Kirk v. Stafford

320 So.3d 1213

Lois KIRK w/o/a Lawrence Kirk

v.Ursin T. STAFFORD, MD, et al

NO. 2021-C-0056

Court of Appeal of Louisiana, Fourth Circuit.

MAY 12, 2021

T. Carey Wicker, III, Vincent E. Odom, Michael S. Sepcich, CAPITELLI AND WICKER, 1100 Poydras Street, Suite 2950, New Orleans, LA 70163, COUNSEL FOR PLAINTIFFS/RELATORS

Richard S. Crisler, Benjamin J. Biller, BRADLEY MURCHISON KELLY & SHEA LLC, 1100 Poydras Street, Suite 2700, New Orleans, LA 70163, Lorraine P. McInnis, BERRIGAN LITCHFIELD, LLC, 201 St. Charles Avenue, Suite 4204, New Orleans, LA 70170-4204, COUNSEL FOR DEFENDANTS/RESPONDENTS

(Court composed of Judge Daniel L. Dysart, Judge Joy Cossich Lobrano, Judge Tiffany G. Chase )

This is a medical malpractice case. Plaintiffs/relators, Lois Kirk and Lawrence Kirk (collectively, the "Kirks" or "Relators") seek review of the January 21, 2021 judgment of the Civil District Court for the Parish of Orleans ("District Court"), which granted exceptions of improper venue and ordered this case transferred to the 22nd Judicial District Court for the Parish of St. Tammany. In granting the exceptions, the District Court found Relators’ motion for voluntary dismissal moot. For the reasons that follow, we grant the writ, vacate the judgment, and remand this matter to the District Court to hold a contradictory hearing and rule on Relators’ motion for voluntary dismissal.

This litigation arises from Lois Kirk's medical treatment at Slidell Memorial Hospital (the "Hospital") on or about March 26, 2018, wherein defendant healthcare providers allegedly failed to recognize that the EKG taken on Lois Kirk was reflective of an acute myocardial infarction (otherwise known as a "heart attack"). Relators allege that, as a result of defendants’ medical negligence in their care and treatment of Lois Kirk, she suffered severe injuries including hypoxic brain injury and the amputation of a limb.

On August 13, 2020, Relators filed a post-medical review panel lawsuit in the District Court against defendants/respondents, Ursin T. Stafford, MD ("Dr. Stafford"), Archie C. Tatford, MD ("Dr. Tatford"), Anantha Chentha, MD ("Dr. Chentha"), Apogee Medical Group, Louisiana, Inc. ("AMG") (collectively "Respondents").¹ The Kirks also named as defendants Team Health Holdings, Inc. ("Team Health"), Allyson Armendi Jarvis, MD ("Dr. Jarvis"), as well as the State of Louisiana Through The Board Of Supervisors of Louisiana State University and Agricultural and Mechanical College, and LSU Health Sciences Center-New Orleans (the "State Defendants"), alleging that Dr. Jarvis was an employee, agent or affiliate of the State Defendants at the time of the medical treatment. The petition alleged that Dr. Jarvis was a resident of Orleans Parish. Relators did not name the Hospital as a defendant.

On August 20, 2020, Relators filed a second nearly identical lawsuit in Jefferson Parish, where they alleged that Drs. Stafford and Tatford were domiciled, but requested that service on all defendants be withheld at that time.²

On October 30, 2020, Drs. Stafford and Tatford filed in the District Court an exception of improper venue, arguing that venue was improper in Orleans Parish because no defendant was domiciled there. They annexed to their exception an affidavit from Dr. Jarvis, attesting that she had sold her house, moved out-of-state, and was no longer a resident of Orleans Parish when the action was filed. They also claimed that the mandatory venue provisions of La. R.S. 13:5104(A) applied with respect to the claims against the State Defendants as Dr. Jarvis’ alleged employer and precluded venue in Orleans Parish.³ They argued that the District Court should transfer the action to St. Tammany Parish, where the alleged malpractice took place at the Hospital, and which they submitted was a court of proper venue.

On November 2, 2020, Relators filed in the District Court an ex parte motion for voluntary partial dismissal without prejudice as to Relators’ claims against Dr. Jarvis, Team Health, Dr. Chentha, AMG, and the State Defendants. Relators reserved their rights against Drs. Stafford and Tatford. Later the same day, in the District Court, Dr. Chentha and AMG filed an exception of improper venue in Orleans Parish, adopting the exception filed by Drs. Stafford and Tatford. Also, on November 2, 2020, Relators requested service in the Jefferson Parish lawsuit on Dr. Stafford, Dr. Tatford, Dr. Chentha, AMG, and Team Health.

