observing that the “logical sequence” of addressing exceptions is to first address the declinatory exception—there, venue— and then the peremptory exception—there, no cause of action
How later courts described this case
- observing that the “logical sequence” of addressing exceptions is to first address the declinatory exception—there, venue— and then the peremptory exception—there, no cause of action
Written by the judges who cited it.
The opinion
CORRECTED WRIT OPINION
DONNA BROWN * NO. 2019-C-0447
VERSUS *
COURT OF APPEAL
RALPH CHESSON, M.D. *
FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******
APPLICATION FOR WRITS DIRECTED TO
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2015-09740, DIVISION “B-1”
Honorable Rachael Johnson,
******
Judge Rosemary Ledet
******
(Court composed of Chief Judge James F. McKay, III, Judge Terri F. Love, Judge
Edwin A. Lombard, Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge Joy
Cossich Lobrano, Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins, Judge
Paula A. Brown, Judge Tiffany G. Chase, Judge Dale N. Atkins)1
MCKAY, C.J., CONCURS IN THE RESULT
DYSART, J. CONCURS IN THE RESULT.
JENKINS, J., CONCURS IN THE RESULT
LOVE, J., DISSENTS AND ASSIGNS REASONS
LOMBARD, J., DISSENTED FOR THE REASONS ASSIGNED BY JUDGE
LOVE
BELSOME, J., DISSENTS WITH REASONS
LOBRANO, J., DISSENTS FOR THE REASONS ASSIGNED BY JUDGE
LOVE.
Jeff Landry, Attorney General
William David Coffey, Lead Appeal Council
LA DEPARTMENT OF JUSTICE
Litigation Division
1450 Poydras Street, Suite 900
New Orleans, LA 70112
COUNSEL FOR RELATOR/DEFENDANT
1
Judge Regina Bartholomew-Woods recused.
CORRECTED WRIT OPINION
Richard Thomas Gallagher, Jr.
GALLAGHER WESTHOLZ & POTTER
111 Veterans Memorial Blvd., Suite 1400
Metairie, LA 70005
COUNSEL FOR RESPONDENT/PLAINTIFF
WRIT GRANTED; RULING ON EXCEPTIONS OF
INSUFFICIENCY OF CITATION AND SERVICE
OF PROCESS REVERSED; EXCEPTIONS OF
INSUFFICIENCY OF CITATION AND SERVICE
OF PROCESS GRANTED; SUIT DISMISSED
WITHOUT PREJUDICE
April 24, 2020
RML This is a medical malpractice case against a qualified state health care
PAB
TGC provider, under the provisions of La. R.S. 40:1237.1, Ralph R. Chesson, M.D.
DNA
Seeking review of the trial court’s July 2, 2019 judgment denying his declinatory
exceptions of insufficiency of citation and service of process and his peremptory
exception of prescription, Dr. Chesson filed this writ application. For the reasons
that follow, we grant the writ, reverse the trial court’s ruling denying the
declinatory exceptions of insufficiency of citation and service of process, grant
those exceptions, and render judgment dismissing the suit without prejudice.
FACTUAL AND PROCEDURAL BACKGROUND
As noted at the outset, Dr. Chesson is a qualified state health care provider.
Before filing this suit, the plaintiff-patient, Donna Brown, filed a complaint against
Dr. Chesson with the Division of Administration in October 2012. The Division of
Administration notified Ms. Brown that Dr. Chesson was a qualified state health
care provider and subsequently issued a certificate of qualification. A medical
review panel was formed. The medical review panel rendered an opinion in Dr.
1
Chesson’s favor in June 2015. Ms. Brown received a copy of that opinion in
July 2015.
After receiving the panel’s opinion, Ms. Brown filed this suit solely against
Dr. Chesson in October 2015. In her petition, she alleged that Dr. Chesson
committed medical malpractice during a November 2011 surgery and the post-
operative care. The specifics of the petition are not necessary for deciding the
issues presented by this writ. In her petition, Ms. Brown requested that Dr.
