IN RE: Medical Review Panel of Barbara Ann GLOSTON (2026)

Anthony Gloston appeals a trial court judgment granting exceptions of prematurity and prescription in a medical malpractice action in favor of Dr. Ken Nguyen. For the following reasons, we affirm the judgment of the trial court.

FACTS

According to the record, Barbara Gloston, was admitted to Lake Area Medical Center in Lake Charles, Louisiana on August 10, 2016, with complaints of chest pain, shortness of breath, and swelling in her lower legs. Ms. Gloston was a chronic renal patient with end stage disease and was at an elevated risk for complications. Nephrology and general surgery were consulted regarding hemodialysis and placement of a catheter. Dr. Ken Nguyen was the attending physician in charge, and Dr. Keith Chung performed a catheterization on Ms. Gloston. Initially, Dr. Chung placed a left subclavian catheter, which was initially successful until the catheter began leaking. Ms. Gloston was returned to surgery for replacement of the left subclavian catheter with a right subclavian catheter. Difficulties were encountered during this procedure and another procedure the following day. Radiographic imaging confirmed the difficulty with catheter placement, as the tip was unable to be identified. A cardiothoracic surgeon was consulted, and it was determined that Ms. Gloston should be transferred to another facility for an emergent sternotomy, which was successful. She was later transferred to another facility for rehabilitation. Ms. Gloston died on September 18, 2016.

On August 16, 2017, Anthony Gloston ¹ requested a medical review panel for review of the actions by Dr. Chung and Dr. Nguyen in Ms. Gloston's care from August 11, 2016, to August 16, 2016. On June 20, 2019, Dr. Nguyen filed an unopposed ex parte motion to extend the period for the medical review panel to render its opinion. An order was signed on June 25, 2019, extending the term of the medical review panel through July 23, 2020. On July 22, 2020, Dr. Chung filed an unopposed ex parte motion to extend the period for the medical review panel to render its opinion. An order was signed on August 13, 2020, extending the term of the medical review panel through January 23, 2021.

On July 23, 2020, Mr. Gloston filed a petition for damages, wrongful death, and survival action. Subsequently, the medical review panel rendered its opinion on August 11, 2020. Dr. Nguyen filed exceptions of prematurity and prescription, and a motion for involuntary dismissal on March 9, 2023. A hearing on the exceptions was held on June 20, 2023.

On December 13, 2023, the trial court rendered judgment sustaining Dr. Nguyen's exceptions of prematurity and prescription and dismissing Mr. Gloston's claims against Dr. Nguyen with prejudice. Dr. Nguyen's motion for involuntary dismissal was denied as moot because Dr. Nguyen withdrew the motion at the June 20, 2023 hearing. Notice of the judgment was mailed on January 5, 2024.

On January 26, 2024, Mr. Gloston filed a motion for new trial. A hearing on the motion for new trial was set for May 24, 2024, to allow an attorney from the firm representing Dr. Nguyen to formally enroll as substitute counsel. The hearing on the motion for new trial was again set for January 24, 2025, to give Mr. Gloston a chance to obtain new counsel since his current counsel did not have the ability to practice in Louisiana at the time. The hearing on the motion for new trial was set for April 16, 2025. Again, the motion for new trial was continued to allow Mr. Gloston time to obtain new counsel.

The motion for new trial was heard on June 19, 2025. Mr. Gloston proceeded in proper person, but his former attorney, Edward Moses, testified at the hearing. The trial court denied the motion for new trial finding no new evidence was offered other than what was presented at the original hearing on the exceptions of prematurity and prescription. Judgment was signed on July 1, 2025, and mailed on July 8, 2025.

On August 1, 2025, Mr. Gloston filed a motion for a supervisory writ. He also filed a motion for appeal on September 9, 2025. On December 12, 2025, this court denied Mr. Gloston's writ determining, based on an incomplete writ application which omitted important documents, that Mr. Gloston's motion for new trial was filed untimely, and further that no timely appeal was taken from the judgment granting the exceptions of prescription and prematurity.

The record on appeal was subsequently supplemented with the appropriate pleadings which indicated that Mr. Gloston's appeal of the judgment granting the exceptions of prematurity and prescription was filed timely.

