IN RE: MEDICAL REVIEW PROCEEDINGS AS TO DON WILLIAMS JR. (2025)

Plaintiff/Appellant, Don Williams, Jr., in proper person, appeals the trial court's judgment that sustained a peremptory exception of prescription as to a medical malpractice complaint and dismissed his complaint in favor of Defendants/Appellees, East Jefferson General Hospital and Nicole Nunez, RN, rendered in the 24th Judicial District Court, Division “I”. For the following reasons, we affirm the trial court's judgment.

FACTS AND PROCEDURAL HISTORY

On March 24, 2023, Mr. Williams filed a request for formation of a medical review panel with the Patient's Compensation Fund (hereinafter referred to as “the PCF”) through the Louisiana Division of Administration, naming East Jefferson General Hospital and Nurse Nunez as defendants. In his complaint ¹ , Mr. Williams alleged that, on March 24, 2022 ² , he presented to the East Jefferson Emergency Room for a bone infection to the second toe on his right foot after being referred there by an urgent care facility. While being seen in the emergency room, Nurse Nunez, his attending nurse, attempted to insert an IV by placing the needle in Mr. Williams’ left arm and hand but was unable to locate a vein. She then tried to insert the IV in Mr. Williams’ right arm and hand, still with no success. After several attempts, Nurse Nunez was finally able to insert the IV with the assistance of an ultrasound device. During the attempts, Mr. Williams stated that he complained of pain and discomfort in his arms and hands. After being moved to a hospital floor from the emergency room, Mr. Williams alleged that he was administered Lovenox, a blood thinner, for the treatment of a blood clot in his right arm. As a result of the blood clot, Mr. Williams claimed that he had continuous pain in his right arm that caused him limitations in his daily tasks. Mr. Williams submitted an in forma pauperis affidavit with his request; however, the affidavit was not notarized or signed by a judge.

The PCF sent Mr. Williams a letter on June 14, 2023, informing him that he had 45 days to remit a filling fee of $200, a physician's affidavit, or an in forma pauperis ruling and the failure to comply with those provisions would render his request for review invalid and without effect. On August 14, 2023, the PCF sent a follow-up letter to Mr. Williams, informing him that it had not received remittance of the filing fees within the time allowed, and his complaint was considered invalid and without effect. In response to the PCF's August 14th letter, Mr. Williams resubmitted his original request for formation of a medical review panel, which was received by the PCF on September 26, 2023.³ Yet again, Mr. Williams attached an in forma pauperis affidavit that had not been signed by a judge to his request.

On September 27, 2023, the PCF sent Mr. Williams a letter acknowledging receipt of his second request for formation of a medical review panel.⁴ However, Mr. Williams was again informed that his in forma pauperis affidavit could not be accepted until it was signed by a judge, and consequently, remittance of the $200 filing fees would be due within 45 days of receipt of the notice. Mr. Williams paid the filing fees within 45 days of the September 27th letter.

On October 19, 2023, Defendants filed a petition to institute discovery docket, seeking the compulsory process and discovery procedures under La. R.S. 40:1231.8(D)(4). A few days later, Defendants filed an exception of prescription, asserting that Mr. Williams’ request received by the PCF in September 2023 was untimely filed and prescribed by operation of law. Defendants argued that the PCF complaint was filed more than one year after the date of the alleged March 24, 2022 malpractice.

A hearing on Defendants’ exception of prescription was held on January 25, 2024. The trial court took the matter under advisement. In a written judgment rendered on February 15, 2024, the trial court sustained Defendants’ exception, finding Mr. Williams’ second malpractice complaint was filed after the legal deadline for filing and had prescribed. Mr. Williams filed a motion for new trial. In his motion, Mr. Williams asserted that, from March 30, 2023 to May 13, 2023, he was in constant contact with his attorney, Clarence Roby, to find out the status of the signing of the affidavit. He further asserted there were numerous emails exchanged between him and his attorney regarding the affidavit from June 2023 to September 2023, with none of them resolving the issue. Mr. Williams also noted that he simply did not receive certain documents.

