Litigation Update – Medical Malpractice


By: Jason B. Nichols

Request for Medical Review Panel Interrupts Prescription as to Non-Health Care Provider Joint Tortfeasor

In Milbert v. Answering Bureau, Inc., the Louisiana Supreme Court considered the issue of whether “a non-health care provider could be a joint tortfeasor with a health care provider against whom medical malpractice complaint had been filed, such that the suspension of prescription provisions of La. R.S. 40:1299.47(A)(2)(a) would apply to the filing of suit against the non-health care provider.” The Court answered in the affirmative, holding that a timely request for a medical review panel as to a health care provider interrupts prescription as to a non-health care provider, such as the physician’s answering service, who is alleged to be a joint tortfeasor.

Hospital and Doctors are Separate Entities for Application of Continuing Tort Doctrine

In Haim, two doctors treated patient at Oschner for kidney problems for several years, with the last treatment occurring on April 24, 2007. Patient was treated by other doctors at Oschner, including kidney treatment, until July 20, 2011. Patient then sought treatment at another facility, where it was determined that he had been misdiagnosed by the first two physicians at Oschner. Patient filed complaint with PCF on June 22, 2012, against first two doctors. Misdiagnosis by first two doctors occurred more than three years prior to filing of complaint, so claim would be untimely absent some exception. Patient argued that subsequent treatment at Oschner, albeit by different doctors, should interrupt prescription against first two doctors because it was the same facility. The court disagreed, holding that even if other doctors at Ochsner also misdiagnosed condition subsequent to the alleged misdiagnoses by first two doctors; those acts cannot be used to interrupt prescription as to the earlier treating physicians.

Defective Request for Medical Review Panel Likely Interrupts Prescription

In Ward v. Vivian Healthcare and Rehabilitation Center, the court of appeal considered whether an arguably defective written request for medical review panel suspended prescription of the action by family of deceased nursing home resident against nursing home. Family of deceased patient filed request for medical review panel with the Patient’s Compensation Fund (“PCF”) within one year of death, but listed a “date of occurrence” instead of the “date of death.” The PCF, returned the letter, stating that the claimants’ written request was defective because it did not provide the “date of death” and a brief description of the alleged malpractice. PCF’s letter stated that if a corrected request was filed within 30 days, it would be deemed to be filed as of the date of the initial filing. Patient filed the corrected request, but did not do so timely. The court held that, unlike the provision of the statute invalidating a request when the filing fee is not timely paid, provision with mandatory elements to be included in request does not have a penalty for non-compliance, and, thus, patient’s initial, arguably defective, claim was timely. It should be noted, though, that the court then found that the initial request complied with the required provisions because the “date of occurrence” was the same as the date of death. It will be interesting to see if the legislature amends the applicable statue to provide a penalty for failure to include the mandatory information in the request for medical review panel.