IN RE: Medical Review Proceedings of Jeffrey T. MITCHELL (2026)

Plaintiff/Appellant, Willie B. Southern, Jr. (“Mr. Southern”), appeals a judgment sustaining a peremptory exception of prescription in favor of Defendants/Appellees, Hospital Service District No. 1 of Tangipahoa Parish d/b/a North Oaks Health System (“North Oaks Hospital”), Vijay Thumma, M.D., Daniel Linarello, M.D., Stacy Newman, M.D., Jessi Cooper, R.N., and Kim Farlow, R.N. (collectively “the defendants”) and dismissing Mr. Southern's case against the defendants with prejudice. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY 1

On July 6, 2023, Mr. Southern filed a medical review panel request with the Division of Administration (“DOA”) for the death of his son, Jeffrey T. Mitchell.² Mr. Southern listed July 6, 2022 as the date of alleged medical malpractice, and he named North Oaks Hospital; Matloob Rehman, M.D.; Jessi Cooper, R.N.; Kim Farlow, R.N.; and “his kidney doctor” as the defendants. Mr. Southern's medical review panel request was sent to the Patient's Compensation Fund (“PCF”), which acknowledged receipt of the request by a certified letter dated July 17, 2023. The letter stated that Mr. Southern's request was assigned file number 2023-00675, and it identified North Oaks Hospital as a qualified health care provider. The letter further stated that verification was being obtained for Dr. Rehman, Ms. Cooper, and Ms. Farlow. The letter also advised the following:

In accordance with [La.] R.S. 40:1231.8(A)(1)(c) a filing fee of $100 per qualified defendant must be received by the [PCF] within 45 days of your receipt of this notice. Please remit full payment to the [PCF] in the amount of $100. This filing fee may only be waived upon receipt of an affidavit from a physician or a district [court] in forma pauperis ruling as set forth in [La.] R.S. 40:1231.8(A)(1)(d). Failure to comply shall render the request invalid and without effect as to the above referenced qualified provider(s). The request shall not suspend the time within which suit must be instituted.

On August 7, 2023, the PCF sent a certified letter to Mr. Southern advising him that Dr. Rehman, Ms. Cooper, and Ms. Farlow were all qualified healthcare providers. The letter also included the same payment directions as the July 17, 2023 letter, and it stated that Mr. Southern must remit an additional filing fee of $300 within forty-five days of receipt of the letter. On September 25, 2023, the PCF sent Mr. Southern a certified letter stating that it had not received a filing fee of $100 for North Oaks Hospital, so his request for review was invalid and without effect as to that qualified health care provider. Afterward, on September 27, 2023, the PCF emailed Mr. Southern, reminding him that he was required to pay the $300 filing fee for his claims against Dr. Rehman, Ms. Cooper, and Ms. Farlow. However, Mr. Southern failed to pay the $300 filing fee.

On October 4, 2023, Mr. Southern filed a second medical review panel request with the DOA. Mr. Southern contended that the alleged medical malpractice occurred on July 7, 2022, and named Vijay Thumma, M.D.; David Oubre, M.D.; Daniel Linarello, M.D.; and Stacy Newman, M.D. as the defendants. Mr. Southern further stated that he was “[r]equesting that North Oaks Hospital be [reinstated in the] medical review panel.” The PCF acknowledged receipt of Mr. Southern's second medical review panel request by a certified letter dated October 16, 2023, and the request was assigned file number 2023-00977.

On January 3, 2024, the defendants filed a petition to institute discovery in the Twenty-First Judicial District Court for the Parish of Tangipahoa. On March 5, 2024, some defendants filed a peremptory exception of prescription, asserting that both of Mr. Southern's medical review panel requests should be dismissed with prejudice.³ After a hearing, the trial court sustained those defendants’ exception of prescription and dismissed Mr. Southern's case against the defendants with prejudice.⁴ Mr. Southern appealed. On April 7, 2025, this court found that the trial court erred by granting the exception of prescription in the absence of properly admitted evidence, vacated the trial court's judgment, and remanded the matter back to the trial court for further proceedings.⁵ In re Mitchell, 2024-0997 (La. App. 1st Cir. 4/7/25), 2025 WL 1024014, *3 (unpublished).