The trial court heard arguments on Mr. Williams’ motion on April 4, 2024. The court admitted new evidence regarding the addresses to which the PCF letters were mailed and took the matter under advisement. The trial court rendered its judgment denying the motion for new trial on April 8, 2024. In its reasons for judgment, the court that found the new evidence demonstrated that the incorrectly addressed PCF letters were re-mailed to Mr. Williams’ correct address on June 7, 2023—to which he acknowledged receipt. An additional confirmation letter was mailed to Mr. Williams’ correct address on June 14, 2023; however, neither payment of the filing fee nor an order granting pauper status was received by the PCF until September 2023. The court reasoned that, even commencing the 45-day deadline for the payment of the filing fees or the granting of pauper status from the June notice, the filing fee was untimely submitted. The instant appeal followed.

LAW AND ANALYSIS

On appeal, Mr. Williams’ sole assignment of error alleges the trial court erred in sustaining Defendants’ exception of prescription. He argues that his inability to comply with La. R.S. 40:1299.47 was beyond his control. He contends the PCF notices were mailed to the incorrect address between March 2023 and May 2023. He then contends that his attorney provided limited legal advice to him, and he was not informed that his in forma pauperis affidavit needed to be signed by a judge.

In opposition, Defendants aver the trial court properly sustained their exception of prescription. They maintain that the evidence presented at trial showed that Mr. Williams received the PCF's June 14, 2023 letter, and he failed to comply with the statutory provisions for submitting a valid medical panel request. They argue that, because Mr. Williams’ initial complaint was dismissed and rendered invalid and without effect, the complaint did not suspend prescription. Defendants contend that Mr. Williams’ September 2023 complaint, which was filed almost 18 months after the alleged malpractice, was properly dismissed because the complaint was prescribed on its face.

For medical malpractice actions, La. R.S. 9:5628(A) states,

No action for damages for injury or death against any physician, chiropractor, nurse, licensed midwife practitioner, dentist, psychologist, optometrist, hospital or nursing home duly licensed under the laws of this state, or community blood center or tissue bank as defined in R.S. 40:1231.1(A), whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year form the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years form the date of the alleged act, omission, or neglect.

All malpractice claims against covered health care providers shall be reviewed by a medical review panel. La. R.S. 40:1231.8(A)(1)(a). A claimant shall have 45 days from the date of receipt by the claimant of the confirmation of the request for review to pay the board a filing fee in the amount of $100 per named qualified defendant. La. R.S. 40:1231.8(A)(1)(c). The filing fee may be waived upon receipt of an in forma pauperis ruling in accordance with La. C.C.P. art. 5181, et seq., by a district court in a venue in which the malpractice claim could properly be brought upon the conclusion of the medical review panel process. La. R.S. 40:1231.8(A)(1)(c)(ii). Failure to comply with the listed provisions within the specified 45-day time frame shall render the request for review of a malpractice claim invalid and without effect. La. R.S. 40:1231.8(A)(1)(e). Such an invalid request for review of a malpractice claim shall not suspend the time within which the suit must be instituted. Id.

The exceptor bears the burden of proof at trial of the peremptory exception of prescription. In re Med. Review Panel of Heath, 21-1367 (La. 6/29/22), 345 So.3d 992, 996, citing Spott v. Otis Elevator Co., 601 So.2d 1355, 1361 (La. 1992). However, if the action is prescribed on the face of the pleadings, the burden shifts to the plaintiff to show it is not prescribed. Id., citing Williams v. Sewerage & Water Bd. of New Orleans, 611 So.2d 1383, 1386 (La. 1993). A petition is not prescribed on its face if it is filed within one year of discovery and particularly alleged facts show the patient was unaware of malpractice before that date, so long as the filing delay was not willful, negligent, or unreasonable. Id., citing Campo v. Correa, 01-2707 (La. 6/21/02), 828 So.2d 502, 509. To determine who bears the burden of proof, courts must answer the following questions: 1) was the complaint filed within one year of the date of the alleged acts of malpractice; 2) if not, was the complaint filed within one year of the date of discovery of the alleged acts of malpractice? Id. Whether the complaint is prescribed on its face is purely a question of law, subject to de novo review. Id., citing Mitchell v. Baton Rouge Orthopedic Clinic, L.L.C., 21-61 (La. 10/10/21), 333 So.3d 368, 373.