EXCEPTIONS OF PREMATURITY AND PRESCRIPTION

Mr. Gloston's arguments on appeal center around the filing of the two motions to extend the review period of the medical review panel; one by Dr. Ngyuen in 2019 and one by Dr. Chung in 2020. Mr. Gloston argues that the motions were not properly and timely filed so that the medical review panel automatically dissolved pursuant to La.R.S. 40:1231.8(B)(1)(b). In that situation, he argues, his petition was not premature and his action was not prescribed.

A party must seek review from a medical review panel and receive an opinion before he can file suit. LeBreton v. Rabito, 97-2221 (La. 7/8/98), 714 So.2d 1226. We observe that Mr. Gloston filed his request for a medical review panel on August 16, 2017, just shy of the one-year anniversary of Ms. Gloston's death. The only petition filed by Mr. Gloston was filed on July 23, 2020, before the medical review panel opinion was rendered on August 11, 2020. If the extensions for the medical review panel were properly and timely submitted, then Mr. Gloston's petition was premature, and his action was prescribed when Dr. Nguyen filed his exceptions in 2023.

The dilatory exception of prematurity “questions whether the cause of action has matured to the point where it is ripe for judicial determination.” Kelleher v. Univ. Med. Ctr. Mgmt. Corp., 21-11, p. 3 (La. 12/10/21), 332 So.3d 654, 657; See also La.Code Civ.P. art. 926(A)(1). An action is premature when the right to enforce it has not accrued. La.Code Civ.P. art. 423.

A petition against a health care provider may not be filed in the district court before the claimant's proposed complaint has been presented to a medical review panel. La.R.S. 40:1231.8(B)(1)(a)(i). Under Louisiana Law, a party may file a petition in district court against a medical provider when no medical review panel opinion is rendered within twelve months after notification of the selection of the attorney chairman, unless a party has requested an extension for good cause shown has been requested or granted. La.R.S. 40:1231.8(B)(1)(b).

All actions against physicians for medical malpractice must be filed within one year from the date of the alleged act or within one year from the date of discovery of the act. La.R.S. 9:5628. “The filing of the request for a review of a claim shall suspend the time within which suit must be instituted ․ until ninety days following notification, by certified mail ․ to the claimant or his attorney of the issuance of the opinion by the medical review panel[.]” La.R.S. 40:1231.8(A)(2)(a). “The period of suspension is not counted toward the accrual of prescription.” La.Civ.Code art. 3472.

[W]hen the ninety-day period of suspension after the decision of the medical review panel is completed, plaintiffs in medical malpractice actions are entitled to the period of time, under LSA–R.S. 9:5628, that remains unused at the time the request for a medical review panel is filed. Once a medical malpractice claim is submitted to the medical review panel, the prescriptive period is temporarily discontinued. Prescription commences to run again ninety days after the plaintiff has received notice of the panel's decision. That is, when the ninety day period expires, the period of suspension terminates and prescription commences to run again. Once prescription begins to run again, counting begins at the point at which the suspension period originally began.

Guitreau v. Kucharchuk, 99-2570, p. 6 (La. 5/16/00), 763 So.2d 575, 579.

The standard of review on a judgment sustaining an exception of prematurity is manifest error, except those matters in which the exception involves a question of law, in which case the appellate court undertakes a de novo review. Barlow v. Garber, 17-401 (La.App. 3 Cir. 11/2/17), 230 So.3d 1002. The standard of review of a judgment granting an exception of prescription turns on whether evidence was introduced at the hearing on the exception. Succession of Lewis, 22-79 (La. 10/21/22), 351 So.3d 336. “If evidence is introduced, the lower court decisions are reviewed under a manifest-error clearly wrong standard of review.” Id. at 340. A de novo standard of review applies when evidence is not introduced and there is no dispute regarding material facts. Id. Evidence was introduced at the hearing in the present case, and there was a dispute as to the facts surrounding the evidence, so our review of the trial court's judgment granting both the exception of prematurity and exception of prescription is pursuant to the manifest error standard.

Mr. Gloston first argues that the trial court erred in granting Dr. Nguyen's 2019 motion to extend the period of review by the medical review panel from July 23, 2019, for twelve months to July 23, 2020. Mr. Gloston claims that the motion was defective arguing that it contained no signature page and no signature of counsel.

We first recognize that this issue was never raised in the lower court. Appellate courts generally will not consider an issue raised for the first time on appeal when that issue was not pled, urged, or addressed in the court below. Uniform Rules—Courts of Appeal, Rule 1-3.