On April 14, 2025, Mr. Southern filed a motion to re-set the exception of prescription. The next day, the defendants refiled their exception of prescription, contending that Mr. Southern's medical review panel requests should be dismissed. The defendants also filed a supplemental memorandum in support of their exception. The defendants contended that Mr. Southern filed his first medical review panel request on July 6, 2023 and listed the date of the alleged malpractice as July 6, 2022, but Mr. Southern did not pay the required fee, so prescription was not interrupted. The defendants further contended that Mr. Southern filed a second medical review panel request on October 4, 2023 and listed the date of the alleged malpractice as July 7, 2022, which was prescribed on its face. Thereafter, Mr. Southern filed an opposition to the defendants’ supplemental memorandum.

On July 21, 2025, the trial court heard the defendants’ exception of prescription and orally ruled that Mr. Southern's first medical review panel request was timely filed; however, it could not be given any effect due to Mr. Southern's failure to pay the filing fees. The trial court further found that Mr. Southern's second medical review panel request was prescribed on its face, as the alleged medical malpractice occurred more than one year prior to the request being filed. Therefore, the trial court sustained the defendants’ exception of prescription and dismissed Mr. Southern's claims with prejudice. On August 14, 2024, the trial court signed a judgment in accordance with its ruling.

Mr. Southern appeals, contending the trial court erred in sustaining the defendants’ exception of prescription. Specifically, Mr. Southern alleges: (1) the trial court erred in sustaining the defendants’ exception despite the fact that he did not have actual or constructive knowledge of actionable malpractice until medical records were obtained on June 29, 2023, thereby satisfying the discovery rule exception under La. R.S. 9:5628; (2) the trial court erred by failing to apply contra non valentem; (3) the trial court erred in holding that his failure to timely pay PCF filing fees rendered his first medical review panel request invalid and without effect and caused his claim to be barred by prescription; (4) the trial court erred in finding that his efforts to consult counsel constituted constructive knowledge of malpractice; (5) the trial court erred in dismissing his action with prejudice; and (6) the trial court erred in failing to consider that his claims also included federal disability discrimination allegations.

DISCUSSION

Louisiana Revised Statutes 9:5628 establishes the time for filing medical malpractice actions. The statute requires that actions for medical malpractice be brought within one year of the alleged act, omission, or neglect, or within one year from the date of discovery. Additionally, even as to claims filed within one year of the discovery of the alleged malpractice, all such claims must be filed, at the latest, within three years from the date of the alleged act, omission, or neglect. La. R.S. 9:5628(A). Medical malpractice claims are governed by the specific provisions of the Louisiana Medical Malpractice Act regarding suspension of prescription to the exclusion of the general civil code articles on interruption of prescription. In re Medical Review Panel Proceedings for Causey (PCF NO. 2020-00797), 2022-1287 (La. App. 1st Cir. 6/20/23), 370 So. 3d 503, 505-06. Prescription begins to run when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he is the victim of a tort. In re Medical Review Panel of Heath, 2021-01367 (La. 6/29/22), 345 So. 3d 992, 996.

Ordinarily, the exceptor bears the burden of proof at the hearing on the exception of prescription; however, if the action is prescribed on its face, the plaintiff bears the burden of showing that the action has not prescribed. Bailey v. Loewe, 2019-0915 (La. App. 1st Cir. 8/3/20), 310 So. 3d 746, 748. When an exception of prescription is filed during the medical review panel stage of the proceedings, the request for a medical review panel is considered the “petition” to be reviewed for timeliness. Id. Further, when evidence is introduced at the hearing on an exception of prescription, as is the case before us, an appellate court reviews a trial court's factual determinations, express or implied, under the manifest error standard of review. In re Medical Review Panel Proceedings for Causey (PCF NO. 2020-00797), 370 So. 3d at 506.

At the hearing on the exception of prescription, the defendants introduced the entire record, including the documents that were attached to the defendants’ supplemental memorandum in support of the exception: Mr. Southern's first medical review panel request filed July 6, 2023; the PCF's letter dated July 17, 2023; U.S. Postal Service certified mail receipts; U.S. Postal Service tracking information; the PCF's letter dated August 7, 2023; the PCF's letter dated September 25, 2023; the PCF's email dated September 27, 2023; Mr. Southern's second medical review panel request filed October 4, 2023; and the PCF's letter dated October 16, 2023. The record also included medical records from North Oaks Hospital, which were attached to Mr. Southern's opposition memorandum.