In this matter, Mr. Williams alleged that Defendants committed medical malpractice against him on March 24, 2022. He first filed a request for formation of a medical review panel on March 23, 2023. That request was considered invalid and without effect by the PCF because Mr. Williams did not timely submit the filing fees within 45 days of its June 14, 2023 notice. In September 2023, Mr. Williams submitted a second request for formation of a medical review panel, and the filing fees were submitted the following month. Although Mr. Williams timely cured the defects of the September 2023 request, the September request is prescribed on its face because it was filed more than one year after the alleged malpractice date. At that point, the burden shifted to Mr. Williams to prove that his September 2023 submission was not prescribed.

In his argument to this Court and the lower court, Mr. Williams has never alleged that there was a delay in the discovery of Defendants’ alleged malpractice. Instead, he focuses his argument on the fact that the PCF mailed its deficiency notices to the incorrect address. As observed by the trial court during the motion for new trial hearing, the PCF mailed the March 30, 2023 notice to the wrong address. Nevertheless, the June 14, 2023 deficiency notice—the letter that commenced the running of the time delay—was mailed to the correct address, and Mr. Williams acknowledged receipt of that letter. Thus, that argument has no merit. Mr. Williams also argues that his attorney contributed to the delay in the submission of a signed in forma pauperis affidavit. While the submission of a in forma pauperis ruling properly signed by a district court judge could have provided a means to waive the requisite filing fees, the alleged prolonged interaction between Mr. Williams and his attorney regarding the affidavit does not constitute good cause that would allow us to disregard the time delay set forth in La. R.S. 40:1231.8(A)(1)(e). According to the June 14, 2023 notice, Mr. Williams had 45 days ⁵ to remit the requisite filing fees or the proof that would constitute waiver of the fees, neither of which were timely submitted by Mr. Williams. Thus, we find that Mr. Williams’ original filing on March 23, 2023, which was ultimately found to be invalid and without effect, did not suspend the time delay for requesting the formation of a medical review panel; and consequently, Mr. Williams’ second filing in September 2023 could not cure the fact that his request was untimely. After considering the evidence presented, we find that Mr. Williams failed to meet his burden of proving that his September 2023 submission was not prescribed. Therefore, we find that the trial court properly sustained Defendants’ exception of prescription.

DECREE

For the foregoing reasons, we affirm the trial court's February 15, 2024 judgment that sustained East Jefferson General Hospital and Nicole Nunez, RN's exception of prescription and dismissed Don Williams, Jr.’s September 2023 request for formation of a medical review panel. Mr. Williams is assessed the costs of this appeal.

AFFIRMED

FIFTH CIRCUIT

101 DERBIGNY STREET (70053)

POST OFFICE BOX 489

GRETNA, LOUISIANA 70054

www.fifthcircuit.org

SUSAN M. CHEHARDY CHIEF JUDGE

FREDERICKA H. WICKER

JUDE G. GRAVOIS

MARC E. JOHNSON

STEPHEN J. WINDHORST

JOHN J. MOLAISON, JR.

SCOTT U. SCHLEGEL

TIMOTHY S. MARCEL

JUDGES

CURTIS B. PURSELL CLERK OF COURT

SUSAN S. BUCHHOLZ CHIEF DEPUTY CLERK

LINDA M. WISEMAN FIRST DEPUTY CLERK

MELISSA C. LEDET DIRECTOR OF CENTRAL STAFF

(504) 376-1400

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NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY

I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY MARCH 19, 2025 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

CURTIS B. PURSELL CLERK OF COURT

24-CA-334

E-NOTIFIED

24TH JUDICIAL DISTRICT COURT (CLERK)

HONORABLE NANCY A. MILLER (DISTRICT JUDGE)

C. WILLIAM BRADLEY, JR. (APPELLEE)

LANCE V. LICCIARDI, JR. (APPELLEE)

RICHARD S. CRISLER (APPELLEE)

MAILED

DON A. WILLIAMS, JR. (APPELLANT)

4843 GALLIER DRIVE

NEW ORLEANS, LA 70126

FOOTNOTES

1.   The March 24, 2023 complaint was given file number 2023-00277 by the PCF.

2.   The malpractice allegedly occurred from March 24, 2022 through March 27, 2022.

3.   The August 14, 2023 letter was first received by the Louisiana Division of Administration on September 22, 2023.

4.   This request was given file number 2023-00911.

5.   The 45-day time delay would have ended on a legal holiday, July 29, 2023. As a result, Mr. Williams would have had until July 31, 2023 to remit the filing fees or the in forma pauperis ruling.

MARC E. JOHNSON JUDGE