Aziz v. Burnell

330 So.3d 695

Akil AZIZ

v.Dr. Michael L. BURNELL, et al.

21-130, 21-188

Court of Appeal of Louisiana, Third Circuit.

November 3, 2021

Michael W. Adley, Adam P. Gulotta, Judice & Adley, P. O. Drawer 51769, Lafayette, LA 70505-1769, (337) 235-2405, COUNSEL FOR DEFENDANTS/APPELLANTS: Dr. Michael L. Burnell, Michael L. Burnell, M.D., A Professional Medical Corporation

Valex Amos, Jr., 2014 W. Pinhook Road, Suite 404, Lafayette, LA 70508, (337) 291-9115, COUNSEL FOR PLAINTIFF/APPELLEE: Akil Aziz

Court composed of Shannon J. Gremillion, Van H. Kyzar, and Sharon Darville Wilson, Judges.

KYZAR, Judge.

In this medical malpractice action, the defendant, Michael L. Burnell, M.D., A Professional Medical Corporation, appeals from the trial court's denial of its dilatory exception of prematurity. The trial court held that resubmission of the plaintiff's claim against his physician's professional medical corporation was not required when the medical review panel had already rendered an opinion with regard to the plaintiff's claim against the physician, individually. For the reasons herein, we affirm.

FACTS AND PROCEDURAL HISTORY

The facts of this matter were set forth in more detail in the companion case of Aziz v. Burnell , 21-187 (La.App. 3 Cir. 11/3/21), 329 So.3d 963. However, with regard to this appeal, the following facts are pertinent.

Mr. Aziz initially filed a medical malpractice action against Dr. Burnell, individually, and as the employer/supervisor of his medical staff. Dr. Burnell, who practiced pursuant to a professional medical corporation, Michael L. Burnell, M.D., A Professional Medical Corporation (the Corporation), moved for partial summary judgment on the issue of respondeat superior, arguing that he could not be liable to Mr. Aziz under that doctrine because the Corporation employed the subject medical staff. Following a hearing, the trial court granted judgment in favor of Dr. Burnell and dismissed Mr. Aziz's respondeat superior claim with prejudice. The trial court further granted Mr. Aziz's motion to amend his petition to add the Corporation as defendant. As amended, the petition alleged the following with regard to Dr. Burnell and the Corporation:

18.

The injuries, complications, and subsequent medical problems experienced by Mr. Akil Aziz were caused by the negligence and lack of skill of Defendants, Dr. Michael L. Burnell, Michael L. Burnell, M.D. (A Professional Medical Corporation [) ], and their medical and related staff and employees in the following particulars:

[ ] Failure to communicate (return call) with Mr. Aziz post procedure.

a. Mr. Aziz placed multiple calls to Dr. Burnell's office in order to notify him of persistent abdominal pain; Mr. Aziz did not receive any return calls from Dr. Burnell's office. Mr. Aziz subsequently sought delayed medical attention at the Lafayette General Medical Center Emergency Room. If Dr. Burnell had known of Mr. Aziz's abdominal pain at the time of the initial phone call, immediate medical intervention would have been implemented. In all likelihood, Mr. Aziz would have avoided major abdominal surgery (colectomy ), post-surgical respiratory failure, and permanent colostomy.

....

23.

Dr. Michael L. Burnell and/or Michael L. Burnell, M.D. (A Professional Medical Corporation [) ] are the employers of Dr. Michael Burnell and staff, and are liable for the actions of its employees, physicians, residents, nurses, medical and related staff under the doctrine of Respondeat Superior pursuant to Louisiana Civil Code Article 2320. Thus, all defendants herein are liable jointly, severally, and in solido to the petitioner herein for the damages suffered as a result of medical treatment which fell below the standard of care rendered to Mr. Akil Aziz.

Subsequent to its addition as a defendant, the Corporation filed a dilatory exception of prematurity, asserting that Mr. Aziz's claim against it was premature because it had not been reviewed by a medical review panel pursuant to La.R.S. 40:1231.8(B)(1)(a)(i).¹ Following a hearing, the trial court² denied the exception, finding as follows:

Dr. Burnell basically was the shareholder, I think he was the sole shareholder/officer/director of this corporation. And even though he may have been protected by the corporate structure based upon the decisions that I previously entered in the motion for partial judgment [sic], I think it would be unfair and an unwise use of judicial time and expense to make the plaintiff have to jump through the same loop [sic] a second time, is basically what it is. I think it's judicial inefficient [sic] to require it. I believe that the claim was adequately addressed in the first medical review panel hearing and all.

A written judgment was rendered on this issue on January 28, 2021.