Chesson be served at his office—“4228 Houma Blvd., Suite 600 A, Metairie, LA
70006.”2
In November 2018, Dr. Chesson filed declinatory exceptions of
insufficiency of citation and service of process. In support, he cited his status as a
qualified state health care provider. The gist of his argument was that, given his
status, coupled with Ms. Brown’s claim for money damages against him, the
governing statutory provisions are La. R.S. 13:5107 and La. R.S. 39:1538 and that
those statutes require that she serve the following three entities: (i) the head of the
department for the Board of Supervisors of Louisiana State University Agriculture
and Mechanical College; (ii) the Office of Risk Management; and (iii) the Attorney
General of Louisiana. Subsequently, Dr. Chesson filed a peremptory exception of
prescription. Following a hearing, the trial court denied all of the exceptions. This
writ followed.
DISCUSSION
Following the “logical sequence” for addressing declinatory and peremptory
exceptions when as here filed together, we first address Dr. Chesson’s declinatory
2
According to Dr. Chesson, Ms. Brown subsequently requested service “at a different address”
in October 2018.
3
exceptions—insufficiency of citation and service—before reaching his peremptory
exception—prescription. See Favorite v. Alton Ochsner Med. Found., 537 So.2d
722, 723 (La. App. 4th Cir. 1988) (observing that the “logical sequence” of
addressing exceptions is to first address the declinatory exception—there, venue—
and then the peremptory exception—there, no cause of action); see also
Schexnayder v. Gish, 06-579, p. 3 (La. App. 5 Cir. 12/27/06) 948 So.2d 313, 314.
Because we find the declinatory exceptions have merit and grant them, we find it
premature to reach the issue of whether the prescription exception was correctly
denied. We thus pretermit that issue.
Standard of Review
Appellate courts review trial courts’ rulings on declinatory exceptions of
insufficiency of citation and service of process under the manifest error standard of
review. Wright v. State, 18-0825, p. 1 (La. App. 4 Cir. 10/31/18), 258 So.3d 846,
847, writ denied, 18-1931 (La. 1/28/19), 262 So.3d 902; Velasquez v. Chesson, 13-
1260, p. 3 (La. App. 4 Cir. 10/8/14), 151 So.3d 812, 814 (observing that “a
judgment dismissing an action for failure to timely request service is subject to the
manifest error standard of review”).
Service on a Qualified State Health Care Provider
This court in both Velasquez and Wright addressed the issue of proper
service on a qualified state health care provider. To provide a background for
analyzing the issue presented here, we briefly summarize those two cases.
The Velasquez Case
In Velasquez, the plaintiff-patient filed a medical malpractice action against
the defendant-doctor, who was employed at University Hospital, where the
4
plaintiff-patient underwent the surgical procedure at issue.3 The plaintiff-patient
sued and served only the defendant-doctor. The defendant-doctor filed an
exception of insufficiency of service of process based upon his status as a qualified
state health care provider and the plaintiff-patient’s failure to comply with La.
R.S. 13:5107 and La. R.S. 39:1538. The plaintiff-patient, in opposition, argued that
compliance with those statutes was not required because suit was filed against the
defendant-doctor in his individual capacity only. Following a hearing, the trial
court sustained the defendant-doctor’s exception and dismissed the plaintiff-
patient’s petition without prejudice. Velasquez, 13-1260, p. 2, 151 So.3d at 813.
On appeal, this court observed that “[a] suit against a qualified state health
care provider requires service to be effected on: (1) the head of the department for
the Board of Supervisors of Louisiana State University Agricultural and
Mechanical College [the ‘Department Head’]; (2) the Office of Risk of
Management [the ‘ORM’]; or (3) the Attorney General of Louisiana [the ‘Attorney
General’].” Velasquez, 13-1260, p. 4, 151 So.3d at 814 (citing La. R.S. 13:5107;
La. R.S. 39:1538; Whitley v. State ex rel. Bd. of Sup’rs of Louisiana State Univ.
Agr. Mech. Coll., 11-0040, p. 18 (La. 7/1/11), 66 So.3d 470, 481).
Rejecting the plaintiff-patient’s attempt to evade the service requirements by
claiming that the defendant-doctor was being sued in his individual capacity only,
this court observed that the plaintiff-patient “was well aware and amply advised of
[the defendant-doctor’s] status as a qualified health care provider” when the
3
Before filing suit, the plaintiff-patient requested a medical review panel from the Louisiana
Division of Administration regarding allegations against the defendant-doctor, Ralph R.
