IN RE: Medical Review Panel Proceedings for the Claim of Gayl PAYTON (2025)

Appellant, Gayl Payton (“Ms. Payton”), appeals the judgment of the 24th Judicial District Court, entered on November 15, 2025, granting the exception of prescription filed by defendant-appellee, Ochsner Health System (“Ochsner”), and dismissing Ms. Payton's Request for Medical Review Panel, with prejudice. We vacate the district court's judgment for the reasons stated below and remand the matter for further proceedings.

FACTS AND PROCEDURAL HISTORY

Ms. Payton alleges that she was injured at a clinic owned and operated by Ochsner on December 16, 2021, as a result of an injection into her left knee that was administered by Dr. Vinod Dasa, M.D., a healthcare provider employed by Ochsner. On December 9, 2022, appellant filed a Request for a Medical Review Panel (the “Original Complaint”) with the Division of Administration (the “DOA”) naming both Dr. Dasa and Ochsner as respondents. The matter was assigned PCF File Number 2022-01141. The DOA acknowledged receipt of the Original Complaint by letter dated December 16, 2022, sent by certified mail on December 22, 2022 (the “December 16th Notice”); however, the Original Complaint was not processed due to Ms. Payton's failure to include a brief description of the alleged malpractice as to each named defendant healthcare provider and a brief description of her injuries, as required by La. R.S. 40:1231.8(A)(1)(b)(vi) and (vii).¹ The December 16th Notice informed Ms. Payton that she had forty-five days from the receipt of the notice to submit a corrected panel request in order to maintain her original filing date. The December 16th Notice also advised her that:

R.S. 40:1231.8(A) requires a filing fee of $100 per named, qualified health care provider, an affidavit from a physician as to the malpractice, or an in forma pauperis ruling be remitted to us within 45 days of the mailing date of this notice ․ Failure to timely comply results in the request being statutorily rendered invalid and without effect.

Ms. Payton received the December 16th Notice on December 27, 2022. The following day, she filed a Supplemental Request for Medical Review Panel (the “Supplemental Complaint”), correcting the deficiencies in her original filing.

On January 9, 2023, the DOA sent a letter to Ms. Payton (the “January 9th Notice”), by certified mail, acknowledging receipt of her Supplemental Complaint, identifying Ochsner as a qualified provider, and advising her that she was required to pay $100 per qualified defendant to the Patient's Compensation Fund (the “PCF”), within forty-five days of the January 9th Notice. The January 9th Notice stated that “[t]his filing fee may only be waived upon receipt of an affidavit from a physician or a district court's in forma pauperis ruling as set forth in R.S. 40:1231.8(A)(1)(d).” Ms. Payton was further advised that: “Failure to comply shall render the request invalid and without effect as to the above referenced qualified provider(s).” (Emphasis in original). Ms. Payton received the January 9th Notice on January 18, 2023.

Ms. Payton petitioned the district court for an in forma pauperis ruling on January 20, 2023, but did not submit a notarized in forma pauperis affidavit until January 23, 2023.² The district court issued an order granting her request on January 24, 2023, but, allegedly, failed to send her a notice of the signing of the in forma pauperis order. The in forma pauperis order was submitted to the DOA on March 22, 2023. On the same date, the DOA sent a certified letter to Ms. Payton (the “March 22 Notice”) acknowledging receipt of her in forma pauperis ruling and informing her that “therefore the above referenced panel request has been reinstated.” (Emphasis added).

By Judgment entered on October 3, 2024, the district court granted a peremptory exception of prescription filed by the State of Louisiana, on behalf of Dr. Dasa, and dismissed Ms. Payton's claims against him, with prejudice. Ochsner filed the Peremptory Exception of Prescription at issue here on October 7, 2024, supported by the affidavit of Susan Gremillion, the Medical Malpractice Compliance director of the Louisiana PCF. Attached to Ms. Gremillion's affidavit were the Original Complaint, the Supplemental Complaint, the December 16th, January 9th and March 22nd Notices, and the certified mailing and return receipts, which she verified and authenticated. Ochsner also attached the affidavit of its attorney, Don McKinney, attached to which were United States Postal Service (“USPS”) tracking receipts showing delivery of the December 16th and January 9th Notices to Ms. Payton, which he obtained from the USPS tracking website. Ms. Payton, who is self-represented, did not file an opposition to Ochsner's exception of prescription.³ A hearing on Ochsner's exception was conducted on November 4, 2024.

Following the hearing, the district court granted the exception of prescription and dismissed Ms. Payton's malpractice claims against Ochsner, with prejudice, on the grounds that Ms. Payton did not timely submit her in forma pauperis order to the DOA. A written judgment was entered on November 15, 2024.

The Motion for Appeal that appears in the record indicates that it was filed on December 12, 2024, but was denied as “moot.” On December 17, 2024, the district court entered an order granting Ms. Payton an appeal. The order states that Ms. Payton filed a pro se motion for appeal under La. C.C.P. art. 5001 on December 17, 2024, which was denied because Article 5001 applies to appeals from city and parish courts; however, because it was clear that she desired to appeal the “November 4, 2024” [sic] judgment granting appellee's exception of prescription, the district court granted appellant a devolutive appeal from that judgment.⁴

This appeal timely followed.

