claims. Warren, 21

So.3d 186, and Borel v. Young, 07-419 (La. 7/1/08), 989 So.2d 42 (on rehearing),

dealt with the addition of parties after prescription had run and, therefore, the

addition of those parties’ claims. By contrast, in this case, the McCanns’ original

petition was never dismissed, and the amended petition does not add any new

parties. Moreover, unlike in Warren and Borel, the claims asserted in the amended

petition are precisely the same as those in the original petition. By virtue of her

position, Ms. Vondrak must answer for any tortious obligations incurred by the late

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Dr. Castor. See La.Code Civ.P. arts. 734, 3249. There is no difference between

the claims filed against Ms. Vondrak and those that would have been filed against

Dr. Castor. At least one circuit has recently held that, in a medical malpractice

case, when the claims against a new defendant are the same as those against an

original defendant due to a legal relationship between the two parties, prescription

is interrupted on those claims on the date the plaintiff’s original petition is timely

filed. See Gettys v. Wong, 13-1138 (La.App. 4 Cir. 5/7/14), 145 So.3d 460, writ

denied, 14-1178 (La. 9/19/14), 149 So.3d 247 (holding that the timely filing of a

lawsuit against a physician interrupted prescription of the same claims against the

physician’s employer). But we need not decide whether filing those claims against

Dr. Castor alone was sufficient to interrupt prescription. Considering that, unlike

in Gettys, the succession representative here was named in the original petition and

had notice of that petition, prescription on the claims against Ms. Vondrak was

certainly interrupted when the McCanns filed their original petition. Therefore, the

trial court’s judgment granting the exception of prescription was manifestly

erroneous.

IV.

CONCLUSION

For the above reasons, the judgment of the trial court is reversed and

the matter is remanded for further proceedings. Costs of this appeal are assessed

against the appellee, Juliet Castro Vondrak, the duly-appointed succession

representative for the estate of Dr. Perla C. Castor.

REVERSED AND REMANDED.

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