Chesson, M.D. (the same physician in the current proceedings). The plaintiff-patient alleged that
after childbirth, the defendant-doctor performed a tubal ligation at University Hospital; but a year
after the operation, she became pregnant. The Division of Administration notified the plaintiff-
patient that the defendant-doctor was a qualified state health care provider and subsequently
issued a certificate of qualification. After the medical review panel issued an opinion in the
defendant-doctor’s favor, the plaintiff-patient filed suit.
5
Division of Administration notified her by letter of his status and issued a
certificate of qualification. Velasquez, 13-1260, p. 4, 151 So.3d at 815. Because
University Hospital was a state-owned facility under the supervision and
management of the Board of Supervisors, this court concluded that “[the
defendant-doctor] is a state-employed physician and at least one of the above
entities/persons [the Department Head, the ORM, or the Attorney General] should
have been served.” Id., 13-1260, p. 4, 151 So.3d at 815. Accordingly, this court
held that the plaintiff-patient’s “failure to timely effectuate service on the proper
parties warranted dismissal of the suit as [the plaintiff-patient] advanced no
compelling reason for her failure to ascertain proper service.” Id., 13-1260, p. 5,
151 So.3d at 815.
The Wright Case
In Wright, the plaintiff-patient filed a petition, after a medical review panel
issued its opinion, requesting service on each of the defendant-physicians, who
were state employees. The defendant-physicians filed exceptions of insufficiency
of citation and service of process, which the trial court denied. In seeking
supervisory review, the defendant-physicians argued that service on them rather
than on the three required State entities was insufficient.
Agreeing with the defendant-physicians, this court granted their writ. In so
doing, this court, in a writ opinion, quoted extensively from Velasquez, observing:
Like the instant matter, the plaintiff in Velasquez requested
service on a state-employed physician, the only named defendant in
the action, at his work address, rather than through one of the
mandated agents for service of process. The Court noted that “[a] suit
against a qualified state health care provider requires service to be
effected on: (1) the head of the department for the Board of
Supervisors of Louisiana State University Agricultural and
Mechanical College; (2) the Office of Risk of Management; [and] (3)
the Attorney General of Louisiana.” Id., p. 4, 151 So.3d at 814. The
6
Court likewise cited Barnett v. Louisiana State Univ. Med. Ctr.-
Shreveport, 02-2576, p. 1 (La. 2/7/03), 841 So.2d 725, 726 for the
principle that “[P]laintiffs are strictly held to the obligation of serving
the correct agent for service of process, [ ] as well as to the obligation
of serving the named state defendants within the time period specified
by La. R.S. 13:5107(D)(1).” Id. pp. 4-5, 151 So.3d at 814.
Wright, 18-0825, pp. 4-5, 258 So.3d at 848-49. This court gave “effect to La.
R.S. 39:1538’s requirement that service on a state employee must be requested on
one of the three designated parties for service of process.” Id., 18-0825, p. 5, 258
So.3d at 849. Accordingly, this court found that the trial court was manifestly
erroneous in denying the defendant-physicians’ exceptions of insufficiency of
citation and service of process. We, thus, reversed the trial court’s ruling and
granted the exceptions without prejudice. Id., 18-0825, p. 6, 258 So.3d at 849.
The George Case: Conflict Within This Circuit
The parties to the instant writ application raised the issue of whether this
court’s decision in George v. ABC Ins. Co., 19-0124 (La. App. 4 Cir. 5/8/19), 271
So.3d 1289, writ denied, 19-944 (La. 9/24/19), 279 So.3d 886, created a conflict
with this court’s prior decisions in Velasquez and Wright. To address this issue,
this court submitted this writ to an en banc panel for review and held oral
arguments. In order to place this issue in context, a brief review of the George case
is necessary.
In George, the plaintiffs filed suit against Southern University New Orleans
(“SUNO”)—a non-profit corporation—and ABC Insurance Company in May
2017. The plaintiffs alleged that Ms. George sustained personal injuries after
fainting inside a campus facility. The plaintiffs requested service on SUNO at its
principal place of business through the Chancellor’s Office. In January 2018, the
plaintiffs filed a request for leave to file a first amended and supplemental petition
7
for damages, seeking to add as defendants the Board of Supervisors of Southern
University and Agricultural and Mechanical College, the State of Louisiana, and
Southern University System.4 The Board of Supervisors filed an exception of
insufficiency of service of process, which the trial court granted, dismissing the
plaintiffs’ suit without prejudice.
