Supreme Court Finds Sufficient Service in New Orleans MedMal Case

The Louisiana Supreme Court recently clarified rules of service of a medical malpractice lawsuit against State of Louisiana officials. The Court’s conclusion recognizes that some notice requirements are more flexible than others. The case is also a warning about difficulties in knowing whether all parties to a lawsuit receive proper service of the opposing claim.

Whitley v. State Board of Supervisors of Louisiana State University Agricultural Mechanical College, ex rel. Medical Center of Louisiana at New Orleans-University Campus, No. 2011-CC-0040 (La. 7/1/11) resulted from medical care to Regina Whitley after she had been injured in an automobile accident when five months pregnant. She later delivered a stillborn infant. Whitley sued the hospital located in New Orleans for medical malpractice regarding its care of her and her unborn child.

Whitley’s lawsuit was timely served on the Chairman of the University’s Board of Supervisors. Two and a half years later, Whitley’s lawyer faxed a copy of the citation and petition to the Attorney General (AG) and the Office of Risk Management (ORM). The University sought to have the case dismissed because it argued that the AG and ORM did not receive timely service. The argument failed at trial court and the court of appeals.

The Court explained that service to State officials is unusually complicated. Two statutes are involved, and the effect between the two was unclear. Louisiana courts had made different conclusions about the effects of the statutes. State defendants had recently begun to regularly use these statutes to argue lack of service.

La. R.S. 13:5107(A) permits lawsuits filed against a State agency to be served on the AG or proper officer or person “and on the department, board, commission, or agency head or person.” The court admitted that this is a confusing statute. However, the use of the word “may” is permissive, and the use of the term “or” indicates alternatives. In effect, the statute specifies service may be made on the defendant government and its legal counsel. The statute does not require that service be made. A few paragraphs down, La. R.S. 13:5107(D) requires that failure to serve the State agency as a party within 90 days shall result in dismissal. This requirement, the Court said, means that La. R.S. 13:5107(A) could be read in two ways, including required dismissal. The Court considered such a result too harsh and against a policy favoring the maintenance of actions. Because Whitley had properly notified the University, the University knew about the case and had the opportunity to obtain a lawyer. She had complied with the statute.

In contrast, La. R.S. 39:1538 requires claims against the State “shall be served upon the head of the department concerned, the office of risk management, and the attorney general, as well as any others required by R.S. 13:5107.” The Court said that this statute applied, but the University could not get the case dismissed based on it. The statute did not incorporate all the requirements and penalties of La. R.S. 13:5107 or the Code of Civil Procedure. All the statute requires is that “the AG, the ORM, and the department head” receive notice of tort actions. It does not specify a time, and it does not authorize dismissal for failure to effect service under the statute. Whitley’s subsequent fax to the AG and ORM was, therefore, sufficient.

The Court’s decision is just but not the only conclusion that could have been made about the statutes. La. R.S. 13:5107 requires service within 90 days from naming the state as a party, and if service is not made, the state “shall be dismissed,” as long as proper motion for dismissal is made under the Code of Civil Procedure. The Court made an equitable choice based on the typical policy to avoid harsh results. After all, a State official knew about the lawsuit, so the State knew. Without the interpretation in this case, one could have anticipated such an error of service would result in dismissal. Similarly, although the Court is correct that La. R.S. 39:1538 does not mention dismissal as a penalty, one could have read the statute as supplemental to the prohibitions in La. R.S. 13:5107(D). Poor legislative drafting justifies the Court’s interpretation. The results are not entirely consistent with the text of the statutes and rules, but the Court’s decision clears away potential traps for the unwary.

This case demonstrates the complexities of properly serving parties. La. C.C.P. art. 1201(A) warns that citation and service of the citation “are essential in all civil actions. . . . Without them all proceedings are absolutely null.” The applicable statutes in Whitley were not user friendly. Failure to properly serve opponents can result in dismissal. Therefore, it is crucial to make sure that all parties that need to know about the lawsuit receive service on a timely basis. It is for these questions that a lawyer is an investment to ensure that one’s case gets heard and resolved on the merits.

If you feel you have a case regarding medical malpractice, contact our offices today for a free analysis of your legal rights.

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