On February 22, 2021, the Corporation filed a motion for appeal, which was lodged in this court under docket number 21-188. Out of an abundance of caution, it also filed an application on February 24, 2021, for supervisory review of the trial court's denial of its exception, under docket number 21-130. This court granted the Corporation's writ application for the sole purpose of consolidating it with the instant appeal and the companion appeal filed by Mr. Aziz on the trial court's grant of summary judgment on the issue of Dr. Burnell's negligence. Aziz v. Burnell , 21-130 (La.App. 3 Cir. 4/12/21) (unpublished writ decision).

On appeal, the Corporation asserts two assignments of error, as follows:

I. The trial court erred by denying [the Corporation's] Dilatory Exception of Prematurity. Specifically, the trial court erred by not finding the allegations contained within plaintiff's Petition for Damages and First Amending and Supplemental Petition for Damages as premature when said allegations were not presented to the Medical Review Panel.

II. The District Court erred when denying the Appellant's Exception of Prematurity by holding that the plaintiff's claim was adequately addressed in the first medical review panel, which named Dr. Michael Burnell personally as the only defendant, even though [the Corporation] was never a named defendant.

Motion to Dismiss/Frivolous Appeal

At the outset, we note that Mr. Aziz requests the dismissal the Corporation's appeal as being a duplicative, frivolous filing on the grounds that it also filed a writ application on this issue, which he claims is the correct procedural method for challenging the denial of this exception. Thus, pursuant to La.Code Civ.P. art. 2164,³ he requests that we award him attorney fees based on the Corporation's frivolous appeal.

Pursuant to Rule 2-8.1, a motion filed in an appellate court to dismiss or remand an appeal "shall comply with the provisions of Rule 2-7." Uniform Rules—Courts of Appeal, Rule 2-8.1. All written motions filed in an appellate court, in addition to the specified formatting, layout, and service requirements, must include a proposed order. Uniform Rules—Courts of Appeal, Rule 2-7.2. Furthermore, the movant must provide the clerk of the appellate court with an original and four copies of the motion so that it can "be filed, numbered, and docketed." Uniform Rules—Courts of Appeal, Rule 2-7.3. An appellate court will not consider any motion that has not been "previously filed, numbered, and docketed[.]" Id.

In this instance, Mr. Aziz included his motion to dismiss the Corporation's appeal in the body of his appellate brief. In doing so, we find that he failed to comply with Rules 2-7.2 and 2-7.3. See Trust for Melba Margaret Schwegmann v. Schwegmann Family Trust , 09-968 (La.App. 5 Cir. 9/14/10), 51 So.3d 737 (Wicker, J., concurring). Additionally, Mr. Aziz neither answered the Corporation's appeal nor filed his own appeal with regard to the trial court's denial of the exception. "An appellee who wishes to have a judgment modified must file an appeal or an answer to the appeal as provided in LSA-C.C.P. art. 2133." Am. Bank & Trust v. Singleton , 17-480, p. 11 (La.App. 1 Cir. 11/1/17), 233 So.3d 730, 739. For these reasons, we will not address Mr. Aziz's motion to dismiss and his request for attorney fees based on the Corporation's allegedly frivolous appeal.

Exception of Prematurity

In its first assignment of error, the Corporation argues that the trial court erred by denying its exception because Mr. Aziz failed to have the claim reviewed by a medical review panel before instituting suit against it. We disagree.

The use of a dilatory exception of prematurity in a medical malpractice setting was reviewed by the supreme court in Blevins v. Hamilton Medical Center, Inc. , 07-127, pp. 4-5 (La. 6/29/07), 959 So.2d 440, 443-44 :

The dilatory exception of prematurity provided in La.Code Civ. Proc. art. 926 questions whether the cause of action has matured to the point where it is ripe for judicial determination as an action is premature when it is brought before the right to enforce it has accrued. Williamson v. Hospital Service Dist. No. 1 of Jefferson , 04-0451, p. 4 (La. 12/1/04), 888 So.2d 782, 785 (finding alleged negligence of hospital in failing to repair wheelchair and in failing to make sure that wheelchair was in proper working condition did not arise from "medical malpractice"); Spradlin v. Acadia-St. Landry Medical Foundation , 98-1977, p. 4 (La. 2/29/00), 758 So.2d 116, 119 (alleged patient "dumping" case sounded in malpractice). Under the LMMA, a medical malpractice claim against a private qualified health care provider is subject to dismissal on a timely filed exception of prematurity if such claim has not first been reviewed by a pre-suit medical review panel. Williamson , 04-0451 at p. 4, 888 So.2d at 785 ; La.Rev.Stat. 40:1299.47(A). This exception is the proper procedural mechanism for a qualified health care provider to invoke when a medical malpractice plaintiff has failed to submit the claim for decision by a medical review panel before filing suit against the provider. Spradlin , 98-1977 at p. 4, 758 So.2d at 119 ; La.Code Civ. Proc. art. 926 ;

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