On November 10, 2020, Relators filed a motion for voluntary dismissal without prejudice as to their claims against Drs. Stafford and Tatford "so that [Relators] may pursue this matter in the correct venue" – specifically, Relators’ pending lawsuit filed in Jefferson Parish. Relators represented that Drs. Stafford and Tatford opposed voluntary dismissal in Orleans Parish because they sought transfer of the case to St. Tammany Parish. Relators requested that their motion be set for contradictory hearing at the same time as all Respondents’ exceptions of improper venue. On the same day, rules to show cause issued, setting contradictory hearings on January 15, 2021 on all Respondents’ exceptions and Relators’ motion for voluntary dismissal without prejudice.

On November 19, 2020, the duty judge in the District Court granted Relators’ ex parte motion for voluntary partial dismissal without prejudice, dismissing Relators’ claims against Dr. Jarvis, Team Health, Dr. Chentha, AMG, and the State Defendants, reserving only Relators’ claims against Drs. Stafford and Tatford.

On January 7, 2021, Relators filed a memorandum in opposition to the exceptions of improper venue. Relators conceded that venue was improper in Orleans Parish but submitted that the exceptions should be denied as moot because Relators had moved to dismiss the Orleans Parish action and/or in the alternative that should the court rule on the merits, the suit should be transferred to Jefferson Parish where the other medical malpractice action brought by Relators was pending.

On January 15, 2021, a contradictory hearing was held in the District Court. According to Drs. Stafford and Tatford, none of the parties introduced any evidence at the hearing, and the writ application reflects that most of the hearing was not transcribed due to technical difficulties with Zoom videoconferencing. The District Court rendered judgment on January 21, 2021 granting the exceptions, transferring the case to St. Tammany Parish, and finding Relators’ motion for voluntary dismissal moot. Relators’ application for supervisory writs followed.

No dispute remains that Orleans Parish is an improper venue for Relators’ medical malpractice action. The narrow issue presented is whether the District Court abused its discretion in transferring the case to St. Tammany Parish while failing to grant Relators’ motion for voluntary dismissal.

Venue presents a question of law, and appellate courts generally review the grant of an exception of improper venue de novo . Blow v. OneBeacon Am. Ins. Co., 16–0301, pp. 4–5 (La. App. 4 Cir. 4/20/16), 193 So.3d 244, 248. Appellate courts review, under an abuse of discretion standard, a district court's decision to transfer in the interest of justice, rather than dismiss, a lawsuit filed in an improper venue. See Garrison v. St. Charles General Hosp., 02–1430, p. 8 (La. App. 4 Cir. 9/17/ 03), 857 So.2d 1092, 1096 ; Perniciaro v. McInnis, 16–0740, p. 6 (La. App. 5 Cir. 5/31/17), 222 So.3d 987, 992. Likewise, a district court's ruling, which grants or denies a motion for voluntary dismissal without prejudice, after a defendant has appeared, is reviewed for an abuse of discretion. Sizemore v. Reilly–Benton Co., Inc., 18–0826, p. 4 (La. App. 4 Cir. 2/6/19), 265 So.3d 41, 43 (citing Botanica Prop. Partners, L.L.C. v. Hodges Const. Co., 04-1086, p. 6 (La. App. 5 Cir. 2/15/05), 897 So.2d 756, 759 ).

Transfer or dismissal of a lawsuit due to improper venue are addressed in Articles 121 and 932 of the Code of Civil Procedure. "When an action is brought in a court of improper venue, the court may dismiss the action, or in the interest of justice transfer it to a court of proper venue." La. C.C.P. art. 121. Similarly, Article 932(B) provides in part that "if an action has been brought in a court of improper jurisdiction or venue, the court may transfer the action to a proper court in the interest of justice." La. C.C.P. art 932(B). Typically, transfer is found to be "in the interest of justice" when it "prevents substantive rights being lost, without a determination upon the merits, by becoming time-barred under prescription or peremption despite having been filed and served timely albeit in the improper venue." Blow , 16-0301, pp. 21-22, 193 So.3d at 257 (quoting Garrison , 02-1430, p. 3, 857 So.2d at 1094 ). Ordinarily, under such a scenario, transfer rather than dismissal is favored unless a plaintiff knowingly files suit in an improper venue. Garrison , 02-1430, p. 3, 857 So.2d at 1094. Neither of these factors are present here. Nothing before this Court indicates that Relators would lose substantive rights (under prescription or otherwise) if their Orleans Parish lawsuit is dismissed, as they filed a nearly identical Jefferson...