On appeal, this court observed that “[t]he applicability of the 90-days service
request period [under La. R.S. 13:5107] is contingent upon whether the State of
Louisiana is properly named as a defendant in the original petition for damages.”
George, 19-0124, p. 4, 271 So.3d at 1291-92. We framed this as the threshold issue
to be decided before determining if dismissal of the action, based on insufficiency
of service of process, was proper. Id. Addressing this threshold issue, this court
observed:
[T]he original petition for damages names the following
defendant: “Southern University New Orleans (“SUNO”) made a
party defendant herein, is a non-profit corporation authorized to do
and doing business in the State of Louisiana. . . .” Plaintiffs did not
name the State of Louisiana, or a state agency, as a party in the
original petition for damages. La. R.S. 13:5107(D)(1) requires that
service of process be requested within 90-days of the commencement
of the action or filing of the supplemental or amended petition for
damages when the state is initially named as a party. However,
because the State of Louisiana was not a named party in the original
petition for damages, plaintiffs had no obligation to request service
upon the State of Louisiana within the statutory period of La.
R.S. 13:5107.
George, 19-0124, p. 5, 271 So.3d at 1292. We, thus, concluded that “[t]he initial
service request on Southern University New Orleans’ Chancellor’s Office was
insufficient to warrant dismissal of plaintiffs’ action pursuant to La. R.S. 13:5107,
4
Also on that date, the plaintiffs requested service of the original and first amended and
supplemental petitions on multiple entities—the Board of Supervisors, Southern University and
Agricultural and Mechanical College, through the Office of the Attorney General; Southern
University System Office of the Chancellor, through the Office of the Attorney General; the
Office of the Chancellor, Southern University New Orleans; the ORM; and the Attorney
General. George, 19-0124, p. 2, 271 So.3d at 1290-91.
8
where the State of Louisiana was not initially a named defendant in the original
petition for damages.” Id., 19-0124, p. 6, 271 So.3d at 1293. We further observed
that “[s]ince the State of Louisiana was not a named defendant, the 90-days service
request period was not activated when plaintiffs filed the original petition for
damages.” Id. For these reasons, we reversed the trial court’s ruling granting the
exception of insufficiency of service of process.
As noted elsewhere in this opinion, the argument that the George case
created an inconsistency within our circuit prompted this court to submit this case
to an en banc panel for consideration. Upon analysis, we conclude the George case
is distinguishable from the Velasquez and Wright cases. Although all three cases
pertain to an exception of insufficiency of service of process, the basis for the
applicability of the statutes differ. The named defendants in Velasquez and Wright
were either the “State, a state agency, or political subdivision, or any officer or
employee.” In contrast, the named defendant in George was a non-profit
corporation—SUNO. The plaintiffs’ error in George in naming the wrong entity
did not trigger the application of La. R.S. 13:5107(D) and La. C.C.P. art. 1201(C)
since none of the defendants was the “State, a state agency, or political
subdivision, or any officer or employee.” In contrast, because Dr. Chesson—the
defendant-doctor in Velasquez—was an employee of the state, albeit named
individually, La. R.S. 13:5107(D) and La. C.C.P. 1201(C) were triggered.
Likewise, the same was true of the defendant-physicians in Wright. In both those
cases, the defendant (or defendants) were qualified state health care providers,
which must be served through the following entities: (i) the Department Head;
(ii) the ORM; or (iii) the Attorney General. For these reasons, we find George did
not create a conflict within this circuit.
9
The Instant Case
Turning to the instant case, we find Dr. Chesson’s contention that the trial
court erred in denying his declinatory exceptions of insufficiency of citation and
service of process has merit. This court’s holdings in Velasquez and Wright are
dispositive and dictate those exceptions be granted.
CONCLUSION
Accordingly, we grant the Relator’s writ application. We reverse the trial
court’s ruling on the declinatory exceptions of insufficiency of citation and service
of process. We grant those exceptions, and we dismiss Ms. Brown’s suit without
prejudice.
WRIT GRANTED; RULING ON EXCEPTIONS OF
INSUFFICIENCY OF CITATION AND SERVICE OF PROCESS
REVERSED; EXCEPTIONS OF INSUFFICIENCY OF CITATION
AND SERVICE OF PROCESS GRANTED; SUIT DISMISSED
WITHOUT PREJUDICE
10