Strict Rules of a Medical Malpractice Case Must be Followed by Attorney

On August 14, 2008, James Turner was admitted to Willis Knighton Medical Center, located in Shreveport, Louisiana, for a kidney transplant. James Turner passed away six days later on August 20, 2008. James Turner’s wife then brought a medical malpractice lawsuit against the medical center and several doctors, alleging their negligence caused the death of her husband.

Section 40:1299.41-49 of the Louisiana Revised Statute set forth the requirements that Mrs. Turner must follow to successfully bring her medical malpractice suit before a Louisiana court. In Louisiana a medical malpractice complaint must be filed within one year from the day the alleged act of negligence occurred, or one year from the day the negligent act was discovered. Mrs. Turner did this, filing her medical malpractice claim exactly one year after her husband’s death.

However, as the Louisiana Supreme Court states in Turner v. Willis Knighton Medical Center, no lawsuit against certain health care providers may be commenced in any court before the claimant’s complaint has been presented to a medical review panel. The medical review panel is made up of an attorney chairman and three healthcare providers and acts as a source of inquiry for the parties, collects evidence, and comes to a decision regarding the merits of the claim. Mrs. Turner timely requested a medical review panel by filing her original complaint with the Commissioner of Administration.

After the claimant requests a medical review panel an attorney chairman for the medical review panel shall be appointed within one year from when the request for the panel was first made. However, here Mrs. Turner did not appoint an attorney chairman to the review panel within one year from when she filed her complaint and requested the medical review panel.

If a claimant such as Mrs. Turner fails to appoint an attorney chairman within one year of the request for the medical review board the board must dismiss the claim for failure to appoint an attorney chairman. The result of this is both parties are deemed to have waived their rights to a medical review board.

Mrs. Turner’s case revolves around the interpretation of Section 40:1299.47(A)(2)(c) of the Louisiana Revised Statute. This section provides a claimant with a ninety-day grace period after their claim has been dismissed in which the claimant may still file her lawsuit. The statute is ambiguous, however, in that the grace period will end within ninety days of when “the claim has been dismissed in accordance with this Section.” The language begs the question—when is the claim dismissed in accordance with this Section?

The medical center and doctors argued the grace period for filing suit ends ninety days after Mrs. Turner’s complaint was dismissed as a matter of law. The complaint was dismissed as a matter of law on August 20, 2010 because that marks the end of the one year period during which Mrs. Turner requested a medical review panel but did not appoint an attorney chairman. Beginning the ninety-day grace period from August 20 means that when Mrs. Turner ultimately filed her lawsuit on November 23, 2010 she filed suit more than ninety days after when the ninety-day grace period began. As a result, Mrs. Turner’s lawsuit would be dismissed.

Mrs. Turner argued that the ninety-day grace period for filing her lawsuit did not begin on August 20—one year after she requested a medical review panel without having appointed an attorney chairman—instead the grace period began when she received notice from the medical review panel that the panel was dismissing her case because she failed to appoint an attorney chairman a year after requesting the medical review panel. Mrs. Turner didn’t receive notice of her claim’s dismissal until several days after her complaint was dismissed as a matter of law. Beginning the grace period from when Mrs. Turner received notice would mean that she filed her lawsuit within the ninety-day grace period.

The Supreme Court of Louisiana agreed with the defendants in deciding the ninety-day grace period beginning when Mrs. Turners complaint was dismissed “in accordance with this Section” referrers to when the complaint is dismissed as a matter of law, as opposed to when Mrs. Turner received notice that her complaint was dismissed as a matter of law. In making its decision the Court noted that the ambiguous language does not mention anything regarding notice and that Louisiana law makers would have included “notice” if that is what they intended.

Medical malpractice lawsuits must abide by a strict series of deadlines, and statutory ambiguities similar to that above are not uncommon.

If you believe you have suffered injury as a result of a healthcare provider or need assistance with your medical malpractice claim, contact the Berniard Law Firm at (504) 527-6225 where a qualified attorney will provide you with the advice you deserve.