We do observe that the omission of signature on a pleading is treated as a mere technical defect under Louisiana law which may be cured by signing the paper on file or submitting a duplicate filing that contains the attorney's signature. Pellecer v. Werner Co., 23-513 (La.App. 4 Cir. 9/7/23), 372 So.3d 819, writ denied, 23-1279 (La. 9/27/23), 370 So.3d 1068. “If the attorney promptly cures the defect, then the pleading relates back to the date the original, unsigned pleading was filed into the record.” Id. at 821.

On March 3, 2026, Dr. Nguyen filed a motion to correct the trial court record and supplement the record on appeal. The trial court granted the motion on March 17, 2026. The record was then supplemented with a fully-executed 2019 motion to extend the period of review by the medical review panel. We find no issues with Dr. Nguyen's 2019 motion to extend the period of review by the medical review panel.

In the trial court, Mr. Gloston did complain about Dr. Chung's motion to extend filed in July 2020. Mr. Gloston argues that Dr. Chung's motion to extend was ineffective because he did not timely comply with La.R.S. 13:850 by delivering the original motion and payment in a timely manner.

Louisiana Revised Statutes 13:850(B) provides that the original documents must be delivered to the clerk of court within seven days, exclusive of holidays. Also, any fees due for the fax filing and the filing of the original documents are also due at that time. Id.

Dr. Chung fax-filed his motion to extend on July 14, 2020, as shown by the stamp on the motion. The fax cover letter indicates that it was received at 2:21 PM. Another stamp indicates it was filed as of 3:47 PM, while another stamp indicates it was filed as of July 22, 2020. The confusion arises because an additional copy of the fax cover letter is stamped “PAST DUE” at the top. There are additional stamps on this letter that indicate “CALCASIEU CLERK-COST” dated July 22, 2020, at 9:21:25 AM. Additionally, a stamp filled in by handwriting shows a date of July 22, 2020, check number 3208, from Gerald Arceneaux, in the amount of $60.00.

In ruling on the matter, the district court stated in written reasons:

Although “PAST DUE” was stamped on the original pleading, everything else indicates to the Court that the filing was perfected on July 22, 2020, which is timely. Plaintiff could have submitted an affidavit of the representative of the Clerk's office, or a different representative who could attest to those facts, who advised him that the original pleading had not been filed as of July 23, 2020. Plaintiff could have submitted the affidavit of his counsel attesting to that conversation. However, Plaintiff relied primarily on the “PAST DUE” stamping on the cover letter and fax confirmation sheet. Without more to refute the barcode and a stamp showing a filing date of July 22, 2020, the Court cannot say that the Unopposed Motion to Extend the Period of Review by the Medical Review Panel was untimely filed. Further, it was noted at the hearing that the motion to extend was unopposed by any party. In his brief, Dr. Nguyen notes additionally that counsel for Plaintiff never raised any objection to the panel continuing past the July 23, 2020 date, even after the panel rendered its opinion nearly a month later. As such, the Court finds the motion to extend was validly filed an effective, thus extending the life of the Medical Review Panel through January 23, 2021.

In this case, the trial court based its findings on the facts presented to it. We find no manifest error in the trial court's ruling that the extension was timely filed.

NEW TRIAL

Mr. Gloston raises two errors concerning his motion for new trial. He argues that counsel for Dr. Nguyen should not have been allowed to present oral argument at the hearing on the motion for new trial because the memorandum in opposition to the motion for new trial was not refiled as the trial court directed. He also complains that he could not present evidence in the form of an affidavit and testimony of his former counsel at the hearing concerning the attorney's conversation with the clerk's office about the timeliness of the 2020 motion for extension of time.

We first note that “[t]he denial of a motion for new trial may only be considered as part of an unrestricted appeal from a final judgment of the merits of the ruling that formed the basis for the motion for new trial.” Hebert v. Hebert, 25-843, p. 4 (La.App. 4 Cir. 4/13/26), ––– So.3d ––––, ––––. Since the motion for new trial was based on the merits of the judgment granting Dr. Nguyen's exceptions of prematurity and prescription, the merits of the denial of the motion for new trial are before us. The standard of review applied by an appellate court to a trial court's denial of a motion for new trial is abuse of discretion. Succession of Fisher, 25-363 (La.App. 3 Cir. 1/28/26), 429 So.3d 823.