In his first, second, and fourth assignments of error, Mr. Southern contends the trial court erred in sustaining the defendants’ exception of prescription.⁶ Mr. Southern argues that his second medical review panel request was filed within the three-year prescriptive period set forth in La. R.S. 9:5628(A). Mr. Southern relies upon the discovery exception, which is embodied in La. R.S. 9:5628(A), and provides a codification of the fourth category of contra non valentem ⁷ for cases where the cause of action is not immediately knowable. In re Medical Review Panel for Claim of Moses, 2000-2643 (La. 5/25/01), 788 So. 2d 1173, 1178. Specifically, Mr. Southern contends that his efforts to obtain counsel did not constitute actual or constructive knowledge of malpractice and that he did not have actual or constructive knowledge of malpractice until he obtained his son's medical records on June 29, 2023.

Constructive knowledge is whatever notice is enough to excite attention and put the injured party on guard and call for inquiry. Campo v. Correa, 2001-2707 (La. 6/21/02), 828 So. 2d 502, 510-11. Such notice is tantamount to knowledge or notice of everything to which a reasonable inquiry may lead. Id. at 511. Such information or knowledge as ought to reasonably put the alleged victim on inquiry is sufficient to start the running of prescription. Id. When a plaintiff has knowledge of facts strongly suggestive that the untoward condition or result may be due to improper treatment, and there is no effort by the health care provider to mislead or cover up information which is available to the plaintiff through inquiry or professional medical or legal advice, then the cause of action is reasonably knowable to the plaintiff. Bailey v. Loewe, 2019-1201 (La. App. 1st Cir. 7/23/20), 309 So. 3d 355, 361-62, writ denied sub nom., Bailey (D) v. Loewe, 2020-01146 (La. 11/18/20), 304 So. 3d 418.

At the hearing on the exception, Mr. Southern stated that he discovered the alleged malpractice on June 29, 2023, which is the date he received his son's medical records. He further stated that he did not receive the medical records until June 29, 2023 because, initially, he was looking to hire an attorney to help him with this matter. However, he was unable to find an attorney to take his case, so he requested the medical records himself. While Mr. Southern claims he did not know of the alleged malpractice until June 29, 2023, it appears that his attention was excited, and he was on guard before that date because his first medical review panel request was filed on July 6, 2023.⁸ Additionally, in Mr. Southern's first medical review panel request, he made allegations that the doctors and nurses administered too much medication to his son, and he indicated that he spoke to a doctor about his concern. The knowledge that doctors or nurses may have administered too much medication to his son would have reasonably put Mr. Southern on guard or call for inquiry and was sufficient to start the running of prescription. Accordingly, we find that the trial court did not err in sustaining the defendants’ exception of prescription. These assignments of error are without merit.

In his fifth assignment of error, Mr. Southern contends that the trial court erred in dismissing his action with prejudice based on procedural technicalities rather than adjudicating the substantive wrongful death and medical negligence claims. He argues that the trial court's dismissal of his action with prejudice violated La. C.C.P. art. 934, La. Const. art. I § 22, and the Due Process Clause of the Fourteenth Amendment. Peremptory exceptions are designed to preclude a right of action. When an exception of prescription is granted, the action “shall be dismissed.” See La. C.C.P. art. 934. A lawsuit dismissed because it is prescribed is over, and the dismissal ought to be with prejudice. Pate v. Regional Transit Authority, 2008-1147 (La. App. 4th Cir. 3/11/09), 8 So. 3d 744, 749. Therefore, we find no merit to Mr. Southern's argument that the trial court's dismissal of his action with prejudice unconstitutionally denied him access to the courts or violated La. C.C.P. art. 934 or his due process rights. This assignment of error is without merit.

In his sixth assignment of error, Mr. Southern contends that the trial court erred in failing to consider that his claims also included federal disability discrimination allegations under the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act of 1973, § 504. In his appellant brief filed with this court, Mr. Southern contends that his son suffered discrimination due to his HIV status and experienced treatment delays, stigmatized chart language, denial of diagnostic procedures, and issues with palliative care decision-making. However, Mr. Southern did not assert an independent claim under the ADA or the Rehabilitation Act in the medical review panel request nor did he petition for such relief. Rather, those allegations appeared for the first time in Mr. Southern's supplemental memorandum in opposition to the exception of prescription. However, Mr. Southern cannot allege facts to support a federal disability discrimination claim in a memorandum in opposition to an exception of prescription. A memorandum is not recognized as a pleading, and arguments and allegations made in memoranda are not evidence. See La. C.C.P. arts. 852, 856, 891; Moore v. Vauthier, 2023-1046 (La. App. 1st Cir. 4/19/24), 389 So. 3d 872, 879. Accordingly, this assignment of error is without merit.