ASSIGNMENTS OF ERROR

Ms. Payton filed a pro se appellate brief. In it she assigns as error matters that explain why the in forma pauperis order was filed on March 22, 2024, most of which are directed towards the clerk's alleged failure to mail a notice of signing of the in forma pauperis order to her, or to otherwise notify her of its signing, and the clerk's alleged failure to timely post the signed order on JeffNet. The judgment presented for review on appeal, however, is the district court's November 15, 2024 Judgment granting Ochsner's peremptory exception of prescription and dismissing Ms. Payton's malpractice claim against Ochsner, with prejudice.

STANDARD OF REVIEW

The standard of review of a judgment pertaining to an exception of prescription turns on whether evidence is introduced at the hearing of the exception. La. C.C.P. art. 931 expressly allows evidence to be introduced to support or controvert a peremptory exception, when the grounds do not appear from the petition. If no evidence is submitted at the hearing, the exception must be decided upon the facts alleged in the petition with all of the allegations accepted as true. Denoux v. Vessel Mgmt. Servs. Inc., 07-2143 (La. 5/21/08), 983 So.2d 84, 88; Higgins v. Russell, 55,624 (La. App. 2 Cir. 5/22/24), 386 So.3d 1236, 1240–41, citing Lomont v. Bennett, 14-2483 (La. 6/30/15), 172 So.3d 620. In such a case, the reviewing court is simply assessing whether the trial court was legally correct in its finding. Mitchell v. Baton Rouge Orthopedic Clinic, L.L.C., 21-61 (La. 10/10/21), 333 So.3d 368, 373; In re Lindquist, 18-444, p. 4 (La. App. 5 Cir. 5/23/19), 274 So.3d 750, 754, writ denied, 19-1034 (La. 10/1/19), 280 So.3d 165.

As is the district court, appellate courts are courts of record. As such, appellate courts may not review evidence that is not in the appellate record or receive new evidence. La. C.C.P. art. 2164; Denoux, 983 So.2d at 88. Evidence not properly and officially offered and introduced in the trial court cannot be considered, even if it is physically placed in the record. Documents attached to memoranda do not constitute evidence and cannot be considered as such on appeal. Id. at 89, citing Ray Brandt Nissan v. Gurvich, 98–634 (La. App. 5 Cir. 1/26/99), 726 So.2d 474, 476; see also Walker on Behalf of Fried v. ACE American Ins. Corp., 20-449 (La. App. 5 Cir. 5/26/21), 325 So.3d 1129, 1136–37, writ denied, 21-914 (La. 10/19/21), 326 So.3d 886. This Court recently reiterated these precepts in Bridges v. Chubb Indem. Ins. Co., 24-593 (La. App. 5 Cir. 7/2/25), 420 So.3d 71, 81–82, wherein we stated:

The law is clear that neither the trial court nor a reviewing court may consider factual assertions relating to the merits of a pending claim when those assertions are not properly and officially offered and introduced in evidence or formally placed in the record by stipulation or agreement of the parties. See Holley v. Holley, 17-325 (La. App. 5 Cir. 11/20/17), 232 So.3d 717, 727-28; Cozzy Spot, LLC v. City of New Orleans, 16-529 (La. App. 4 Cir. 1/11/17), 209 So.3d 224, 227; Succession of Morgan, 15-335 (La. App. 1 Cir. 2/24/16), 2016 WL 770192, at *3-4 (unpublished opinion).

These cases make it clear that facts referred to solely in memoranda filed in the trial court or in argument of counsel, without being formally introduced in evidence or submitted to the court by stipulation or consent of the parties on the record, do not constitute evidence.

In Holley, this Court found that the trial judge erred as a matter of law in basing an interim child custody ruling on documents that were attached to memoranda filed in the trial court but were not introduced in evidence or submitted by stipulation or consent of the parties. 232 So.3d at 727-28. In Cozzy Spot, the Fourth Circuit found that the trial court erred in rendering a judgment affirming a decision to revoke the plaintiff's alcohol permit based on purported stipulations that were not made part of the record. 209 So.3d at 227. In Succession of Morgan, the First Circuit found that the trial court erred in rendering a judgment on a motion concerning the distribution of succession assets based in part on purported stipulations, agreements or representations of the parties that were not made part of the record. 2016 WL 770192, at *4.

In each of those cases, the appellate court vacated the judgment and remanded the matter to the trial court for further proceedings.

In this case, neither party introduced any evidence at the hearing in support of, or in opposition to, the exception of prescription. The district court admonished Ms. Payton for her failure to “authenticate [her] exhibits and file them before the Court[,]” stating: “I am a Court of record. I can only consider what's actually before us in the record, okay?” In fact, however, although Ochsner attached affidavits and documents to its memorandum in support of its motion, it failed to offer, file, and introduce those documents into evidence at the hearing, as it has admitted in its opposition brief filed in this Court. Accordingly, our review is limited to the facts alleged in the petition, i.e., the Complaint, accepting all such facts as true.

