The opinion
DONNA BROWN * NO. 2019-C-0447
VERSUS * COURT OF APPEAL
RALPH CHESSON, M.D. * FOURTH CIRCUIT
* STATE OF LOUISIANA
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TFL
LOVE, J., DISSENTS AND ASSIGNS REASONS
I respectfully dissent from the majority, as I find this case requires a remand
based on procedural and legal error.
When ruling upon the exceptions, the trial court stated:
I reviewed both the Velasquez case and the Gettys
versus Wong case. Both of these are Fourth Circuit cases.
Both of them are 2014 and they both say something
different.
The Velasquez case as counsel pointed out talks
about the plaintiffs -- it says: Plaintiff’s attempt to evade
the service requirements by claiming Dr. Chesson is
being sued individually is without merit. However, even
assuming Plaintiff’s argument has merit, service would
still not be proper.” So I understand the state’s position.
However, the Fourth Circuit also talked about in
Wong and it’s noted that the Civil District Court denied
the exception. The hospital took this one up for
supervisory writ. The Court of Appeal denied it but the
Supreme Court -- and then the hospital applied for a Writ
of Cert. The Supreme Court granted the writ and
remanded it back to the Court of Appeal. So on the
second consideration of this same issue, the Court of
Appeal affirmed the denial saying that, number one, the
hospital is the employer and is an indispensable party,
but also that the service against the physician interrupted
the prescriptive period for an action against the
physician’s employer. So you’re both right. And I
understand the Second Circuit, that’s not binding on me.
* * *
These two are and so I am going to -- then I’m
faced with what do I do, because I have one telling me
1
you’re right and one telling me you’re right. I believe that
since service was effected on the doctor timely, I'm going
to agree with the Gettys versus Wong case that the
service interrupted prescription as to the employer and
that the hospital, the state agency is an indispensable
party in this matter. As you point out, counsel, any
judgment against the doctor is going to be a judgment
against the state. They’re an indispensable party. And so
I believe that this case, Gettys versus Wong, is going to
allow the plaintiffs to amend and bring the -- or serve the
state and bring them in, and so I’m going to overrule the
exceptions. I understand both points and that’s what I
believe is the right thing to do in this case. I’m sure if
that’s not correct, you’ll let me know or somebody will
let me know.
By relying on Gettys1 to deny both of Dr. Chesson’s exceptions, the trial
court conflated the issues of service, nonjoinder of a party, and prescription.
Therefore, I find the trial court legally erred due to this conflation of issues.
Particularly, the issue of prescription was premature while the claims of
insufficient service and the trial court’s notice of nonjoinder of a party were
pending. Cf. Russell v. Jones, 17-585, p. 5 (La. App. 5 Cir. 3/12/18), 239 So. 3d
1083, 1087 (“the trial judge erred in granting the exception of prescription while
the plaintiffs’ allegation of solidary liability between the two liability insurers
[was] pending.”). Accordingly, I would vacate the judgment of the trial court and
remand for further proceedings.
1
Gettys v. Wong, 13-1138, pp. 6-7 (La. App. 4 Cir. 5/7/14), 145 So. 3d 460, 464 (denial of an
exception of prescription filed by LSUHSC because “the claim against LSUHSC is solely
derivative of the timely filed claim made against Dr. Wong.”).
2