At the original hearing set on the motion for new trial, counsel for Mr. Gloston, Mr. Edward Moses, complained about a substitution of counsel on behalf of Dr. Nguyen within the same firm since previous counsel was no longer associated with the firm. New counsel for Dr. Nguyen filed an opposition to the motion for new trial on May 16, 2024, before enrolling as counsel. On May 23, 2024, counsel for Dr. Nguyen filed a motion to withdraw and substitute counsel of record. Mr. Gloston's attorney then filed a motion in opposition. The trial court continued the date on the hearing on the motion for new trial to allow counsel for Dr. Nguyen time to refile the opposition. Mr. Gloston argues that Dr. Nguyen's counsel had to refile the opposition to Mr. Gloston's motion for trial after she properly enrolled, which she did not, so she should not have been allowed to argue at the hearing on motion for new trial.

A trial court has discretion in deciding whether to allow oral argument because “it is clear that oral argument is a privilege, not a right, and is normally forfeited by the failure to comply with filing guidelines.” O'Connor v. Nelson, 10-250, p. 6 (La.App. 5 Cir. 1/11/11), 60 So.3d 27, 32; See also Teague v. Forest River, Inc., 24-975 (La.App. 1 Cir. 4/23/25), 409 So.3d 1152. We find that the trial court did not abuse its discretion in allowing counsel to argue at the hearing on the motion for new trial. While counsel for Dr. Nguyen did not refile the opposition, counsel was a member of the same law firm as previous counsel who represented Dr. Nguyen.

Mr. Gloston additionally argues that the trial court erred when it sustained Dr. Nguyen's objection to his previous attorney's testimony as hearsay. In his motion for new trial, Mr. Gloston argued that he had evidence that indicates that the 2020 motion for extension of time was untimely. Louisiana Code of Civil Procedure Article 1972(2) provides that: “A new trial shall be granted, upon contradictory motion of any party, in the following cases: ․ [w]hen the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial.”

Mr. Gloston sought to introduce the testimony of his previous attorney, Mr. Moses, by way of affidavit attached to his motion for new trial and at the hearing. Dr. Nguyen objected arguing that it was hearsay testimony and additionally, it was also evidence that could have been obtained at the time of the hearing on the exceptions. The trial court noted the objections but allowed Mr. Moses to testify.

Through the testimony of Mr. Moses, Mr. Gloston sought to introduce evidence about Mr. Moses’ conversation with the clerk's office concerning the timeliness of the filing of the motion to extend. At the end of the testimony, the trial court noted that there was no new evidence presented that was not previously argued, so it denied Mr. Gloston's motion for new trial.

We agree with the argument of Dr. Nguyen that the evidence offered by Mr. Gloston faced significant hurdles in its admission even though the trial court allowed it. It was not new evidence since it was available at the time of hearing on the motion for new trial as required by La.Code Civ.P. art. 1972(2). Furthermore, beyond the newly discovered evidence barrier, Mr. Moses’ testimony was inadmissible hearsay since it was an out-of-court statement offered for the truth of the matter asserted. La.Code Evid. art. 801(C); La.Code Evid. art. 802.

We find no abuse of discretion in the trial court's ruling denying Mr. Gloston's motion for new trial.

DAMAGES FOR FRIVOLOUS APPEAL

Dr. Nguyen requests damages and attorney fees for a frivolous appeal pursuant to La.Code Civ.P. art. 2164. “The proper procedure for an appellee to request frivolous appeal damages is to file either an answer to the appeal or a cross appeal.” Garsee v. Sims, 54,832, p. 11 (La.App. 2 Cir. 1/11/23), 355 So.3d 1149, 1157, writ denied, 23-407 (La. 6/21/23), 362 So.3d 428. Damages cannot be awarded when the request is first made only in brief. Id. Since Dr. Nguyen filed neither an answer nor a cross appeal, we cannot consider an award of damages for a frivolous appeal.

For the reasons set forth in this opinion, the judgment of the trial court sustaining Dr. Nguyen's exceptions of prematurity and prescription are affirmed. Costs of this appeal are assessed to Anthony Gloston.

AFFIRMED.

FOOTNOTES

1.   There is no indication in the record as to Anthony's relation to Ms. Gloston.

BRADBERRY, Judge.