DISCUSSION

Louisiana Revised Statutes 9:5628(A) provides the prescriptive period for medical malpractice actions. It states, in pertinent part:

No action for damages for injury or death against any physician [or] hospital ․ duly licensed under the laws of this state ․ 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 from 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 from the date of the alleged act, omission, or neglect.

The prescriptive period for a medical malpractice claim commences upon the occurrence of an injury when damage is immediately apparent. Baldini v. East Jefferson Gen. Hosp., 08-489 (La. App. 5 Cir. 1/22/08), 976 So.2d 746, 749. In this case, the alleged malpractice occurred on December 16, 2021. Therefore, Ms. Payton had one year from that date to file her medical malpractice claim.

All medical malpractice claims against qualified health care providers must be reviewed by a medical review panel before suit can be instituted against them. La. R.S. 40:1231.8(A)(1)(a) and (b). Ms. Payton timely filed her request for formation of a medical review panel by fax-filing the Complaint to the DOA on December 9, 2022. See La. R.S. 40:1231.8(A)(2)(b)(i)(aa). The filing of a request for a medical review panel suspends the time within which suit must be instituted, until ninety days following notification by certified mail to the claimant or her attorney of the issuance of the opinion of the medical review panel, except in certain circumstances that are not relevant here. Id. § 1231.8(A)(2)(a).

The plaintiff's request for a medical review panel initially serves as the “petition,” which interrupts prescription. Bailey v. Loewe, 19-915 (La. App. 1 Cir. 8/3/20), 310 So.3d 746, 748, writ denied, 20-1146 (La. 11/18/20), 304 So.3d 418; In re Ouder, 07-1266 (La. App. 1 Cir. 5/2/08), 991 So.2d 58, 60. The defendant healthcare provider may raise any available peremptory exceptions or assert any defenses available in a court of competent jurisdiction and proper venue at any time without regard to whether the medical review process has been completed. La. R.S. 40:1231.8(B)(2)(a).

Although her Complaint was initially held in abeyance because it did not contain all of the required information, Ms. Payton was given forty-five days within which to cure the omissions. The December 16th Notice stated that, if she timely cured the omissions, she would maintain her filing date of December 9, 2022. Ms. Payton corrected her original Complaint by filing the Supplemental Complaint on December 28, 2022, within the forty-five-day period. Thus, prescription was interrupted as of December 9, 2022.

The party pleading prescription bears the burden of proving that the claim has prescribed. If, however, prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show that the claim has not prescribed. In re Heath, 21-1367 (La. 6/29/22), 345 So.3d 992, 996; In re Singleton, 19-578 (La. App. 5 Cir. 9/2/20), 303 So.3d 362, 367-68. Ms. Payton's “petition”/Complaint was filed within one-year after the alleged malpractice and is not prescribed on its face. Thus, Ochsner bore the burden of demonstrating that her claim had otherwise prescribed.

Ochsner asserts that Ms. Payton's claim prescribed due to her failure to timely submit her in forma pauperis order to the DOA, but it did not introduce any evidence at the hearing supporting that assertion. In order to determine that the Complaint is prescribed on that basis, we would have to review and interpret evidence that is outside the “petition”/Complaint. As discussed above, we cannot consider evidence that was not properly offered, introduced, and admitted into evidence. Due to its acknowledged failure to offer and introduce any evidence at the hearing in support of its exception of prescription, Ochsner did not meet its burden of proving that Ms. Payton's claim prescribed.

DECREE

For the reasons stated herein, we grant Ms. Payton's appeal, vacate the district court's judgment granting Ochsner's peremptory exception of prescription, and remand the matter to the district court for further proceedings.

JUDGMENT VACATED, REMANDED

FOOTNOTES

1.   La. R.S. 40:1231.8(A)(1)(b)(i)-(vii) sets forth a list of seven items that must be included in a request for a medical review panel, including a request for formation of a medical review panel, the name of the patient, the names of the claimants, the names of the defendant health care providers, the date(s) of the alleged malpractice, a brief description of the alleged malpractice as to each named defendant healthcare provider, and a brief description of the alleged injuries.

2.   The in forma pauperis affidavit that is attached to Ochsner's memorandum in support of its peremptory exception of prescription indicates that the Mover's Affidavit contained in Ms. Payton's in forma pauperis filing was notarized on December 17, 2022. The Third-Party Affidavit that is included in the in forma pauperis filing indicates that it was sworn to and subscribed before a notary public on December 28, 2022, but no notary's signature is affixed to the document.

3.   Ms. Payton prepared an opposition and brought it with her to the exception hearing, but it was not considered because it had not been filed in the clerk's office or served on opposing counsel.

4.   The judgment was entered on November 15, 2024. It is from the written judgment that this appeal is taken.

WICKER, J.