CONCLUSION

For the above and foregoing reasons, the August 14, 2025 judgment in favor of Hospital Service District No. 1 of Tangipahoa Parish d/b/a North Oaks Health System, Vijay Thumma, M.D., Daniel Linarello, M.D., Stacy Newman, M.D., Jessi Cooper, R.N., and Kim Farlow, R.N., and against Willie B. Southern, Jr. is affirmed. All costs of this appeal are assessed one-half to Willie B. Southern, Jr. and one-half to Hospital Service District No. 1 of Tangipahoa Parish d/b/a North Oaks Health System, Vijay Thumma, M.D., Daniel Linarello, M.D., Stacy Newman, M.D., Jessi Cooper, R.N., and Kim Farlow, R.N.

AFFIRMED.

FOOTNOTES

2.   The DOA stamped the filing date of Mr. Southern's medical review panel request as July 7, 2023. However, the request for review of a malpractice claim shall be deemed filed on the date the request is sent, if the request is electronically sent by facsimile transmission or other authorized means, as provided by La. R.S. 9:2615(A), to the DOA. See La. R.S. 40:1231.8(A)(2)(b)(i)(aa). Here, Mr. Southern's request was electronically sent by facsimile transmission on July 6, 2023, so it is deemed filed on that date.

3.   The defendants filed a memorandum in support of their exception, contending that Mr. Southern's claims in his first medical review panel request were prescribed because he failed to timely pay the fee associated with the medical review panel request. The defendants also argued that Mr. Southern's second medical review panel request was separate and distinct from his first medical review panel request and was prescribed on its face.

4.   On June 5, 2024, the trial court signed a judgment sustaining the defendants’ exception and dismissing Mr. Southern's case against the defendants with prejudice. However, the June 5, 2024 judgment contained deficiencies, so the trial court signed an amended judgment correcting those deficiencies on February 11, 2025. Thereafter, the record was supplemented on appeal with the February 11, 2025 amended judgment.

5.   This court stated that it had no petition or evidence to consider, so it could not determine the merits of the exception. In re Mitchell, 2025 WL 1024014 at *3. Moreover, this court determined that the petition to institute discovery did not contain the date of discovery of the alleged malpractice and the request for a medical review panel was not attached to or filed along with that petition. Id.

6.   Mr. Southern's second medical review panel request listed the date of the alleged malpractice as July 7, 2022, and it was filed on October 4, 2023, so it was prescribed on its face. Thus, Mr. Southern had the burden of proving that his second request was not prescribed.

7.   Contra non valentem, a jurisprudentially-created exception to prescription, adopted to “soften the harshness of prescriptive statutes,” generally means that prescription does not run against a person who could not bring his suit. Mitchell v. Baton Rouge Orthopedic Clinic, L.L.C., 2021-00061 (La. 12/10/21), 333 So. 3d 368, 374. The fourth category of contra non valentem operates to prevent the running of prescription where the cause of action is not known or reasonably knowable by the plaintiff, even though this ignorance is not induced by the defendant. Id. If the plaintiff relies on a contra non valentem defense pursuant to La. R.S. 9:5628, the plaintiff must prove that he was unaware of the malpractice before the alleged date of discovery, and his delay in filing suit was not due to his willful, negligent, or unreasonable action. In re Doe, 2021-1258 (La. App. 1st Cir. 6/14/22), 344 So. 3d 652, 654, writ not considered, 2022-01094 (La. 10/18/22), 348 So. 3d 732.

8.   In his third assignment of error, Mr. Southern contends that the trial court erred in finding his first medical review panel request invalid and without effect. Mr. Southern first requested a medical review panel on July 6, 2023, and he listed the date of the alleged medical malpractice as July 6, 2022. Mr. Southern's first request was timely. However, Mr. Southern did not pay the required fees. A request for a medical review panel is not valid and effective until the requisite filing fee is paid. Medical Review Panel for Bush, 2021-00954 (La. 5/13/22), 339 So. 3d 1118, 1124. The filing fee for the request is “one hundred dollars per named defendant” qualified health care provider. La. R.S. 40:1231.8(A)(1)(c). If a claimant fails to timely pay $100 per named, qualified defendant, the request for medical panel review is invalid and without effect. Medical Review Panel for Bush, 339 So. 3d at 1124-25. More importantly, the request filed does not suspend prescription if the claimant fails to pay the full filing fee. Id. at 1125. Here, there is no dispute that the defendants were qualified healthcare providers and that Mr. Southern did not pay the requisite filing fee. Therefore, we find that Mr. Southern's first medical review panel request is invalid and without effect. This assignment of error is without merit.

MILLER, J.