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Under Louisiana’s Malpractice Act for State Services the Claim Dismissal, Not Patient's Compensation Fund Notification, Starts 90-day Grace Period


A man underwent a kidney transplant, but died a week later. The decedent’s wife filed a medical malpractice complaint with the Division of Administration requesting a medical review panel on the last allowable day, exactly one year from the man’s death. The complaint named the hospital where the transplant took place and the doctors who performed the transplant.

 

A year later, the parties had not named an attorney chairman. A year and five days after the original complaint was filed, the Patient's Compensation Fund (PCF) notified the wife that it had closed the matter due to failure to appoint an attorney chairman within one year of the original complaint. The claim was dismissed for failure to appoint an attorney chairman and the parties were deemed to have waived the use of the medical review panel. Louisiana’s Medical Malpractice Act for State Services (MMA) states that the filing of a request for a medical review panel shall suspend the time for within which suit must be filed until 90 days after the claim has been dismissed in accordance with the Act. Ninety days after the date of the PCF notice, one year and 95 days after the original claim was filed, decedent’s wife filed a lawsuit alleging medical malpractice against the hospital and the doctors.

 

The defendants filed exceptions of prescription, claiming that the suit was filed beyond the one year anniversary of the filing of the initial complaint and the additional 90 day statutory grace period suspending prescription. The defendants argued the date the claim was dismissed for failure to appoint an attorney chairperson was exactly one year after the claim was filed with the PCF. The plaintiff argued that the claim was dismissed on the date the notice was sent, a year and five days after the claim was filed. The trial court granted the defendants’ exceptions of prescription. The Court of Appeal reversed.

 

The Supreme Court of Louisiana reversed the Court of Appeal and affirmed the district court. The date the claim has been dismissed in accordance with the MMA begins the 90-day grace period after which the prescription period resumes. As the PCF claim was filed on the last day of the prescription period, the lawsuit was prescribed 90 days after the PCF dismissed the claim. After analyzing the statutory language and comparing it with similar tolling statutes, the court held that, dismissal, not notification, starts the statutory 90 day grace period.

 

See: Turner v. Willis Knighton Medical Center, 2012 WL 6015598 (La., December 4, 2012) (not designated for publication).  

 

 

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